Highflyer Standard Human Capital Management Services Agreement

HIGHFLYER HUMAN RESOURCES, LLC

Standard Human Capital Management Services Agreement

General Terms and Conditions  |  Amended and Restated 2026

Highflyer Human Resources, LLC (Highflyer HR®) assists employers with their human capital management needs, including but not limited to: Payroll and Tax Payments; Human Resources; Benefits Enrollment and Eligibility Administration; and Time and Attendance. In consideration of the mutual promises set forth herein, it is agreed by and between Highflyer HR® and Employer (the “parties”) as follows:

 A. Fees

Client agrees to pay the fees identified with the Services which Employer has selected as indicated by Employer’s initials, subject to increases allowed under this Agreement and in any accepted quote. Fees shall be paid by Client as provided in Section D. Fees will begin sixty (60) days after the signing of this Agreement or the originally agreed upon “Go Live Date.” PEPM fees are calculated on all active employees on the first payroll of the month.

Highflyer HR® may not change the fees for one (1) year from the Go Live Date. However, Highflyer HR® may revise the fees during any 12-month period if changes to Employer’s requirements or applicable law are made that materially revise the nature or scope of the Services contemplated by this Agreement. After the 12-month period following the Go Live Date, Highflyer HR® may annually increase its fees by the greater of either five percent (5%) or the U.S. Consumer Price Index. All Services will be billed to Client at the fee applicable at the time the Services were rendered.

Highflyer HR® may also adjust fees during any Term to reflect material increases in third-party platform, banking, or processing costs, including increases in iSolved People Cloud platform fees or ACH processing fees, upon thirty (30) days written notice to Client. Returned payment fees, incidental charges, and miscellaneous fees are subject to change with thirty (30) days written notice.

Employer acknowledges that Highflyer HR®’s acceptance of this Agreement is conditioned on its approval of Employer’s credit if deemed necessary by Highflyer HR®.

B. Scope of Agreement; Relationship of Parties

This Agreement sets forth certain rights and obligations of Employer and Highflyer HR®, and the terms of this Agreement shall apply to any permitted assignee or successor of Employer and/or Highflyer HR®. Highflyer HR® and Client have entered into this Agreement at arms-length and neither party is a fiduciary of the other. Highflyer HR® is an independent contractor. Highflyer HR® is not an agent or employee of Employer (for purposes of establishing principal-agent relationships) and the employees of Employer are not entitled to any of the benefits of employment granted by Highflyer HR® to its own employees.

Highflyer HR® is not the Plan Administrator or a Plan Fiduciary of the Benefit Plans, as those terms are defined in ERISA. It is understood that Highflyer HR® is free to perform similar services for other employers while this Agreement is effective. It is Employer’s sole responsibility and duty to ensure compliance with all applicable laws and regulations, and Highflyer HR®’s provision of the Services under this Agreement does not relieve Employer of this obligation.

Highflyer HR® is responsible for providing the Services that comply with applicable law and regulations and that assist Employer with its obligations to the extent set forth herein. Subject to Highflyer HR®’s responsibilities under Section L, Employer understands that it is Employer’s responsibility to pay any fee or penalty assessed by the Internal Revenue Service or other local, state, or federal regulatory agency. Not by way of limitation or exclusion, Highflyer HR® is not responsible for any tax, penalty, interest, or other liability imposed on Employer or an employee of Employer pursuant to the “shared responsibility” provisions of Internal Revenue Code Section 4980H(a) or (b) or Section 5000A.

Employer acknowledges that Highflyer HR® is not an accounting or law firm and no Services provided by Highflyer HR® in accordance with this Agreement will be construed by Employer as tax, accounting, or legal advice as a result of providing such Services. Highflyer HR® is not an insurer with regard to the performance of the Services. The disclaimer of warranties and the limitations of liability in this Agreement are a reflection of the risks assumed by the parties in order for Client to obtain the rights to use the Services for the specified fees. All duties performed by Highflyer HR® will be non-discretionary in nature and will be performed in accordance with Highflyer HR®’s standard operating procedures.

Co-Employer Disclaimer.  Highflyer HR® is not, and shall not be deemed to be, a co-employer, joint employer, or professional employer organization with respect to Client’s employees under any federal, state, or local law, including but not limited to the Fair Labor Standards Act (FLSA), the National Labor Relations Act (NLRA), the Employee Retirement Income Security Act (ERISA), or the Affordable Care Act (ACA). All employees remain solely the employees of Client.

C. Services

Highflyer HR® agrees to provide to Employer the Services which Employer has selected as indicated by Employer’s initials. The Services shall commence on the “Go Live” date, unless otherwise indicated for a Service selected on a later date, as agreed by the parties.

1. Payroll.

Highflyer HR® will process payroll for Client’s employees and payees, deliver pay checks and related reports to Client, process direct deposits to those employees electing such service, remit payroll taxes on Client’s behalf to those federal, state, and most local taxing jurisdictions designated by Client (not including the filing or depositing of excise, sales, use, corporate, or similar taxes), and file related tax returns (such remitting of payroll taxes and filing of related tax returns, the “Tax Filing Services”). For an additional fee, Highflyer HR® will also process calendar year-end Forms W-2 for Client’s employees, Forms 1099-MISC for payments to individuals that provide services to Client as independent contractors, and 1095-C Forms. Client shall be liable for, and shall indemnify Highflyer HR® against, any loss, liability, claim, damage, or exposure arising from or in connection with any fraudulent or criminal acts of Client’s employees or payees.

