Last updated September 4, 2021
These Payroll User Service Terms (“Payroll Terms”) along with the general Check Terms of Service available at www.checkhq.com/terms, which are expressly incorporated herein, set forth the terms and conditions under which Check Technologies, Inc. (“We” or “Check”) agrees to provide the company (collectively, the “Company,” “You” or “Your”) with certain payroll services and other related services (the “Payroll Services”). The Payroll Services are provided by Check to You based upon information collected and communicated to Check by a service provider. You acknowledge and understand that You are purchasing the Payroll Services through Your service provider, which in turn pays fees to Check for the Payroll Services provided to You and other customers pursuant to a services agreement. You acknowledge and understand that Check is a separate business entity from Your service provider and has no control over Your service provider’s actions, and any agreement you make with Your service provider is entirely separate from the terms contained herein. You acknowledge and understand that these Payroll Terms are in addition to any terms You have with Your service provider, but that Your service provider is intended to be a third-party beneficiary of these terms.
The individual agreeing to these terms, by checking the box, agrees to these Payroll Terms, certifies that you are authorized to make this agreement on behalf of the Company, and agrees that your acknowledgement of these Payroll Terms serves as your digital signature to this binding contract. If the Company does not agree to these Payroll Terms, do not use the Payroll Services.
1. Payroll Services
We will provide the Payroll Services to You as long as You are subscribed to the Payroll Services and You comply with these Payroll Terms.
We provide You with the Payroll Services for the purposes of (i) calculating payroll and its associated liabilities for the Company; (ii) processing payroll and making related payroll payments (which will be reflected on employee bank statements as a payment from Check or from your service provider); (iii) making certain payroll tax payments and payroll tax filings electronically; and (iv) if applicable, sending wage garnishments to local, state, or federal agencies. You appoint Check as Your agent for the limited purpose of providing the Payroll Services.
You may be required to agree to additional terms and conditions and complete and sign additional forms or authorizations that We provide to You, as required by law or as otherwise necessary to provide the Payroll Services.
You may not commercialize the Payroll Services or use them for anyone other than the Company.
We rely on the information furnished by You to perform the Payroll Services. This includes information and forms created prior to Check providing the Payroll Services, including (but not limited to) employee W4 forms, ACH credit and debit authorizations, which You are required to maintain and relay accurately, and payrolls that pre-date Check’s involvement. We are not responsible or liable for any errors or inaccuracies in information furnished by You, or for your failure to maintain original documents as legally required.
Prior to Your initial payroll processing date, You must submit the completed and executed documents We require for providing the Payroll Services, including Your payroll and bank account information, any required federal, state, or local powers of attorney, and any additional information that We request. You are also responsible for: (i) remitting any federal, state, and local withholding liabilities incurred prior to enrolling in the Payroll Services; and (ii) submitting any payroll returns to tax agencies that were due for payroll tax liabilities incurred before using the Payroll Services.
- No Fiduciary Duty; Your Legal Obligations; Necessary Consents.
You acknowledge and agree that, (i) in performing the Payroll Services, We are not acting in a fiduciary capacity for the Company; (ii) using the Payroll Services does not relieve You of Your obligations under federal, state, or local laws, regulations, or ordinances; (iii) You should not construe any information provided directly or indirectly by Check through Your use of the Payroll Services to be legal, tax, or accounting advice; and (iv) the Payroll Services may not include all functions necessary to operate the Company or to meet all federal, state, and local payroll reporting obligations applicable to the Company. You specifically acknowledge that general and specific determinations related to satisfaction of legal requirements related to minimum wage, overtime, pay frequency, and the classification of a worker as an employee vs. an independent contractor are your sole responsibility. In the event We provide gross wage calculation support, You acknowledge that calculating and providing employees’ regular rate of pay remains your sole responsibility.
You represent and warrant that You have provided all notices and obtained all consents necessary to provide Check with the information and permissions required to provide the Payroll Services, including information from your employees and/or independent contractors. You acknowledge and understand that in providing the Payroll Services, We act as an intermediary between You and Your employees and/or independent contractors specifically and solely with respect to the delivery of payroll funds owed. If you are a household employer, you agree to provide, and authorize Check to maintain, all personal information required to prepare the appropriate tax returns and schedules.
2. Payroll Information
- Entries; Approval.
You must approve and submit Payroll Information (as defined below) to authorize Check to create and transmit credit or debit entries (the “Entries”) necessary to process Your payroll and payroll tax transactions.
