Last Updated: January 10, 2023
These Payroll Services Additional Terms (these “Payroll Additional Terms”) are a part of the Niural Customer Terms of Service (and are hereby incorporated into the Niural Customer Terms of Service by reference), available at https://niural.com/legal. Capitalized terms used but not otherwise defined in these Payroll Additional Terms will have the meanings set forth in the Terms of Service. These Payroll Additional Terms set forth the additional terms and conditions under which Niural will provide to Customer certain U.S. Payroll Services, and other related services (together, the “Payroll Services”, as further described below). All terms of the Niural Terms of Service, including all disclaimers, limitations of liability, agreements and indemnities, apply to these Payroll Additional Terms.
Certain services offered as part of the Payroll Services may be regulated money transmission, payment services, or similar services within the meaning of laws that apply to those services (“Payment Services”). To the extent that we provide and you use any Payment Services in the United States, those services are provided to you by Niural Payments, Inc. or by a partner of People Center, Inc. and not by People Center, Inc. To the extent you use any Payment Services in a non-U.S. country, those services are provided to you by the licensed payment services entity in that country. Please see the Niural Licensing page for more information on our licensed entities.
PLEASE REVIEW THESE PAYROLL ADDITIONAL TERMS CAREFULLY. BY ACCEPTING THESE PAYROLL ADDITIONAL TERMS OR USING THE PAYROLL SERVICES, YOU AGREE TO THIS AGREEMENT, INCLUDING THESE PAYROLL ADDITIONAL TERMS WITH Niural, AND TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN THE Niural PRIVACY POLICY, WHICH IS PART OF THIS AGREEMENT. CUSTOMERS WITH MULTIPLE ENTITIES AGREE THAT BY ADDING A BANK ACCOUNT AS A FUNDING SOURCE FOR ANY ACTIVITIES COVERED BY THESE TERMS YOU AGREE THAT THE ENTITY THAT OWNS THAT BANK ACCOUNT IS NIURAL’S CUSTOMER FOR PURPOSES OF PROVIDING PAYMENT SERVICES AND AGREES TO THESE TERMS.
Provided that User meets User’s payment obligations and complies with the terms of the Payroll Agreement, then as long as User is subscribed to the Payroll Service, Niural will provide User with the Payroll Service for the purposes of (a) calculating payroll and its associated liabilities for your business in the United States; (b) processing payroll and making related payroll payments; (c) making certain U.S. payroll tax payments and U.S. payroll tax filings (“U.S. Tax Filings”); and (d) if applicable, sending wage garnishments, such as child support payments, to applicable local, state, or federal agencies in the United States.
(a) Payroll Set-Up.
Prior to your initial payroll processing date, you must: (i) submit accurate and complete information required by Niural for providing the Payroll Services, including your payroll and bank account information, any required powers of attorney, any required Know Your Customer (“KYC”) or beneficial owner documentation, and any additional information requested by Niural; (ii) satisfy, to the extent requested, all applicable payroll liabilities incurred prior to enrolling in the Payroll Service; (iii) submit any payroll returns to tax agencies that were due for payroll tax liabilities incurred prior to enrolling in the Payroll Service; (iv) cancel any prior payroll services or services of professional employee organizations, employee leasing companies, or employer of record companies; and (v) sign or accept any other required terms or documentation necessary for Niural to provide the Payroll Services to you.
(b) Payroll Information.
Niural will notify you via electronic communication or by other means when all information necessary to begin the Payroll Services has been received and the enrollment process for the Payroll Services has been completed. You shall then, prior to submitting your first payroll, review the Payroll Information for completeness and accuracy. For the purposes of the Payroll Additional Terms, “Payroll Information” shall mean any information provided to Niural in connection with the Payroll Services, including but not limited to information provided by you, Account Administrators, Authorized Representatives, your employees, or your independent contractors, and all information posted in connection with the Payroll Services for your review on Niural’s platform or otherwise requested for review by Niural, such as the information used to calculate and pay employee payroll, track your defined employee benefits, calculate benefit deductions, pay payroll taxes to applicable taxing agencies (including any government or employer identification number(s), unemployment insurance or other tax rates, and employment tax deposit schedule), produce payroll tax returns and wage statements, and print checks on your Account (if applicable). You must correct or provide any incorrect or missing Payroll Information, either through Niural’s platform or by notifying Niural in the manner specified in the applicable electronic communication received by you and within the time period specified therein.You are responsible for reviewing and ensuring the accuracy of all Payroll Information before it is submitted to Niural.You are fully responsible for, and indemnify Niural against any action, liability, penalty, payment, or interest expense (“Claims”) relating to, the accuracy of all information you provide, submit, and/or approve (whether provided directly or through Account Administrators or Authorized Representatives), and you are solely responsible for, and indemnify Niural against any Claims, including but not limited to IRS or other tax agency penalties and/or interest, and other penalties and/or interest arising from your failure to timely provide and maintain accurate and complete Payroll Information. The Payroll Services provided will be based on and are dependent upon information provided to Niural by you (including proof of federal, state, and local tax identification numbers and), and completion of requested tasks. Failure to provide the timely, accurate, and complete Payroll Information may adversely impact Niural’s ability to perform the Payroll Service.
