beni.fit Services Agreement (BSA)

Services

This Agreement contains the general terms and conditions under which Customer may engage Service Provider, and under which Service Provider will provide, the agreed-upon services ("Services") pursuant to each statement of work executed by both parties that references this Agreement (each, a "Statement of Work"). In the event of any conflict with this Agreement, the terms of the applicable Statement of Work will control.

Compensation

As full consideration for the Services, Customer will pay Service Provider the fees, expenses, and taxes set forth in the applicable Statement of Work. If Customer fails to make payment, Service Provider may suspend performance of the Services and seek collection of unpaid fees and collection costs.

Representations and Warranties

Service Provider represents and warrants that it will perform the Services in a professional and timely manner in accordance with this Agreement, the applicable Statement of Work, and all laws, rules, regulations, and orders applicable to Service Provider's performance of the Services, including applicable privacy laws regarding Customer's personal data provided to Service Provider. Customer acknowledges that Service Provider's performance is contingent on Customer's timely performance of Customer's obligations set forth in the applicable Statement of Work. Service Provider will perform the Services in a manner that seeks to assist Customer in complying with its legal and regulatory requirements applicable to such Services; however, Customer is solely responsible and liable for ensuring that it complies with such requirements. The parties agree that Customer, and not Service Provider, will be responsible for (i) how it uses the Services and (ii) the consequences of any instructions that it gives or fails to give to Service Provider, including notifying Service Provider of any changes to such instructions. The parties further agree that the Services do not include legal, financial, regulatory, accounting, or tax advice. Service Provider disclaims all other warranties, express or implied, with respect to the Services.

IP Data Systems and Confidentiality

Customer will own all rights throughout the world to all data provided to Service Provider and all deliverables, information, documentation, and reports specifically made by Service Provider in the performance of the Services for Customer ("Deliverables"), excluding Service Provider's pre-existing materials, information, and technology. By providing Customer data and access to Customer's systems and third-party systems, such as Rippling, ADP, Gusto, and Employee Navigator, to Service Provider, Customer represents and warrants that it has the unrestricted right to do so, and Customer will remain responsible and liable for such data and systems. Customer's use of any third-party systems associated with the Services will be governed by the applicable third party's license terms and conditions, and Service Provider is not responsible for Customer's or any third party's obligations relating to any third-party systems. Each receiving party agrees to use the disclosing party's confidential information and materials solely to carry out the receiving party's rights or obligations under this Agreement and not to disclose such confidential information or materials without the prior written consent of the disclosing party. Any nondisclosure agreement, Business Associate Agreement, or data processing agreement entered into between the parties is incorporated by reference. Neither party may solicit the other party's employees, consultants, or customers.

Indemnification

Customer will indemnify, defend, and hold harmless Service Provider from and against any and all costs, damages, or losses, including reasonable attorneys' fees and expenses, arising out of or resulting from a third-party claim, demand, suit, or administrative proceeding alleging (i) that the Customer data or systems provided under this Agreement infringe, violate, or misappropriate such third party's intellectual property or privacy rights or (ii) a claim based on Customer's use of the Deliverables. Service Provider will indemnify, defend, and hold harmless Customer from and against any and all costs, damages, or losses, including reasonable attorneys' fees and expenses, arising out of or resulting from a third-party claim, demand, suit, or administrative proceeding alleging that the Deliverables, when used strictly in accordance with this Agreement and the applicable Statement of Work, infringe or misappropriate such third party's United States intellectual property right. Neither indemnifying party may settle any such claim without the prior written consent of the other party.

Liability

In no event will Service Provider be liable to Customer under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for any indirect, incidental, exemplary, special, or consequential damages of any type, including lost revenues or profits; use, inability to use, loss, interruption, delay, or recovery of any data; breach of data or system security; or any other commercial or economic losses arising out of or in connection with this Agreement or any Statement of Work, even if a party has been advised by the other party of the possibility of such damage and even if Customer asserts or establishes a failure of the essential purpose of any limited remedy provided in this Agreement. Service Provider's aggregate liability for any and all direct damages will in no event exceed the amount of fees Customer paid to Service Provider during the twelve (12) months preceding the cause of action under the applicable Statement of Work. Notwithstanding the foregoing or anything else in this Agreement, nothing in this Agreement will limit Customer's liability for payment of fees, either party's indemnification obligations, or gross negligence, willful misconduct, or fraud.

Applicability. The provisions of this section apply to the extent applicable to Services performed pursuant to a separately executed HCM-specific Statement of Work.

Miscellaneous

This Agreement, together with each Statement of Work, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements with respect to such subject matter. This Agreement is governed by and construed in accordance with the laws of the State of Arizona without regard to its conflict-of-laws provisions. All disputes will be subject to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona. The prevailing party in any dispute under this Agreement will be entitled to seek recovery of attorneys' fees and expenses incurred. Each party will maintain commercially reasonable insurance consistent with its obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed one and the same agreement.