You will be notified via electronic communication or by other means when We have received all information necessary to begin the Payroll Services and the enrollment process for the Payroll Services has been completed. Prior to Check submitting Your first payroll, You will review the Payroll Information for completeness and accuracy. For purposes of these Payroll Terms, “Payroll Information” means any information We collect in connection with the Payroll Services, including but not limited to information You provide to Check (or Your service provider, as applicable) (“Submitted Payroll Information”) and all information used to calculate and pay employee payroll, track Your defined employee benefits, pay payroll taxes to applicable taxing agencies (including Your legal name and address, employer identification number(s), unemployment insurance tax rates, and employment tax deposit schedule), produce payroll tax returns and W-2 statements. You must submit Payroll Information that is correct and up-to-date. You are responsible for any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”), including but not limited to IRS penalties and/or interest, and other penalties and/or interest arising from the failure to timely provide and maintain accurate and complete Payroll Information at all times.
- Entries; Representations and Warranties.
By allowing Check to submit each payroll, You agree to and represent and warrant the following for each and every payroll: (i) You approve all Payroll Information; (ii) You do not currently conduct business with any individual or entity that is subject to sanctions by the Office of Foreign Assets Control of the U.S. Department of the Treasury, businesses and individuals on other government-maintained sanctions lists, or businesses or individuals in Cuba, Iran, North Korea, the Crimea Region, or Syria; (iii) no Submitted Payroll Information will result in Entries that would violate the sanctions program of any U.S. government agency or any other applicable laws, rules, or regulations; (iv) You waive and release any Claim against Check arising out of any errors or omissions in the Payroll Information which You have not corrected or have not requested Check to correct; and (v) You acknowledge that any subsequent request for corrections will be considered special handling and additional fees may be charged. Final responsibility for any audits or assessments rests with You. We will not have any responsibility for verifying the accuracy of any data You provide via the Payroll Services or via any other method.
3. Payroll Authorizations
We will use reasonable efforts to verify that anyone providing an instruction to approve, release, cancel, or amend the Payroll Information used to create Entries (each, a “Payment Order”) to be originated by Check is authorized to do so. You are responsible for reviewing and verifying Payment Orders for accuracy.
If a Payment Order describes the payee or participating financial institution inconsistently by name and account number, We may use the information provided to identify the correct payee or refuse to accept or return the Payment Order.
4. Bank Account Debiting and Crediting
You authorize Check and other authorized third parties to initiate debit or credit Entries to Your bank account (“Bank Account”) at the depository financial institution You provide to Check (the “Bank”) and You agree to provide Check with a separate authorization, via a Check-provided form, to initiate debit or credit entries to your Bank Account via ACH and You further agree to provide the Bank with any additional authorizations or information it may require. These authorizations will remain in full force and effect until You provide Check with written notice of termination of any such authorizations in such time and such manner as to afford Check and the Bank a reasonable opportunity to act upon such notice. You acknowledge that the failure to provide these authorizations or the termination of the authorizations for any reason may result in Check’s immediate termination of your access to the Payroll Services.
Should you choose to provide Your employees’ bank account information on their behalf to Check or Your service provider, You certify that you are maintaining authorizations from those employees for Check to credit and, as legally necessary to correct an error or overpayment, debit funds from those employees’ accounts. You will provide proof of all employee authorizations upon request.
Check is not responsible for determining whether the bank accounts of any payors or payees have deposit or withdrawal restrictions.
5. Requirements for Bank Account Funds
- Available Funds; Amounts Due.
You will maintain in the Bank Account immediately available funds sufficient to cover all disbursements, fees, payroll taxes or any other amounts due (collectively, the “Amounts Due”) under these Payroll Terms; such funds must be available to Check as of the date and time We originate the Entries for the Amounts Due.
We will not be liable for any consequences or Claims directly or indirectly arising from a failure to pay Amounts Due to the applicable parties resulting from Your failure to make sufficient funds available to Check via the Bank Account. If there are not sufficient funds in the Bank Account We may (i) require you to pay all outstanding disbursements to employees and independent contractors directly; (ii) refuse to pay any unremitted payroll taxes to the applicable tax agencies, in which case You will be solely responsible for the payroll tax liability; (iii) pay some or all of the Amounts Due as requested, then take all appropriate actions as are necessary to recoup the funds from You, including via third-party collection agency or legal action; (iv) repeat the debit attempt up to two additional times; (v) require current and/or future payments to be remitted through an alternative payment method; (vi) refuse to perform further Payroll Services; and/or (vii) immediately terminate these Payroll Terms. In the event that Check incurs any financial obligations or liabilities resulting from Your failure to make sufficient funds available to Check, including any legal or collection fees incurred in the course of collecting Amounts Due from You, You agree to reimburse Check for all such amounts.
