JUSTPAYROLL SaaS PLATFORM
SERVICE LEVEL AGREEMENT

JUSTPAYROLL SaaS PLATFORM
SERVICE LEVEL AGREEMENT

During the Term of the JUSTPAYROLL SaaS PLATFORM LICENSE AGREEMENT AND TERMS OF SERVICE, or the term of the JUSTPAYROLL RESELLER AGREEMENT (as applicable, the “Agreement”), the Covered Service will provide a Monthly Uptime Percentage to end Customer of at least 99% (the “Service Level Objective ” or “SLO”). If UPGL does not meet the SLO, and if Customer meets its obligations under this SLA and TOS, Customer will be eligible to receive the Financial Credits described below. This SLA states Customer’s sole and exclusive remedy for any failure by UPGL to meet the SLO.

Capitalized terms used in this SLA, but not defined in this SLA, have the meaning set forth in the Agreement. If the Agreement is the UPGL Reseller Agreement, then all references to Customer in this SLA mean Reseller, and any Financial Credit(s) will only apply for impacted Reseller order(s) under the Agreement.

Definitions

The following definitions apply to the SLA:

“Covered Service” means:

The cloud based, payroll processing service provided by Upraxis Global Ltd. and offered under any of the below brands:

JustPayroll.ph
PhilPay.ph
Esweldo.ph

Any other applicable brand at the sole discretion of UPGL.

“Downtime” means: Loss of access to the service due to any of the following reasons for a period of time greater than five (5) consecutive minutes.

  • An internal fault or error on the internal data network of Google Cloud Services starting from the perimeter firewall up to the NAC of the server instance.
  • An internal fault on the Google virtual server (VM) or physical server equipment and associated storage provided by Google Cloud Services.
  • A code error in the JustPayroll service that substantially prevents access to the system or severely degrades the usage of the service such that it becomes substantially unusable.

Downtime does not include loss of external connectivity as a result of loss of internet services provided by third party telco providers whether locally or internationally connecting into any of the Google data centers.

Downtime does not include loss of external connectivity due to faults in the customers internal data networks, problems with customer routers or firewalls, or issues with customers NAC devices on their computers.

Downtime does not include loss of external connectivity due to customers loss of access credentials, inadequate access rights or suspensions of the customers account as defined in the Terms of Service Agreement.

“Downtime Period” means: a period of more than five (5) consecutive minutes of Downtime.Partial minutes or Intermittent Downtime for a period of less than five (5) minutes will not be counted towards any Downtime Periods.

“Region” means: the Republic of the Philippines. SLA will not be enforced for customers attempting to access the service from other locations.

“Financial Credit” means the following:

Monthly Uptime PercentagePercentage of monthly service fee for the respective Covered Service that did not meet the SLO that will be credited to future monthly bills of Customer
97% < 99%5%
95% < 96.99%10%
< 95.00%15%

“Monthly Uptime Percentage” means: the total number of minutes in a month, minus the notified ‘service window minutes’ (if any), the ‘Eligible Minutes’ minus the number of minutes of Downtime suffered from all Downtime Periods in a month, divided by the total number of eligible minutes in a month.

“Service Window” means: a period of time wherein the service will be inaccessible to the customer in order to allow UPGL to perform critical technical work, upgrades, patches, deployment of new features, and other important service health checks at the sole discretion of UPGL. Any instance of ‘service window’, shall not exceed three (3) continuous hours. UPGL will not invoke more than one (1) instance of ‘Service Window’ within any one calendar month. UPGL will endeavor to schedule any service window at a time that least affects the largest number of customers and will inform customer at least forty eight (48) hours in advance of any scheduled service activity unless an emergency service activity is required due to a critical error or need for a critical security upgrade in which case; UPGL will inform the customer of the service window as quickly as commercially possible.

SLA Exclusions

The SLA does not apply to any: (a) features designated Alpha or Beta (unless otherwise set forth in the associated Documentation), (b) features excluded from the SLA (in the associated Documentation), or (c) errors: (i) caused by factors outside of UPGL’s reasonable control; (ii) that resulted from Customer’s software or hardware or third party software or hardware, or both; (iii) that resulted from abuses or other behaviors that violate the Agreement; or (d) scheduled downtime for ‘service window’ for which the customer was informed at least forty eight (48) hours in advance as defined herein; or any downtime caused by force majeure as defined in the TOS Agreement.