2. Time and Attendance.

(a)  Time and Attendance Products.  Highflyer HR® agrees to provide Client with the data collection devices (e.g., Timeclock, Hand Punch, etc.) (the “Timeclock Equipment”), time and attendance module or application, and related services (collectively, the “Time Products”) described in the Add-On Services.

(b)  Installation.  Client shall provide and install all power, wiring, and cabling required for the installation of any Timeclock Equipment. Client shall also pay an installation and setup fee for each unit of Timeclock Equipment if such equipment is installed on Client’s premises by Highflyer HR®.

(c)  Use of Timeclock Equipment and Right to Inspect.  Client shall not make any alterations or attach any device not provided by Highflyer HR® to the Timeclock Equipment, nor shall Client remove the Timeclock Equipment from the place of original installation without Highflyer HR®’s prior consent. Upon reasonable written notice to Client, Highflyer HR® shall have the right to enter Client’s premises to inspect the Timeclock Equipment during normal business hours. Title to the Timeclock Equipment shall at all times remain in Highflyer HR® unless Client has chosen the purchase option and has paid Highflyer HR® in full the purchase price.

(d)  Return of Timeclock Equipment.  Upon expiration or earlier termination of this Agreement, Client shall, at its expense, return the Timeclock Equipment to Highflyer HR® in accordance with Highflyer HR®’s instructions. The Timeclock Equipment shall be returned in as good condition as received by Client, normal wear and tear excepted. In the event the Timeclock Equipment is not returned within ninety (90) days, Client agrees to purchase it at the prevailing manufacturer’s suggested retail price. If timely payment for the Timeclock Equipment is not made by Client, Highflyer HR® shall have the right to take immediate possession of such equipment.

(e)  Warranty.  Highflyer HR® warrants to Client that the Timeclock Equipment shall be free from defects in material and workmanship at the date such Timeclock Equipment is shipped and for ninety (90) days thereafter. Highflyer HR®’s sole obligation in case of any breach of this or any other warranty contained herein with respect to equipment provided by it shall be to repair or replace, at Highflyer HR®’s option, any defective items. The foregoing is the extent of Highflyer HR®’s liability with respect to all claims related to Timeclock Equipment or any other equipment provided by Highflyer HR®.

(f)  Extended Service Agreement Fees.  Extended Service Agreement fees can be obtained under a separate subscription option agreement between Highflyer HR® and Client. The costs for maintenance services for Timeclock Equipment under the purchase option are not included in the purchase price for such equipment; a separate annual maintenance service fee applies.

(g)  Maintenance Services.  Highflyer HR® will maintain the Timeclock Equipment to be free from defects in material and workmanship. Any parts found to be defective shall be replaced or repaired, at Highflyer HR®’s option, without charge for parts or labor, provided that the Timeclock Equipment has been properly installed, maintained, and used in accordance with this Agreement.

(h)  Upgrades.  In order to keep the Time Products current, Highflyer HR® may from time to time perform maintenance fixes and other upgrades to the Time Products Client is then receiving from Highflyer HR®.

D. Payment of Fees, Taxes, and Related Obligations

1. EFT Authorization and Monthly Billing.

Employer authorizes Highflyer HR® to collect its fees from Employer’s bank account by means of an electronic funds transfer (“EFT”) on a monthly basis commencing with the month that fees become payable by Client hereunder as provided in Section A. PEPM fees are based on the number of employees on record at the start of a given month. Employer must pay all of the monthly Fees on the first pay date of each month. If any EFT is rejected for insufficient funds or any other reason at any time, Employer agrees to pay an additional returned payment fee as set forth in Highflyer HR®’s then-current fee schedule, which may be updated with thirty (30) days written notice. Failure to pay fees by the due date, at Highflyer HR®’s election, may result in the imposition of interest at the rate of one and one-half percent (1.5%) per month (18% per annum) on all unpaid balances, plus applicable late penalties, and/or termination of this Agreement. Interest shall accrue from the date payment was due until the date payment is received in full.

2. ACH Debit Authorization and Payroll Funding.

Highflyer HR® will initiate a funds transfer for fees or charges, payroll taxes, direct deposit, or any other amounts due under this Agreement. At the agreed upon payroll processing time on or before 3:00 p.m. Central Time two (2) full business days prior to each check date (three (3) business days if the check date falls on a Saturday, Sunday, or bank holiday), Employer authorizes Highflyer HR® to originate Automated Clearing House (“ACH”) debit payment orders against Employer’s bank account for the amount of liabilities and fees of all Services agreed to by Employer. Services performed under this Agreement and funding authorization begin upon the effective Go Live Date and will continue until revoked by Employer with no less than fifteen (15) days advance written notice or until this Agreement expires or is earlier terminated. For any single payroll liability resulting in $100,000 or more of federal tax liability, Client agrees to authorize Highflyer HR® to initiate a draw-down wire (fed wire) one day prior to check date.

