Preview
FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt #
Book Page
Return To: No. Pages: 10
JEREMY M. SHER
350 Linden Oaks, Floor 3 Instrument: EXHIBIT(S)
Rochester, NY 14625
Control #: Unrecorded #9743574
Index #: Unassigned-1598950
Date:
Paychex, Inc. Time:
AJ's Pit BBQ
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
JAMIE ROMEO
MONROE COUNTY CLERK
FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2024
EXHIBIT A
FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397
DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2024
M SUREPAYROLL
A PAYCHEX' COMPANY
Payron and Tax Services Agreement
This Payroll and Tax Services Agreement (the "Agreement") is made and entered into by and between the business named below ("Company") and
SurePayroll, a Delaware corporation with offices at 2700 Patriot Blvd., Suite 300, Glenview, IL 60026 ("Provider"). Provider and Company may collectively
"Parties" "Party."
be referred to as the or individually as a This Agreement contains the terms and conditions that govern the use of, and the terms and
conditions upon which Provider will provide to Company, certain payroll processing, payroll tax service and other related payroll services (collectively the
"Services"). The Services may be accessed via Provider's internet website ("Website") or by means of an application on an electronic communications device
("App") through which the Services may be accessed (the Website or App at which the Services are offered is referred to as the "Service Site").
Company Information
PIT
Company's Legal Name AJS BBQ LLC
Business Address 2180 S Delaware St
Denver State
CO 80223-4136
City zip
Company DBA (Doing Business As) Federal Employer ID 83-2970194
Principal
Authorized Officer's Name Jared Leonard Title
Email Address jared@bbqsupply.com Phone Number
312-771-0401
Social Security #
Company agrees that Provider is not rendering legal, tax, accounting, or investment advice in connection with the Services, nor is Provider a fiduciary of
Company, a fiduciary of any Company benefit plan offered for the benefit of Company's Employees, or the employer or joint employer of Company's
Employees. Provider will not be responsible for Company's compliance with, nor will Provider provide legal or other financial advice to Company, with respect
to federal, state, or local statutes, regulations, or ordinances, including, but not limited to, the Fair Labor Standards Act or any wage and hour laws. Company
agrees to comply with any and all applicable federal, state, and local and international laws, regulations orordinances ("Laws"), and Company is solely
responsible for retaining all copies of any documents received from or made available by Provider or provided to Provider as required by applicable Laws.
Company represents and warrants that it possesses full power and authority to enter into this Agreement, and has read and agrees to the terms and conditions
set forth in this Agreement, including, without limitation the provisions addressing governing law and arbitration. Company has caused this Agreement to be
executed (by signature, electronic signature or by clicking to approve) by the individual listed below, and by execution hereof (whether by signature, electronic
signature, or by clicking to approve), such individual represents that he or she has the authority to execute this Agreement on behalf of Company and bind
Company to this Agreement.
Company understands that this Agreement (Rev. 1/2023) may be considered an application for credit. Company authorizes Provider to investigate and verify
the identity, bank account and/or credit of Company and/or its principals, including bank account status and history, prior to providing any Services under this
Agreement (collectively "Company Verification"). Company acknowledges that Provider may engage third parties to perform Company Verification and
authorizes Provider to share with third parties any Company data, including Company Confidential Information, to perform Company Verification. Company
further agrees that Provider is not liable for the actions or inactions of such third parties, including but not limited to any unauthorized use or disclosure of
Company data by third parties.
DocuSignedby:
W202 3
Authorized Officer's Signature Date
c
Page 1 of 7 Rev. 1/2023
FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397
DocuSign Envelope ID: B87A05“5-70F4-4 DOE-8D97-E6A529399578 AATION.
NYSCEF1.1DOC.
COMPANY
NO. INFORMATION.
2 A minimum of five (5) business days before the initial payroll processing date, Company will timely and
RECEIVED NYSCEF:
accurately 03/27/2024
execute and/or provide all documentation, information, data and directives that Provider requires to perform the Services under the Agreement
including, Payroll Information, Payment Orders or other instructions or information, in addition to where necessary, taking all corporate action,
("Company Information"), and which documents shall include any federal, state or local powers of attorney required by Provider, all local, state, or
federal tax identification numbers for payroll taxes to be processed through Provider, Company account information and any additional information
requested by Provider. Company acknowledges that Provider may be required to obtain documents necessary to verify the identity of Company
pursuant to applicable federal and/or state statutes or regulations. Subsequent to the initial payroll processing, Company will complete and execute
any renewals, amendments or replacements of the aforementioned documents which Provider deems necessary. Company will submit all
"Worker"
necessary Company Information pertaining to Company's employees ("Employees") and/or independent contractors (collectively or
"Workers") to Provider at least two (2) banking days prior to a payroll check date or as required by Provider. Additions or changes to Worker's
personal, payroll and/or tax information entered and/or submitted by Worker through Worker's Online Account will be included in Company
Information and will be treated as if provided directly by Company. Company acknowledges that (i) Worker documents and/or forms are only
provided electronically; and (ii) Company is solely responsible for ensuring that Workers receive all documents and/or forms as required under
any applicable Laws, including any Laws regarding consent. Company's submission of Company Information to Provider constitutes Company's
("Entry"
authorization for Provider to create and transmit Electronic Funds Transfer ("EFT") credit or debit entries or "Entries") contained therein.
Provider will not be obligated to, nor will Provider commence any individual Service until Provider receives all documents and/or information
necessary to begin each individual Service and notifies Company of the date Provider will commence each of the Services ("Service Effective
Date"). Company acknowledges that each of the Services may have separate Service Effective Dates. Until the Service Effective Date,
Company will continue to provide for itself the Services requested of Provider. Provider assumes no responsibility for Services prior to
the Service Effective Date or for Services declined by Company.
Information"
1.2 COMPANY CONFIDENTIAL INFORMATION. "Company Confidential means all information disclosed or otherwise made available
by Company to Provider that is marked confidential or is of the nature that a reasonable person would identify it as being confidential, including, the
name, social security number, date of birth, address, financial and/or bank account information, wage information, and/or other personal
information of Company and Company's Workers provided to Provider by Company. Provider agrees that it shall implement and maintain a
comprehensive information security program which contains administrative, technical and physical safeguards that are deemed reasonable and
necessary to protect Company Confidential Information from unauthorized access or acquisition. Provider may disclose Company Confidential
Information to its employees, affiliates, subsidiaries, and authorized agents, third party vendors and contractors to (i) perform or offer Services; (ii)
offer additional products or services to Company; (iii) integrate third-party services into the Services; (iv) perform analysis to determine Company's
qualification to receive services; and (v) collect Amounts Due, and may disclose Company's payment experiences with Provider to credit reporting
agencies and supply vendor references on Company's behalf. Provider may also disclose Company Confidential Information (i) to its attorneys,
accountants, insurers, and auditors; and (ii) pursuant to any applicable Laws, court order, legal process, or governmental investigation. In the
event of any compromise or security breach resulting in the disclosure or possible disclosure of Company Confidential Information, Provider will
notify Company in compliance with applicable Laws.
1.3 The obligations set forth in section 1.2 will not apply to any Company Information or Company Confidential Information (collectively, "Information")
that (i) Company 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 Provider or that Provider lawfully received, free of any nondisclosure obligations, from a third party having the right to
furnish such Company Confidential Information; (iv) is or becomes available to the public without any breach of this Agreement or unauthorized
disclosure; or (v)is already in the possession of the requesting party. Company acknowledges and agrees that to the extent Company was referred
to Provider by a third party, Provider may disclose information sufficient for payment of any amounts due as a result of that referral agreement.