(c) Payroll Processing.
As part of the Payroll Services, you agree and acknowledge that Niural may transmit your information related to the Payroll Services, including all tax return information Niural receives in connection with the Payroll Services, to Niural officers, employees, affiliates and representatives, who may be located outside of the United States and/or outside of the country where your payroll is processed. Without limiting the foregoing, Niural generally intends to restrict the dissemination of your tax return information to only those officers, employees, affiliates and representatives who Niural determines reasonably require such information in connection with the Payroll Service.
1.5 Account Administration; Authorizations.
(a) Account Administration.
An Account Administrator or Authorized Representative shall approve and submit the Payroll Information, thereby authorizing Niural to create and transmit credit or debit entries (the “ Entries”) necessary to process your payroll and payroll tax transactions. You agree that by submitting each payroll through an Account Administrator or Authorized Representative: (i) you approve all Payroll Information; (ii) you represent and warrant to Niural that no Payroll Information submitted to Niural will result in Entries that would violate any applicable laws (including but not limited to the sanctions program of the Office of Foreign Assets Control of the U.S. Department of the Treasury or any other applicable U.S. sanctions or export control laws), rules, or regulations; (iii) you waive and release any Claim against Niural arising out of any errors or omissions in the Payroll Information which you have not corrected or have not requested Niural to correct; and (iv) you acknowledge that any subsequent request for corrections will be considered special handling, and additional fees may be charged. You have final responsibility for any audits or assessments, and you indemnify Niural against losses relating to any such audits or assessments. Niural will not have any responsibility for verifying the accuracy of any Payroll Information you provide to Niural.
(b) Authorization of Payroll Information. You acknowledge, agree, and understand that (i) any information or instructions (including but not limited to Payroll Information and Entries) communicated to Niural by you, an Account Administrator, or an Authorized representative (or anyone that Niural reasonably believes to be you, an Account Administrator, or an Authorized Representative) will be deemed fully authorized by you, and you shall be fully responsible for the accuracy of such information and instructions, and any Claims, including but not limited to any IRS penalties and/or interest, penalties/and or interest from any foreign regulators or tax agencies, or other penalties and/or interest arising therefrom; and (ii) notwithstanding such deemed authorization, Niural may in its sole discretion refuse to accept or act upon any such instructions.
(c) Authorization of Payment Orders. An Account Administrator or Authorized Representative may submit to Niural an instruction to approve, release, cancel, or amend the Payroll Information used to create Entries (each, a “Payment Order”) to be originated on your behalf. A Payment Order will also be deemed authorized by you if you, an Account Administrator, or an Authorized Representative elect to utilize any auto-approval features or request that Niural fulfill the instruction on your behalf. Niural does not verify or review Payment Orders for the purpose of detecting any errors; it is your responsibility to verify the accuracy of Payment Orders, including any Payment Orders that have been automatically approved using then-current Payroll Information. You will be bound by any Payment Order that is received by Niural in compliance with this designated authorization procedure, and you shall indemnify and hold Niural and the other Indemnified Parties harmless from and against any Claims arising from the execution of a Payment Order in good faith and in compliance with such procedures. If Customer is a subscriber to related services, such as Benefits Administration Services, then such Account Administrator or Authorized Representative is further required to follow related instructions, including any instructions to “push” any deductions or credits to the Payroll Services, to incorporate such deductions or credits within the Payment Order.
(d) Errors in Payment Orders. If a Payment Order describes the payee inconsistently by name and account number, (i) payment may be made on the basis of the account number even if you identify a person different from the named payee; or (ii) Niural may, in its sole discretion, refuse to accept or may return the Payment Order. If a Payment Order 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 a Payment Order identifies a non-existent or unidentifiable person or account as the payee or the payee’s account, Niural may, in its sole discretion, refuse to accept or may return the Payment Order.
