Last modified in June 2020
If you use Bitwage's United States banking partner, you are entering into a contract with Bitwage, Inc., a Delaware C Corporation, and if you use Bitwage's European Union or United Kingdom banking partners, you are entering into a contract with the relevant Bitwage entity (Bitwage Ireland Limited, an Irish Private Company Limited by Shares or Bitwage Netherlands B.V., or Bitwage Services Estonia Oü)
This Agreement may be amended at any time in accordance with Section 14.1 below, and your continued use of the Bitwage Technology and/or the Bitwage Services shall be subject to such amended terms and conditions.
1.1. AGREE TO ACCEPT. In order to access and use the Bitwage Service, you are required to indicate acceptance of this Agreement below. By accessing and/or using the service, you agree to comply with and be legally bound by this Agreement.
If you do not agree to any of the terms set forth in this Agreement, you may not access or use any of the Bitwage Services.
1.2. AGREEMENT ON BEHALF OF A BUSINESS. If you are agreeing to these terms on behalf of a business, you represent and warrant that you have authority to bind the business to this Agreement. Your acceptance to this Agreement will be treated as the acceptance to this Agreement by the business. In that event, you and your refer to that business.
1.3. EMPLOYER/PAYER RESPONSIBILITY TO COMPLY WITH BSA/AML REQUIREMENTS. Money laundering is the process of taking the proceeds of criminal activity and making them appear legal. It typically involves three steps – placement, layering and integration. Money laundering can facilitate crimes, such as fraud, drug trafficking and terrorism; it adversely impacts the global economy; and it is strictly illegal.
To help the government fight the funding of terrorism and money laundering activities, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) requires Bitwage to obtain, verify, and record information that identifies each person or entity that opens an account.
Human Resources Departments face special Office of Foreign Assets Control (OFAC) compliance challenges, especially with regards to staffing. Companies are generally prohibited from dealing with individuals on the OFAC Specially Designated Nationals (SDN) list, and this includes being prohibited from employing them. Thus, companies should implement robust restricted and denied party screening of both new and existing employees against the SDN list to ensure that they do not inadvertently end up with restricted parties on their payroll, whether in the U.S. or overseas.
Before opening an account, and on an ongoing basis, the Company acting as the Recipient of Bitwage’s services (“Recipient”) will verify the identity of any and all employees and check to ensure that any employee using the Bitwage Service does not appear on the SDN list or is not engaging in transactions that are prohibited by the economic sanctions and embargoes administered and enforced by OFAC. Because the SDN list and listings of economic sanctions and embargoes are updated frequently, the Recipient will consult them on a regular basis and subscribe to receive any available updates when they occur.
For individual employees opening an account, the Recipient will provide, upon request from Bitwage, the name, address, date of birth, and if applicable, employee number before the next pay period. As requirements may change due to the number of transactions or amounts of transactions, the Recipient, upon request from Bitwage, will supply any other information required to verify an employee’s compliance with the above requirements before the next pay period.
A Recipient that employs independent contractors and subcontractors are also responsible for verifying the identity of any and all independent contractors and subcontractors and making sure that the companies and individuals they hire are not on the OFAC SDN list or other federal government restricted or denied parties lists designed to protect the United States and its allies from threats of weapons proliferation, drug trafficking, and terrorism.
For independent contractors/sub-contractors opening an account, the Recipient will provide, upon request from Bitwage, a copy of the executed contract with all roles, responsibilities and terms listed as well as the name, address, phone number, entity/corporate number, EIN as well as name, date of birth, driver’s license/ID card number, SSN of all responsible parties (owners, officers, etc.) for the independent contractor/sub-contractor before the next pay period. As requirements may change due to the number of transactions or amounts of transactions, the Recipient, when requested, will supply any other information required to verify an employee’s compliance with the above requirements.
The Company will attest to the fact they will comply with these requirements by drafting a Letter of Reliance and having it signed by an authorized representative. (A template will be provided by Bitwage)
If funds are received from an employer or individual that results in additional scrutiny, the funds will be held in escrow until a resolution is reached through receipt of additional data needed to approve the transaction. In the case of non-communications from the recipient and/or refusal or delay in receiving additional information, there will be a $10.00 holding charge as well as a 2% handling fee per month until all needed information is received.
In the case that funds are received from an employer or individual after they have been notified their account has been closed, suspended or is under investigation, the funds will be returned by bank transfer or other means within 30 Days as long as Bitwage has or receives valid bank account details from the recipient. There will be a $10.00 + 2% handling fee if additional funds are received after an initial notification and return.
If there is any suspected illegal activity, Bitwage will initiate an investigation and contact the appropriate law enforcement agency. The funds will be held until the investigation is completed. There will be a $10.00 holding fee plus 2% handling fee per month if the recipient in uncooperative or delays helping to resolve any pending issue related to the action. If illegal or unethical activity is discovered, the funds may be subject to forfeit or confiscation.
2. BITWAGE SERVICES.
2.1. SERVICES. Bitwage provides you with a secure and convenient way to establish an account (“Bitwage Account”) for purposes of (i) payroll processing, (ii) payroll tax service, and (iii) other related payroll/payment/benefit services (“Bitwage Services”, and collectively with Debit Card Services, Uphold Services and other services referenced in this Section 2, the “Services” or the “Service”). By signing up to use the Bitwage service, you are expressly directing Bitwage to act as your agent to collect and process payments on your behalf; Bitwage is an independent contractor for all purposes, and once your payment is received by Bitwage, it is treated as received on your behalf. You acknowledge that by using the Bitwage Services, and conducting transactions, Bitwage will be providing, at your direction, account information to third parties including, but not limited to, your employer, employee, payroll provider, 401(k) plan administrator, 401(k) record keeper, 401(k) asset custodian and/or other required party, as applicable. Bitwage will provide the Service of calculating payroll and its associated liabilities and/or making payroll/benefit payments and/or tax payments and/or tax filings electronically, for business employees, household employees, and/or independent contractors, using Bitwage Payroll for employers and/or Bitwage Payroll for individuals, for the period of time provided in your activation instructions as long as you are in compliance with the Agreement and have met your payment obligations. Without the express written permission of Bitwage, you may not use the Service on a professional basis for any party other than you.