1.4 Company grants Provider authorization to collect, process, transfer, use, and disclose Company Information to perform the Services. As between
the Parties, Company owns Company Confidential Information. Company grants Provider a non-exclusive right and license to use, reproduce,
host, reformat, and create derivative works from Company Confidential Information: (i) to provide the Services; (ii) for internal tracking, reliability
testing and research purposes; and (iii) in the aggregate and/or anonymized or deidentified for any lawful purpose in Provider's discretion. The
rights granted in the foregoing clauses (ii) and (iii) shall be perpetual and shall survive the termination or expiration of this Agreement so long as
Provider makes no effort to reidentify such data.
2. PAYROLL AND TAX SERVICES. Provider will provide Company the Services in accordance with this Agreement. In order for the Services to be
instituted, Company must submit accurate wage and payroll information to Provider during the enrollment process which includes, but is not limited to,
that which is used to calculate and pay Workers, track Company-defined employee benefits, pay payroll taxes to applicable taxing agencies, produce
payroll tax returns, produce Forms W-2 and/or 1099-MISC, and print checks on Company's account (if applicable) ("Payroll Information"). Payroll
Information must be reconciled by Company with Company's payroll tax returns for the current calendar year and Company's wage and payroll tax
information for the current quarter. Thereafter, Company shall timely and accurately (a) update all Payroll Information as necessary to reflect changes
and (b) respond with additional information requested from time to time by Provider. It is Company's responsibility to timely submit complete and
accurate information to Provider in connection with the Services. Any penalty or interest incurred due to inaccurate or untimely information provided
by Company will be the sole responsibility of Company. Company further agrees to hold Provider harmless from such liability. Provider, at its option,
may decide not to file Company's payroll tax returns, pay Company's payroll taxes or otherwise process Company's payroll if there are any unresolved
problems with any information requested by Provider or submitted by Company.
A. Company will deposit immediately any FICA, Federal, State and Local withholding liabilities incurred to date (before commencing the payroll
processing with the Provider).
B. Company will submit any payroll returns to tax agencies (state, federal, and/or local) that are now due or will be due prior to the Service Effective
Date.
C. Company 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).
D. Company will request a refund of withheld but un-deposited FUTA (federal unemployment) and SUI (state unemployment) for the current
quarter.
E. Company will notify Provider immediately of any deposited current quarter FUTA and/or SUl.
F. Effective with the first check date, Provider will assume responsibility for payment of Company's FUTA and SUI liabilities incurred in the calendar
quarter of the first check date. Provider's responsibility is contingent upon Provider successfully collecting funds required for payment of
Company's FUTA and SUI liabilities from Company. Provider will debit the Company's account with the first payroll processing for FUTA and
SUI liabilities incurred in the current quarter previous to the first check date with the Provider. The debit amount will be calculated based on the
current quarter wage detail provided by the Company during implementation.
Page2 of 7 Rev. 1/2023
FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PMidentification INDEX NO. E2024005397
DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578 vider with (i) accurate employer numbers ("EIN") for all taxing
NYSCEF authorities
DOC. NO. 2(federal, state and/or local) for payroll taxes to be processed through Provider ("Payroll Taxes"); and RECEIVED
(ii) copies of all tax notices or
NYSCEF: 03/27/2024
other communications from all taxing authorities regarding Payroll Taxes ("Tax Notices"). Provider will commence collection of funds for the
payment of Payroll Taxes as of the first check date but is not responsible for remittance of Payroll Taxes or associated Payroll Tax returns until
a reasonable time after accurate EIN information is received. Company is subject to additional Fees for payrolls processed without accurate
EIN information and is subject to termination for cause if accurate EIN information is not received within thirty (30) days of the Service Effective
Date. Provider is not responsible for any penalties, interest, late payment and/or other damages resulting from Company's failure to timely
provide accurate information and/or Tax Notices for Payroll Taxes.
3. SOFTWARE
A. SOFTWARE LICENSES. Company has received, or may receive, certain computer software relating to Services selected by Company. Provider
grants Company a non-transferrable, non-exclusive, non-sublicensable limited license to install and use certain Provider software made available
to Company as part of select Services during the term of this Agreement. Provider is and remains the owner of all titles, rights, and interests in
the software. Company agrees that if it does not accept all of the terms and conditions of any and all Provider software, and/or third-party
software, and any and all applicable license agreements provided to Company now or in the future, Provider will not be obligated to perform
Services dependent upon the software.
B. RIGHT TO ACCESS PROPRIETARY SOFTWARE. Provider grants Company a limited, non-transferable, non-exclusive right to access and
use Provider proprietary hosted software products via a web browser during the term of this Agreement. Provider is and remains the owner of
all titles, rights, and interest in hosted software products. Provider will host and retain physical control over the software and make such computer
programs and code available only through the internet for access, use, and operation through a web browser. No provision under this Agreement
shall obligate Provider to deliver or otherwise make available any copies of computer programs or code from the software. Company is
responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to access the software, and
for paying all third-party charges (e.g. kiosk, internet service provider, or telecommunications charges) incurred while accessing the software.
C. CONFIDENTIALITY OF SOFTWARE. Company acknowledges that the software received or accessed as part of Company's Services contains
valuable trade secrets and confidential information owned by Provider or third parties (collectively "Confidential Information"). Company agrees
that Company, its Workers, and its agents will not, directly or indirectly: (i) sell, lease, assign, sublicense, or otherwise transfer; (ii) duplicate,
reproduce or copy; (iii) disclose, divulge, or otherwise make available to any third party; (iv) use, except as authorized by this Agreement; or (v)
decompile, disassemble, or otherwise analyze for reverse engineering purposes the software received or accessed. Company will take
appropriate action with Company's Workers and agents to satisfy its obligations under this Agreement with respect to the use, protection, and
security of software. Company will notify Provider immediately of any unauthorized use or disclosure of Confidential Information and will cooperate
in remedying such unauthorized use or disclosure.
D. INTELLECTUAL PROPERTY RIGHTS. Company owns no rights, title or interest, including but not limited to, copyright, patent, trade secret, and
all other intellectual property rights, in the software Company receives or accesses for the Services. If Company is ever held or deemed to be
the owner of any copyright rights in the software or any changes, modifications, or corrections to the software, Company hereby irrevocably
assigns to Provider all such rights, title, and interest. Company agrees to execute all documents necessary to implement and confirm the letter
and intent of this section.
4. AMOUNTS DUE.
A. REIMBURSEMENT AMOUNTS. Company agrees to remit funds to Provider representing the amount due to pay Company's Workers, remit
taxes, pay garnishments, or otherwise fund Company's payroll or payment obligations ("Reimbursement Amounts") through an EFT, or such
other payment method as required by Provider.
B. FEES. Company will pay all fees, including, but not limited to, fees for all Provider Services through an EFT or such other method as required
by Provider when due (collectively "Fees"). Minimum monthly Fees are due in the event Company fails to process a payroll or the payroll fails
to meet the minimum monthly charge during the month. Fees include, but are not limited to, minimum monthly, insufficient funds, late fees and
Provider'
premium processing fees. Fees are subject to change upon written notification to Company. Provider may, in its sole discretion,
require a security deposit from Company.
C. NO RIGHT TO INTEREST. Company waives any right to interest that may accrue on any amounts, including, but not limited to, Reimbursement
Amounts, Fees, and security deposits received by Provider.
D. PAYMENT BY WIRE TRANSFER OR OTHER METHOD. If Provider requires payment of Fees or Reimbursement Amounts (collectively
"Amounts Due") by a wire transfer or other method, Company agrees to provide Provider with all information necessary to confirm receipt of
the payment prior to the due date ("Funding Deadline").