- Use of Amounts Due.
Amounts Due will be held for Your benefit in accounts at federally-insured financial institutions (collectively, the “Payroll Account”) until such time as those payments are due to Your employees and/or independent contractors and the appropriate taxing agencies, and no interest will be paid to You on these amounts. You acknowledge that we are acting only as your authorized Third-Party Sender (as defined in the NACHA Rules) with respect to funds held in the Payroll Account, and that we have no access to or control over such funds.
You acknowledge that we may, on a future date and in accordance with any licensing and other legal obligations, cease acting as Third-Party Sender and assume the responsibility for holding and remitting all Amounts Due. In the event we assume this obligation, which may occur without notice to You, You acknowledge that We are entitled to invest the Amounts Due in accordance with Check’s investment guidelines established from time to time, and that Check, in its own capacity, is entitled to all income and gains derived from or realized from such investments and are not accountable to You, Your employees, or any other person for such income or gains. We may pledge any investments held in the Payroll Account in connection with a loan, rather than convert such investments to cash for each tax payment. To the extent We receive the Amounts Due, we will indemnify and hold You harmless from and against any loss of any portion of the principal amount of the Payroll Funds We cause while holding the funds in our Payroll Account. If We incur losses on the Payroll Funds or use the Payroll Funds for any other purpose, We will make the required payroll direct deposits and payroll tax deposits on Your behalf by using Check’s own funds or other assets.
You acknowledge that no state or federal agency monitors or assumes any responsibility for Check’s financial solvency.
6. ACH Origination, Transactions, and Entries
- NACHA Rules; UCC.
The Payroll Services will enable You to enter, approve, and submit the Payroll Information to Check for creation, formatting, and transmission of Entries in accordance with the NACHA Rules and Article 4A of the Uniform Commercial Code as amended from time to time (“UCC”). We may reject any Payroll Information or Entry which does not comply with the requirements in these Payroll Terms, NACHA Rules, or the UCC. If any Payroll Information or Entry is rejected, We will make a reasonable effort to notify You promptly, either directly or through Your service provider, so that You may correct such Payroll Information or request that We correct the Entry and resubmit it. If You request that We correct any Payroll Information or Entries on Your behalf due to incorrect Payroll Information You have provided, We may attempt to do so; provided, however, that We are not obligated to make any requested correction, and We are not liable for any Claims or other consequences that may directly or indirectly result from Check’s attempt to correct, or failure to correct, such Payroll Information or Entries.
- NACHA Roles.
You acknowledge that You are the Originator (as defined in the NACHA Rules) of each Entry and assume the responsibilities and liabilities of an Originator under the NACHA Rules. You further acknowledge that under the NACHA Rules and the UCC, We as a Third-Party Sender (as defined in the NACHA Rules), are required to make certain warranties on behalf of the Originator with respect to each Entry. You agree to indemnify Check for any Claim which results, directly or indirectly, from a breach of such a warranty made by Check on Your behalf, unless such breach results solely from Check’s own gross negligence or intentional misconduct. You also acknowledge that under the NACHA Rules and the UCC, We are 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 Check for any Claims which result from the enforcement of such an indemnity, unless the enforcement results solely from Check’s own gross negligence or intentional misconduct.
- Changes; Corrections.
After Check has received Your Submitted Payroll Information, You may not be able to cancel or amend such Submitted Payroll Information. We will use reasonable efforts to act on any cancellation or amendment requests We receive prior to transmitting the Entries to the ACH or gateway operator, but We will have no liability if the cancellation or amendment is not effected. You will reimburse Check or your service provider for any expenses, losses, fines, penalties, or damages We may incur in effecting or attempting to effect such a request. Except for Entries created from Payroll Information that has been re-approved by You and re-submitted in accordance with the requirements of these Payroll Terms, We will have no obligation to retransmit a returned Entry to the ACH or gateway operator if We complied with the terms of these Payroll Terms with respect to the original Entry.
- Entry Reversals.