Client acknowledges that payroll direct deposits may be irrevocable once transmitted through the ACH network. Highflyer HR® shall have no responsibility for recovering overpayments, duplicate payments, or payments made to incorrect accounts when such payments result from information supplied or approved by Client. Any recovery efforts undertaken by Highflyer HR® shall be performed as a courtesy only and without guarantee of success.

Highflyer HR® reserves the right, at any time, to require advance payroll funding, wire transfers, certified funds, payroll reserves, additional security, modified ACH processing schedules, or other funding arrangements whenever Highflyer HR® reasonably determines that Client presents an increased financial, operational, banking, fraud, or credit risk. Factors that may be considered include, but are not limited to, returned payments, insufficient funds transactions, adverse credit information, significant increases in payroll volume, irregular payroll funding patterns, pending litigation, business closures, governmental investigations, or other circumstances that may impair Client’s ability to satisfy its payroll, tax, or payment obligations.

3. IRS EFTPS Disclosure.

Notwithstanding Client’s engagement of Highflyer HR® to provide Tax Filing Services, Client is responsible for the timely filing of payroll tax returns and timely payment of payroll taxes for its employees. The Internal Revenue Service recommends that employers enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”) to monitor their accounts and ensure that timely tax payments are being made for them. Online enrollment in EFTPS is available at www.eftps.gov.

4. Client Funds.

Highflyer HR® may earn interest on Client funds in its possession, and Client hereby assigns to Highflyer HR® the benefit of any funds held in separate accounts used to perform any Service.

5. Payroll Service and Funds Transfer Terms.

Highflyer HR® assumes responsibility only for interest and/or penalties that result from the negligence of Highflyer HR®. Highflyer HR® does not accept responsibility for failure to make deposits or filings if it is not timely provided with adequate information or sufficient funds.

6. Tax Authority and Garnishment Responsibilities.

Highflyer HR® is not a responsible party for payment of taxes to any federal, state, or local tax authority, except to the extent that Highflyer HR® is holding funds in trust for payment of said taxes. Client acknowledges that Highflyer HR® tax filing services are based upon information supplied by Client, including proof of Federal, State, and local tax identification numbers and deposit frequencies. Client is responsible for the accuracy of such information and the verification of payroll data. Client has the final and ultimate responsibility for checking the accuracy of checks to be issued to employees and for checking the accuracy of and remittance of any non-tax payments, such as voluntary deductions and garnishments. Client is solely responsible for determining the validity, priority, applicability, calculation, and legal compliance of all garnishments, levies, child support orders, tax levies, bankruptcy orders, and similar withholding requirements. Highflyer HR® may rely upon information provided by Client and shall not be liable for claims arising from incorrect withholding instructions supplied by Client.

7. Payroll Error Reporting Deadline.

Client shall review all payroll reports, payroll registers, tax reports, employee earnings statements, and funding summaries immediately upon receipt. Any discrepancy, omission, payroll error, tax error, wage calculation issue, deduction issue, or direct deposit issue must be reported to Highflyer HR® in writing within thirty (30) days of the applicable payroll processing date. After thirty (30) days, Client waives any claim related to such payroll and Highflyer HR® shall have no obligation to correct payroll records, amend tax filings, reconstruct payroll data, reimburse penalties, or otherwise remedy payroll-related issues first reported after such thirty (30) day period.

8. Tax Authority Authorization.

Client hereby instructs all Federal, State, and local tax authorities to deliver tax forms, documents, and other related information to Highflyer HR®. Highflyer HR® is hereby given full authorization to represent and submit records on behalf of Client before Federal, State, and agreed-upon local jurisdiction tax offices with respect to payroll taxes.

9. Client Indemnification for Information Errors.

Client understands that all services rendered by Highflyer HR® are based upon the information furnished by Client and, therefore, Client promises to indemnify and hold Highflyer HR® harmless from any claim against Client and/or Highflyer HR® arising out of the use of information provided by Client. Highflyer HR® is not responsible for settling any disputes between Client and Client’s employees.

10. Miscellaneous Fees and Pass-Through Charges.

Client acknowledges that Highflyer HR® may assess additional fees for incidental services and pass-through charges as set forth in the then-current Highflyer HR® Fee Schedule, which may be updated with thirty (30) days written notice to Client. These charges may include without limitation: cancelled check images, online tracer services, wire transfers, additional user accounts, late payroll submissions, agency setup failures, NSF returned items, void non-funded payrolls, and other charges assessed to Highflyer HR® for actions or inactions of Client.

11. Fraud and Banking Protection.

Client acknowledges that Highflyer HR® may rely upon instructions received from Client’s authorized representatives. Highflyer HR® shall not be responsible for losses resulting from fraudulent instructions, business email compromise, phishing attacks, account takeover events, unauthorized access to Client’s systems or credentials, wire fraud, ACH fraud, identity theft, cybersecurity incidents, or other criminal acts directed at Client unless such loss is directly and solely caused by Highflyer HR®’s gross negligence or willful misconduct.