1.6 Payroll Account. You acknowledge and agree that (a) funds withdrawn from the Bank Account (as defined below) for payroll direct deposits, payroll taxes and other payments contemplated by the Payroll Additional Terms (“Payroll Funds”) will be held in one or more deposit accounts at one or more depository institutions or held in accounts as permissible investments as defined by the applicable local regulator (collectively, the “Payroll Account”) until such time as those payments are paid to your employees and/or independent contractors and the appropriate taxing agencies, and no interest or any other type of income or gain will be paid to you on these amounts, (b) each account comprising the Payroll Account may be titled in the name of the depository institution holding such account in its capacity as agent for customers of Niural, in the name of Niural itself, and (c) funds held on your behalf in the Payroll Account may be commingled with funds of other payroll customers, but Niural will maintain records in good faith in the ordinary course of business reflecting your interest in the Payroll Account. To the extent Customer funds or directs Niural to make payroll-related payouts in multiple countries, Customer acknowledges that there may be multiple Payroll Accounts corresponding to those countries or regions. Customer further acknowledges that Niural may rely on authorized partners or vendors to deliver payments to their final destinations.
1.7 Bank Account.
(a) Funding of Bank Account. Customer will ensure that it has sufficient funds in Customer’s account within the applicable deadline to satisfy Customer’s third party payment obligations, including prior to approving a payroll run. In particular, Customer will maintain in the Bank Account, as of the applicable payroll direct deposit date, payroll tax deposit date, or other settlement or due date and time, immediately available funds sufficient to cover all disbursements, fees, payroll taxes or any other amounts due (collectively, the “Amounts Due”) under the Payroll Additional Terms. Your obligation to have sufficient funds in the Bank Account to cover the Amounts Due matures at the time Niural originates the applicable Entries for the Amounts Due and is unaffected by termination of the Payroll Service. Niural may set off any amounts you owe to it against any amounts it owes to you in order for Niural to obtain payment of your obligations as set forth in the Payroll Additional Terms.
(b) Debits and Credits. On or prior to your payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, you authorize Niural to originate one or more debit Entries to the bank account designated by you (“Bank Account”) at the depository financial institution indicated by the routing number associated with the Bank Account that you provide to Niural (the “Bank”), and to debit the Bank Account in such amounts as are necessary to (i) fund your direct deposits and any payments to be made to your employees by check; (ii) pay any fees or charges associated with the Payroll Services, including, without limitation, finance charges; (iii) if applicable, pay your payroll taxes (including all withholding and other taxes that may be included in the Payroll Service); (iv) pay any debit, correcting, or reversing Entry initiated pursuant to the Payroll Additional Terms which is later returned unpaid; (v) verify the Bank Account through a test deposit or debit authorization; (vi) for U.S. Payroll services, pay any unpaid or deficient employee COBRA fees; and (vii) pay any other amount that is owing under the Payroll Additional Terms or in connection with the Payroll Service. You also authorize Niural to initiate credit Entries to the Bank Account in the event there are Unpaid Funds to be returned to you, as described herein. These authorizations are to remain in full force and effect until Niural has received written notice from you of termination of any such authorizations in such time and such manner as to afford Niural and the Bank a reasonable opportunity to act upon such notice. Niural is not responsible for determining whether the bank accounts of any payors or payees have deposit or withdrawal restrictions. You represent and warrant that (i) you are the owner of the Bank Account and have the right, power and authority to authorize withdrawals or other debits to the Bank Account, and (ii) you are not engaged in any business or activities or other conduct that violates the laws of the United States, or other applicable law and that none of the funds or proceeds to be deposited on your behalf in the Payroll Account were derived from or represent proceeds of any crime.
(c) Insufficient Funds. If you do not have sufficient funds in the Bank Account to pay the Amounts Due at the time required, or if you refuse to pay the Amounts Due (each, an “Overdraft”), then Niural will not be able to cause payments to be made from the Payroll Account of the Amounts Due to the applicable parties and will not be liable for any consequences or Claims directly or indirectly arising from such failure to pay, and Niural may (i) debit the Bank Account or any other account owned in whole or in part by you to pay disbursements, fees or charges, payroll taxes, or other amounts due; (ii) refuse to cause payments to be made from the Payroll Account for any unremitted payroll taxes to the applicable tax agencies, in which case the payroll tax liability and any associated penalties will become your sole responsibility; (iii) refuse to perform further Payroll Services following your second Overdraft; (iv) recoup any Amounts Due paid from the Payroll Account to individual Users from individual Users’ direct deposit account. You agree to indemnify and hold Niural harmless from any Claims resulting from any Overdraft.
