OHM LLC Payroll Service Terms and Conditions

These terms and conditions govern the use of the OHM LLC Payroll Service (the “Service”). “Client” refers to the business using the Service. “Company” is OHM LLC, a New Jersey corporation, along with its affiliates, officers, directors, employees, agents, contractors and service providers.

1. SERVICE. Company will provide Client the Service in accordance with these terms and conditions. Client will submit a minimum of ten (10) business days before the initial payroll processing date, the completed and executed documents Company requires for providing the Service, which documents shall include any federal, state or local powers of attorney required by Company, Client account information and any additional information requested by Company. Subsequent to the initial payroll processing, Client will complete and execute any renewals, amendments or replacements of documents which Company deems necessary. The Service is accessed through Company’s Online Service, using a computer and modem to electronically connect with a database (the “Website”) that allows Client to perform payroll processing, payroll tax services and other related payroll services, send secure electronic mail to Company and receive electronic mail from Company.

Initial access to the Service may be requested only by Client’s authorized payroll contact or Security Administrator. By clicking on the “Accept” button below in the electronic version of these terms and conditions, the Security Administrator indicates on behalf of Client its execution and acceptance of the electronic delivery of the Service and these terms and conditions and its authorization and informed consent to the electronic Alert Notice and delivery of Electronic Records.

2. TAX INFORMATION; VERIFICATION OF DATA. In order for the Service to be instituted, Client must submit accurate wage and payroll information (“Payroll Information”) to Company during the enrollment process. The initial Payroll Information must be reconciled with Client’s payroll tax returns for the current calendar year and Client’s wage and payroll tax information for the current quarter. Thereafter, Client must timely and accurately (i) update all Payroll Information as necessary to reflect changes and (ii) respond with additional information requested from time to time by Company.

Company will notify Client via electronic communication when all Payroll Information required to begin the Service, has been received and the enrollment process has been completed. Client shall then, prior to submitting its first payroll, review for completeness and accuracy the Payroll Information as posted on the specified portion of the Website, including, but not limited to, that which is used to calculate and pay employee payroll, track Client-defined employee benefits, pay payroll taxes to applicable taxing agencies in compliance with the laws and regulations of such taxing agencies, produce payroll tax returns and W-2 statements and print checks on Client’s account (if applicable). Client must correct incorrect or missing Payroll Information, either by itself or by notifying Company in the manner specified in the electronic communication and within the time period specified therein.

3. REPRESENTATIONS RELATING TO TAX INFORMATION. Client agrees that by submitting each payroll (including the first payroll): (a) Client has approved all Payroll Information, (b) Client has waived and released any claim against Company arising out of any errors in the Payroll Information which Client has not itself corrected or has not requested Company to correct, and (c) any subsequent request for corrections will be considered special handling and additional fees may be charged. Final audit responsibility rests with Client. Company will not have any responsibility for verifying the accuracy of any data Client provides or directly inputs via the Internet or any other electronic method. Any penalty or interest incurred due to inaccurate Payroll Information provided by Client will be the sole responsibility of Client. Client further agrees to hold Company harmless from such liability. Company, at its option, may decide not to file Client’s payroll tax returns, pay Client’s payroll taxes or otherwise process Client’s payroll if there are any unresolved problems with any Payroll Information requested by Company or submitted by Client.

4. COMPANY TAX-SPECIFIC OBLIGATIONS. Client agrees that:

1. It will deposit immediately any FICA, Federal, State and Local withholding liabilities incurred to date (before the payroll processing with the Company).
2. It will submit any payroll returns to tax agencies (state, federal, and/or local) that are now due.
3. It will cancel any prior payroll service or leasing agency and inform them how to handle the taxes according to this documentation (described in A. and B. above).
4. It will request a refund of withheld but un-deposited FUTA (federal unemployment) and SUI (state unemployment) for the current quarter.
5. It will notify Company immediately of any deposited current quarter FUTA and/or SUI.
6. Effective with the first check date, Company will assume responsibility for FUTA and SUI liabilities incurred in the calendar quarter of the first processing. Company will debit the Client’s account with the first payroll processing, for FUTA and SUI liabilities incurred in the current quarter previous to the first processing with the Company. The debit amount will be calculated based on the current quarter wage detail provided by the Client during implementation.