2.4. BITWAGE JOBS. Bitwage may offer additional benefits under its Bitwage Jobs (Bitwage.jobs) service offerings. Bitwage.jobs may offer a payment-based reputation service that uses payment data for parties receiving payments through the Services to create verified vendor/contractor profiles. Bitwage.jobs users may use the bitwage verified icon on sales and marketing materials as it pertains to data varied through Bitwage services. In addition to allowing vendors and contractors to use the profiles to market their businesses, the payment data would also be used to allow staffing agencies, freelance marketplaces and similar organizations to use the Bitwage.jobs service to locate contractors for their clients. By using the Services, you agree payment data collected by Bitwage about you may be used to provide the Bitwage.jobs service offerings in the future.
2.5. ADDITIONAL TERMS AND CONDITIONS OF USE. Depending on the jurisdiction, type of Service or volume of transactions you request, there may be additional terms and conditions you will be required to accept. This may include the completion and signing of additional forms and/or authorizations that Bitwage provides to you as required by law or otherwise necessary to provide the Service.
2.5. BITWAGE 401(K). Bitwage works with third parties for 401(k) plan administration, 401(k) record keeping, asset custody and asset exchange. Each of the respective services are provided by their respective vendors and are subject to terms & conditions as well as fees outside of the control of Bitwage. All trades within the Bitwage 401(k) are conducted through Bitwage or the asset custodian. You agree to assign Bitwage as your Account Designated Representative (“ADR”) with your 401(k) plan administrator, 401(k) record keeper, asset custodian and asset exchange. As an ADR, you authorize Bitwage to access your account, make certain investment purchases and sales in your account and receive copies of your account statements. As your ADR, Bitwage will purchase assets with funds allocated to the Bitwage 401(k) by the 401(k) plan administrator and/or 401(k) record keeper every contribution period, unless otherwise instructed by the plan participant. Aside from payroll contributions, Bitwage will buy and sell assets inside of the 401(k) at the discretion of the plan participant or as may be required by the 401(k) plan administer and/or 401(k) record keeper. Bitwage will provide either a portal, an account manager, or a support channel whom a 401(k) plan participant can conduct trades at the discretion of the plan participant. The exchange rate will be the spot rate plus the fee of the asset exchange.
2.6. ADDITIONAL TERMS AND CONDITIONS OF USE. Depending on the jurisdiction, type of Service or volume of transactions you request, there may be additional terms and conditions you will be required to accept. This may include the completion and signing of additional forms and/or authorizations that Bitwage provides to you as required by law or otherwise necessary to provide the Service.
2.7. CREDIT REPORT. You consent to and authorize Bitwage to obtain credit reports about you and/or your business at any time Bitwage Service has been authorized and is being provided to you. Bitwage may also report adverse credit information about you and/or your business, to others, including the Internal Revenue Service and any applicable state taxing authorities. Bitwage may, at its discretion, decline to offer the Service to you for any reason, including that Bitwage is unable to verify satisfactory credit of you and/or your principals/business and/or for other lawful business reasons. In the event the enrollment process is not satisfactorily completed, Bitwage will not activate the service.
2.8. REQUIREMENTS TO ACTIVATE SERVICE. Prior to your initial payroll processing date, you must submit required Bitwage documents which must be completed and executed in full. Information Bitwage requires for providing the Service, may include your payroll and bank account information, any required federal, state or local powers of attorney, and any additional information requested by Bitwage and/or required by law. By activating and receiving the Service, you acknowledge and agree that Bitwage is not acting in a fiduciary capacity for you and/or your business and using the Service does not relieve you of your obligations under federal or state laws or regulations to retain records relating to the data Bitwage may or may not store in physical or electronic files.
2.9. INTERNET ACCESS. The Service does not include access to the Internet for connection to the Service. You acknowledge that the operation and availability of communications systems used for accessing and interacting with the Service or to transmit information to the taxing authorities may be unpredictable and, from time to time, interfere with and/or prevent access to the Service or its operation. Bitwage is not in any way responsible for any such interference with and/or prevention of your use of or access to the Service. In such cases, you must contact customer support by other means for instructions on how to calculate paychecks for your employees and/or make tax payments and filings and/or make benefit payments. You will, at your own cost and expense, obtain, install and, at all times during its utilization of the Service, maintain in good working order all software, hardware and other equipment necessary for you to perform in accordance with this Agreement. In the event of any failure of such software, hardware or other equipment, you will deliver to Bitwage all data which you would otherwise have provided that is necessary for Bitwage to perform Bitwage's obligations in connection with the Services.
3.0. AUTHORIZED USE. You agree not to: (i) use the Service other than as authorized in this Agreement; (ii) use any device, software, or routine that interferes with any application, function, or use of the Service, or is intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or communication; (iii) resell, sublicense, timeshare, or otherwise share the Service with any third party without express written permission from Bitwage; (iv) frame or mirror the Service; (v) decompile, disassemble or reverse engineer the underlying software or application that is part of the Service or otherwise attempt to derive its source code or modify, tamper, create derivative works, or otherwise incorporate the Service in other programs without express written consent of Bitwage; (vi) use the Service either directly or indirectly to support any activity that is illegal; (vi) access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vii) authorize any third parties to do any of the above. Access to and use of the Service is subject to all applicable international, federal, state and local laws, regulations and privacy policies. User agrees not to use the Service in any way that violates such laws or regulations. If any violations of the above are found, the funds received will be held pending resolution. Bitwage will provide any and all account and identifying information required by law to the appropriate authorities to assist in any investigation.