Customer Must Request Financial Credit

In order to receive any of the Financial Credits described above, Customer must notify UPGL technical support within thirty days from the time Customer becomes eligible to receive a Financial Credit. Customer must also provide UPGL with server log files or documentary evidence showing loss of external connectivity errors and the date and time those errors occurred. If Customer does not comply with these requirements, Customer will forfeit its right to receive a Financial Credit. If a dispute arises with respect to this SLA, UPGL will make a determination in good faith based on its system logs, monitoring reports, configuration records, and other available information which UPGL will make available for auditing by Customer at Customer’s request.

Maximum Financial Credit

The aggregate maximum number of Financial Credits to be issued by UPGL to Customer for any and all Downtime Periods that occur in a single billing month will not exceed fifteen (15%) percent of the amount due by Customer for the Covered Service for the applicable month. Financial Credits will be made in the form of a monetary credit applied to future use of the Service and will be applied within 60 days after the Financial Credit was requested and approved.

JUSTPAYROLL SaaS PLATFORM
SERVICE AGREEMENT AND TERMS OF SERVICE

This Cloud Platform Service Agreement (the “Agreement”) is made and entered into by and between:

uPraxis Global Ltd. DBA “JustPayrollPH” a company registered under the laws of the Philippines with SEC registration number CS201607947 and with office address at, 5th floor, Corner Exchange Bldg. Rufino St. Corner Bolanos St. Makati City, Philippines, 1200, hereinafter referred to as “Principal or UPGL”,

And:

The entity or person agreeing to these terms and herein after known as any of (“Customer” “Client”, “You”, “Your” “Party”) and jointly referred to as “The Parties”.

This Agreement is effective as of the date Customer clicks to accept the Agreement (the “Effective Date”). If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. If you do not have the legal authority to bind Customer, please do not click to accept. This Agreement governs Customer’s access to and use of the Service.

1. Provision of the Service.

1.1 Service Use. Subject to this Agreement, during the Term, Customer may use the Service. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.

1.2 Admin Access. UPGL will provide the Service to Customer. As part of receiving the Service, Customer will have access to the Admin Console, through which Customer may administer the Service.

1.3 Facilities. All facilities used to store and process an Application and Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where UPGL processes and stores its own information of a similar type. UPGL has implemented at least industry standard systems and procedures to (i) ensure the security and confidentiality of an Application and Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of an Application and Customer Data, and (iii) protect against unauthorized access to or use of an Application and Customer Data.

1.4 Location. UPGL may process and store the Customer Data anywhere UPGL or its maintains virtual servers. By using the Service, Customer consents to this processing and storage of Customer Data. Under this Agreement, UPGL is merely a data processor.

1.5 Accounts. Customer must have an Account to use the Service, and is responsible for the information it provides to create the Account, the security of the account access credentials, and for any use of its Account how soever accessed. If Customer becomes aware of any unauthorized use of its password or its Account, Customer will notify UPGL as promptly as possible. UPGL has no obligation to provide Customer multiple Accounts.

1.6 New Service Features and Versions. UPGL may: make new versions, editions, features or functionality available from time to time through the Service the use of which may be contingent upon Customer’s agreement to additional terms which will be added to this Agreement accordingly.

1.7 Modifications.

a. To the Service. UPGL may make commercially reasonable updates to the Service from time to time. If UPGL makes a material change to the Service, UPGL will inform Customer by email at least thirty (30) days in advance of the deployment of such change.

b. To the Agreement. UPGL may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by UPGL, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. UPGL will provide at least thirty 30 days’ advance notice for materially adverse changes to any SLAs by either: (i) sending an email to Customer’s primary point of contact; (ii) posting a notice in the Admin Console; or (iii) posting a notice to the applicable SLA webpage. If Customer does not agree to the revised Agreement, please stop using the Service. UPGL will post any modification to this Agreement to the Terms URL.

c. To the Data Processing and Security Terms. UPGL may only change the Data Processing and Security Terms where such change is required to comply with applicable law, applicable regulation, court order, or guidance issued by a governmental regulator or agency, where such change is expressly permitted by the Data Processing and Security Terms, or where such change:

(i) is commercially reasonable;

(ii) does not result in a degradation of the overall security of the Service;

(iii) does not expand the scope of or remove any restrictions on UPGL’s processing of Customer Personal Data, as described in Section 5.2 (Scope of Processing) of the Data Processing and Security Terms; and

(iv) does not otherwise have a material adverse impact on Customer’s rights under the Data Processing and Security Terms. If UPGL makes a material change to the Data Processing and Security Terms in accordance with this Section, UPGL will post the modification to the URL containing those terms.