E. INSUFFICIENT OR NON-CONFIRMED FUNDS. If sufficient funds are not available on the Funding Deadline, Provider may take such action
to collect Amounts Due including, but not limited to, reissuance of the EFT and assessing insufficient fund Fees. Company acknowledges that
Company is responsible for any delay in remittance of Reimbursement Amounts if Provider is unable to confirm receipt of funds prior to the
Funding Deadline.
5. ELECTRONIC FUNDS TRANSFER.
A. If Provider requires payment of Amounts Due through an EFT, Company (i) will designate a bank account for the EFT of Amounts Due; (ii) will
execute all documentation needed by Provider to originate EFT transactions and to verify availability of funds in Company's bank account; (iii)
agrees that the funds representing the Amounts Due will be on deposit in Company's bank account in collectible form and in sufficient amount
on or before the Funding Deadline; and (iv) authorizes Provider to collect all Amounts Due from Company's bank account on the Funding
Deadline.
B. On or before Company's payroll direct deposit, payroll tax deposit, check date or other applicable due date, Company will approve, release,
cancel, amend and/or submit Payroll Information ("Payment Order") to Provider thereby authorizing Provider to create and transmit Entries
necessary to process the Payment Order. Company authorizes Provider to process EFTs for such amounts as are necessary to pay (i) direct
deposits and payroll taxes that are specifically identified on the Payroll Preview Summary; (ii) any Fees or charges associated with the Services;
(iii) any debit, correcting or reversing Entry initiated pursuant to this Agreement which is later returned to Provider; and (iv) any other Amounts
Due. Amounts withdrawn will be held by Provider in one or more account(s) ("Accoune') until such time as those payments are due, and no
interest will be paid to the Company on theseamounts.
C. All EFTs are performed in compliance with the National Automated Clearing House Association operating rules ("Nacha Rules"), which can be
viewed at NachaOperatingRulesOnline.org. Company (a) authorizes Provider to send Entries on behalf of Company to receivers and assumes
the responsibilities of an originator of EFTs, if applicable; (b) affirms that it obtained valid authorization of Entries from receivers; (c) agrees to
follow Nacha Rules, as they are amended from time-to-time; (d) will not originate any EFT that violates any Law; (e) agrees that Entries are
Page3 of 7 Rev. 1/2023
FILED: MONROE COUNTY CLERK 03/27/2024 INDEX NO. E2024005397
DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578 Credit or Debit12:48 PM
(CCD, CTX), International ACH (IAT) or others required for
NYSCEF DOC. NO. and
Services; 2 (f) agrees that Provider or originating banks have the right to audit Company's compliance with Nacha Rules. Company
RECEIVED further
NYSCEF: 03/27/2024
acknowledges and understands that Provider may (i) identify Company to banks involved in the EFT and (ii) terminate or suspend the Agreement
for breach of Nacha Rules or this section. Company further agrees that it will notify Provider, pursuant to applicable Nacha Rules and federal
regulations, if funding for Company's payroll is received from a foreign financial agency and of any Workers with non-U.S. addresses.
D. Provider may reject any Payroll Information or Payment Order that does not comply with the requirements of this Agreement or Nacha Rules or
if Company's account does not contain sufficient available funds to pay for the Entry. Provider will have no liability to Company by reason of the
rejection of any Payroll Information or Payment Order. If Company requests that Provider repair an Entry on Company's behalf, Provider may
endeavor to do so; provided, however, that Provider will not be liable either for making the requested repair or for its failure to make any requested
repair.
E. Company will have no right to cancel, amend or reverse an Entry or Payment Order received by Provider after it has been submitted. In its own
discretion, Provider may use reasonable efforts to act on a request but will have no liability if the cancellation, amendment or reversal is not
successful. Company agrees to reimburse Provider for any expenses, losses or damages Provider may incur in effecting or attempting to
cancel, amend or reverse an Entry or Payment Order.
F. Provider will process the Payment Order and Entries in accordance with its then current processing schedule, provided (i) the Payment Order
is approved by Company and received by Provider no later than Company's applicable cut-off time on a business day and (ii) the ACH Operator
is open for business on that business day. If Provider receives approved Payment Order after Company's cut-off time, Provider will not be
responsible for failure to process the Payment Order on that day. If any of the requirements of clause (i) or (ii) of this subsection are not met,
Provider will use reasonable efforts to process the Payment Order and transmit the Entries to the ACH Operator with the next regularly
scheduled file created by Provider which is on a business day on which the ACH Operator is open for business.
G. Company expressly acknowledges that Provider does not intentionally or knowingly engage in or support International ACH Transactions ("lATs"),
as defined in Nacha Rules. Company represents and warrants that (i) the direct funding for the Entries originated by Provider on behalf of
Company does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (ii)
Company will not instruct Provider to create, originate or transmit Entries that are IATs or Entries using a Standard Entry Class Code (as defined
in Nacha Rules) other than IAT if such Entries are required to be IATs under Nacha Rules; and (iii) Company will not engage in any act or
omission that causes or results in Provider creating, originating or transmitting an IAT or a payment that should have been categorized as an
IAT pursuant to Nacha Rules. Provider may, in its sole discretion, temporarily or permanently suspend providing the Services to Company,
without liability, if Provider has reason to believe that Company has breached any of foregoing representations and warranties in this paragraph.
Company shall indemnify and hold harmless Provider from any losses incurred by Provider in connection with Company's breach of the
foregoing representations and warranties in this paragraph.
6. REFUND/ADJUSTMENT/0VERPAYMENT/COMPANY DEFAULT
A. REFUND/ADJUSTMENT/OVERPAYMENT. Provider will not process any refunds, adjustments or overpayments until Provider receives verification
that all outstanding fees, payments, and balances due to Provider have been paid. Company agrees that Provider may apply any balances or funds
it is holding for Company to Amounts Due owed to Provider or its affiliates. If Provider remits an overpayment of Reimbursement Amounts on behalf
of Company, Company agrees that it will reimburse Provider for the overpayment the sooner of five (5) days of (i) Company receiving a return of the
overpayment; or (ii) Company being notified that the overpayment amount would be applicable to future or other liability of Company; or (iii) the
Agreement being terminated by either Party.
B. COMPANY DEFAULT. In the event of a Company default, Provider may, at its sole option, (i) refuse to pay any unremitted payroll taxes, in which
case the payroll tax liability will become the sole responsibility of Company, and/or (ii) terminate the Agreement, or a portion thereof, without notice
and declare any or all Amounts Due immediately due and payable. Company agrees to promptly reimburse Provider for all past due Amounts Due,
including advancements or overpayments, made by Provider and to pay interest at the rate of one and one-half percent (1 ½%) per month, or the
maximum allowable by applicable law, until paid. Company agrees that Provider may initiate an EFT to Company's bank account for any past due
attorneys'
Amounts Due. Company will be responsible for the costs of collection of Amounts Due including, but not limited to, fees and court costs.
Provider may, in its sole discretion, commence an action in any other court of competent jurisdiction for any monies due and owing from Company to
Provider.
C. In the event Provider remits an overpayment of payroll taxes, Provider may, at its sole discretion, advance funds to Company. In the event
Provider advances overpayment funds to Company, Company agrees that it will reimburse Provider for the overpayment within the sooner of
five (5) days of (i) receiving the overpayment amount from the taxing authority; or (ii) being notified that the overpayment amount would be
applied to an outstanding tax liability of Company; or (iii) the Agreement is terminated by either party.