5. LIABILITY AND INDEMNIFICATION. The following provisions govern the respective liabilities of Client and Company in relation to the Service.

Client’s Duty of Care. Client must exercise good faith and ordinary care in performing its obligations in relation to the Service. In addition, Client must promptly examine each written or electronic confirmation, report, periodic statement, notice or other document related to the Service and notify Company of any error, omission or other discrepancy reflected in such confirmation, report, periodic statement, notice or document within 30 days after it is sent or made available to Client.

Company’s Duty of Care. In performing the Service, Client agrees that Company is not acting as a fiduciary for Client or its benefit and that Company’s responsibility is limited to acting in good faith and exercising ordinary care. In that regard, the Service has several unique characteristics that relate to our duty of care. For example, use of the Service necessitates large volumes of transactions that are processed in a highly automated environment. The procedures for the Service have been designed in light of those characteristics to maximize Client’s ability to use the Service in an efficient manner while minimizing costs and inconvenience. Client agrees that these procedures are commercially reasonable and that Company will be deemed to have exercised ordinary care if it substantially complies with the procedures. Client also agrees that clerical errors, mistakes in judgment, and occasional or unintentional deviations by Company from the procedures will not be deemed to constitute a failure to exercise ordinary care. Client also agrees that Company will not be deemed to have failed to exercise ordinary care with respect to any error, delay or failure to perform caused by (i) fire, natural disaster, strike, civil unrest, terrorism, failure of computer or communications facilities, (ii) the acts or omissions of any third party (including any Federal Reserve Bank, clearing house or funds transfer system) or (iii) any circumstance beyond Company’s reasonable control or for which Company does not have responsibility under these terms and conditions.

Conditions on Company’s Liability. Company will have no liability to Client unless Company fails to satisfy its duty of care as described above. If Company fails to satisfy that duty of care, Client agrees that Company will have no liability for any losses or damages resulting from that failure unless (i) Client has satisfied its duty of care as described above (including the duty to discover and report any error, omission or other discrepancy reflected in any confirmation, report, periodic statement, notice or document to Company within the applicable period), (ii) Client promptly gives Company written proof of its losses or damages and cooperates fully with Company in investigating the error, omission or other discrepancy and its losses or damages, and (iii) Client brings any claim, action or proceeding against Company with respect to any error, omission or discrepancy within one year after it occurred (in that regard, if the error, omission or discrepancy is a repetitive one, all such errors, omissions or discrepancies will be deemed to have occurred on the date of the first such error, omission or discrepancy).

Limits on Company’s Liability. If Company fails to satisfy its duty of care and Client has satisfied the conditions to Company’s liability, both as described above, then Client agrees that (i) as to the payroll tax portion of the Service, Company’s sole liability and Client’s sole remedy for Company’s failure to perform such payroll tax services shall be (a) Company will remit the payroll taxes received from Client to the appropriate taxing authority and (b) Company will reimburse Client or pay directly to the taxing authority any penalties resulting from such negligent error or omission by Company, and (ii) as to all other obligations, Company’s liability to Client will be limited to any of its monetary losses or damages that are a direct result of that failure, up to the lesser of (i) the amount of the transaction to which the error, omission or other discrepancy relates or (ii) the amount of the fees that Client has paid for the Service for the 6 months preceding the month in which the failure occurred. Client also agrees that Company will never be liable for any indirect, consequential, special, punitive or exemplary losses or damages, without regard to the form of the claim or action or whether the claim is in contract, tort or otherwise, and even if Company knew such losses or damages were possible or likely. To the extent Company is required by applicable law to pay Client interest on any amount for which it is liable under this section, that interest will be determined by using the “federal funds rate” Company paid at the close of business on each day during the period beginning on the day such failure occurred until Company has paid the full amount of its liability. If Company reimburses Client for any loss or damage, Client agrees to transfer all of its rights relating to the transactions in question to Company and to assist fully in any efforts or legal actions taken to recover those amounts from any third party.

Disclaimer of Warranties. To the maximum extent permitted by law, Company disclaims all representations and warranties of any kind, whether express or implied, with respect to the Service, the software materials, the online services, and any equipment or software used in connection with the Service, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.

