These Conditions of Use (“Agreement”) constitute a binding contract between you and S & W Payroll Services L.L.C. (“Netchex”). This Agreement sets forth the standards of and limitations on use of Netchex’s website www.netchex.com (the “Site”) and any products or services available through the Site. All persons who access the Site, including regular and administrator users, are referenced as “you” or “your.” By using the Site or any Service (defined below), you accept and agree to this Agreement. If you do not agree to the terms and conditions of this Agreement, you should immediately cease all usage of the Site and Services and you are not authorized to access or otherwise use the Site or Services. We reserve the right, at any time, to modify, alter, or update any provision of this agreement without prior notice. Modifications shall become effective immediately upon being posted at the Site. Your continued use of the Site or any Service after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications.
1.1 Site Use Generally.
The Site is available to users who have a registered username and password associated with a Netchex Client who has contracted with Netchex for products and services (“Services”) agreement(s) for Services with Netchex (“Service Agreements”). If you do not have a valid registered username and password or are no longer an employee, contractor, or plan participant of the Client, you are not authorized to use or access the Site. The Client, through its Service Agreement(s), is providing you with access to the information and Services on the Site under this Agreement. You are responsible for maintaining the security of any password and username that may grant access to non-public areas of the Site. In order to protect you and your data, Netchex may suspend your use of the Site, without notice if any unauthorized access or breach of security is suspected. Netchex reserves the right to modify or discontinue the Service or the Site with or without notice to you. Netchex shall not be liable to you or any third party should Netchex exercise its right to modify or discontinue, or interrupt access to, the Service or the Site. You acknowledge and accept that Netchex does not guarantee continuous, uninterrupted access to the Site and operation of the Site may be interfered with or adversely affected by numerous factors or circumstances outside of Netchex’s control.
1.2 Use by Regular Users.
All users who are not administrator users are regular users. Regular users may access certain employment-related or plan-related information and documents made available by Client to participate in the Services. The Services may permit regular users to update personal information, time records or to make benefits elections through the Site. You acknowledge and agree that it is your responsibility to submit information relating to the Services and to verify the accuracy and completeness of all such information. Netchex does not review the accuracy or completeness of the information you submit. By using the Site to transmit your personal information and other data, you consent to the use of your personal information and other data as required by Netchex to provide the Services in accordance with any applicable Service Agreement. You acknowledge that Netchex is making the Site available on behalf of the Client and is not acting as an advisor, agent, fiduciary, intermediary, or a financial or benefit planner or tax advisor. The Client is responsible for making available all benefits and information referenced or included on the Site. You assume all responsibility for and risk arising from your use of and reliance upon the contents of the Site.
1.3 Use by Administrator Users.
On behalf of the Client, you may access and input certain information relating to the Client, the Client’s employees, contractors, and/or the Client’s plan participants. The information that you input may be used and relied upon by Netchex and by the Client’s other regular users who access or use the Services. The Services may permit regular users to make certain elections through the Site and to update certain personal information. As an authorized administrator for the Client, you acknowledge and agree, on behalf of the Client, that it is the Client’s responsibility to submit instructions and information relating to the Services and to verify the accuracy and completeness of all such instructions and information submitted by the Client and by all regular users.
As an authorized administrator for the Client, you acknowledge and understand, on behalf of the Client, that Netchex is merely making the Site available and is not acting as an advisor, broker-dealer, agent, fiduciary, intermediary, or a financial or benefit planner or tax advisor. As an authorized administrator for the Client, you acknowledge, on behalf of the Client, that the Client is responsible for making available all benefits and information related thereto referenced or included on the Site.
The right to use the Site is personal to you and is not transferable by you to any other person or entity. Any attempt by a user to transfer such user’s rights shall be void and shall constitute a breach of this Agreement. You shall not use the Site or the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening or interrupting network capacity. You acknowledge and agree you are not permitted to use any personally identifiable information of any other person accessed through the Site for any use not expressly permitted by a Service Agreement. You further agree not to copy, transfer or distribute any such personally identifiable information other than as permitted by a Service Agreement. You further agree not to use the Site, Services or Software (defined below) in any manner to harass, abuse, threaten, or otherwise infringe or violate the rights of any other party, and that Netchex is not responsible for any such use by you.