7. SERVICE FEE AND CHARGES. Company agrees to pay Provider for the Services in accordance with the Fees set forth in the fee schedule which
is accessed by logging into Company's payroll application by means of the Service Site ("Fee Schedule"). Company will also reimburse Provider for
sales, use and similar taxes arising from this Agreement that federal, state or local governments may impose.
8. CHANGES TO THE SERVICES. Provider reserves the right to change the terms, conditions, and Fees for the Services at any time. Provider will
endeavor to, but shall not be obligated to, provide thirty (30) days prior notice of any material change, including Fees. Notice may be provided in
writing, electronically or via the Sese S e. If Company does not wish to be bound by such change, it may discontinue using and terminate the Services
before the change becomes effective. If Company continues to use the Services after the change becomes effective, it will be bound by the change.
Company has the responsibility to assure that Company's address, including any electronic address(es), and account information in Provider's
records is accurate. The timing of an advance notice of change may be shortened when permitted or required by law.
9. VERIFICATION OF DATA.
A. Provider will notify Company via electronic communication or by other means when all data necessary to begin the Services has been
received, the enrollment process has been completed and of the Service Effective Date. Company shall then, prior to submitting its first
payroll, review for completeness and accuracy all Payroll Information posted for Company's review on the specified portion of the Service.
Company must correct incorrect or missing Payroll Information, either by itself or by notifying Provider in the manner and time period specified
in the electronic communication. Company shall be fully responsible for the accuracy of all information supplied by it and/or approved by it at
any time, including, without limitation any IRS or other penalties and/or interest arising therefrom.
B. Company agrees that by submitting each payroll (including the first payroll), Company has: (i) reviewed and approved all Payroll Information,
(ii) represented and warranted to Provider that no Payroll Information submitted to Provider 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) waives and releases any
Page4 of 7 Rev. 1/2023
FILED: MONROE COUNTY CLERK 03/27/2024 INDEX NO. E2024005397
DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578 rmation which 12:48 PM
Company has not itself corrected or has not requested Provider
NYSCEF DOC. toNO.
correct.2Company acknowledges that any subsequent request for corrections will be considered special handling and additional
RECEIVED Fees may
NYSCEF: 03/27/2024
be charged. Final audit responsibility rests with Company and Provider will not have any responsibility for verifying the accuracy of any Payroll
Information or other data Company provides or directly inputs via the Service Site or any other method.
C. Provider will not be responsible for errors that result from Providers reliance on Company Information or Payment Orders received and verified
by Company. Company acknowledges that any Company Information communicated to Provider will be deemed to have been fully authorized
by Company and Company shall be fully responsible for the accuracy of such Company Information. Notwithstanding such deemed
authorization, Provider may in its sole discretion refuse to accept or act upon any such instructions.
D. Company will review all reports, documents, and data provided, made available, or accessible by Company on Company's account, and
Company will inform Provider of any inaccuracies within three (3) business days of receipt or availability. Company acknowledges that
Provider will not be responsible for any damages that may result from Company's failure to timely review reports.
10. SECURITY PROCEDURES AND COMPANY ONLINE ACCOUNT.
A. Company will designate authorized contact(s) with authority to act on behalf of and to bind the Company ("Payroll Contacts"), that will submit
all Company Information to Provider, or take action on behalf of Company for Services. Company will determine the scope of each Payroll
Contacts'
authority. At least one Payroll Contact will have authority to approve, release, cancel, amend, and/or submit Payroll Information and
Payment Orders. Company acknowledges that it is solely responsible for designating all authorized contacts, establishing the level or type of
access granted to each contact for each Service, and keeping all contacts and access levels current at all times, and for timely advising
Provider, in writing or through the Service Site, of any change in Payroll Contacts. Company acknowledges that it is solely responsible for any
damages, costs, expenses, or additional Fees that may be incurred as a result of its failure to provide updated contact information. Provider
will have a reasonable time after receipt of notice to act on it.
B. Any person identified by Company as a Payroll Contact in this Agreement, via the Service Site or in any certification, notice or other
communication delivered to Provider may receive information, communications and notices regarding the Services, and is authorized to
transact all business and make all agreements in connection with the Services.
C. Company acknowledges that any Company Information communicated to Provider by telephone, electronic mail, facsimile, through the Service
Site, or other means of communication will be deemed to have been fully authorized by Company and Company shall be fully responsible for
the accuracy of such Company Information. Notwithstanding such deemed authorization, Provider may in its sole discretion refuse to accept
or act upon any suchinstructions.
D. Company 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. Company will, at its own
cost and expense, obtain, install and, at all times during its utilization of the Services, maintain in good working order all software, hardware
and other equipment necessary for it to perform in accordance with this Agreement. In the event of any failure of such software, hardware or
other equipment, Company will deliver to Provider all data which it would otherwise have provided that is necessary for Provider to perform
Provider's obligations in connection with the Services. Provider is not liable for any damages caused by Company's breach of any portion of
this provision.
E. Company, or any Worker, authorized contact, or third party that Company authorizes, may choose and/or be required to access or connect to certain
Services online or through any mobile or other electronic devices ("Online Account"). If Company accesses or connects to Services through
an Online Account, Company is solely responsible for (i) designating who is authorized to have access to Online Account ("Authorized
User(s)"); (ii) setting and enforcing its own internal policies related to use of Online Account by any Authorized User; (iii) safeguarding all
passwords, usernames, logins or other security features used to access Online Account ("Online Account Access"); (iv) use of Online Account
under any usernames, logins or passwords, (v) ensuring that use of Online Account complies fully with the provisions of this Agreement and
Users'
all applicable terms of use; and (vi) any unauthorized access, or use, of the Online Account caused by Authorized actions or inactions,
including, without limitation, its failure to safeguard Online Account or Online Account Access. Company acknowledges that each Authorized
User may set their own preference with their Online Account and may link their account to certain third-party services at their option.
F. Company is solely responsible for all activity occurring under Company's Online Account, including but not limited to, the manner in which it
and its Authorized Users use the Services and for the Company Information provided via the Online Account. Company shall not and shall
not permit its Authorized Users to: (i) use its Online Account in any manner that exceeds the scope of rights granted pursuant to the Services
provided to Company under this Agreement and within the applicable terms of use; (ii) use its Online Account to transmit Company Information
in violation of any third-party privacy rights, or (iii) make the Online Account accessible to any third parties other than Authorized Users.
G. Company agrees to immediately notify Provider of any actual or suspected unauthorized use of Online Account and acknowledges that
Company is solely responsible for damages resulting from any unauthorized use or Company's failure to timely notify Provider. Provider
User(s)'
reserves the right to limit, suspend, or terminate Company's and/or Authorized access to Online Account should Provider have reason
to believe the security or confidentiality of Online Account or Online Account Access has been compromised. Company acknowledges that
Authorized Users select the security level for Online Account Access and Company is solely responsible for these selections. Company further
acknowledges that it has reviewed all of the security levels and has determined the level or levels for its Authorized Users that is commercially
reasonable for providing security against unauthorized access and meets Company's requirements given the size, type and frequency of the
Services it will receive from Provider. Company further acknowledges that, if applicable, an authorized reseller, referral or bank partner, or
Company's accountant or certified public accountant ("CPA") may be designated as an Authorized User on Company's Online Account and
that Company is responsible for use of Company's Online Account and Online Account Access by any Authorized User.
H. Company is solely responsible for implementation of an information security program appropriate to safeguard Online Account or Online
Account Access and which is consistent with all applicable Laws; safeguarding Online Account and Online Account Access for any third-party
services integrated into the Services. Company acknowledges and agrees that Provider is not liable to Company, Company's Workers or any
other third-party for any consequences, losses, or damages resulting from unauthorized access or use of the Online Account as set forth in
this section. Company further agrees that Provider may access Company's Online Account to assist in configuration, provide ongoing support,
and perform administrative functions necessary to provide the Services.