2. Payment Terms.

2.1 Billing. On or about the first day of each calendar month, UPGL will issue a billing statement to Customer for all services to be used for the following calendar month to include: (i) Use of the service based on the actual headcount of employees enrolled for payroll in the system on the last day of the previous month at the rate indicated in the ‘rate table’ included in the signed proposal/order form and attached herein as “Annex A” (including, if any, incremental rate increase as determined in section 16.15 herein); (ii) any fees due for additional services requested during the previous calendar month such as additional training or professional services. Customer will be responsible for all Fees up to the amount set in the billing and will pay all Fees in the currency set forth in the invoice. All Fees are due within thirty (30) days of the invoice date. Customer’s obligation to pay all Fees is non-cancellable. UPGL’s measurement of Customer’s use of the Service is final. UPGL has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by UPGL and all costs related to wire transfer services billed by any bank or intermediary bank are for the account of the customer.

2.3 Taxes. (a) Customer is responsible for payment of Value Added Tax (VAT) on the service unless Customer provides UPGL with a timely and valid VAT exemption certificate authorized by the appropriate the BIR.

(b) Customer will Withhold a ‘Creditable Withholding Tax amount of two (2%) percent of the gross billed amount (Excluding VAT). The client will submit to UPGL on a quarterly basis the evidence of creditable withholding tax remitted to the BIR via form 2307 Certificate of Creditable Withholding Tax. The Client shall not deduct any other amount or withhold payment for any reason.

(c) If required under applicable law, Customer will provide UPGL with applicable tax identification information that UPGL may require to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse UPGL for) any taxes, interest, penalties or fines arising out of any mis-declaration by the Customer.

2.4 Invoice Disputes & Refunds. Any invoice disputes must be submitted prior to the payment due date. If the parties determine that certain billing inaccuracies are attributable to UPGL, UPGL will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed invoice has not yet been paid, UPGL will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged. Refunds (if any) are at the discretion of UPGL and will only be in the form of credit for the Service. Nothing in this Agreement obligates UPGL to extend credit to any party.

2.5 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by UPGL in collecting such delinquent amounts. If Customer is late on payment for the Service, UPGL may Suspend the Service or terminate the Agreement for breach pursuant to Section 9.2.

2.6 No Purchase Order Number Required. For clarity, Customer is obligated to pay all applicable Fees without any requirement for UPGL to provide a purchase order number on UPGL’s invoice (or otherwise).

3. Customer Obligations.

3.1 Compliance. Customer is solely responsible for its use of the service and Customer Data and for making sure its users and Customer Data comply with the AUP. UPGL reserves the right to review the Application, Project, and Customer Data for compliance with the Acceptable Use Policy (AUP). Customer is responsible for ensuring all Customer End Users comply with Customer’s obligations under the AUP, the Service Specific Terms, and the restrictions in Sections 3.3 and 3.5 below.

3.2 Privacy. Customer will obtain and maintain any required consents necessary to permit the processing of Customer/Employee Data under this Agreement.

3.3 Restrictions. Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Service (subject to Section 3.4 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Service for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Service; (d) otherwise attempt to access the Service in a manner intended to avoid incurring Fees or exceed usage limits or quotas. UPGL does not intend uses of the Service to create obligations under HIPAA, and makes no representations that the Service satisfy HIPAA requirements. If Customer is (or becomes) a Covered Entity or Business Associate, as defined in HIPAA, Customer will not use the Service for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) unless Customer has received prior written consent to such use from UPGL.

4. Suspension.

4.1 AUP Violations. If UPGL becomes aware that Customer’s or any Customer End User’s use of the Service violates the AUP, UPGL will give Customer notice of the violation by requesting that Customer correct the violation. If Customer fails to correct the violation within 24 hours of UPGL’s request, then UPGL may Suspend all or part of Customer’s use of the Service until the violation is corrected.