2. Registration and Password.
Access to and use of password protected and/or non-public areas of the Site is restricted to authorized users only. Unauthorized access to such areas is prohibited. If you do not have a username, you may not access or use the Site. In order to access and use the Site, you must provide your current username and password. You agree to take any and all actions necessary to maintain the privacy of your username and password, including, without limitation, safeguarding your username and password in a private and secure place, changing your password periodically, adopting special precautions when accessing the Site from a computer that is available for use by other users, and exiting from the Site at the end of each session. In the event that you have reason to believe that a third party has access to your account, you should immediately change your password and notify [email protected] and your Client’s administrator user. You agree that you will not access the Site through a username and password that has not been issued specifically to you, personally, as a regular or administrator user.
3. Your Representations.
You represent, warrant and covenant that: (a) you are authorized to access and use the Site; (b) all instructions and information you enter into the Site related to the Services will be accurate and complete and may be relied upon by Netchex; (c) you will verify and remain solely responsible for all instructions and information entered into the Site related to the Services; (d) you will not upload, transmit, distribute or otherwise publish through the Site any materials that contain a virus, malware or other harmful software or other component or that would harm the Site, allow unauthorized access to Client information, or cause the Site to malfunction; and (e) you will not, without permission, decompile, reverse engineer, disassemble or unlawfully access, use or reproduce any of the Software or other copyrighted or trademarked material, trade secrets or other proprietary information contained in the Site.
4. Laws and Regulations.
Access to and use of the Site is subject to all applicable federal, state, and local laws and regulations. You agree to abide by these laws and not use the Site, including the software available through the Site (“Software”) and Services, in any way that violates such laws or regulations. You further agree not to transmit any material through the Site that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, or federal law or regulation.
5. Privacy.
Any personal information provided to Netchex through the Site is subject to Netchex’s Privacy Notice.
6. Data Transmissions.
You acknowledge that transmissions to and from the Site could be read or intercepted by others. Netchex is not responsible for any interception or interruption of any communications through the internet or for changes to or losses of data. You acknowledge that by submitting communications through the Site, no confidential, fiduciary, contractually implied or other relationship is created between you and Netchex, except as provided in this Agreement.
7. Disclaimer of Warranties.
NETCHEX MAKES NO WARRANTIES WITH RESPECT TO THE SITE, THE SOFTWARE, OR SERVICES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE, SOFTWARE, OR SERVICES IS AT YOUR OWN RISK. THE SITE, SOFTWARE, AND SERVICES ARE PROVIDED SOLELY ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, NETCHEX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. NETCHEX EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, REDHIBITION, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NONINFRINGEMENT. NETCHEX DOES NOT WARRANT THAT THE OPERATION OF THE SITE AND THE SOFTWARE AND SERVICES, SHALL BE UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES, MALWARE, TROJAN HORSES OR ANY OTHER MALICIOUS SOFTWARE OR CODE, OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR THIRD PARTY SERVICE. NETCHEX FURTHER DISCLAIM ANY WARRANTY THAT THE RESULTS OBTAINED THROUGH THE USE OF THE SITE WILL MEET YOUR NEEDS OR IS SUITABLE FOR ITS INTENDED PURPOSE.
8. Limitation of Liability.
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW: UNDER NO CIRCUMSTANCES SHALL NETCHEX OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES SUFFERED BY YOU, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, (I) LOST PROFITS LOSSES ARISING FROM THE FAILURE TO RECEIVE ANY BENEFITS, (II) ANY TRADING LOSSES, (III) LOSSES ARISING FROM THE USE OR THE INABILITY TO USE THE SITE AND SOFTWARE AND/OR THE SERVICES, (IV) LOSSES ARISING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, OR (V) LOSS OF INFORMATION, PROGRAMS OR OTHER DATA THAT RESULT FROM ACCESS TO, USE OF, OR INABILITY TO USE THIS SITE OR DUE TO ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE INTERNET, OR INABILITY TO USE THE SITE AND THE SOFTWARE AND/OR SERVICES OR DUE TO ANY UNAUTHORIZED ACCESS OR BREACH OF SECURITY. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF NETCHEX OR ITS LICENSORS HAD PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Indemnification.