We will make a reasonable effort to reverse an Entry upon Your request but will have no responsibility for the failure of any other person or entity to honor Your request and We cannot guarantee that the Entry will be successfully reversed. You agree to reimburse Check or your service provider for any costs or expenses incurred in attempting to honor such a reversal request. By initiating a request to reverse an Entry that was credited to a payee, You represent and warrant to Check that You have already obtained the payee’s consent for the reversal, if such consent is required under the NACHA Rules or the UCC.
7. Payroll Processing Schedule
We will process the Submitted Payroll Information and Entries in accordance with Check’s then-current processing schedule applicable to You, provided that (i) We receive the Submitted Payroll Information no later than the applicable cut-off time for Submitted Payroll Information on a business day; and (ii) the ACH is open for business on that day. If any of the requirements of clauses (i) or (ii) of this paragraph are not satisfied, We will use reasonable efforts to process the Submitted Payroll Information and transmit the Entries to the ACH as part of the next regularly-scheduled file We create.
Check’s standard processing time for Payment Orders is four (4) business days, but if You qualify for one of Check’s expedited payroll processing programs (each, an "Expedited Payroll Program"), then subject to the provisions of this paragraph, We will process the Payment Orders in less than four (4) business days. Whether You initially qualify for or continue to qualify for the Expedited Payroll Programs is decided by Check in its sole discretion; We have no obligation to provide expedited payroll processing services to you. Events including but not limited to making insufficient funds available for Amounts Due may cause Check to cancel expedited payroll processing services immediately and without notice to You.
8. Business Diligence
In order to meet Check’s legal obligations, evaluate risk and prevent fraud, We will perform certain diligence on the Company, either with or without notice to You. You acknowledge and agree that you will comply with Check’s efforts by providing Company information or documents upon request.
You understand that you may be asked to authorize a credit report for the Company or certain affiliated individuals; your refusal to provide such authorization may cause Check to decline to offer some or all of the Payroll Services to the Company.
In the event that Check determines the Company presents a risk of fraud or financial harm to Check or Your service provider, Check reserves the right to deny or limit Your access to the Payroll Services.
You also understand that We may request, and You will be obligated to provide, additional information or documentation related to Submitted Payroll Information or any transaction that You ask Check to perform. You acknowledge that Check can refuse to process a payroll if it concludes that the transaction is potentially fraudulent or creates undue risk to Check or Your service provider. You also acknowledge that Check may be obligated, in accordance with its legal obligations or the legal obligation of the financial institutions maintaining the Payroll Account, to report any suspicious or irregular activity involving the Payroll Services.
9. Taxes; Liability
We will only file tax returns on Your behalf once You have processed Your payroll through the Payroll Services and the payroll has been paid out to the payees. We may decide not to file Your payroll tax returns, or pay Your payroll taxes, if there are any unresolved problems with Payroll Information You submitted or We requested from you. Check’s sole liability and Your sole remedy for Check’s failure to perform the payroll tax portion of the Payroll Services shall be as follows: (i) We will remit the payroll taxes received from You to the appropriate taxing authority; and (ii) We will reimburse You or pay directly to the appropriate taxing authority any penalties resulting from Check’s error or omission, provided that You must use reasonable efforts to mitigate any penalties or losses resulting from Check’s negligent error or omission.
Check will choose a frequency of tax remittance on Your behalf unless You are located in a state where specific information from You is required (see “State-Specific Information,” below).
Important Tax Information: Even though You have authorized Check 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, the accuracy of those returns, and the timely payment of employment taxes for Your employees. We 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.
10. Failed Direct Deposits
In the event that a Payment Order fails to be paid to the payee, We cannot ultimately make a successful payment on Your behalf to the payee, and the funds are returned to Check’s Payroll Account (“Unpaid Funds”), We will notify You of such Unpaid Funds and provide You with the appropriate details related to those funds. In addition, We will return the Unpaid Funds to You in accordance with Section 6 of these Payroll Terms. You 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 Check from all liability and Claims directly or indirectly arising from state unclaimed or abandoned property laws, including any applicable penalties and/or interest. You may update the required wage and payroll information as necessary to reflect any necessary changes in accordance with the provisions of these Payroll Terms to allow Check to re-perform the Payroll Order on Your behalf.
11. Limitation of Liability
To the fullest extent permitted by applicable law, Check and its officers, directors, agents, partners and employees will not be liable to You under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Check or its officers, directors, agents, partners and employees have been advised of the possibility of such damages.