I. Without limiting any other rights of Provider under this Agreement, Company agrees that should Company or Company's Authorized Users
violate any of the provisio
Preview
FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2024 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # Book Page Return To: No. Pages: 10 JEREMY M. SHER 350 Linden Oaks, Floor 3 Instrument: EXHIBIT(S) Rochester, NY 14625 Control #: Unrecorded #9743574 Index #: Unassigned-1598950 Date: Paychex, Inc. Time: AJ's Pit BBQ Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. JAMIE ROMEO MONROE COUNTY CLERK FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2024 EXHIBIT A FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397 DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/27/2024 M SUREPAYROLL A PAYCHEX' COMPANY Payron and Tax Services Agreement This Payroll and Tax Services Agreement (the "Agreement") is made and entered into by and between the business named below ("Company") and SurePayroll, a Delaware corporation with offices at 2700 Patriot Blvd., Suite 300, Glenview, IL 60026 ("Provider"). Provider and Company may collectively "Parties" "Party." be referred to as the or individually as a This Agreement contains the terms and conditions that govern the use of, and the terms and conditions upon which Provider will provide to Company, certain payroll processing, payroll tax service and other related payroll services (collectively the "Services"). The Services may be accessed via Provider's internet website ("Website") or by means of an application on an electronic communications device ("App") through which the Services may be accessed (the Website or App at which the Services are offered is referred to as the "Service Site"). Company Information PIT Company's Legal Name AJS BBQ LLC Business Address 2180 S Delaware St Denver State CO 80223-4136 City zip Company DBA (Doing Business As) Federal Employer ID 83-2970194 Principal Authorized Officer's Name Jared Leonard Title Email Address jared@bbqsupply.com Phone Number 312-771-0401 Social Security # Company agrees that Provider is not rendering legal, tax, accounting, or investment advice in connection with the Services, nor is Provider a fiduciary of Company, a fiduciary of any Company benefit plan offered for the benefit of Company's Employees, or the employer or joint employer of Company's Employees. Provider will not be responsible for Company's compliance with, nor will Provider provide legal or other financial advice to Company, with respect to federal, state, or local statutes, regulations, or ordinances, including, but not limited to, the Fair Labor Standards Act or any wage and hour laws. Company agrees to comply with any and all applicable federal, state, and local and international laws, regulations orordinances ("Laws"), and Company is solely responsible for retaining all copies of any documents received from or made available by Provider or provided to Provider as required by applicable Laws. Company represents and warrants that it possesses full power and authority to enter into this Agreement, and has read and agrees to the terms and conditions set forth in this Agreement, including, without limitation the provisions addressing governing law and arbitration. Company has caused this Agreement to be executed (by signature, electronic signature or by clicking to approve) by the individual listed below, and by execution hereof (whether by signature, electronic signature, or by clicking to approve), such individual represents that he or she has the authority to execute this Agreement on behalf of Company and bind Company to this Agreement. Company understands that this Agreement (Rev. 1/2023) may be considered an application for credit. Company authorizes Provider to investigate and verify the identity, bank account and/or credit of Company and/or its principals, including bank account status and history, prior to providing any Services under this Agreement (collectively "Company Verification"). Company acknowledges that Provider may engage third parties to perform Company Verification and authorizes Provider to share with third parties any Company data, including Company Confidential Information, to perform Company Verification. Company further agrees that Provider is not liable for the actions or inactions of such third parties, including but not limited to any unauthorized use or disclosure of Company data by third parties. DocuSignedby: W202 3 Authorized Officer's Signature Date c Page 1 of 7 Rev. 1/2023 FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PM INDEX NO. E2024005397 DocuSign Envelope ID: B87A05“5-70F4-4 DOE-8D97-E6A529399578 AATION. NYSCEF1.1DOC. COMPANY NO. INFORMATION. 2 A minimum of five (5) business days before the initial payroll processing date, Company will timely and RECEIVED NYSCEF: accurately 03/27/2024 execute and/or provide all documentation, information, data and directives that Provider requires to perform the Services under the Agreement including, Payroll Information, Payment Orders or other instructions or information, in addition to where necessary, taking all corporate action, ("Company Information"), and which documents shall include any federal, state or local powers of attorney required by Provider, all local, state, or federal tax identification numbers for payroll taxes to be processed through Provider, Company account information and any additional information requested by Provider. Company acknowledges that Provider may be required to obtain documents necessary to verify the identity of Company pursuant to applicable federal and/or state statutes or regulations. Subsequent to the initial payroll processing, Company will complete and execute any renewals, amendments or replacements of the aforementioned documents which Provider deems necessary. Company will submit all "Worker" necessary Company Information pertaining to Company's employees ("Employees") and/or independent contractors (collectively or "Workers") to Provider at least two (2) banking days prior to a payroll check date or as required by Provider. Additions or changes to Worker's personal, payroll and/or tax information entered and/or submitted by Worker through Worker's Online Account will be included in Company Information and will be treated as if provided directly by Company. Company acknowledges that (i) Worker documents and/or forms are only provided electronically; and (ii) Company is solely responsible for ensuring that Workers receive all documents and/or forms as required under any applicable Laws, including any Laws regarding consent. Company's submission of Company Information to Provider constitutes Company's ("Entry" authorization for Provider to create and transmit Electronic Funds Transfer ("EFT") credit or debit entries or "Entries") contained therein. Provider will not be obligated to, nor will Provider commence any individual Service until Provider receives all documents and/or information necessary to begin each individual Service and notifies Company of the date Provider will commence each of the Services ("Service Effective Date"). Company acknowledges that each of the Services may have separate Service Effective Dates. Until the Service Effective Date, Company will continue to provide for itself the Services requested of Provider. Provider assumes no responsibility for Services prior to the Service Effective Date or for Services declined by Company. Information" 1.2 COMPANY CONFIDENTIAL INFORMATION. "Company Confidential means all information disclosed or otherwise made available by Company to Provider that is marked confidential or is of the nature that a reasonable person would identify it as being confidential, including, the name, social security number, date of birth, address, financial and/or bank account information, wage information, and/or other personal information of Company and Company's Workers provided to Provider by Company. Provider agrees that it shall implement and maintain a comprehensive information security program which contains administrative, technical and physical safeguards that are deemed reasonable and necessary to protect Company Confidential Information from unauthorized access or acquisition. Provider may disclose Company Confidential Information to its employees, affiliates, subsidiaries, and authorized agents, third party vendors and contractors to (i) perform or offer Services; (ii) offer additional products or services to Company; (iii) integrate third-party services into the Services; (iv) perform analysis to determine Company's qualification to receive services; and (v) collect Amounts Due, and may disclose Company's payment experiences with Provider to credit reporting agencies and supply vendor references on Company's behalf. Provider may also disclose Company Confidential Information (i) to its attorneys, accountants, insurers, and auditors; and (ii) pursuant to any applicable Laws, court order, legal process, or governmental investigation. In the event of any compromise or security breach resulting in the disclosure or possible disclosure of Company Confidential Information, Provider will notify Company in compliance with applicable Laws. 1.3 The obligations set forth in section 1.2 will not apply to any Company Information or Company Confidential Information (collectively, "Information") that (i) Company 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 Provider or that Provider lawfully received, free of any nondisclosure obligations, from a third party having the right to furnish such Company Confidential Information; (iv) is or becomes available to the public without any breach of this Agreement or unauthorized disclosure; or (v)is already in the possession of the requesting party. Company acknowledges and agrees that to the extent Company was referred to Provider by a third party, Provider may disclose information sufficient for payment of any amounts due as a result of that referral agreement. 