3. PAYROLL ACCOUNT AND INFORMATION
3.1. BITWAGE PAYROLL EMPLOYER. You will designate and authorize either yourself and/or one or more individual users of the Service with authority to act on your behalf and to bind you and/or your business (each a "Payroll Administrator"), who may access the Service by entering a confidential user ID and password created by following the instructions provided via the Service and which will entitle them, depending on their designation and permissions given, to have authority to access, review, modify and/or provide approvals on your behalf. The Payroll Administrator will approve and submit the Payroll Information thereby authorizing Bitwage to create and transmit credit and/or debit entries (“Entries”) and/or wire transactions necessary to process your payroll and/or payroll tax and/or benefit transactions.
3.2. BITWAGE INVOICING. You may access the Service by entering a confidential user ID and password created by following the instructions provided via the Service and which will entitle you to access, review, modify and/or provide changes and approvals. When you approve and submit the Payroll Information you thereby authorize Bitwage to create and transmit credit and/or debit entries (“Entries”) and/or wire transactions necessary to process your payroll and/or payroll tax and/or benefit transactions.
3.3. BITWAGE INTERNATIONAL SERVICE. Bitwage works with partners throughout the financial eco-structure within and outside of the US. You may access the service by providing the required information based on location. Bitwage provides the employer’s US Dollar input and interface with our preferred partner in your designated location. Bitwage will not be liable for losses resulting from any transaction once the funds are passed from Bitwage to our partner. Bitwage, though not required, will provide information and attempt to facilitate a resolution of any dispute.
Any fiat currency conversion will be determined through an internal automated system which may be tied to various public, private or partner market rates available to Bitwage. Bitwage will not be liable for any currency conversion issues as only US Dollar is sent to our preferred partner. Bitwage is also not responsible for any currency volatility issues including but not limited to delays related to the speed of transmission or liquidity of the various currencies involved in the transaction. Bitwage, though not required, will attempt to facilitate a resolution of any dispute with our partner and the recipient.
Some service locations will require the recipient to sign up with our partner provider as well as sign up with Bitwage. PRIOR TO IMPLEMENTING BITWAGE’S INTERNATIONAL SERVICE, RECIPIENT MUST DESIGNATE THE PAYOUT METHOD.
3.4. BITWAGE CONTRACTOR PAYROLL/PAYMENTS. Many different systems are used by companies to pay contractors, Bitwage will not be liable for funds received that have incorrect, incomplete, limited or no identifying information related to the payment. On any unidentified fund transfers, Bitwage will attempt to work with the recipient and the payor to identify and resolve the issue. BE AWARE that many of the “Shared Economy” companies (ex. Uber, SideCar, Lyft, AirBNB, etc.) have limited identifying information, please contact Bitwage prior to signing up to the service. We will work with the service provider to determine if the service may be successfully implemented.
3.5. BITWAGE 401(K). If available, you may access the Service by entering a confidential user ID and password created by following the instructions provided via the Service and which will entitle you to access, review, modify and/or provide changes and approvals. If assigned an account manager or support channel, additional verification may be required to access, review, modify and/or provide changes and approvals to your Bitwage 401(k) assets. When you approve and submit changes to your Bitwage 401(k) assets, you thereby authorize Bitwage to create and transmit credit and/or debit entries (“Entries”) and/or wire transactions necessary to process your benefit transactions.
3.6. CONFIDENTIALITY. You will, and will cause your authorized users to, take reasonable steps to maintain the confidentiality of the authorization procedures and the user IDs and passwords and related instructions provided by Bitwage. If you believe or suspect that any such user IDs and passwords or related instructions have been known or accessed by unauthorized persons, you will immediately notify Bitwage in a manner affording Bitwage a reasonable opportunity to act on the information. You acknowledge that failure to immediately notify Bitwage could result in loss of funds and unauthorized access to confidential information concerning you and/or your employees. Bitwage reserves the right to prevent access to the Service should Bitwage have reason to believe the confidentiality of the security procedure or the confidentiality of the user IDs and passwords have been compromised. You are responsible for any actions taken on the Service by your Payroll Administrator and/or any other authorized users, and for any transactions resulting from your failure to maintain the confidentiality of your account. You agree that the provision of a user ID and password by you, your Payroll Administrator and/or any other authorized users, will have the same effect as providing a written signature authorizing electronic payments, filings and other actions on the Service.
3.7. PAYROLL INFORMATION. Bitwage will notify you via electronic communication or other means when all data required to begin the Service is received and the enrollment process completed. You shall then review for completeness and accuracy the Payroll Information. For purposes of this Agreement, \"Payroll Information\" shall mean all information provided for the Service and/or posted for your review on the Service. You must correct incorrect or missing Payroll Information, either by itself or by notifying Bitwage in the manner specified in the electronic communication and within the time period specified therein. You are fully responsible for the accuracy of all information you provide, submit and/or approve, including, without limitation any IRS or other penalties and/or interest arising therefrom.
3.8. SUBMITTING PAYROLL. You agree that by submitting each payroll (including the first payroll): (i) you have approved all Payroll Information, (ii) you have represented and warranted to Bitwage that no Payroll Information submitted to Bitwage 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) you have waived and released any claim against Bitwage arising out of any errors in the Payroll Information which you have not yourself corrected or have not requested Bitwage to correct, and (iv) any subsequent request for corrections will be considered special handling and additional fees may be charged. Final audit responsibility of all information transmitted to Bitwage rests with you. Bitwage will not have any responsibility for verifying the accuracy of any data you provide or directly input via the Service or any other method.