Client bears sole responsibility for maintaining adequate internal controls, securing its own credentials and banking access, verifying the identity of individuals submitting payroll or payment instructions, and promptly notifying Highflyer HR® of any suspected security incident.

Client agrees to maintain commercially reasonable security measures, including password management protocols, employee cybersecurity awareness training, multifactor authentication where available, and procedures for verifying payroll, employee banking, tax account, and payment-related changes before submission to Highflyer HR®.

Highflyer HR® shall not be liable for losses arising from Client’s failure to maintain such security measures.

Highflyer HR® may require verbal confirmation, written authorization, or additional verification procedures before processing requests involving payroll funding accounts, direct deposit changes, tax account changes, or other transactions that Highflyer HR® determines present a heightened fraud risk.

E. Information from Employer; Cooperation

1. Accuracy of Client Information.

Highflyer HR® will establish various methods for transferring information to and from Highflyer HR®. Employer must use one of the methods established by Highflyer HR®. Employer will furnish the information determined by Highflyer HR® to be necessary to satisfy its responsibilities under this Agreement in the time and manner agreed to by the parties. Employer understands that Highflyer HR® cannot accurately perform its duties under this Agreement without accurate and timely information, and that Highflyer HR® shall have no liability to Employer or any of Employer’s employees because of inaccurate and/or untimely information provided to Highflyer HR® by Employer, its designee, or another existing or former service provider. Highflyer HR® shall have no duty to independently verify the accuracy, completeness, legality, or appropriateness of information supplied by Client and may rely upon all information provided by Client as accurate and complete. Employer will review any information and/or reports provided by Highflyer HR® as soon as possible after receipt and will notify Highflyer HR® of any errors as soon as possible thereafter.  Any discrepancies in converted data must be reported before the first live payroll. Highflyer HR® shall not be responsible for errors originating in source data provided by Client or prior vendors

2. Cooperation.

Client must cooperate with Highflyer HR® to allow Highflyer HR® to render the Services to Client. Client must promptly provide to Highflyer HR® all requested documents and information needed to perform the Services, and Client’s failure to do so may delay Highflyer HR®’s implementation and/or performance of the Services, which will not be considered a breach by Highflyer HR® under this Agreement.

3. Implementation Data Deadline.

Within thirty (30) days of the Effective Date but no later than ninety (90) days prior to the originally agreed upon Go Live Date, Employer agrees to provide, in electronic format, all necessary data required by Highflyer HR® to begin data implementation, including checklist material and electronic data templates provided to Employer by Highflyer HR®.

F. Confidentiality and Disclosure

All information, whether printed, written, or oral, in answer to an inquiry or voluntarily furnished by Employer or its agents or employees to Highflyer HR® shall be held in confidence by Highflyer HR® and used and disclosed solely for the purposes of fulfillment of the terms of this Agreement. Employer and Highflyer HR® each acknowledge that because of entering into this Agreement, each party has and will continue to reveal and disclose to the other information that is proprietary and/or confidential to such party. Employer and Highflyer HR® each agree to: (a) keep such proprietary and/or Confidential Information of the other party in strict confidence; (b) not disclose Confidential Information of the other party to any third parties or to any of its employees not having a legitimate need to know such information; and (c) not use Confidential Information of the other party for any purpose not directly related to and necessary for the performance of its obligations under this Agreement, unless required to do so by a court of competent jurisdiction or a regulatory body having authority to require such disclosure.

Information revealed or disclosed by a party shall not be considered Confidential Information if, when, and to the extent such information is or becomes generally available to the public without the fault or negligence of the receiving party, or if the unrestricted use of such information has been expressly authorized in writing by an authorized representative of the other party. For purposes of this Agreement, “Confidential Information” is defined as any information in written, human-readable, machine-readable, or electronically recorded form and information disclosed orally in connection with this Agreement, including programs, policies, practices, procedures, files, records, and correspondence concerning the parties’ respective businesses or finances. The terms and conditions related to confidentiality in this Agreement shall survive the expiration or earlier termination of this Agreement. Employer agrees that it shall not disclose to any other party, nor shall Employer use for its own benefit, the details or written evidence of the Services provided by Highflyer HR® hereunder without the express prior written consent of Highflyer HR®.

G. Force Majeure

Highflyer HR® shall not be deemed in default of this Agreement, nor held responsible for any cessation, interruption, or delay in the performance of its obligations to provide the Services hereunder due to causes beyond its reasonable control, including but not limited to: natural disaster; act of God; labor controversy; civil disturbance; disruption of the public markets; terrorism; war or armed conflict; internet outages; cloud hosting interruptions; software or platform failures of third-party providers including iSolved People Cloud or any successor platform; cybersecurity incidents including ransomware attacks; telecommunications failures; banking system outages; payment processor interruptions; utility failures; inability to obtain sufficient materials or services required in the conduct of its business; and actions or inactions of governmental authorities or third-party vendors beyond Highflyer HR®’s reasonable control. Highflyer HR® shall promptly notify Client of any force majeure event materially affecting the delivery of Services and shall use commercially reasonable efforts to resume Services as soon as practicable.