Except for (i) the obligation to remit funds that are processed under these Payroll Terms, (ii) amounts that are in Check’s possession that are rightfully owed to you, or (iii) Check’s own gross negligence or intentional misconduct, Check’s total liability for any claim arising out of or relating to these Payroll Terms, regardless of the form of the action, will not exceed the amounts You have paid to Your service provider for use of the Payroll Services in the six (6) month period immediately preceding the events giving rise to the applicable claim.
If You become aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a claim against Check or You in connection with these Payroll Terms, You must notify Check promptly and use reasonable efforts to mitigate against any loss that may give rise to such a claim.
12. Termination of the Payroll Services
- Grounds for Termination.
- Effect of Termination.
You acknowledge and understand that if You terminate the Payroll Services or We terminate the Payroll Services, then such termination may not be reversible. In the event that You or We terminate the Payroll Services, then as of the time of such termination, We will have no obligation to make further payroll tax filings on Your behalf. Notwithstanding the foregoing, if You or We terminate the Payroll Services, You will be asked to make specific elections regarding whether You would like Check to make certain final payroll tax filings (such filings, the "Final Payroll Tax Filings") on Your behalf following such termination of the Payroll Services (such elections, the "Post-Termination Filing Elections"). If You do not provide Check with Your Post-Termination Filing Elections promptly following termination of the Payroll Services, then You authorize Check to make the Post-Termination Filing Elections for You on Your behalf (the "Check Selections"). You acknowledge and agree that We may rely on Your Post-Termination Filing Elections and the Check Selections, and We are not responsible or liable for (i) any consequences or Claims arising (directly or indirectly) from such reliance; or (ii) any resulting errors, or any consequences or Claims arising (directly or indirectly) from any resulting errors, in the Final Payroll Tax Filings.
You agree that You and We are independent contractors and nothing in these Payroll Terms shall establish any relationship of partnership, joint venture, employment, franchise, or agency between us. Except as otherwise provided for in these Payroll Terms, neither You nor We will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
The obligations and rights established by these Payroll Terms may not be assigned or transferred by You without Check’s prior written consent and any attempted assignment without such consent will be void. Notwithstanding the foregoing, You or We may assign rights and obligations, in whole but not in part, without the other party’s consent, in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets or equity, or similar transaction. In such event, the party assigning this Agreement without consent must provide written notice to the other party of such assignment at least thirty (30) days prior to the assignment taking effect. This provision is binding on the parties hereto and their respective successors and permitted assigns.
These Payroll Terms shall not be deemed or construed to be modified, amended, or waived, in whole or in part, except as set forth herein or by a separate written agreement duly executed by You and Check. Check’s failure to enforce any term or condition shall not be deemed a waiver of the right to later enforce such term or condition or any other term or condition. If any provision of this Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions will remain in full force and effect. You and We will cooperate with one another and negotiate and enter into such additional agreements or provide additional documentation as may be reasonably necessary to fulfill the business understandings intended by these terms.
We shall not be liable for any delay or failure to perform due to causes beyond Check’s reasonable control. These Payroll Terms contain the entire agreement and understanding between You and Check with respect to the subject matter thereof and supersedes all prior agreements, negotiations, representations, and proposals, written and oral, relating to such subject matter. These Payroll Terms will not be construed in favor of or against any party by reason of the extent to which any party participated in the preparation of this Agreement.
These Payroll Terms shall be governed by, subject to, and interpreted in accordance with the laws of the state of New York, without regard to conflict of laws principles. The parties irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the Borough of Manhattan, for the purposes of adjudicating any action or proceeding to enforce the terms of this Agreement. The parties agree that this Agreement and the transactions contemplated therein shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction. English shall be the governing language of this Agreement. Both parties agree that they will use all reasonable commercial efforts to resolve any dispute between them before recourse to judicial or other forms of administrative process, which efforts shall include a meeting between the chief executive officers of each organization in which both parties will make a good faith effort to resolve such disputes.
14. State-Specific Information
For businesses located in Georgia or Massachusetts: Your frequency of tax remittance will be determined by Check based upon information provided by You. You are obligated to provide Check with all information required to choose a tax remittance frequency.
For businesses located in Indiana: in the event that Check fails to deposit or remit Your withholding taxes when due, and the failure is not caused by You, Check shall be responsible for, and assume all obligations for, the payment of any penalties or interest assessed by the Indiana Department of Revenue as a result of the failure.