Bitwage may permit, but shall not be obligated to permit your Payroll Administrator or other a designated representative to communicate with Bitwage by electronic mail or other means about the Service. You acknowledge that any such electronic mail communication or other means of communication will be made available for your benefit and convenience, that any Payroll Information, Entries or other instructions communicated to Bitwage will be deemed to have been fully authorized by you and you shall be fully responsible for the accuracy of such information including, without limitation, any IRS or other penalties and/or interest arising therefrom. Notwithstanding such deemed authorization, Bitwage may in its sole discretion refuse to accept or act upon any such instructions.
3.9. INFORMATION RELEASE. Bitwage, its employees and agents will hold in strict confidence all data furnished by you or produced by Bitwage under this Agreement; provided, however, that such parties will not be held liable if such data is released through other sources, or if Bitwage, its employees and agents release the data because of a reasonable belief that you have consented to such disclosure.
3.10. AUTHENTICATION. Bitwage will verify the authenticity of an instruction approving, releasing, cancelling or amending the Payroll Information used to create Entries (each, a\"Payment Order\") to be originated by Bitwage using the authorization procedures described herein. Bitwage does not verify or review Payment Orders for the purpose of detecting errors. You will be bound by any Payment Order received and verified by Bitwage in compliance with the designated authorization procedure, and you will indemnify and hold Bitwage harmless from and against any loss suffered or liability incurred by, or arising from, the execution of a Payment Order executed in good faith and compliance with such procedures.
3.11. ACCOUNT NAME. If a Payment Order describes the receiver inconsistently by name and account number (i) payment may be made on the basis of the account number, even if you identify a person different from the named receiver, or (ii) Bitwage may, at its sole discretion, refuse to accept and/or may return the Payment Order. If a Payment Order describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the financial institution. If a Payment Order identifies a nonexistent or unidentifiable person or account as the receiver or the receiver's account, Bitwage may, at its sole discretion, refuse to accept and/or may return the Payment Order.
4. BANK ACCOUNT & CREDIT CARD
4.1. BANK ACCOUNT & CREDIT CARD DEBITING. On or prior to your payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, you authorize Bitwage to initiate debit entries to your designated bank account or credit card specified by you through the Service (your 'Bank Account') at the depository financial institution the routing number or credit card number of which is given through the service (your 'Bank'), and to debit your Bank Account in such amounts as are necessary to (i) fund your direct deposits or Bitwage offered benefits, (ii) pay any fees or charges associated with the Service, including, without limitation, finance charges, (iii) pay your payroll taxes, (iv) pay any debit, correcting or reversing entry initiated pursuant to this Agreement which is later returned to Bitwage, and (v) pay any other amount that is owing under this Agreement or in connection with the Service. This authorization is to remain in full force and effect until Bitwage has received written notice from you of termination in such time and such manner as to afford Bitwage and your Bank a reasonable opportunity to act upon it. You will maintain in your Bank Account as of the applicable settlement date and time immediately available funds sufficient to cover all credit entries you originate through Bitwage. Your obligation to pay Bitwage for each credit entry matures at the time Bitwage transmits or otherwise delivers the credit entry to the Automated Clearing House ('ACH') or gateway operator or when Bitwage broadcasts the signed Digital Currency transaction representing the credit entry and is unaffected by termination of the Service. Bitwage may set off against any amount owed to you in order to obtain payment of your obligation as set forth in this Agreement. You acknowledge that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Amounts withdrawn from your bank account or from the Digital Currency amount Bitwage has received from you for payroll taxes will be held by Bitwage at Bitwage's financial institution (the 'Payroll Tax Account') until such time as those payments are due to the appropriate taxing agencies, and no interest will be paid to you on these amounts.
4.2. INSUFFICIENT FUNDS. If you do not have sufficient funds in your Bank Account to pay disbursements, fees, payroll taxes or any other amounts due under this Agreement when required, or if you refuse to pay, Bitwage may (i) debit the Payroll Tax Account or any other account owned in whole or in part by you to pay disbursements, fees or charges, payroll taxes, or other amounts due, (ii) refuse to pay any unremitted payroll taxes, in which case the payroll tax liability will become your sole responsibility, (iii) refuse to perform further services, and/or (iv) immediately terminate this Agreement. Bitwage may assess finance charges on any amounts owing and unpaid ten (10) days after demand. Finance charges are assessed at a rate of 1.5% per month (18% per annum) or the highest amount permitted by law, whichever is less. Bitwage may recover from you any costs including, without limitation, institutional fees, court fees, reasonable attorneys' fees, expert witnesses' fees and any other fees incurred by Bitwage in connection with a termination of this Agreement or collection of amounts due hereunder.
5. AUTOMATED CLEARING HOUSE (ACH)
5.1. ACH ENTRIES. The Service will enable you to enter the Payroll Information and to approve and submit it to Bitwage for creation, formatting and transmission of Entries in accordance with the ACH Rules (as defined below). Bitwage may reject any Payroll Information or Entry which does not comply with the requirements in this Agreement or the ACH Rules. Bitwage may also reject Entry if your Bank Account does not contain sufficient available funds to pay for the Entry. If any Payroll Information or Entry is rejected, Bitwage will make a reasonable effort to notify you promptly so that you may correct such Payroll Information or request that Bitwage correct the Entry and resubmit it. A notice of rejection will be effective when given. Bitwage will have no liability to you by reason of rejection of any Payroll Information or Entry. Bitwage will also have no liability due to the fact notice is not given at an earlier time than provided for in this Agreement or for any loss resulting from Bitwage's failure to provide notice. If you request that Bitwage repair an Entry on your behalf, Bitwage may attempt to do so, providing, however, Bitwage will not be liable for its failure to make the requested repair.