H. Communications

All communications provided for herein between the parties shall be sent by confirmed facsimile; by guaranteed overnight mail with tracing capability; by first class United States mail with postage prepaid; or by email addressed to the other party at its address as set forth herein. All communications between the parties are deemed provided when sent except as otherwise set forth in this Agreement. Employer agrees that Highflyer HR® may communicate confidential, protected, privileged, or otherwise sensitive information to Employer through a named contact designated by Employer (“Designated Person”) and specifically agrees to indemnify Highflyer HR® and hold it harmless for any such damages or costs arising from communication to such Designated Person via facsimile, mail, telephone, email, or any other media to the extent that Highflyer HR® did not breach its Standard of Care in sending the information.

I. Entire Agreement; Waivers; Governing Law; Severability

This instrument (including documents specifically incorporated into and made a part of this Agreement by reference) embodies the whole agreement of the parties. There are no promises, terms, conditions, or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the parties hereto. Failure by Employer or Highflyer HR® to insist upon strict performance of any provision of this Agreement or to enforce a right provided for in this Agreement will not modify such provision, render it unenforceable, or waive any subsequent breach.

This Agreement and its subject matter shall be construed under the laws of the State of Louisiana, without regard to any applicable conflicts or choice-of-laws principles. If any part, Section, clause, or provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other part, Section, clause, or provision thereof. All claims, disputes, or causes of action relating to or arising out of this Agreement shall be brought, heard, and resolved solely and exclusively by and in the federal or state courts situated in East Baton Rouge Parish, Louisiana, and each of the parties consents to such jurisdiction and venue and waives all objections thereto.

Dispute Resolution.  Before either party initiates litigation arising out of or relating to this Agreement, the parties agree to attempt to resolve the dispute through the following process: (a) the aggrieved party shall deliver written notice to the other party describing the dispute in reasonable detail; (b) the parties shall negotiate in good faith for a period of thirty (30) days following delivery of such notice; and (c) if the dispute is not resolved within that thirty (30) day period, either party may submit the dispute to non-binding mediation before a mutually agreed-upon mediator in East Baton Rouge Parish, Louisiana, the cost of which shall be shared equally by the parties. If mediation does not resolve the dispute within sixty (60) days of the mediator’s appointment, either party may then pursue its remedies in a court of competent jurisdiction as provided in this Section. Nothing in this paragraph shall prevent either party from seeking emergency injunctive or equitable relief without first complying with these procedures.

J. Amendments, Waivers, and Modifications

This Agreement may be amended only by written agreement signed by the duly authorized representatives of Employer and Highflyer HR® except as otherwise set forth herein. Notwithstanding the foregoing, Highflyer HR® may update its fee schedule, the list of incidental charges, and administrative procedures upon thirty (30) days written notice to Client without requiring a signed amendment to this Agreement.

K. Assignment

The prior written consent of Highflyer HR® is required before Client may assign this Agreement. If Client purports to assign this Agreement without the prior written consent of Highflyer HR®, then Highflyer HR® may, at its option, deem the assignment void ab initio or deem this Agreement materially breached. The sale or change in control of Client, or the transfer of all or a substantial portion of the assets or users to which this Agreement relates, will be considered an assignment requiring Highflyer HR®’s prior written approval.

L. Standard of Care, Indemnification, and Limitation of Liability

1. Standard of Care.

Highflyer HR® will exercise the same reasonable care and due diligence in performing its obligations under this Agreement that a prudent administrator in the same industry would exercise (the “Standard of Care”). It shall not be a breach of the Standard of Care if Highflyer HR® acts in accordance with Employer’s written instructions. Written instructions shall include emails.

2. Indemnification.

Client shall defend, indemnify, and hold harmless Highflyer HR® and its Representatives (each, an “Indemnified Party”) from and against any and all damages, costs, and expenses, including reasonable attorneys’ fees and disbursements (collectively, “Losses”) in connection with any third-party claim, suit, or proceeding to the extent based upon or arising from: (i) the breach by Client, or any of its officers, directors, owners, employees, or contractors of this Agreement; (ii) the negligence or misconduct of Client or any of its officers, directors, owners, employees, or contractors; or (iii) the provision by Client or any of its officers, directors, owners, employees, or contractors to Highflyer HR® or any of its Representatives of any false, inaccurate, incomplete, or unlawful information. The foregoing indemnification obligation shall include, without limitation, any claim based on alleged loss because of noncredit of any deposit, and any claim which may be made by an employee because of the rejection of any debts because of insufficient funds arising from failure to credit deposits to employee’s account. For purposes hereof, “Representatives” means, with respect to Highflyer HR®, its officers, directors, employees, owners, affiliates, agents, representatives, contractors, subcontractors, consultants, attorneys, and accountants.

3. Limitation of Liability.

(a)  In no event shall Highflyer HR® be liable to Client or any third person for consequential, incidental, indirect, punitive, or exemplary damages of any kind (including without limitation lost revenues or profits, loss of goodwill or reputation, breach of privacy or security) with respect to any claims based on contract, tort, or otherwise (including negligence and strict liability) arising out of or relating to this Agreement, regardless of whether Highflyer HR® knew or should have known of the possibility thereof.