Client’s Indemnification Obligations. Unless finally determined by a court or arbitrator having proper jurisdiction to have been caused by Company’s negligence or intentional misconduct, Client agrees to defend, indemnify, protect and hold Company, including its agents, contractors and service providers, affiliates, and its and their officers, directors, employees, agents, and contractors , harmless from and against any and all liabilities, claims, damages, losses, demands, fines (such as fines imposed by any Federal Reserve Bank, clearing house or funds transfer system), judgments, disputes, costs, charges and expenses (including litigation expenses, other costs of investigation or defense and reasonable attorneys’ fees) which relate in any way to the Service (such as those caused by: (i) Client’s failure to comply in a significant manner with any of these terms and conditions, (ii) the failure of any of Client’s representations or warranties to be true and correct in any material respect at any time or (iii) any instructions Client gives to Company).

6. ACCOUNT DEBITING. On or prior to Client’s payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, Client authorizes Company to initiate debit entries to Client account designated for the Service (“Client’s Account”) and to debit Client’s Account in such amounts as are necessary to (a) fund Client’s direct deposits, (b) pay any fees or charges associated with the Service, including, without limitation, finance charges, (c) pay Client’s payroll taxes, (d) pay any debit, correcting or reversing entry initiated pursuant to this Agreement which is later returned to Company, and (e) pay any other amount that becomes owed in respect of the Service. This authorization is to remain in full force and effect until Company has received written notice from Client of its termination in such time and such manner as to afford Company a reasonable opportunity to act upon it. Client will maintain in Client’s Account as of the applicable settlement date and time immediately available funds sufficient to cover all credit entries Client originates through Company. Client’s obligation to pay Company for each credit entry matures at the time Company transmits or otherwise delivers the credit entry to the Automated Clearing House (“ACH”) or gateway operator and is unaffected by termination of the Service. Company may set off against any amount it owes to Client in order to obtain payment of Client’s obligations. Client acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Amounts withdrawn for payroll taxes will be held by Company (the “Payroll Tax Account”) until such time as those payments are due to the appropriate taxing agencies, and no interest will be paid to the Client on these amounts.

If Client does not have sufficient funds in Client’s Account to pay disbursements, fees, payroll taxes or any other amounts due under this Agreement at the time required, or if Client refuses to pay, Company may (a) debit the Payroll Tax Account to pay disbursements, fees or charges, payroll taxes, or other amounts due, (b) refuse to pay any collected or collected but un-remitted payroll taxes, in which case the payroll tax liability will become the sole responsibility of Client, (c) refuse to perform further services, and/or (d) immediately terminate this Agreement. Company may assess finance charges on any amounts owing and unpaid ten (10) days after demand. Finance charges are assessed at a rate of 1.5% per month (18% per annum) or the highest amount permitted by law, whichever is less. Company may recover from Client any costs including, without limitation, reasonable attorneys’ fees and expert witnesses’ fees Company may incur in connection with any termination of this Agreement or collection of amounts due hereunder.

7. SERVICE FEES AND CHARGES. Client agrees to pay Company for the Service in accordance with the fees set forth in the Fee Schedule which is accessed by logging into Client’s payroll application on the Website. Client will also reimburse Company for sales, use and similar taxes arising from this Agreement that federal, state or local government may impose.

8. CHANGES TO THE SERVICE. Company reserves the right to change the terms, conditions, and fees for the Service at any time. Company will provide thirty (30) days prior notice of any material change, including fees. Notice may be provided in writing or via the Website. If Client does not wish to be bound by such change, it may discontinue using and terminate the Service before the change becomes effective. If Client continues to use the Service after the change becomes effective, it will be bound by the change. Client has the responsibility to assure that Client’s address, including any electronic address(es), and account information, in Company’s records are accurate. The timing of an advance notice of change may be shortened when permitted or required by law.

9. SECURITY PROCEDURES. Following acceptance of these terms and conditions by the Security Administrator, will be able to access the Service for purposes of the Service, the Security Administrator shall act as the initial payroll approver (“Primary Payroll Approver”), with full authority to administer Client’s use of the Service. Client may also designate one or more other persons to serve as additional Payroll Approvers (“Additional Payroll Approvers”). The Primary Payroll Approver shall be responsible for managing access to and use of the Service by all Additional Payroll Approvers and for limiting, where Client deems appropriate, the level and extent of such access. The Primary Payroll Approver will assign unique user identification numbers to such Additional Payroll Approvers and will set and, as needed, reset passwords for all users of the Service. Client agrees that Company may rely on any instruction given by any Payroll Approver in relation to the Service.