5.2. NO AMENDMENT POLICY. You will have no right to cancel or amend any Payroll Information received by Bitwage after it has been approved by your Payroll Administrator and submitted to Bitwage. Bitwage will use reasonable efforts to act on such request prior to transmitting the Entries to the ACH or gateway operator and/or wire transfers to our partner financial institutions and/or Digital Currency transactions to the Digital Currency Network and/or any other payment rails, but will have no liability if the cancellation or amendment is not affected. You will reimburse Bitwage for any expenses, losses or damages Bitwage incurred in effecting or attempting to affect your request. Except for Entries created from Payroll Information that have been reapproved and resubmitted in accordance with the requirements of this Agreement, Bitwage will have no obligation to retransmit a returned Entry to the ACH or gateway operator if Bitwage complied with the terms of this Agreement.
5.3. PROCESSING. Bitwage will process the Payroll Information and Entries in accordance with its then current processing schedule, provided (i) the Payroll Information is approved by your Payroll Administrator and received by Bitwage no later than your applicable cutoff time on a regular business day and (ii) the ACH is open for business on that business day. If Bitwage receives approved Payroll Information after the cutoff time, Bitwage will not be responsible for failure to process the Payroll Information on that day. If any of the requirements of clause (i) or (ii) of this Subsection are not met, Bitwage will use reasonable efforts to process the Payroll Information and transmit the Entries to the ACH with the next regularly scheduled file created by Bitwage which is on a regular business day on which the ACH is open for business. ACH, Wire and other electronic transfers may take between 1-5 business days. Bitwage is not responsible for any delay caused by these systems.
5.4. OPERATING RULES. Origination, receipt, return, adjustment, correction, cancellation, amendment and transmission of Entries must be in accordance with the Operating Rules of the ACH in which Bitwage is a participant and, with respect to credit entries which constitute Payment Orders, Article 4A of the Uniform Commercial Code (UCC) as adopted in the state whose law governs this Agreement, as both are varied by this Agreement, and as both are amended from time to time (the "ACH Rules"). You acknowledge that you have had an opportunity to review and agree to comply with and be bound by the ACH Rules and all future amendments.
5.5. SETTLEMENT. Any credit Bitwage or Bitwage’s designated partners give to you is provisional until Bitwage receives final settlement and the Entry for which credit was given is deemed to be finally paid as provided in this Agreement, the ACH Rules and all laws, rules and regulations governing any aspect of the Entry, including the laws, rules and regulations of the country to which the Entry was sent. If Bitwage or Bitwage’s designated partners do not receive final settlement, they are entitled to a refund from the credited party and you will not be deemed to have paid that party. Upon request, Bitwage will make a reasonable effort to reverse an Entry, but will have no responsibility for the failure of any other party or entity to honor your request. You agree to reimburse Bitwage for any expenses incurred in attempting to honor such request.
5.6. INTERNATIONAL ACH TRANSACTIONS. You expressly acknowledge that Bitwage does not intentionally or knowingly engage in or support International ACH Transactions ('IATs'), as defined in the Operating Rules of the National Automated Clearing House Association ('NACHA Rules'). You represent and warrant that (i) the direct funding for the Entries originated by Bitwage on behalf of you does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States, (ii) you will not instruct Bitwage to create, originate or transmit Entries that are IATs or Entries using a Standard Entry Class Code (as defined in the NACHA Rules) other than IAT if such Entries are required to be IATs under the NACHA Rules, and (iii) you will not engage in any act or omission that causes or results in Bitwage creating, originating or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to the NACHA Rules. Bitwage may, in its sole discretion, temporarily or permanently suspend providing the Service to you, without liability, if Bitwage has reason to believe that you have breached any of foregoing representations and warranties in this paragraph. You acknowledge that you are the originator of each Entry and that under the ACH Rules, Bitwage makes certain warranties with respect to each Entry. You agree to reimburse Bitwage for any loss Bitwage incurs, including its reasonable attorneys' fees and legal expenses, as the result of a breach of a warranty made by Bitwage unless the breach resulted solely from Bitwage's own gross negligence or intentional misconduct. You acknowledge that under the ACH Rules, Bitwage indemnifies certain parties. You agree to reimburse Bitwage for any loss Bitwage incurs, including its reasonable attorneys' fees and legal expenses, as the result of the enforcement of an indemnity, unless enforcement resulted solely from Bitwage's own gross negligence or intentional misconduct.
6. TAXES AND LIABILITY
6.1. RESPONSIBILITY FOR ACCURATE INFORMATION. In order to use the Service, you must submit accurate wage and payroll information to Bitwage during the enrollment process. Bitwage will not be liable for any penalty, interest or other liability that results from inaccurate or incomplete information supplied. The wage and payroll information must be reconciled with your payroll tax returns for the current calendar year and your wage and payroll tax information for the current quarter. Thereafter, you shall timely and accurately update all wage and payroll information as necessary to reflect changes and respond with additional information requested from time to time by Bitwage. It is your responsibility to submit complete and accurate information to Bitwage in connection with the Service. Any penalty or interest incurred due to inaccurate information provided by you will be your sole responsibility. You further agree to hold Bitwage harmless from any such liability. Bitwage, at its option, may decide not to file your payroll tax returns, pay your payroll taxes or otherwise process your payroll if there are any unresolved problems with any information requested by Bitwage or supplied by you. Bitwage's and/or Bitwage’s Partner Institutions’ sole liability and your sole remedy for Bitwage's and/or Partner Institutions’ negligent failure to perform the payroll tax portion of the Service shall be (i) Bitwage and/or the Partner will remit the payroll taxes received from you to the appropriate taxing authority and (ii) Bitwage and/or Partner will reimburse you or pay directly to the appropriate taxing authority any penalties resulting from such gross negligent error or omission by Bitwage and or Partner.