(d) Fees; Interest. Customer will pay to Niural the amount of any unfunded payroll file (including debit returned to Niural because of insufficient or uncollected funds or for any other reason), plus any associated bank fees or penalties, upon demand and interest on the unfunded payroll amount at the rate of 1.5% per month (or the maximum allowed by law, if less). Also, if any debit to an employee’s, contractor’s or other payee’s account reversing or correcting a previously submitted credit is returned for any reason, Customer will cooperate with Niural to recover funds credited to any employee or contractor as a result. Customer’s funds may be placed with other clients’, Niural’s or Niural-administered funds of a similar type. All amounts earned on such funds while held by Niural will be for the sole account of Niural. In addition, where Customer instructs Niural to make payments on Customer’s behalf in a currency that is different from the currency provided through the Bank Account, funding debits will be calculated and currency will be exchanged using foreign exchange rates. These rates consist of currency conversion rates available to Niural through its service providers at or near the time of exchange and, where permissible by law, a currency conversion fee.
(e) Excess Credits. In the event that Niural erroneously initiates a credit to the Bank Account in excess of the amount that should have been credited (the “Excess Credit Amount”), if any, then you shall promptly notify Niural as soon as it becomes aware of such erroneous credit. You authorize Niural to debit any Excess Credit Amounts from the Bank Account, and if the Bank Account contains insufficient funds to cover the Excess Credit Amount, you agree to promptly refund the Excess Credit Amount to Niural through other payment methods that Niural may deem acceptable at its sole discretion. If, under exigent circumstances, Niural makes payments on your behalf to process payments you have authorized, you agree to repay Niural for the funds it extended to make such payments.
(f) Payments on Your Behalf. You agree to promptly repay Niural any amounts that Niural funds on your behalf for payments that you have authorized in the Niural platform but which you have not funded. This includes but is not limited to salary payments and tax payments that Niural, in its sole discretion, pays on your behalf. Niural will identify such payments if made and you agree that Customer remains fully liable for such payments and that Niural may debit Customer’s Bank Account for such amounts. Nothing in this paragraph obligates Niural to make any payment on Customer’s behalf that Customer has not funded.
(g) Compliance with Laws. As set forth in the Terms of Service, for paid products like Payroll Services, Niural will automatically debit your Bank Account via Automated Clearing House (“ACH”) transactions to the Payroll Account and also transmit funds to the payee’s account; such transactions must comply with applicable laws, rules, and regulations. In the United States, this includes rules governing ACH transactions promulgated by the National Automated Clearing House Association (“NACHA”), which rules may be amended from time to time, (“NACHA Rules”) and Article 4A of the Uniform Commercial Code, as adopted in California and as may be amended from time to time (as amended, the “UCC”). Origination, receipt, return, adjustment, correction, cancellation, amendment, and transmission of Entries must be in accordance with applicable laws, rules, and regulations. In the United States, this includes the NACHA Rules, and, with respect to credit Entries which constitute Payment Orders, the UCC.
(h) Wire transfers. Niural may, in accordance with internal policies, require you to fund certain payroll transactions by wire transfer. If Niural requires that a particular payroll transaction be funded by wire transfer, Niural will notify you in advance and will provide wire transfer instructions to you, and you will be solely responsible for following any such wire transfer instructions. Niural will not have any responsibility or liability related to any Claim, consequence, liability, incorrect or misdirected payment, or error that results from your failure to follow the wire transfer instructions that Niural provides to you.
1.8 Origination
(a) Originations and Rejections. The Payroll Services will enable you to enter the Payroll Information and to approve and submit it to Niural for creation, formatting, and transmission of Entries in accordance with applicable rules and regulations, the NACHA Rules and the UCC. Niural may reject any Payroll Information or Entry which does not comply with the requirements in the Payroll Additional Terms, or with any applicable law, regulation, or banking requirement, or with respect to which the Bank Account does not contain sufficient available funds to pay for the Entry. If any Payroll Information or Entry is rejected, Niural will make a reasonable effort to notify you promptly so that you may correct such Payroll Information or request that Niural correct the Entry and resubmit it. A notice of rejection of Payroll Information or an Entry (each, a “Rejection Notice”) will be effective when given and may be delivered through any means, including via email or through your Account. Niural will have no liability to you for (i) the rejection of any Payroll Information or Entry or any Claims directly or indirectly arising therefrom; or (ii) any delay in providing, or any failure to provide, you with a Rejection Notice, or any Claims arising directly or indirectly therefrom. If you request that Niural correct any Payroll Information or Entries on your behalf, Niural may attempt to do so; provided, however, that Niural is not obligated to make any requested corrections, and Niural is not liable for any Claims or other consequences that may directly or indirectly result from Niural’s attempt to correct, or failure to correct, such Payroll Information or Entries.