Any Service transaction initiated by persons entering the correct password is deemed to have been effected with full authority of Client’s governing body. Each time a Payroll Approver accesses the Service, the Payroll Approver will be required to enter the necessary password. Company has no obligation to verify, by telephone or by any other means, any transaction request it receives through the Service. If any person’s password is lost or stolen, or is known by an individual other than the Primary Payroll Approver, Client must notify Company immediately. Failure to notify Company promptly could result in loss of funds and unauthorized access to confidential information concerning Client and its employees Client may contact Company at info@ohmpayroll.com to report any security breach. Company reserves the right to prevent access to Service should Company have reason to believe the confidentiality of passwords has been compromised.

Client understands that Company has implemented security procedures for the purpose of verifying the authenticity of the payment instructions transmitted to Company (“instructions”), and not for the purpose of detecting errors in such instructions. Such security procedure includes (i) a unique user identification numbers and passwords and (ii) encryption. Client agrees that such procedures constitute a commercially reasonable method of providing security against unauthorized instructions. Client agrees to be bound by any instruction received and verified by Company in accordance with such security procedures, and Client shall indemnify and hold Company harmless from and against any loss suffered or liability incurred by, or arising from, the execution of instructions in good faith and in compliance with such security procedures.

If an instruction describes the receiver inconsistently by name and account number (i) payment may be made on the basis of the account number, even if it identifies a person different from the named receiver or (ii) Company may in its sole discretion refuse to accept or may return the instruction. If an instruction describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the financial institution. If an instruction identifies a non-existent or unidentifiable person or account as the receiver or the receiver’s account, Company may in its sole discretion refuse to accept or may return the instruction.

In an effort to provide the highest degree of confidentiality and security, Company recommends the use of internet browsers that provide encryption using a 128-bit key. The higher the level of encryption, the harder it is for unauthorized people to read information. Commercial off-the-shelf browsers typically support 40-bit encryption; however, many browser suppliers (Netscape and Microsoft) offer special 128-bit encryption versions, available for download from their respective websites. Company recommends that all Clients protect their valuable financial information by using the most secure encryption possible. Company is not liable for losses resulting from the use of 40-bit encryption. If Client elects to use the 40-bit browser, this implies Client’s acceptance of this risk.

Payroll Approvers may communicate with Company by telephone about the Service, although Company may in its sole discretion refuse to accept or act upon any telephonic instructions. Company may utilize security procedures for the purpose of verifying the identity of such Payroll Approvers, including the use of unique security identification numbers generated by the Website and other security protocols. Client acknowledges that any such telephone communication will be made available for Client’s benefit and convenience, that the security procedures instituted by Company are commercially reasonable methods of providing security, and that any Payroll Information, Entries or other instructions communicated to Company will be deemed to have been fully authorized by Client.

10. ACH ORIGINATION. The Service will enable Client by using the Website to enter the Payroll Information and to approve and submit it to Company for creation, formatting and transmission of automated clearinghouse entries (“Entries,” each an “Entry”) in accordance with the Rules (as defined below). Company may reject any Payroll Information or Entry created from Payroll Information which does not comply with the requirements of the Service or the Rules or with respect to which Client’s Account does not contain sufficient available funds to pay for the Entry. If any Payroll Information or Entry is rejected, Company will make a reasonable effort to notify Client promptly, so that Client may correct such Payroll Information or request that the Company correct the Entry and resubmit it. A notice of rejection will be effective when given. Company will have no liability to Client by reason of the rejection of any Payroll Information or Entry, the fact that notice is not given at an earlier time than that provided for in this Agreement or for any loss resulting from Company’s failure to provide notice.

Client will have no right to cancel or amend any Payroll Information received by Company after it has been approved by Client’s Payroll Approver and submitted to Company. However, if Client’s request complies with the security procedure, Company may use reasonable efforts to act on it prior to transmitting the Entries to the ACH or gateway operator, but will have no liability if the cancellation or amendment is not effected. Client will reimburse Company for any expenses, losses or damages Company may incur in effecting or attempting to affect Company’s request.