6.2. RESPONSIBILITY. You are responsible for: (i) depositing any FICA, Federal, State and Local withholding liabilities incurred to date (before the payroll processing with Bitwage); (ii) submitting any payroll returns to tax agencies (state, federal, and/or local) now due; and (iii) cancelling any prior payroll service or leasing agency.
7. COSTS OF SERVICE
7.1. SERVICE FEES AND CHARGES. You agree to pay the fees for the Service in accordance with the applicable fee schedule at https://www.bitwage.com/pricing, unless expressly provided with written consent from Bitwage. The applicable fee schedule is visible to all Bitwage members when logged in. You agree to reimburse Bitwage for any sales, use and similar taxes arising from the provision of the Service that any federal, state or local governments may impose. Bitwage may charge additional fees for exceptions processing, setup and other special services.
7.2. CONVERSION RATES. When receiving or sending payrolls, benefits and payments through the Conversion Service, you are buying currencies from, or selling to, various partners and service providers of Bitwage. The Conversion Service is subject to the Bitwage "Conversion Rate." "Conversion Rate" means the liquidity adjusted price of a given currency amount in terms of local currency. The Conversion Rate is determined at the moment of conversion by the liquidity partner and is provided within the history of your transactions. For the purpose of any transaction which incorporates the Conversion Rate, you agree, as a condition of using any Bitwage Services, to accept the Conversion Rate as the sole conversion metric. Promotional rates may apply for up to the first six months of Bitwage Services.
7.3. FEE CHANGES. Bitwage reserves the right to change the schedule of fees from time to time. You will be notified of any change in fees. If a fee increase or change to this Agreement is not acceptable, you may cancel the Service as provided herein prior to the time the fee change takes effect. Your continued use of the Service constitutes your agreement to those changes.
7.4. NON PAYMENT OF FEES. In addition to the remedies in section 4.2 above, Bitwage may suspend the Service or terminate this Agreement and avail itself of all other available remedies. Bitwage also reserves the right to make any appropriate reports to credit reporting agencies, financial institutions, tax agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. If Bitwage has not received the full amount required to pay for all of the Bitwage Services for the Company’s Employees by the required service date, Bitwage may in its absolute discretion determine how to apportion the Bitwage Services for which money has been received to the Employees. The Company must, if required by Bitwage, give Bitwage any information Bitwage reasonably requires to assist Bitwage in such apportionment.
8. PROPRIETARY RIGHTS
8.1. TITLE. Bitwage owns all worldwide right, title and interest in and to the Service and the website, applications and software platform that Bitwage uses to provide the Service ("Bitwage IP"). This Agreement does not convey any proprietary interest in or to any Bitwage IP or rights of entitlement to the use thereof except as expressly set forth herein. You acknowledge and agree that the fees paid pursuant to this Agreement apply only to the use of the Service by you unless otherwise provided with written consent from Bitwage. Any feedback, comments and suggestions you may provide for improvements to the Service ("Feedback") is given entirely voluntary and Bitwage will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind.
9.1 RISK. Your use of the Service is entirely at your own risk. Bitwage is not in the business of providing legal, tax, financial, accounting, employment, or other professional services or advice. You should consult a professional if you need such assistance. The Service is provided "AS IS" and on an "AS AVAILABLE" basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BITWAGE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, NONINFRINGEMENT, OR THE ACCURACY, RELIABILITY, QUALITY OF ANY INFORMATION OR CONTENT IN OR LINKED TO THE SERVICE. BITWAGE DOES NOT WARRANT THAT THE SERVICE WILL BE COMPLETELY SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. BITWAGE DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF BITWAGE SERVICES, AND OPERATION OF THE BITWAGE SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. BITWAGE WILL MAKE REASONABLE EFFORTS TO ENSURE THAT REQUESTS FOR ELECTRONIC DEBITS AND CREDITS INVOLVING BANK ACCOUNTS AND CHECK ISSUANCES AS WELL AS ANY OTHER FORMS OF PAYROLL PAYMENTS, SUCH AS WIRES AND DIGITAL CURRENCY, ARE PROCESSED IN A TIMELY MANNER BUT BITWAGE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE FIAT OR DIGITAL CURRENCY PROCESSING BECAUSE THE BITWAGE SERVICES ARE DEPENDENT UPON MANY FACTORS OUTSIDE OF OUR CONTROL, SUCH AS DELAYS IN THE BANKING SYSTEM OR THE U.S. OR INTERNATIONAL MAIL SERVICE. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. THIS PARAGRAPH GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. If the exclusions for any implied warranties do not apply to you, any implied warranties are limited to sixty (60) days from the date of delivery of the Service.
9.2 THIRD PARTY WEBSITES AND SERVICES. The Bitwage Site may contain links to third party websites, resources and services (“Third Party Material”) not controlled by us. You acknowledge and agree that Bitwage is not responsible or liable for (i) availability or accuracy of such Third Party Material, or (ii) the content, products or services on or available from such Third Party Material. You acknowledge sole responsibility for and assume all risk arising from your use of any such Third Party Material. Your access and use of Third Party Material is not covered by this Agreement and we recommend you examine the terms and policies governing the Third Party Material.
9.3. COMPANY AND ITS LICENSORS SHALL NOT BE LIABLE FOR MONETARY LOSS, LOSS OF USE, LOST PROFIT, COST OF COVER, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT RECIPIENT ACTUALLY PAID COMPANY UNDER THIS AGREEMENT (IF ANY).