(b) Submitted Payroll Information. After the Payroll Information has been approved by an Account Administrator and submitted to Niural for the purposes of initiating a payroll-related transaction (such action, to “Submit,” and Payroll Information that has been submitted, “Submitted Payroll Information”) and received by Niural, you may not be able to cancel or amend such Submitted Payroll Information. Niural will use reasonable efforts to act on any cancellation or amendment requests it receives from an Account Administrator prior to transmitting the Entries, but will have no liability if the cancellation or amendment is not effectuated. You will reimburse Niural for any expenses, losses, fines, penalties, or damages Niural may incur in effecting or attempting to effect such a request. You authorize Niural to originate, on your behalf as originator, credit Entries to the accounts of designated receivers for the purpose of effectuating payroll-related transactions contained in Submitted Payroll Information and to instruct the depository institution or depository institutions holding the Payroll Account to debit the Payroll Account in the amount of such Entries and to cause the issuance of checks drawn on the Payroll Account for any payroll-related transactions contained in Submitted Payroll Information to be paid by check or alternative mutually agreeable method. Except for Entries created from Payroll Information that has been re-approved and re-Submitted by an Account Administrator in accordance with the requirements of the Payroll Additional Terms, Niural will have no obligation to retransmit a returned Entry if Niural complied with the terms of the Payroll Additional Terms with respect to the original Entry.
1.9 Payroll Processing Schedule. Niural will process the Submitted Payroll Information and Entries by close of business on the day set forth in Niural’s then-current processing schedule applicable to you, provided that (i) the Submitted Payroll Information is received by Niural no later than your applicable cut-off time for Submitted Payroll Information on a business day; and (ii) the payment network is open for business on that business day. If Niural receives approved and Submitted Payroll Information after the applicable cut-off time for Submitted Payroll Information on a given business day, or if Niural receives the Submitted Payroll Information on a non-business day, Niural will not be responsible for failure to process the Submitted Payroll Information on that day. If any of the requirements of clauses (i) or (ii) of this paragraph are not satisfied, Niural will use reasonable efforts to process the Submitted Payroll Information and transmit the Entries with the next regularly-scheduled file created by Niural (which will only occur on a business day on which the payment network is open for business). As a reminder, many payment networks (including ACH) are not open for business on recognized holidays.
1.10 Transactions and Entries
(a) Credits. Any credit given to you by any depository institution holding a deposit account comprising the Payroll Account with respect to any Entry is provisional until such depository institution receives final settlement for such Entry. If such depository institution does not receive such final settlement, you are hereby notified and agree that such depository institution is entitled to a refund from you in the amount credited to you in connection with such Entry, and the party making payment to you via such Entry (i.e., the Originator of the Entry) shall not be deemed to have paid you in the amount of such Entry.
(b) Reversals. Upon your request, Niural 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 your request, and Niural cannot guarantee that the Entry will be successfully reversed. You agree to reimburse Niural for any costs or expenses incurred in attempting to honor such a reversal request. If required under applicable law or banking regulations (including, in the U.S., the NACHA Rules or the UCC), you must obtain a payee’s consent before attempting to reverse an Entry that was credited to such payee. By initiating a request to reverse an Entry that was credited to a payee, you represent and warrant to Niural that it has already obtained the payee’s consent for the reversal, if such consent is required under the applicable law or regulations.
(c) Notifications. Neither Niural nor any depository institution holding the Payroll Account is required to give next day notice to you of receipt of any Entry or transmission and will not do so.