4.2 Other Suspension. Notwithstanding Section 4.1 (AUP Violations) UPGL may immediately Suspend all or part of Customer’s use of the Service if: (a) UPGL believes Customer’s or any Customer End User’s use of the Service could adversely impact the Service, other customers’ or their end users’ use of the Service, or the UPGL network or servers used to provide the Service; (b) there is suspected unauthorized third-party access to the Service; (c) UPGL believes it is required to Suspend immediately to comply with applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions). (e) Customer fails to settle its financial obligations to UPGL within forty five (45) days of the billing date of any monthly bill. UPGL will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer’s request, unless prohibited by applicable law, UPGL will notify Customer of the basis for the Suspension as soon as is reasonably possible.

5. Intellectual Property Rights; Use of Customer Data; Feedback; Benchmarking.

5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, customer brand, and UPGL owns all Intellectual Property Rights in its Brand Service and Software.

5.2 Use of Brand; Customer gives permission to UPGL and or its subsidiaries to use the name and brand logo of the customer in UPGL’s website and associated sales presentations indicating that the customer has availed of the UPGL services and is or has been a customer of UGPL unless the customer explicitly objects to such usage in writing at the time of acceptance of this Agreement.

5.3 Use of Customer Data. UPGL will not access or use Customer Data, except as necessary to provide the Service and TSS to Customer.

5.3 Customer Feedback. If Customer provides UPGL Feedback about the Service, then UPGL may use that information without obligation to Customer, and Customer hereby irrevocably assigns to UPGL all right, title, and interest in that Feedback.

6. Technical Support Service

6.1 By UPGL. Subject to customer being up to date with all payments, UPGL will provide TSS to Customer during the Term in accordance with the TSS Guidelines. Certain TSS levels include a minimum recurring Fee as described in the “Fees” definition below. If Customer downgrades its TSS level during any calendar month, UPGL may continue to provide TSS at the same level and TSS Fees before the downgrade for the remainder of that month.

8. Confidential Information.

8.1 Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.

8.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users’ use of the Service.

9. Term and Termination.

9.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue for the number of months ‘The Initial Period’ indicated in the ‘Service Order Form’ signed by the customer. The signed form will become a part of this Agreement.

9.2 This Agreement will automatically renew on: the day immediately after the end of the Initial period and the day after each ‘renewal Period’ for further twelve (12) month periods, the ‘Renewal period(s)’ with the attendant price adjustments as detailed in the Service Order Form.

9.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice;

(ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, UPGL may terminate any, all, or any portion of the Service or Projects, if Customer meets any of the conditions in Section 9.2(i), (ii), and/or (iii).

9.4 Termination for Convenience. Customer may terminate this Agreement for its convenience at any time with prior written notice of at least thirty (30) days prior to the expected date of cessation. If the date of termination is more than ten (10) days before any renewal date; Customer will pay pre-termination fees in an amount equal to three months service fees or fifty (50%) of the remaining contract whichever is greater at the sole discretion of UPGL.

9.5 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees owed by Customer to UPGL are immediately due upon receipt of the final bill; (iii) UPGL will irrevocably delete any Customer Data residing in the system after thirty (30) days of termination; and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party within thirty (30) days of termination date. Should customer request backups of the data – charges may apply and UPGL will inform the customer of the amount of charges immediately upon notification of termination.

11. Representations and Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable. UPGL warrants that it will provide the Service in accordance with the applicable SLA (if any).

12. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPGL AND ITS SUBSIDIARIES, AFFILIATES, AND SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. UPGL AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER UPGL NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.

13. Limitation of Liability.

13.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR UPGL’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

13.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR UPGL’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO UPGL UNDER THIS AGREEMENT DURING THE LAST ONE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

13.3 Exceptions to Limitations. These limitations of liability do not apply to violations of a party’s Intellectual Property Rights by the other party, indemnification obligations, or Customer’s payment obligations.

14. Indemnification.

14.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify UPGL and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) Customer’s, or Customer End Users’, use of the Service in violation of the AUP.

14.2 By UPGL. UPGL will indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) UPGL’s technology used to provide the Service or (b) any UPGL Brand Feature infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.