(b)  Highflyer HR®’s maximum liability arising out of or relating to this Agreement, regardless of the cause of action (whether in contract, tort, indemnity, breach of warranty, or otherwise), will not exceed the aggregate amount of the fees paid to Highflyer HR® by Client under this Agreement during the twelve (12) month period preceding the date on which the claim arises. The limitations of liability contained in this Section shall apply regardless of the legal theory asserted and shall survive the termination or expiration of this Agreement.

(c)  The parties acknowledge and agree that the limitations on liability in this Section are reasonable and that the provisions of this Section allocate the risks under this Agreement between Highflyer HR® and Client. The limitations on liability in this Section shall apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

(d)  No action, regardless of form, arising under or relating to this Agreement may be brought by Client against Highflyer HR® more than one (1) year after the cause of action has occurred or, by reasonable diligence, could have been discovered.

4. Legal Compliance.

Client is ultimately responsible for complying with all local, state, and federal laws, including without limitation laws relating to taxes, wages, hours, garnishments, benefits, and other legal requirements. Client is also responsible for monitoring changes in law and implementing necessary changes to its operations accordingly. Client is solely responsible for determining and maintaining proper classification of workers as employees, independent contractors, exempt employees, non-exempt employees, leased employees, temporary employees, and any other worker classifications required by law.

5. HR, Legal, Tax, and Benefits Disclaimer.

Client acknowledges that Highflyer HR® is not a law firm, accounting firm, tax advisory firm, investment advisor, or employee benefits fiduciary. Any guidance provided by Highflyer HR® regarding human resources, employee relations, wage and hour compliance, employee handbooks, policies, benefits administration, or employment practices is informational and operational in nature only and shall not constitute legal, tax, accounting, or investment advice. Client is solely responsible for making all final employment decisions and for obtaining independent legal counsel before implementing any HR guidance or policy provided by Highflyer HR® that carries legal risk, including but not limited to terminations, disciplinary actions, reductions in force, leave and accommodation decisions, classification changes, and responses to employee complaints or regulatory inquiries. Highflyer HR®’s provision of HR guidance does not create an attorney-client relationship and does not insulate Client from liability arising from employment decisions.

6. Third-Party Vendor Disclaimer.

Highflyer HR® shall not be liable for delays, errors, interruptions, data inaccuracies, transmission failures, or service disruptions caused in whole or in part by third-party providers, including but not limited to financial institutions, insurance carriers, retirement plan providers, government agencies, software and cloud platform vendors (including iSolved People Cloud), application programming interfaces (APIs), benefit administrators, timekeeping providers, internet service providers, telecommunications providers, or ACH processors. Highflyer HR® will use commercially reasonable efforts to notify Client promptly of any third-party disruption materially affecting Client’s Services.

7. Administrative Control.

Highflyer HR® has no obligation to confirm any acts, omissions, or decisions of any representative of Client with any other representative of Client or any other person.

M. Term, Termination, and Termination Fees

1. Term.

This Agreement commences on the last date of signature by both Highflyer HR® and Client (the “Effective Date”) and shall remain in effect for a period of two (2) years after the Go Live Date (the “Initial Term”), and shall be automatically renewed for successive one (1) year renewal terms (each a “Renewal Term”; the Initial Term and Renewal Terms, the “Term”), unless: (a) this Agreement is terminated earlier by Highflyer HR® because Client has breached any of its obligations hereunder; (b) either party provides notice to the other of its intention not to renew at least sixty (60) days prior to the end of the then-current Term; or (c) Client terminates this Agreement if Highflyer HR® breaches any of its material obligations hereunder and fails to cure such breach(es) within sixty (60) days after its receipt of written notice from Client specifying in detail such breach(es). Upon termination of this Agreement, Employer’s access to Highflyer HR®’s proprietary web-based system shall be terminated immediately, unless the parties agree otherwise.

Early Termination by Client.  If Client elects to terminate this Agreement prior to the expiration of the then-current Term for any reason other than an uncured material breach by Highflyer HR®, Client shall provide Highflyer HR® with written notice of termination no less than sixty (60) days prior to the intended termination date and shall pay Highflyer HR® the following early termination fee (the “Early Termination Fee”):

Early Termination Fee Schedule.  The Early Termination Fee is calculated based on the number of months remaining in the then-current Term at the time the termination notice is delivered:

• Termination during the first six (6) months of the Initial Term: 100% of the remaining monthly fees due through the end of the Initial Term, not to exceed twelve (12) months of average monthly fees.
• Termination after six (6) months but prior to twelve (12) months of the Initial Term: six (6) months of average monthly fees.
• Termination after twelve (12) months of the Initial Term or during any Renewal Term: three (3) months of average monthly fees.

Average monthly fees shall be calculated based on Client’s average monthly billing over the ninety (90) days immediately preceding the delivery of the termination notice. The parties agree that the Early Termination Fee represents a reasonable estimate of Highflyer HR®’s actual damages, including lost revenue, reallocation of resources, and administrative costs associated with offboarding, and is not a penalty.