1.4 Company grants Provider authorization to collect, process, transfer, use, and disclose Company Information to perform the Services. As between the Parties, Company owns Company Confidential Information. Company grants Provider a non-exclusive right and license to use, reproduce, host, reformat, and create derivative works from Company Confidential Information: (i) to provide the Services; (ii) for internal tracking, reliability testing and research purposes; and (iii) in the aggregate and/or anonymized or deidentified for any lawful purpose in Provider's discretion. The rights granted in the foregoing clauses (ii) and (iii) shall be perpetual and shall survive the termination or expiration of this Agreement so long as Provider makes no effort to reidentify such data. 2. PAYROLL AND TAX SERVICES. Provider will provide Company the Services in accordance with this Agreement. In order for the Services to be instituted, Company must submit accurate wage and payroll information to Provider during the enrollment process which includes, but is not limited to, that which is used to calculate and pay Workers, track Company-defined employee benefits, pay payroll taxes to applicable taxing agencies, produce payroll tax returns, produce Forms W-2 and/or 1099-MISC, and print checks on Company's account (if applicable) ("Payroll Information"). Payroll Information must be reconciled by Company with Company's payroll tax returns for the current calendar year and Company's wage and payroll tax information for the current quarter. Thereafter, Company shall timely and accurately (a) update all Payroll Information as necessary to reflect changes and (b) respond with additional information requested from time to time by Provider. It is Company's responsibility to timely submit complete and accurate information to Provider in connection with the Services. Any penalty or interest incurred due to inaccurate or untimely information provided by Company will be the sole responsibility of Company. Company further agrees to hold Provider harmless from such liability. Provider, at its option, may decide not to file Company's payroll tax returns, pay Company's payroll taxes or otherwise process Company's payroll if there are any unresolved problems with any information requested by Provider or submitted by Company. A. Company will deposit immediately any FICA, Federal, State and Local withholding liabilities incurred to date (before commencing the payroll processing with the Provider). B. Company will submit any payroll returns to tax agencies (state, federal, and/or local) that are now due or will be due prior to the Service Effective Date. C. Company 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). D. Company will request a refund of withheld but un-deposited FUTA (federal unemployment) and SUI (state unemployment) for the current quarter. E. Company will notify Provider immediately of any deposited current quarter FUTA and/or SUl. F. Effective with the first check date, Provider will assume responsibility for payment of Company's FUTA and SUI liabilities incurred in the calendar quarter of the first check date. Provider's responsibility is contingent upon Provider successfully collecting funds required for payment of Company's FUTA and SUI liabilities from Company. Provider will debit the Company's account with the first payroll processing for FUTA and SUI liabilities incurred in the current quarter previous to the first check date with the Provider. The debit amount will be calculated based on the current quarter wage detail provided by the Company during implementation. Page2 of 7 Rev. 1/2023 FILED: MONROE COUNTY CLERK 03/27/2024 12:48 PMidentification INDEX NO. E2024005397 DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578 vider with (i) accurate employer numbers ("EIN") for all taxing NYSCEF authorities DOC. NO. 2(federal, state and/or local) for payroll taxes to be processed through Provider ("Payroll Taxes"); and RECEIVED (ii) copies of all tax notices or NYSCEF: 03/27/2024 other communications from all taxing authorities regarding Payroll Taxes ("Tax Notices"). Provider will commence collection of funds for the payment of Payroll Taxes as of the first check date but is not responsible for remittance of Payroll Taxes or associated Payroll Tax returns until a reasonable time after accurate EIN information is received. Company is subject to additional Fees for payrolls processed without accurate EIN information and is subject to termination for cause if accurate EIN information is not received within thirty (30) days of the Service Effective Date. Provider is not responsible for any penalties, interest, late payment and/or other damages resulting from Company's failure to timely provide accurate information and/or Tax Notices for Payroll Taxes. 3. SOFTWARE A. SOFTWARE LICENSES. Company has received, or may receive, certain computer software relating to Services selected by Company. Provider grants Company a non-transferrable, non-exclusive, non-sublicensable limited license to install and use certain Provider software made available to Company as part of select Services during the term of this Agreement. Provider is and remains the owner of all titles, rights, and interests in the software. Company agrees that if it does not accept all of the terms and conditions of any and all Provider software, and/or third-party software, and any and all applicable license agreements provided to Company now or in the future, Provider will not be obligated to perform Services dependent upon the software. B. RIGHT TO ACCESS PROPRIETARY SOFTWARE. Provider grants Company a limited, non-transferable, non-exclusive right to access and use Provider proprietary hosted software products via a web browser during the term of this Agreement. Provider is and remains the owner of all titles, rights, and interest in hosted software products. Provider will host and retain physical control over the software and make such computer programs and code available only through the internet for access, use, and operation through a web browser. No provision under this Agreement shall obligate Provider to deliver or otherwise make available any copies of computer programs or code from the software. Company is responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to access the software, and for paying all third-party charges (e.g. kiosk, internet service provider, or telecommunications charges) incurred while accessing the software. C. CONFIDENTIALITY OF SOFTWARE. Company acknowledges that the software received or accessed as part of Company's Services contains valuable trade secrets and confidential information owned by Provider or third parties (collectively "Confidential Information"). Company agrees that Company, its Workers, and its agents will not, directly or indirectly: (i) sell, lease, assign, sublicense, or otherwise transfer; (ii) duplicate, reproduce or copy; (iii) disclose, divulge, or otherwise make available to any third party; (iv) use, except as authorized by this Agreement; or (v) decompile, disassemble, or otherwise analyze for reverse engineering purposes the software received or accessed. Company will take appropriate action with Company's Workers and agents to satisfy its obligations under this Agreement with respect to the use, protection, and security of software. Company will notify Provider immediately of any unauthorized use or disclosure of Confidential Information and will cooperate in remedying such unauthorized use or disclosure. D. INTELLECTUAL PROPERTY RIGHTS. Company owns no rights, title or interest, including but not limited to, copyright, patent, trade secret, and all other intellectual property rights, in the software Company receives or accesses for the Services. If Company is ever held or deemed to be the owner of any copyright rights in the software or any changes, modifications, or corrections to the software, Company hereby irrevocably assigns to Provider all such rights, title, and interest. Company agrees to execute all documents necessary to implement and confirm the letter and intent of this section. 4. AMOUNTS DUE. A. REIMBURSEMENT AMOUNTS. Company agrees to remit funds to Provider representing the amount due to pay Company's Workers, remit taxes, pay garnishments, or otherwise fund Company's payroll or payment obligations ("Reimbursement Amounts") through an EFT, or such other payment method as required by Provider. B. FEES. Company will pay all fees, including, but not limited to, fees for all Provider Services through an EFT or such other method as required by Provider when due (collectively "Fees"). Minimum monthly Fees are due in the event Company fails to process a payroll or the payroll fails to meet the minimum monthly charge during the month. Fees include, but are not limited to, minimum monthly, insufficient funds, late fees and Provider' premium processing fees. Fees are subject to change upon written notification to Company. Provider may, in its sole discretion, require a security deposit from Company. C. NO RIGHT TO INTEREST. Company waives any right to interest that may accrue on any amounts, including, but not limited to, Reimbursement Amounts, Fees, and security deposits received by Provider. D. PAYMENT BY WIRE TRANSFER OR OTHER METHOD. If Provider requires payment of Fees or Reimbursement Amounts (collectively "Amounts Due") by a wire transfer or other method, Company agrees to provide Provider with all information necessary to confirm receipt of the payment prior to the due date ("Funding Deadline"). E. INSUFFICIENT OR NON-CONFIRMED FUNDS. If sufficient funds are not available on the Funding Deadline, Provider may take such action to collect Amounts Due including, but not limited to, reissuance of the EFT and assessing insufficient fund Fees. Company acknowledges that Company is responsible for any delay in remittance of Reimbursement Amounts if Provider is unable to confirm receipt of funds prior to the Funding Deadline. 