14.3 Exclusions. This Section 14 will not apply to the extent the underlying Allegation arises from:

a. the indemnified party’s breach of this Agreement;

b. modifications to the indemnifying party’s technology or Brand Features by anyone other than the indemnifying party;

c. combination of the indemnifying party’s technology or Brand Features with materials not provided by the indemnifying party; or

d. use of non-current or unsupported versions of the Service or Brand Features;

14.4 Conditions. Sections 14.1 and 14.2 will apply only to the extent:

a. The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 14.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 14.1 or 14.2 (as applicable) will be reduced in proportion to the prejudice.

b. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

14.5 Remedies.

a. If UPGL reasonably believes the Service might infringe a third party’s Intellectual Property Rights, then UPGL may, at its sole option and expense: (a) procure the right for Customer to continue using the Service; (b) modify the Service to make them non-infringing without materially reducing their functionality; or (c) replace the Service with a non-infringing, functionally equivalent alternative.

b. If UPGL does not believe the remedies in Section 14.5(a) are commercially reasonable, then UPGL may Suspend or terminate Customer’s use of the impacted Service.

14.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 14 states the parties’ only rights and obligations under this Agreement for any third party’s Intellectual Property Rights Allegations and Third-Party Legal Proceedings.

16. Miscellaneous.

16.1 Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact.

16.2 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

16.3 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.

16.4 Force Majeure. UPGL shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its control. Force majeure shall include any law, order, regulation, direction or request of the Philippine government; strike or other labor difficulties; insurrection; riots; national emergencies; war; acts of public enemies; fire, floods, typhoons or other catastrophes or acts of God; and other circumstances beyond the control of UPGL

16.5 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.

16.6 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

16.7 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

16.8 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

16.9 Governing Law. The provisions of this Agreement are governed by the laws of the Philippines.

16.10 Amendments. Except as set forth in Section 1.7(b) or (c), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

16.12 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 8, 9.5, 13, 14, and 16.

16.13 Entire Agreement. This Agreement and attached annexes and service order forms sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, UPGL may provide an updated URL in place of any URL in this Agreement.

16.14 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.

16.15 Definitions.

“Account” means Customer’s UPGL Cloud Platform account.

“Admin Console” means the online console(s) and/or tool(s) provided by UPGL to Customer for administering the Service.

“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

“Allegation” means an unaffiliated third party’s allegation.

“AUP” means the acceptable use policy set forth here for the Service.

“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer’s Confidential Information.

“Control” means control of greater than fifty percent of the voting rights or equity interests of a party.

“Customer Data” means content provided to UPGL by Customer (or at its direction) via the Service under the Account.

“Customer End Users” means the individuals Customer permits to use the Application.

“Data Processing and Security Terms” means the terms set forth at: https://justpayroll.ph/privacy-policy

“Documentation” means the UPGL documentation (as may be updated from time to time) in the form generally made available by UPGL to its customers for use with the Service at https://justpayroll.ph/xxx

“Fee Accrual Period” means a calendar month.

“Feedback” means feedback or suggestions about the Service provided to UPGL by Customer.

“Fees” means the applicable fees for each Service and any applicable Taxes. The Fees for each Service are set forth in the ‘Service Order Form’.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.

“Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.

“Instance” means a virtual machine instance, configured and managed by UPGL.

“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.

“Legal Process” means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.

“Rate Increase” means a percentage of increase in the price upon auto-renewal of the agreement equal to three point five (3.5%) percent of the current rate.

“Service” means the UPGL service offered under the brand name ‘JustPayroll’ with details set forth at https://justpayroll.ph and in the user manuals provided at the time of service acceptance.

“SLA” means the then-current service level agreement at: https://justpayroll.ph/contracts

“Suspend” or “Suspension” means disabling or limiting access to or use of the Service or components of the Service.

“Taxes” means any duties, customs fees, value added taxes, or withholding taxes (other than UPGL’s income tax) associated with the purchase of the Service, including any related penalties or interest.

“Term” has the meaning set forth in Section 9 of this Agreement.

“Terms URL” means the following URL set forth here: https://justpayroll.ph/contracts

“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

“Trademark Guidelines” means UPGL’s Guidelines for Third Party Use of UPGL Brand Features, located at: https://justpayroll.ph/contracts

“TSS” means the technical support service provided by UPGL to the administrators under the TSS Guidelines.

“TSS Guidelines” means UPGL’s technical support service guidelines then in effect for the Service. TSS Guidelines are at the following URL: https://justpayroll.ph/contracts