10. TERMINATION OF SERVICE
10.1. TERMINATION. The Service will continue until such time as you or Bitwage gives 30 days prior written notice (which may be given by email or through a notice in your account), unless termination is for cause. Bitwage may terminate or temporarily suspend your access to the Service in the event that: (i) you breach any material provision of this Agreement that, (if it is capable of being cured) is not cured within 10 days from notice to you (5 days in the case of nonpayment); or (ii) Bitwage determines that your actions are likely to cause legal liability for Bitwage or that you have misrepresented any data or information required by Bitwage in connection with the Service or at any other time. Bitwage may immediately terminate this Agreement without notice if you file, or have filed against you, a petition under the U.S. Bankruptcy Code or a similar state or federal law. The termination of the Service or this Agreement will not affect either parties’ rights with respect to transactions which occurred before termination. Upon termination of the Service, your right to access and use the Service will automatically terminate, and you may not continue to access or use the Service. Bitwage will have no liability for any costs, losses, damages, or liabilities arising out of or related to Bitwage's termination of this Agreement. Sections 3 through 16 will survive and remain in effect even if the Agreement is terminated, cancelled or rescinded.
11.1. INDEMNITY. You agree to indemnify, defend and hold Bitwage and its agents, contractors, services providers and affiliates ('Indemnified Parties'), harmless against all liabilities, claims, demands, damages, losses, fines, judgments, disputes, costs, charges and expenses (including, without limitation, reasonable attorneys' fees incurred in connection with such claims) made by you or others resulting from, arising out of or related to (i) any acts or omissions by you, your Payroll Administrator and/or any other authorized users, or (ii) Bitwage's or any other Indemnified Party's reliance on information and data furnished by you or (iii) information and data resulting from activities that Bitwage or any other Indemnified Party undertakes at your request, or at the request of anyone Bitwage or any other Indemnified Party believes in good faith to be your authorized agent, in providing the Service. In no event will Bitwage's or any other Indemnified Party's liability for any act or omission relating to the Service exceed the total charge for services provided for the three (3) month period immediately preceding such act or omission by Bitwage. IN NO EVENT WILL BITWAGE OR ANY OTHER INDEMNIFIED PARTY HAVE LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGES REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION OR WHETHER BITWAGE OR ANY OTHER INDEMNIFIED PARTY KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES IN ANY CIRCUMSTANCES.
12. GOVERNING LAW
12.1. CALIFORNIA LAW. This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof. You irrevocably submit (for yourself and in respect to your property and business) to the jurisdiction of any state or federal court sitting in Santa Clara County, California, in any action or proceeding arising out of, or relating to, this Agreement and acknowledge and agree that all claims in respect of the action or proceeding may be heard and determined in any such court. You also agree not to bring any action or proceeding arising out of, or relating to, this Agreement in any other court. You waive any defense of Forum non conveniens to the maintenance of any action or proceeding so brought.
13. CONFLICT RESOLUTION
13.1. ARBITRATION. Notwithstanding any other provision in this Agreement, if either you or Bitwage have any unresolvable dispute, controversy or claim, whether founded in contract, tort, statutory or common law, concerning, arising out of, or relating to this Agreement or the Service, including any claim regarding the applicability, interpretation, scope or validity of this arbitration clause and/or this Agreement (a 'Claim') and upon the demand of either party, it will be settled by individual (not class or classwide) binding arbitration administered by the American Arbitration Association (AAA) in accordance with the then current Commercial Financial Disputes Arbitration Rules, including any expedited procedures. A demand that a Claim be submitted to arbitration may be made before the initiation of any legal proceeding or within ninety (90) days following the service of a complaint, third-party complaint, crossclaim or counterclaim and if a party in a pending legal proceeding demands a Claim to be submitted to arbitration, the party initiating the action will immediately dismiss the legal proceeding and file the claim in arbitration. Arbitration hearings will be held in a mutually agreeable location or if no such agreement can be reached, the city where the dispute occurred. A single arbitrator will be appointed by the AAA and approved by each party. The arbitrator shall be a practicing attorney or retired judge having experience with and knowledge of payroll and online commerce law. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including court fees, attorneys' fees and expert witness fees. A judgment on the award may be entered by any court having jurisdiction. The parties agree and acknowledge that this agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement.
14. SERVICE CHANGES
15.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between Bitwage and you regarding the Service and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided herein.
15.2. SEVERABILITY. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable.
15.3. ASSIGNMENT. You may not assign this Agreement without the prior written consent of Bitwage. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
15.4. ELECTRONIC TRANSMISSION. This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
15.5.PROVISIONS APPLICABLE TO DEVELOPERS/OPERATORS OF APPLICATIONS AND WEBSITES USING BITWAGE API. If you are a developer or operator of an application or website that connects to Bitwage through our API, you agree to our Terms of Service API Addendum.
15.6. COMPANY LOGO. Unless you expressly give a written request otherwise, you hereby give permission for Bitwage to publish and/or use your company logo or registered mark for all purposes connected with our business. It is understood that we may use said logo or mark for advertising relating to Bitwage, for seminars, symposiums, recruiting new relationships, published materials, electronic context such as a website, and all other purposes related to our business. Bitwage may use the logo or mark for these purposes without further permission or acquiescence by you and you hereby release Bitwage from all liability relating to the publication or use of the logo/mark. You understand and agree that, if you give a written request in the future that we discontinue publishing and/or using your company logo or registered mark for all purposes connected with our business, there may still be published materials in use and existence that relate to Bitwage and that reflect the the logo or registered mark. We will use reasonable efforts to replace and update such published materials.