(d) Warranties and Indemnities for U.S. Transmissions. Regarding your use of any U.S. Payroll Services, you acknowledge that you are the Originator (as defined in the NACHA Rules) of each Entry originated on your behalf by Niural and assume the responsibilities of an Originator under the NACHA Rules. You further acknowledge that under the NACHA Rules and the UCC, Niural, as a Third-Party Sender (as defined in the NACHA Rules), is required to make certain warranties on behalf of the Originator with respect to each Entry. You agree to indemnify Niural for any Claim which results, directly or indirectly, from a breach of such a warranty made by Niural on behalf of you, unless such breach results solely from Niural’s own gross negligence or intentional misconduct. You also acknowledge that under the NACHA Rules and the UCC, Niural is required to indemnify certain persons, including, without limitation, the ODFI (as defined in the NACHA Rules), for the Originator’s failure to perform its obligations thereunder. You agree to indemnify Niural for any Claims which result from the enforcement of such an indemnity, unless the enforcement results solely from Niural’s own gross negligence or intentional misconduct. You agree to be bound by the NACHA Rules and further agree not to originate any Entries that violate the laws of the United States or other applicable law or to originate any Entries that are or should be coded as WEB, TEL, or IAT unless prior approval for such codes has been obtained by Niural from the originating depository financial institution. You acknowledge and agree that Niural and any originating depository financial institution through which Entries you originate are processed may terminate or suspend your ability to originate Entries and may audit your compliance with the NACHA rules or this Agreement.
1.11 Payments to Contractors.
(a) Payroll Services for Contractors. As stated above in Section 1, Niural’s Payroll Services support making payments to Contractors in the U.S.
(b) Classification of Contractors and Employees. As Contractors are distinct under U.S. and many international laws from employees, Contractors are often subject to different taxation treatments than employees (including, but not limited to, tax amounts and withholdings). As part of your obligation to provide accurate information pursuant to Sections 1.4(b) and 3.1 of this agreement, you are solely responsible for accurately categorizing employees and Contractors you pay through Niural and for categorizing Contractors as U.S. Contractors. Any errors in the categorizations you provide to Niural will be considered an Error (as defined below) by the Customer and will be subject to the terms governing Errors set forth below.
(c) Contractors’ Tax Liabilities. Contractors may be subject to obligations to report and/or pay taxes on payments they receive from you. Niural’s payroll services do not include calculating, filing, or making any tax payments on behalf of your Contractors.
(d) Contractor-Related U.S. Government Documentation. For U.S. Contractors, Niural will complete and file 1099 forms relating to work completed by Contractors and paid through Niural. Notwithstanding anything to the contrary in this agreement, the services described in this paragraph comprise the entirety of Niural’s government documentation responsibilities with respect to your Contractors.
(e) Contractor Agreement Templates. Niural will provide Customer with access to certain HR and Compliance Tools in the form of template Contractor agreements (“Contractor Agreement Templates”). The Contractor Agreement Templates are provided solely as Human Resource consulting services. In providing the Contractor Agreement Templates, Niural is not acting as a joint employer and is not providing legal or tax advice. Customer is responsible for all personnel decisions, and for verifying the sufficiency of all Contractor Agreement Templates against Customer requirements, and consulting with legal counsel regarding any human resource or employment-related issues, as needed. The use of Customer’s own Contractor Agreements or altered versions of Niural’s Contractor Agreement Templates is done at Customer’s own risk and you agree to hold Niural harmless and indemnify Niural from any claims arising from the use of those documents.
(f) Relationship between Niural and Contractor. Niural is not a party to the contract between Customer and Contractor. Niural has no obligation (i) to verify obligations agreed to between Customer and any Contractor, or (ii) to verify whether any invoice or other information submitted by the Contractor is in conformity with Customer’s agreement with Contractor. Any disagreements between the Contractor and Customer should be directed to the Customer.
1.12 Taxes.
(a) U.S. Tax Filings. As part of its U.S. Payroll Services, Niural shall file U.S. tax returns on your behalf once you have processed your payroll through with Niural and the payroll has been paid out to the payees. You shall timely and accurately update all wage and payroll information as necessary to reflect changes and respond with additional information, as may be requested from time to time by Niural. Niural, at its option, may decide not to file your payroll tax returns, pay your payroll taxes, or otherwise process your payroll if there are any unresolved problems with any information requested by Niural or submitted by you, an Account Administrator, or an Authorized Representative. If there are individual Tax Filings that you prefer to make outside of the Niural Services, you should notify Niural in writing, but Niural may refuse to administer any requested changes to the U.S. Payroll Services, including relating to the U.S. Tax Filings.