Except for Entries created from Payroll Information that has been re-approved and resubmitted by Client in accordance with the requirements of this Agreement, Company will have no obligation to retransmit a returned Entry to the ACH or gateway operator if Company complied with the terms of this Agreement with respect to the original Entry.

Company will process the Payroll Information and Entries in accordance with its then-current processing schedule, provided (i) the Payroll Information is approved by Client and received by Company no later than Client’s applicable cut-off time on a business day and (ii) the ACH is open for business on that business day. If Company receives approved Payroll Information after Client’s cut-off time, Company will not be responsible for failure to process the Payroll Information on that day. If any of the requirements of clause (i) or (ii) of this subsection are not met, Company will use reasonable efforts to process the Payroll Information and transmit the Entries to the ACH with the next regularly scheduled file created by Company which is on a business day on which the ACH is open for business.

Origination, receipt, return, adjustment, correction, cancellation, amendment and transmission of Entries must be in accordance with the Operating Rules of the ACH in which Company is a participant and, as applicable with respect to certain credit entries, Article 4A of the Uniform Commercial Code as adopted in the state of Georgia, as both are varied by these terms and conditions and the other documents and agreements relating to the Service, and as both are otherwise amended from time to time (collectively, the “Rules”). Client acknowledges that it has had an opportunity to review and agrees to comply with and be bound by the Rules. Client will be responsible for promptly obtaining all future amendments. Client acknowledges that it will not submit Payroll Information that will result in Entries that would violate the sanctions program of the Office of Foreign Assets Control of the United States Treasury or any other applicable laws or regulations.

Any credit Company gives to Client is provisional until Company receives final settlement and the Entry for which credit was given is deemed to be finally paid as provided in this Agreement, the Rules and all laws, rules and regulations governing any aspect of the Entry, including the laws, rules and regulations of the country to which the Entry was sent. If Company does not receive final settlement, it is entitled to a refund from the credited person and Client will not be deemed to have paid that person.

At Client’s request, Company will make a reasonable effort to reverse an Entry, but will have no responsibility for the failure of any other person or entity to honor Client’s request. Client agrees to reimburse Company for any expenses incurred in attempting to honor such requests.

Client acknowledges that it is the originator of each Entry and that under the Rules Company makes certain warranties with respect to each Entry. Client agrees to reimburse Company for any loss Company incurs, including its reasonable attorneys’ fees and legal expenses, as the result of a breach of a warranty made by Company unless the breach resulted solely from Company’s own gross negligence or intentional misconduct. Client acknowledges that under the Rules, Company indemnifies certain persons. Client agrees to reimburse Company for any loss Company incurs, including its reasonable attorneys’ fees and legal expenses, as the result of the enforcement of an indemnity, unless enforcement resulted solely from Company’s own gross negligence or intentional misconduct.

11. TERMS; TERMINATION. The Service will continue until such time as Client or Company gives thirty (30) days’ prior written notice, unless termination is for cause. Company may immediately terminate the Service upon notice to Client if Client is in violation of a material provision of the these terms and conditions, including but not limited to, the payment when due of any fees, charges, or payroll taxes, or if Client chooses not to accept a change in these terms and conditions or Client misrepresents any data or information required by Company in connection with the Service or at any other time. Company may immediately terminate the Service without notice to Client if Client files, or has filed against it, a petition under the U.S. Bankruptcy Code or a similar state or federal law. The termination of the Service will not affect Client’s or Company’s rights with respect to transactions which occurred before termination.

12. DISPUTE RESOLUTION.

Mediation. Should any dispute arise between Client and Company, relating to the Service and if, following the good faith negotiation of the dispute, it cannot be resolved, Company may elect to first submit the dispute to mediation. Mediation shall be conducted at the nearest office of the mediation organization mutually agreed upon by Client and Company.