15.7. COPYRIGHT AND TRADEMARKS. The information available on or through the Service is the property of Bitwage, or its licensors, and is protected by copyright, trademark, and other intellectual property laws. Users may not modify, copy, distribute, transmit, display, publish, sell, license, create derivative works or otherwise use any information available on or through this Site for commercial or public purposes. Users may not use the trademarks, logos and service marks ("Marks") for any purpose including, but not limited to use as "hot links" or meta tags in other pages or sites on the World Wide Web without the written permission of Bitwage or such third party that may own the Mark. Questions concerning Bitwage Marks should be directed to email@example.com.
15.9. MINORS. The Service is not intended for use by children, especially those under age thirteen (13). No one under age thirteen (13) is allowed to use the websites, provide any personal information or receive our email distributions. Minors between the ages of thirteen (13) and seventeen (17) must be properly employed as a worksite employee and/or have the permission of a parent or legal guardian in order to use the websites, provide any personal information or receive our email distributions.
15.10 CUSTOMER SUPPORT. You agree you will direct questions regarding Bitwage Services only to Bitwage. You agree you will not initiate direct contact with any bank that is involved in supporting Bitwage Service. Any direct contact with a bank or other provider regarding Bitwage Services without written consent may result in immediate termination of the service. You may not receive account statements, voided checks or other documents with Bitwage Services.
16.2. ACCESS TO PASSWORD PROTECTED/SECURE AREAS. Access to and use of password protected and/or secure area of the Service is restricted to authorized users only. Unauthorized access to such areas is prohibited and may lead to criminal prosecution.
16.3. ENCRYPTION. Data transmitted to and from the Service is encrypted for your protection. However, the security of information transmitted through the Internet can never be guaranteed. Bitwage is not responsible for any interception or interruption of any communications through the Internet or for changes to or losses of data. You are responsible for maintaining the security of any password, username, or other form of authentication involved in obtaining access to password protected or secure areas of the Service. In order to protect you and your data, Bitwage may suspend your use of the Service, without notice, pending an investigation, if any breach of security is suspected.
17. DIGITAL CURRENCY
17.1. PAYMENT. Bitwage will pay out value in Digital Currency according to the wallet preference provided by employees. The Digital Currency Exchange rate will be listed at settlement (trade) of the transaction unless otherwise specified below. You agree, as an employee, to allow up to two days of delay on payments owed in the form of wages in exchange for the conversation of USD to Digital Currency when receiving Digital Currency wages through Bitwage and its fulfillment partners. NOTE BITWAGE IS NOT AN EXCHANGE OR ADMINISTRATOR OF VIRTUAL CURRENCY AND ONLY ACCEPTS PAYMENTS FROM EMPLOYERS FOR THE PURPOSE OF PAYROLL FUNCTIONS ON BEHALF OF THE WAGE EARNER OR SERVICE PROVIDER.
17.2. NO AMENDMENT POLICY. You will have no right to cancel or amend any Payroll Information received by Bitwage after it has been approved by your Payroll Administrator and submitted to Bitwage. Bitwage will use reasonable efforts to act on such request prior to transmitting the Entries to the ACH, gateway operator, Digital Currency Exchange, through the Digital Currency protocol, or any other payment rail, but will have no liability if the cancellation or amendment is not affected. You will reimburse Bitwage for any expenses, losses or damages Bitwage incurred in effecting or attempting to affect your request. Except for Entries created from Payroll Information that have been reapproved and resubmitted in accordance with the requirements of this Agreement, Bitwage will have no obligation to retransmit a returned Entry to the ACH, gateway operator, Digital Currency Exchange, through the Digital Currency protocol, or any other payment rail, if Bitwage complied with the terms of this Agreement.
17.3. DIGITAL CURRENCY WALLET ADDRESSES. As described in section 3.7, you shall provide complete and accurate Payroll Information. For you, as an employee, this includes all Digital Currency Wallet information, including, but not limited to, a Digital Currency Wallet Address for receiving Digital Currency. You must correct incorrect or missing Payroll Information, either by itself or by notifying Bitwage in the manner specified in the electronic communication and within the time period specified therein. You are fully responsible for the accuracy of all information you provide, submit and/or approve. If you believe or suspect that any Digital Currency Wallets have been known or accessed by unauthorized persons or otherwise compromised, you will immediately notify Bitwage in a manner affording Bitwage a reasonable opportunity to act on the information. You acknowledge that failure to immediately notify Bitwage could result in loss of funds. Bitwage reserves the right to prevent the transmission of Digital Currency should Bitwage have reason to believe the provided Digital Currency Wallet information is inaccurate or compromised. Bitwage will try to, but is not obligated to, hold the funds for a reasonable amount of time for the party to correct the information. If the correction is not made within 30 days, the funds will be returned to the employer and/or the recipient.
17.4. RECEIPT OF DIGITAL CURRENCY PAYMENT. You recognize that an employer payment made in Digital Currency is received by the employee, whom is owed payment from the employer, at the moment the USD sent from an employer is converted into Digital Currency. In the case that an employer sends Digital Currency instead of USD, you recognize that an employer payment made in Digital Currency is received by the employee, whom is owed payment from the employer, at the moment the employer presses submit and sends Digital Currency to Bitwage. Once you press submit, the Bitwage service will provide you with a Digital Currency exchange rate. After pressing submit, you have ten (10) minutes to send Digital Currency to the Bitwage wallet address and have the transaction be accepted on the public blockchain. Otherwise, you must resubmit the Digital Currency order with Bitwage, thus recalculating the exchange rate offered to the most updated exchange rate. If you send a partial amount, Bitwage reserves the right to cancel the Digital Currency order. In the event of a cancellation, Bitwage will prompt you for a return address and will return the Digital Currency to the address you have provided within thirty (30) days.