(b) Important Tax Information. Even in cases where you have authorized a third party, such as Niural, to file payroll tax returns and make payroll tax payments, ultimately, you are held responsible by taxing authorities for the timely filing of employment tax returns and the timely payment of employment taxes for your employees. For U.S. Payroll Services, Niural and the IRS recommend that you enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”) to monitor your IRS account and ensure that timely tax payments are being made for you. You may enroll in the EFTPS online at www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments. You should contact the appropriate state offices directly for details. You acknowledge that, except as expressly stated otherwise in the applicable Supplemental Terms, Niural does not proactively monitor your IRS or other tax agency account(s) regardless of whether or not we have access to EFTPS or other monitoring systems to verify your tax payments.
(c) Tax Return Information. You hereby authorize us to provide any and all tax return information we receive in connection with our service relationship with you to our officers, employees and affiliates, including but not limited to officers and employees who may be located outside of the country where the payroll is processed, for the purpose of providing the Niural Services. Without limiting the foregoing, we generally intend to restrict the dissemination of your tax return information to only those officers, employees and affiliates who we determine reasonably require such information in connection with the Niural Services we provide to you. Your consent will be valid for the duration of our service relationship with you or upon your request to withdraw such consent.
1.13 Failed Direct Deposits. In the event that a direct deposit payroll payment fails to be paid to the payee, and the funds are returned to the Payroll Account (“Unpaid Funds”), Niural will notify you of such Unpaid Funds and provide you with the appropriate details related to those funds. You may update the required wage and payroll information as necessary to reflect any necessary changes in accordance with the provisions of these Payroll Additional Terms to allow Niural to re-perform the direct deposit payroll payment on your behalf. Niural may also instruct the depository institution holding the Payroll Account to debit the Payroll Account and originate a credit entry to the Bank Account to return the Unpaid Funds. You, not Niural, are required to contact payees and/or otherwise resolve the Unpaid Funds. You acknowledge that you are responsible for complying with all applicable state unclaimed or abandoned property laws related to Unpaid Funds, and you hereby expressly release Niural from all liability and Claims directly or indirectly arising from state unclaimed or abandoned property laws, including any applicable penalties and/or interest. Niural shall have no obligation to defend or otherwise indemnify you in the event of an audit, examination, assessment, or other enforcement action by a state related to the Unpaid Funds under its unclaimed or abandoned property laws.
1.14 Errors.
(a) By Customer. If you become aware of a failure, possible failure, investigation, audit, or penalty relating to any Payroll Services, you agree to promptly notify Niural in writing and agree to cooperate in resolving any such issue. To the extent that a payroll or tax filing error (each, an “Error”) is partially or solely caused by Customer for any reason, Niural will have no liability to you. If you request that Niural correct any Errors on your behalf, Niural may attempt to do so; provided, however, that Niural is not obligated to make any requested corrections, and Niural is not liable for any Claims or other consequences that may directly or indirectly result from Niural’s attempt to correct, or failure to correct such Error. Notwithstanding the foregoing, Niural may also use reasonable efforts to assist you with any corrections. You further acknowledge that you may be charged supplemental fees to correct such Errors.
(b) By Niural. Niural’s sole liability and your sole remedy with respect to Niural’s obligations to perform the payroll tax portion of the Payroll Services shall be as follows: (i) Niural will reimburse you for, or pay directly to the appropriate taxing authority, any interest charges imposed by an applicable tax authority on Customer for the failure by Niural to pay funds to the extent and for the period that such funds were held by Niural; and (ii) Niural will reimburse you or pay directly to the appropriate taxing authority any penalties resulting from a negligent error or omission by Niural, provided that Niural’s obligation to pay such interest charges and penalties are conditioned on Customer notifying Niural of the Error within thirty (30) days of receiving notification thereof from the IRS or other tax agency and providing all requested assistance to Niural in correcting the Error and in minimizing any penalties due, including, but not limited to, providing Niural access to your IRS or other tax agency account as necessary or following Niural’s instructions to resolve an Error.