Waiver of Early Termination Fee.  The Early Termination Fee shall be waived only in the following circumstances: (a) Highflyer HR® materially breaches this Agreement and fails to cure such breach within sixty (60) days of written notice from Client; or (b) Client provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Term in accordance with Section M(1) above, in which case this Agreement expires naturally and no Early Termination Fee applies.

Implementation Costs.  In addition to the Early Termination Fee, if Client terminates this Agreement within the first twelve (12) months following the Go Live Date, Client shall reimburse Highflyer HR® for any unpaid or waived implementation fees and setup costs incurred by Highflyer HR® in connection with Client’s onboarding, to the extent not already collected. Highflyer HR® shall provide Client with a written itemization of such costs within ten (10) business days of the termination notice.

2. Post-Termination Obligations.

Within three (3) business days after the date on which this Agreement expires or is earlier terminated (the “Termination Date”), Highflyer HR® shall return to Employer all of Employer’s funds held by it, less all fees and expenses due Highflyer HR®. If Employer’s funds held by Highflyer HR® are not sufficient to pay all fees and expenses of Highflyer HR® through the Termination Date, Employer shall pay on the Termination Date all remaining sums owed to Highflyer HR®. All Services under this Agreement shall cease on the Termination Date.

3. Suspension or Termination by Highflyer HR®; Liquidated Damages.

If Client materially breaches this Agreement — including by failing to pay Highflyer HR® on time, failing to provide funds required to allow Highflyer HR® to render any Service, or otherwise violating its obligations under this Agreement — Highflyer HR® may, at its election, suspend Services without notice. If Client does not cure the breach within five (5) business days of written notice, then Highflyer HR® may deem this Agreement terminated, and Client shall pay Highflyer HR® liquidated damages equal to three (3) months of average monthly fees, calculated based on Client’s average monthly billing over the ninety (90) days immediately preceding the breach. The parties agree that this amount represents a reasonable estimate of Highflyer HR®’s damages and is not a penalty. The Early Termination Fee described in Section M(1) and the liquidated damages described in this Section M(3) are mutually exclusive remedies; only one shall apply based on the circumstances giving rise to termination, and Highflyer HR® shall not collect both for the same termination event.

4. Client Data Retention After Termination.

Following termination or expiration of this Agreement, Highflyer HR® will retain Client Data for a period of not less than twelve (12) months and not more than thirty-six (36) months, after which it may be destroyed in accordance with Highflyer HR®’s standard data retention practices. Client is responsible for downloading and retaining all records it requires prior to the termination of system access. Highflyer HR® shall have no liability for the destruction of Client Data following the retention period described herein.

If Client fails to pay amounts due under this Agreement, Client shall be responsible for all costs of collection, including reasonable attorneys’ fees, court costs, collection agency fees, and related expenses.

N. Representations, Warranties, and Disclaimers

1. Mutual Representations and Warranties.

Each party represents and warrants that as of the Effective Date and at all times thereafter: (i) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; (ii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder will not conflict with or violate in any material manner any applicable federal, state, or local laws or regulations; and (iii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it.

Client acknowledges that software platforms, internet connectivity, telecommunications systems, and third-party providers may experience interruptions or downtime. Highflyer HR® does not guarantee uninterrupted system availability.

2. Warranty Disclaimer.

Highflyer HR® cannot guarantee that the Services will be available at all times or that every error in the Services or problem raised by Client will be resolved. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THIS AGREEMENT, THE SERVICES, HIGHFLYER HR® INTELLECTUAL PROPERTY, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. To the extent that a party may not as a matter of applicable law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.

O. Other Provisions

1. Severability and Reformation.

If any provision of this Agreement is found to violate public policy or be contra bonos mores, then that provision alone should be reformed to be enforceable to the greatest extent allowed by law and consistent with the purpose of the original provision. The balance of this Agreement should be enforced.

2. Intellectual Property Ownership.

Highflyer HR® owns all Intellectual Property. No custom development may be deemed a work made for hire under the Copyright Act. Notwithstanding any provision in this Agreement to the contrary, no Intellectual Property is assigned to Client. Client agrees not to attack the ownership or validity of any Intellectual Property, whether registered or unregistered, and this obligation will survive the expiration or earlier termination of this Agreement.

3. Use of Services.

Client may use the Services only as expressly permitted by this Agreement.

4. Ownership and Use of Client Data.

Client owns all Client Data and is responsible for its accuracy and completeness. Client represents and warrants that it has all permissions and authorizations necessary for it to provide Client Data to Highflyer HR®. Client authorizes Highflyer HR® to use, copy, and transmit Client Data for all purposes relating to any Services. Highflyer HR® may report aggregated, anonymized data to the Federal Reserve and other entities that report on jobs and other enterprise statistics. At Client’s request, Highflyer HR® may transmit Client Data to federal, state, and local governments, banks and other financial institutions, insurance carriers, retirement plans, and any other recipient identified by Client.

5. Trademarks.

Neither party may use the other party’s trademarks without prior written authorization, except Client hereby authorizes Highflyer HR® to identify Client as one of Highflyer HR®’s clients and use Client’s name and logo in marketing materials unless Client provides written notice withdrawing such permission.