5. ELECTRONIC FUNDS TRANSFER. A. If Provider requires payment of Amounts Due through an EFT, Company (i) will designate a bank account for the EFT of Amounts Due; (ii) will execute all documentation needed by Provider to originate EFT transactions and to verify availability of funds in Company's bank account; (iii) agrees that the funds representing the Amounts Due will be on deposit in Company's bank account in collectible form and in sufficient amount on or before the Funding Deadline; and (iv) authorizes Provider to collect all Amounts Due from Company's bank account on the Funding Deadline. B. On or before Company's payroll direct deposit, payroll tax deposit, check date or other applicable due date, Company will approve, release, cancel, amend and/or submit Payroll Information ("Payment Order") to Provider thereby authorizing Provider to create and transmit Entries necessary to process the Payment Order. Company authorizes Provider to process EFTs for such amounts as are necessary to pay (i) direct deposits and payroll taxes that are specifically identified on the Payroll Preview Summary; (ii) any Fees or charges associated with the Services; (iii) any debit, correcting or reversing Entry initiated pursuant to this Agreement which is later returned to Provider; and (iv) any other Amounts Due. Amounts withdrawn will be held by Provider in one or more account(s) ("Accoune') until such time as those payments are due, and no interest will be paid to the Company on theseamounts. C. All EFTs are performed in compliance with the National Automated Clearing House Association operating rules ("Nacha Rules"), which can be viewed at NachaOperatingRulesOnline.org. Company (a) authorizes Provider to send Entries on behalf of Company to receivers and assumes the responsibilities of an originator of EFTs, if applicable; (b) affirms that it obtained valid authorization of Entries from receivers; (c) agrees to follow Nacha Rules, as they are amended from time-to-time; (d) will not originate any EFT that violates any Law; (e) agrees that Entries are Page3 of 7 Rev. 1/2023 FILED: MONROE COUNTY CLERK 03/27/2024 INDEX NO. E2024005397 DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578 Credit or Debit12:48 PM (CCD, CTX), International ACH (IAT) or others required for NYSCEF DOC. NO. and Services; 2 (f) agrees that Provider or originating banks have the right to audit Company's compliance with Nacha Rules. Company RECEIVED further NYSCEF: 03/27/2024 acknowledges and understands that Provider may (i) identify Company to banks involved in the EFT and (ii) terminate or suspend the Agreement for breach of Nacha Rules or this section. Company further agrees that it will notify Provider, pursuant to applicable Nacha Rules and federal regulations, if funding for Company's payroll is received from a foreign financial agency and of any Workers with non-U.S. addresses. D. Provider may reject any Payroll Information or Payment Order that does not comply with the requirements of this Agreement or Nacha Rules or if Company's account does not contain sufficient available funds to pay for the Entry. Provider will have no liability to Company by reason of the rejection of any Payroll Information or Payment Order. If Company requests that Provider repair an Entry on Company's behalf, Provider may endeavor to do so; provided, however, that Provider will not be liable either for making the requested repair or for its failure to make any requested repair. E. Company will have no right to cancel, amend or reverse an Entry or Payment Order received by Provider after it has been submitted. In its own discretion, Provider may use reasonable efforts to act on a request but will have no liability if the cancellation, amendment or reversal is not successful. Company agrees to reimburse Provider for any expenses, losses or damages Provider may incur in effecting or attempting to cancel, amend or reverse an Entry or Payment Order. F. Provider will process the Payment Order and Entries in accordance with its then current processing schedule, provided (i) the Payment Order is approved by Company and received by Provider no later than Company's applicable cut-off time on a business day and (ii) the ACH Operator is open for business on that business day. If Provider receives approved Payment Order after Company's cut-off time, Provider will not be responsible for failure to process the Payment Order on that day. If any of the requirements of clause (i) or (ii) of this subsection are not met, Provider will use reasonable efforts to process the Payment Order and transmit the Entries to the ACH Operator with the next regularly scheduled file created by Provider which is on a business day on which the ACH Operator is open for business. G. Company expressly acknowledges that Provider does not intentionally or knowingly engage in or support International ACH Transactions ("lATs"), as defined in Nacha Rules. Company represents and warrants that (i) the direct funding for the Entries originated by Provider on behalf of Company does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (ii) Company will not instruct Provider to create, originate or transmit Entries that are IATs or Entries using a Standard Entry Class Code (as defined in Nacha Rules) other than IAT if such Entries are required to be IATs under Nacha Rules; and (iii) Company will not engage in any act or omission that causes or results in Provider creating, originating or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to Nacha Rules. Provider may, in its sole discretion, temporarily or permanently suspend providing the Services to Company, without liability, if Provider has reason to believe that Company has breached any of foregoing representations and warranties in this paragraph. Company shall indemnify and hold harmless Provider from any losses incurred by Provider in connection with Company's breach of the foregoing representations and warranties in this paragraph. 6. REFUND/ADJUSTMENT/0VERPAYMENT/COMPANY DEFAULT A. REFUND/ADJUSTMENT/OVERPAYMENT. Provider will not process any refunds, adjustments or overpayments until Provider receives verification that all outstanding fees, payments, and balances due to Provider have been paid. Company agrees that Provider may apply any balances or funds it is holding for Company to Amounts Due owed to Provider or its affiliates. If Provider remits an overpayment of Reimbursement Amounts on behalf of Company, Company agrees that it will reimburse Provider for the overpayment the sooner of five (5) days of (i) Company receiving a return of the overpayment; or (ii) Company being notified that the overpayment amount would be applicable to future or other liability of Company; or (iii) the Agreement being terminated by either Party. B. COMPANY DEFAULT. In the event of a Company default, Provider may, at its sole option, (i) refuse to pay any unremitted payroll taxes, in which case the payroll tax liability will become the sole responsibility of Company, and/or (ii) terminate the Agreement, or a portion thereof, without notice and declare any or all Amounts Due immediately due and payable. Company agrees to promptly reimburse Provider for all past due Amounts Due, including advancements or overpayments, made by Provider and to pay interest at the rate of one and one-half percent (1 ½%) per month, or the maximum allowable by applicable law, until paid. Company agrees that Provider may initiate an EFT to Company's bank account for any past due attorneys' Amounts Due. Company will be responsible for the costs of collection of Amounts Due including, but not limited to, fees and court costs. Provider may, in its sole discretion, commence an action in any other court of competent jurisdiction for any monies due and owing from Company to Provider. C. In the event Provider remits an overpayment of payroll taxes, Provider may, at its sole discretion, advance funds to Company. In the event Provider advances overpayment funds to Company, Company agrees that it will reimburse Provider for the overpayment within the sooner of five (5) days of (i) receiving the overpayment amount from the taxing authority; or (ii) being notified that the overpayment amount would be applied to an outstanding tax liability of Company; or (iii) the Agreement is terminated by either party. 7. SERVICE FEE AND CHARGES. Company agrees to pay Provider for the Services in accordance with the Fees set forth in the fee schedule which is accessed by logging into Company's payroll application by means of the Service Site ("Fee Schedule"). Company will also reimburse Provider for sales, use and similar taxes arising from this Agreement that federal, state or local governments may impose. 