You agree to defend and indemnify and hold harmless Netchex, its parents, subsidiaries, affiliates, licensors, officers, directors, and employees, from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party arising out of or related to your use of the Site and the Software or the Service, or another’s use of the Site and the Service using your username and Password, or the violation of this Agreement.
10. Rights to Use Software.
The Software includes certain computer software that is subject to copyright protection by Netchex and/or Netchex’s licensors. You agree and acknowledge that Netchex and/or its licensors retain title to the Software and any copies thereof. You may not copy, distribute, transmit, display, publish, sell, rent, license, create derivative works or otherwise use any Software available on or through the Site for any purpose, except those allowed under any applicable Service Agreement. You are granted access to use the Software on a limited, revocable, non-exclusive, and non-transferable basis, subject to this Agreement. You may not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Software, any updates, or any part thereof. You agree not to modify, move, add to, delete or otherwise tamper with the Software contained in the Site. Any actual or attempted breach of any obligation under this paragraph is a violation of the rights of Netchex and/or its licensors and constitutes irreparable harm.
11. Links from Third Party Sites.
Netchex prohibits unauthorized links to the Site and the framing of any information contained on the Site or any portion of the Site. Netchex reserves the right to disable any unauthorized links or frames and has no responsibility or liability for any material on other Web sites that may contain links to the Site.
12. Links to Third Party Sites, Third Party Services.
The Services may display, include or make available, content, data, information, applications or materials from third parties or provide links to certain third party web sites. Third party materials and links to other web sites are provided solely as a convenience to you. You acknowledge and agree that Netchex is not responsible for the availability of, or the content of, or any other aspect of, such third party materials or web sites. Netchex does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third party services, third party materials or web sites, or for any other materials, products, or services of third parties, or the accuracy or reliability of any third party information provided on this Site. Netchex does not endorse, nor makes any warranties or representations whatsoever with regard to any product or service provided or offered by any third party, and you acknowledge that any reliance on representations and warranties provided by any third party shall be at your own risk.
13. Copyright and Trademark Information.
All content included or available on this site, including Site design, text, graphics, interfaces, and the selection and arrangements thereof is the property of Netchex and/or third parties. Any use of materials on the website, including reproduction, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Netchex is strictly prohibited. You agree that you will not use any robot, spider, or other automatic device, or manual process to monitor or copy Netchex’s web pages or the content contained therein without prior written permission of an authorized officer of Netchex.
NetchexSM is a proprietary mark of Netchex, and the Site design, graphics, arrangement, and colors is Netchex’s trade dress (collectively “Service Marks”). Netchex’s Service Marks may not be used in connection with any product or service that is not provided by Netchex, in any manner that is likely to cause confusion among customers, or in any manner that disparages, tarnishes, or dilutes the distinctiveness of Netchex’s mark.
All other trademarks displayed on Netchex’s website are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those vendors. In addition, such use of trademarks or links to the web sites of third party vendors is not intended to imply, directly or indirectly, that those vendors endorse or have any affiliation with Netchex.
14. Governing Law.
These Conditions of Use shall be governed by and construed by the laws of the state of Louisiana, excluding its conflicts of laws rules, regardless of where any action may be brought. You agree to submit to the exclusive jurisdiction and venue of the state and federal courts of Mandeville, Louisiana.
15. Other Provisions.
If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. You agree that this Agreement may be assigned by Netchex, in our sole discretion, to a third party in the event of a merger, acquisition, or sale of assets. This Agreement shall apply in addition to, and shall not be superseded by, any other written agreement between us in relation to your participation as regular or administrative user.