Arbitration. Notwithstanding any other provision in these terms and conditions, if either Client or Company have any irresolvable dispute, controversy or claim, whether founded in contract, tort, statutory or common law, concerning, arising out of or relating to the Service, including any claim regarding the applicability, interpretation, scope or validity of this arbitration clause and/or these terms and conditions (a “Claim”) and upon the demand of either party, it will be settled by individual (not class or class-wide) binding arbitration administered by the American Arbitration Association (AAA) in accordance with the then current Commercial Financial Disputes Arbitration Rules, including any expedited procedures. A demand that a Claim be submitted to arbitration may be made before the initiation of any legal proceeding or within ninety (90) days following the service of a complaint, third-party complaint, cross-claim or counterclaim and if a party in a pending legal proceeding demands a Claim to be submitted to arbitration, the party initiating the action will immediately dismiss the legal proceeding and file the claim in arbitration. Arbitration hearings will be held in a mutually agreeable location or if no such agreement can be reached, the city where the dispute occurred. A single arbitrator will be appointed by the AAA and shall be a practicing attorney or retired judge having experience with and knowledge of banking law. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, but no award of attorneys’ fees shall be made. A judgment on the award may be entered by any court having jurisdiction. The parties agree and acknowledge that this agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in these terms and conditions.

JURY TRIAL WAIVER. FOR ANY MATTERS NOT SUBMITTED TO ARBITRATION, CLIENT AND COMPANY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR RELATING TO THE SERVICE OR ANY OTHER DISPUTE OR CONTROVERSY BETWEEN THE PARTIES. FURTHER, CLIENT AND COMPANY HEREBY AGREE THAT ANY LITIGATION WILL PROCEED ON AN INDIVIDUAL BASIS AND WILL NOT PROCEED AS PART OF A CLASS ACTION.

13. WAIVER. Company may waive any term or provision of these terms and conditions at any time or from time to time, but any such waiver shall not constitute a waiver of the term or provision in the future.

14. GENERAL TERMS AND CONDITIONS. Company will hold in strict confidence all data furnished by Client or produced by Company in relation to the Service; provided, however, that Company will not be held liable if such data is released through other sources, or if Company released the data because of a reasonable belief that Client had consented to such disclosure.

To assure that Client’s inquiries are handled promptly, courteously and accurately, Company may monitor and/or record telephone conversations and electronic communications between Client and Company without additional prior notification to Client or Client’s employees, and Client will so advise Client’s employees who communicate with Company by telephone or electronic means.

Client authorizes Company at any time to obtain credit reports about Client and to report adverse credit information about it to others, including the Internal Revenue Service and other taxing authorities.

Use of the Service does not relieve Client of Client’s obligations under federal or state laws or regulations to retain records relating to the data contained in Company’s tape or disk files.

These terms and conditions, the documents set forth in Section 1, the Fee Schedule, any user guides (online or otherwise) and any addenda to any of the foregoing constitute the entire agreement between Company and Client regarding the Service.

Any person identified by Client via the Website in relation to the Service or in any certification, notice or other communication delivered to Company 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 Company in writing. Company will have a reasonable time after receipt of a certification, notice or other communication to act on it.

Company may at any time use agents, service providers and/or independent contractors (“Contractors”) to process Entries or provide all or any portion of the Service. Company will be responsible for the acts and omissions of its Contractors in the same manner as if Company had performed the portion of the Service itself and any claims against its Contractors or Company (with respect to the acts or omissions of its Contractors) shall be subject to the limitations of liability set forth in Sections 5 and 10 above to the same extent as if Company had performed the portion of the Service itself. However, Company will not be deemed to be the agent of, nor responsible for the acts or omissions of any other person, including, without limitation, any Federal Reserve Bank, ACH, internet service bank or transmission or communications facility, any receiver or receiving depository financial institution (including, without limitation, the return of an Entry by such receiver or receiving depository financial institution), and no such person shall be deemed Company’s agent.

Client will, at its own cost and expense, obtain, install and, at all times during its utilization of the Service, maintain in good working order all software, hardware and other equipment necessary for it to perform in accordance with these terms and conditions. In the event of any failure of such software, hardware or other equipment, Client will deliver to Company all data which it would otherwise have provided that is necessary for Company to perform Company’s obligations in connection with the Services.

Sections 2, 3, 4, 5, 6, 10, 12 and 14 will survive termination of the Service.

The Service and these terms and conditions shall be governed by the laws of the United States of America and the State of New Jersey.