8. CHANGES TO THE SERVICES. Provider reserves the right to change the terms, conditions, and Fees for the Services at any time. Provider will endeavor to, but shall not be obligated to, provide thirty (30) days prior notice of any material change, including Fees. Notice may be provided in writing, electronically or via the Sese S e. If Company does not wish to be bound by such change, it may discontinue using and terminate the Services before the change becomes effective. If Company continues to use the Services after the change becomes effective, it will be bound by the change. Company has the responsibility to assure that Company's address, including any electronic address(es), and account information in Provider's records is accurate. The timing of an advance notice of change may be shortened when permitted or required by law. 9. VERIFICATION OF DATA. A. Provider will notify Company via electronic communication or by other means when all data necessary to begin the Services has been received, the enrollment process has been completed and of the Service Effective Date. Company shall then, prior to submitting its first payroll, review for completeness and accuracy all Payroll Information posted for Company's review on the specified portion of the Service. Company must correct incorrect or missing Payroll Information, either by itself or by notifying Provider in the manner and time period specified in the electronic communication. Company shall be fully responsible for the accuracy of all information supplied by it and/or approved by it at any time, including, without limitation any IRS or other penalties and/or interest arising therefrom. B. Company agrees that by submitting each payroll (including the first payroll), Company has: (i) reviewed and approved all Payroll Information, (ii) represented and warranted to Provider that no Payroll Information submitted to Provider 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) waives and releases any Page4 of 7 Rev. 1/2023 FILED: MONROE COUNTY CLERK 03/27/2024 INDEX NO. E2024005397 DocuSign Envelope ID: B87A05F5-70F4-4DOE-8D97-E6A529399578 rmation which 12:48 PM Company has not itself corrected or has not requested Provider NYSCEF DOC. toNO. correct.2Company acknowledges that any subsequent request for corrections will be considered special handling and additional RECEIVED Fees may NYSCEF: 03/27/2024 be charged. Final audit responsibility rests with Company and Provider will not have any responsibility for verifying the accuracy of any Payroll Information or other data Company provides or directly inputs via the Service Site or any other method. C. Provider will not be responsible for errors that result from Providers reliance on Company Information or Payment Orders received and verified by Company. Company acknowledges that any Company Information communicated to Provider will be deemed to have been fully authorized by Company and Company shall be fully responsible for the accuracy of such Company Information. Notwithstanding such deemed authorization, Provider may in its sole discretion refuse to accept or act upon any such instructions. D. Company will review all reports, documents, and data provided, made available, or accessible by Company on Company's account, and Company will inform Provider of any inaccuracies within three (3) business days of receipt or availability. Company acknowledges that Provider will not be responsible for any damages that may result from Company's failure to timely review reports. 10. SECURITY PROCEDURES AND COMPANY ONLINE ACCOUNT. A. Company will designate authorized contact(s) with authority to act on behalf of and to bind the Company ("Payroll Contacts"), that will submit all Company Information to Provider, or take action on behalf of Company for Services. Company will determine the scope of each Payroll Contacts' authority. At least one Payroll Contact will have authority to approve, release, cancel, amend, and/or submit Payroll Information and Payment Orders. Company acknowledges that it is solely responsible for designating all authorized contacts, establishing the level or type of access granted to each contact for each Service, and keeping all contacts and access levels current at all times, and for timely advising Provider, in writing or through the Service Site, of any change in Payroll Contacts. Company acknowledges that it is solely responsible for any damages, costs, expenses, or additional Fees that may be incurred as a result of its failure to provide updated contact information. Provider will have a reasonable time after receipt of notice to act on it. B. Any person identified by Company as a Payroll Contact in this Agreement, via the Service Site or in any certification, notice or other communication delivered to Provider may receive information, communications and notices regarding the Services, and is authorized to transact all business and make all agreements in connection with the Services. C. Company acknowledges that any Company Information communicated to Provider by telephone, electronic mail, facsimile, through the Service Site, or other means of communication will be deemed to have been fully authorized by Company and Company shall be fully responsible for the accuracy of such Company Information. Notwithstanding such deemed authorization, Provider may in its sole discretion refuse to accept or act upon any suchinstructions. D. Company 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. Company will, at its own cost and expense, obtain, install and, at all times during its utilization of the Services, maintain in good working order all software, hardware and other equipment necessary for it to perform in accordance with this Agreement. In the event of any failure of such software, hardware or other equipment, Company will deliver to Provider all data which it would otherwise have provided that is necessary for Provider to perform Provider's obligations in connection with the Services. Provider is not liable for any damages caused by Company's breach of any portion of this provision. E. Company, or any Worker, authorized contact, or third party that Company authorizes, may choose and/or be required to access or connect to certain Services online or through any mobile or other electronic devices ("Online Account"). If Company accesses or connects to Services through an Online Account, Company is solely responsible for (i) designating who is authorized to have access to Online Account ("Authorized User(s)"); (ii) setting and enforcing its own internal policies related to use of Online Account by any Authorized User; (iii) safeguarding all passwords, usernames, logins or other security features used to access Online Account ("Online Account Access"); (iv) use of Online Account under any usernames, logins or passwords, (v) ensuring that use of Online Account complies fully with the provisions of this Agreement and Users' all applicable terms of use; and (vi) any unauthorized access, or use, of the Online Account caused by Authorized actions or inactions, including, without limitation, its failure to safeguard Online Account or Online Account Access. Company acknowledges that each Authorized User may set their own preference with their Online Account and may link their account to certain third-party services at their option. F. Company is solely responsible for all activity occurring under Company's Online Account, including but not limited to, the manner in which it and its Authorized Users use the Services and for the Company Information provided via the Online Account. Company shall not and shall not permit its Authorized Users to: (i) use its Online Account in any manner that exceeds the scope of rights granted pursuant to the Services provided to Company under this Agreement and within the applicable terms of use; (ii) use its Online Account to transmit Company Information in violation of any third-party privacy rights, or (iii) make the Online Account accessible to any third parties other than Authorized Users. G. Company agrees to immediately notify Provider of any actual or suspected unauthorized use of Online Account and acknowledges that Company is solely responsible for damages resulting from any unauthorized use or Company's failure to timely notify Provider. Provider User(s)' reserves the right to limit, suspend, or terminate Company's and/or Authorized access to Online Account should Provider have reason to believe the security or confidentiality of Online Account or Online Account Access has been compromised. Company acknowledges that Authorized Users select the security level for Online Account Access and Company is solely responsible for these selections. Company further acknowledges that it has reviewed all of the security levels and has determined the level or levels for its Authorized Users that is commercially reasonable for providing security against unauthorized access and meets Company's requirements given the size, type and frequency of the Services it will receive from Provider. Company further acknowledges that, if applicable, an authorized reseller, referral or bank partner, or Company's accountant or certified public accountant ("CPA") may be designated as an Authorized User on Company's Online Account and that Company is responsible for use of Company's Online Account and Online Account Access by any Authorized User. H. Company is solely responsible for implementation of an information security program appropriate to safeguard Online Account or Online Account Access and which is consistent with all applicable Laws; safeguarding Online Account and Online Account Access for any third-party services integrated into the Services. Company acknowledges and agrees that Provider is not liable to Company, Company's Workers or any other third-party for any consequences, losses, or damages resulting from unauthorized access or use of the Online Account as set forth in this section. Company further agrees that Provider may access Company's Online Account to assist in configuration, provide ongoing support, and perform administrative functions necessary to provide the Services. I. Without limiting any other rights of Provider under this Agreement, Company agrees that should Company or Company's Authorized Users violate any of the provisio