1.15 Niural Is Not a Fiduciary. You acknowledge and agree that (i) Niural is not acting in a fiduciary capacity for you; (ii) Niural is acting solely to provide Payroll Services to you and has no relationship to any of your employees or contractors; (iii) using the Payroll Services does not relieve you of your obligations under local, state, or federal laws or regulations to retain records relating to your data contained in Niural’s files; and (iv) any information that Niural provides in connection with the Payroll Services is for informational purposes only and should not be construed by you as legal, tax, or accounting advice. Niural will not be responsible for any damages, losses, or liabilities caused to you pursuant to any determination (v) that any employee or contractor you pay through Niural is misclassified or associated with any entity other than the entity with which that employee or contractor has a formal employment relationship (vi) of permanent establishment or other taxable presence (within the meaning of an applicable tax treaty) in any jurisdiction, including any taxes arising from the forgoing, (vii) related to any tax treatment applicable to you or any of your affiliates, including, but not limited to, ineligibility for certain deductions or inability to recognize revenues or costs at particular entities, or (viii) that you failed to withhold, remit or pay any federal, state or local taxes including any payroll or health taxes, pension contribution, employment or workplace insurance premium whether or not subject to the Payroll Services. Customer agrees to indemnify Niural for any third party Claims related to violation of such laws, assertions by any employee or contractor or determinations by an authorized government entity or court of competent jurisdiction. Customer further agrees that it is solely responsible for ensuring that any payments it authorizes to its employees or contractors are in compliance with the foreign remittance, exchange control, and other payment laws, including laws around tax treatment, applicable to Customer for the countries in which Customer pays its employees and agrees (i) to indemnify Niural for any Claims related to violation of such laws and (ii) to put in place all necessary intercompany agreements or other arrangements.
1.16 Service Suspensions. Without limiting our other rights or remedies in the Niural Terms of Services, we may immediately suspend your access to any portion of the Payroll Services without prior notice if (a) we reasonably suspect fraud, including due to a forged check, chargebacks, inquiries on a previous account, (b) you have insufficient funds in your accounts, including any NSFs, (c) we reasonably determine that you have violated any material provisions of these Payroll Services Additional Terms, or (d) we reasonably suspect that you are engaged in prohibited or high risk activities, as set forth in our Restricted Businesses policy (“Service Suspensions”). We will provide notice of any Service Suspension following the commencement of the Service Suspension and provide updates regarding resumption of Niural Services following any Service Suspension. Niural will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension.
2. Effect of Termination of the Payroll Services
You acknowledge and understand that if you terminate the Payroll Services or Niural terminates the Payroll Services (“Account Termination”), then such termination may not be reversible. In the event that you or Niural terminates your Payroll Services, then as of the effective time of such termination, Niural will have no obligation to make further payroll tax filings or payments on your behalf. In the event of an Account Termination, you will lose the ability to access account information and historical data stored with Niural (“User Data”). You will be responsible for downloading all User Data prior to an Account Termination. Niural may provide some supplemental Payroll Services associated with Account Termination.
3. Additional Obligations
3.1 Accuracy of User Representations. Niural must rely on representations, submissions, wage and payroll information, written communication, inputs, and data provided by you (including your employees, Account Administrators, and/or Authorized Representatives) (“
User Representations”). You acknowledge that all provisions of these Payroll Services Additional Terms require accurate, complete, and timely User Representations and that Niural is entitled to rely conclusively on all User Representations. You further acknowledge that it is your responsibility to confirm carrier enrollments on behalf of your employees. Niural does not have any obligation to verify, correct, or otherwise ensure the accuracy or quality of the User Representations and shall not have any liability for errors, omissions, penalties, fines, judgments, or other losses incurred that result from inaccurate, mistaken, or incomplete User Representations from you, an Account Administrator, an Authorized Representative, or your employees.
3.2 Additional Terms; Authorizations. You may need to agree to additional terms and conditions and complete and sign additional forms or authorizations that Niural provides to you, as required by law or as otherwise necessary to provide the Payroll Service. Failure to timely provide the required authorizations may adversely impact Niural’s ability to perform the Payroll Service. In particular, solely where applicable and required, you designate Niural as your agent and limited attorney-in-fact in connection with Payroll Services, including for the receipt of payment from a Customer on your behalf, and communications and submissions to relevant federal, state, and local tax authorities regarding your taxes. As a User, you further agree that Niural is an agent of the payee for you pursuant to a preexisting contract between you and your employer, and that you, as the payee, are a provider of services who is owed payment of money from such employer.
3.3 Compliance with Laws. You agree that you are solely responsible for compliance with all laws, rules, and regulations, including the tax codes and laws that apply to your operations (including the Internal Revenue Code), foreign remittance and payment laws, NACHA Rules and other payment network rules and regulations, the UCC, and any applicable tax codes or employment laws, and you will make all required filings with relevant governmental agencies.
4. Miscellaneous
4.1 Changes to Payroll Additional Terms. Changes to the Payroll Additional Terms will follow the procedures listed in the Customer Terms, but notices of changes will only be sent for services to which you subscribe.