6. Certain Defined Terms.

The following defined terms used in this Agreement shall have the meanings set forth on Attachment 1 attached hereto and made a part hereof: (1) PHI; (2) COBRA; (3) ERISA; (4) HRA; (5) HSA; (6) PEPM; (7) Intellectual Property; (8) Client Data; (9) Go Live Date.

7. Headings.

The Section titles herein are for convenience only and have no legal effect.

8. Counterparts.

This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement will become effective as of the Effective Date when duly executed and delivered by each party.

9. Electronic Signatures.

Electronic signatures, electronic acceptance through Highflyer HR®’s client portal, email approvals, electronic acknowledgments, and electronically transmitted records shall be deemed original signatures and shall be fully enforceable under the Electronic Signatures in Global and National Commerce Act (E-SIGN Act) and applicable Louisiana law. Counterpart signature pages delivered by facsimile or other electronic delivery (including email of a PDF signature page) shall constitute originals for all purposes.

10. Subcontracting.

Highflyer HR® reserves the right to subcontract, and Client acknowledges and agrees that Highflyer HR® may subcontract all or any portion of the Services through contracts or subcontracts with third persons, provided that Highflyer HR® shall not be relieved of any of its obligations and responsibilities hereunder upon any such subcontracting.

11. Interpretation and Rules of Usage.

In this Agreement, the following interpretation and rules of usage will apply unless otherwise specified: (a) reference to any Section, appendix, Schedule, addendum, or Exhibit is a reference to the Section, appendix, Schedule, addendum, or Exhibit of this Agreement; (b) the singular includes the plural, and the plural includes the singular; (c) the words “including,” “includes,” and “include” will be deemed to be followed by the words “without limitation”; (d) each reference to any agreement, policy, or rule includes all amendments, modifications, and supplements made to that agreement, policy, or rule that are not expressly prohibited by this Agreement; (e) each reference to a Person includes that Person’s respective permitted successors and assigns; (f) “herein,” “hereof,” “hereto,” “hereunder,” and similar terms refer to this Agreement as a whole; (g) Section headings are for reference purposes only; and (h) each party participated in the drafting of this Agreement and no presumption shall arise that either party drafted this Agreement.

12. Third-Party Beneficiaries.

This Agreement shall not be construed as giving any person other than the parties to this Agreement, their successors and permitted assigns, and, to the extent set forth in this Agreement, indemnitees, any legal or equitable rights, remedies, or claims under or in respect of this Agreement.

13. HIPAA Clarification.

Unless otherwise agreed in a separate Business Associate Agreement (“BAA”) executed in writing by both parties, Highflyer HR® shall not be considered a Business Associate under the Health Insurance Portability and Accountability Act (“HIPAA”) or its implementing regulations. Client shall notify Highflyer HR® if any of its services involve the access, use, or disclosure of Protected Health Information (PHI), as defined in the HIPAA Rules, so that the parties may enter into an appropriate BAA prior to any such access.

14. Survival.

The following Sections shall survive the expiration or earlier termination of this Agreement: C,1, 2(c), (d) and (f); D; F; H; I; L,2, 3, 5, and 6; M; and O,1, 2, 4, 5, 6, 9, and 13.

 

 

Attachment 1  –  List of Defined Terms

 

“PHI”  shall mean Protected Health Information as defined under the HIPAA Rules.

“COBRA”  shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985.

“ERISA”  shall mean the Employee Retirement Income Security Act of 1974, as amended, including the regulations promulgated thereunder.

“HRA”  shall mean Health Reimbursement Arrangement.

“HSA”  shall mean Health Savings Account.

“PEPM”  shall mean the applicable fees which Client agrees to pay to Highflyer HR® under this Agreement, including the monthly fee Per active Employee Per Month.

“Intellectual Property”  shall mean, with respect to the Services, all inventions and/or works and any and all rights under U.S. and/or foreign patents, trade secrets, know-how, copyrights, and other industrial or intangible property rights of a similar nature, including all rights under applications, corrections, reissues, extensions, and renewals thereof. As between Highflyer HR® and Client, Highflyer HR® owns and retains all right, title, and interest in and to its pre-existing Intellectual Property, all source code, object code, operating instructions, and interfaces developed for or relating to the Services, and all modifications, enhancements, revisions, and derivative works of the foregoing.

“Client Data”  shall mean collectively Client’s employment data (e.g., time clock entries, benefits information, etc.), public information (e.g., home addresses, etc.), and non-public information (e.g., Social Security numbers, etc.), in each case as provided by Client to Highflyer HR®.

“Go Live Date”  shall mean the first paycheck date of Client processed by Highflyer HR®.

“Authorized Representative”  shall mean any officer, manager, or employee of Client who is designated in writing by Client as authorized to provide instructions, submit payroll data, request services, or execute amendments on Client’s behalf under this Agreement.

“Managed Services”  shall mean any Managed Payroll Services or Managed HR Services provided by Highflyer HR® to Client pursuant to a separately executed Managed Services Addendum, which is incorporated into and made a part of this Agreement upon execution.