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These General Terms and Conditions (“Terms”) are Exhibit A to and shall form an integral part of that certain Master Services Agreement (“MSA”) between Helios and the Client, as identified in the MSA so that the term MSA shall be considered to incorporate these Terms indistinguishably.
The MSA will continue in effect indefinitely, subject to the right of either Party to suspend or terminate the MSA as provided herein and/or in any applicable SOW.
All Fees applicable to the Solutions are specified on the Platform and/or applicable SOW. The Fees shall be due upon Client’s receipt of the applicable invoice and are payable as specified on such invoice. Helios may submit invoices to Client through the Platform and/or as otherwise specified under an applicable SOW. Payment is to be made by electronic funds transfer to an account provided by Helios or other means as agreed by the Parties in writing. Unless otherwise stated in an invoice, all Fees and charges shall be calculated and paid in U.S. dollars. If timely payment is not received, then in addition to its other rights at law or in equity, Helios may (a) suspend Solutions until payment is received, (b) charge the late fee as specified in the MSA, (c) call upon the form of financial assurance as described under the “Financial Assurance” Section, and (c) be reimbursed by Client for any legal and/or other costs directly incurred by Helios in its collection efforts. All Fees shall be subject to an automatic annual increase of 5% upon every renewal anniversary of a SOW.
Prior to entering into Helios’ EOR and AOR Solution arrangement, Client shall provide Helios financial assurance in the form of a deposit in the amount indicated by Helios based on the expected amount payable for one month of Covered Personnel payroll, Employer Liability and License Fees (EOR), and based on the expected amount payable for one month of Independent Contractor fee payments and License Fees, respectively (AOR). Helios shall retain such financial assurance for the term of the MSA and a reasonable time thereafter, to guarantee performance by Client of all of its obligations under the MSA and any applicable SOW. If Client should fail to pay Helios any amounts when due, Helios may in its sole discretion apply the financial assurance to the amount due and Client will promptly replenish the applied amount. Helios may require Client to provide additional financial assurance(s), in the event Helios reasonably determines that either (a) a change has occurred in the financial condition of Client, and/or (b) there has been an increase in the Client’s average payroll or contractor payments, or the Fees. Should Client fail to provide the full amount of the replenishment and/or additional financial assurance, in each case, within five (5) business days of Helios’ request, Helios may immediately terminate the MSA and any applicable SOWs, without liability or further obligation to Client, Covered Employees and/or Independent Contractors. In no event shall Helios have any obligation to continue its performance of the Solutions until such financial assurance has either been replenished and/or provided in accordance with this Section and CLIENT SHALL DEFEND, RELEASE, INDEMNIFY AND HOLD HELIOS INDEMNIFIED PARTIES HARMLESS FROM ANY CLAIMS AND/OR LOSSES RELATED TO, ARISING OUT OF AND/OR IN CONNECTION WITH CLIENT’S FAILURE TO COMPLY WITH THIS SECTION.
Unless not allowed under Applicable Law, in the case of Contractor Pay and Global Manages Payroll Solutions, Helios, upon full funding by Client, shall perform the actual payments of any amounts to Covered Personnel / Covered Employees (“Treasury Services”). For the avoidance of any doubt, Helios can leverage subcontractors for Treasury Solutions, just as for any other Solutions or parts of them.
Subject to Client’s acceptance of the terms and conditions of Helios’ Platform License Agreement which shall be provided to Client prior to its use and/or access to the Platform, Helios’ Privacy Policy, and all other policies published on Helios’ website, Client shall be granted access to the Platform to provide all Documentation (as defined below), upon Client’s execution of the MSA, applicable SOW and payment of the applicable Fees referenced therein. Notwithstanding anything to the contrary herein, Helios’ Platform License Agreement shall govern Client’s use and access to the Platform.
7.1 Verification of Identity
Client agrees to provide accurate and up-to-date information about itself, or its business as required for KYC purposes. This may include but is not limited to, providing government-issued identification, proof of address, and other relevant documentation.
7.2 Purpose of KYC Checks
These checks are conducted to verify the identity, suitability, and credibility of Client, in accordance with applicable laws and regulations. They help Helios to prevent fraud, money laundering, terrorist financing, and other illicit activities.
7.3 Use of Information
Any information collected during the KYC process will be used solely for the purpose of compliance with legal and regulatory requirements. Helios is committed to safeguarding Client’s privacy and will handle Client’s information in accordance with Helios Privacy Policy.
7.4 Cooperation Required
Client agrees to cooperate fully with Helios KYC procedures and provide any additional information or documentation requested in a timely manner. Failure to comply with these requirements may result in the suspension or termination of Client’s account or the Solutions.
7.5 No Refunds Policy
Please note that due to the nature of KYC checks and the administrative costs involved, refunds will not be issued for any fees paid in conjunction with Helios KYC process. Client acknowledges and accepts this policy.
7.6 Updates and Re-verification
Client understands that Helios may periodically review and update Helios KYC procedures and may require Client to undergo re-verification of its identity and information. Client agrees to comply with any such requests.
7.7 Indemnification
Client agrees to indemnify and hold harmless Helios and its affiliates, officers, directors, employees, and agents from any claims, losses, or damages arising out of or related to Client’s failure to comply with Helios KYC requirements or providing false or misleading information.
7.8 Failed Checks
If the Client fails to pass the KYC checks, the MSA may be terminated, in which case any Fees paid will not be refunded, and Helios will not proceed with conducting business with the Client. This ensures compliance with regulatory requirements and mitigates risks associated with potential money laundering or other illicit activities.
HELIOS WILL ONLY PROVIDE THE SOLUTIONS LISTED UNDER A SOW IN EVERY CASE. HELIOS WILL NOT, AND WILL NOT BE DEEMED TO, PROVIDE ANY OTHER SERVICES, INCLUDING WITHOUT LIMITATION ANY STRATEGIC, OPERATIONAL OR OTHER BUSINESS-RELATED DECISIONS WITH REGARD TO CLIENT'S BUSINESS. FOR THE AVOIDANCE OF ANY DOUBT, NOTHING IN OR ABOUT THE MSA AND THE SOLUTIONS SHALL BE CONSTRUED AS HELIOS GIVING ANY KIND OF FINANCIAL, TAX, ACCOUNTING, EMPLOYMENT, COMPLIANCE, LEGAL OR ANY OTHER KIND OF PROFESSIONAL ADVICE.
9.1 Background Checks
Client represents and warrants to Helios, to the extent legally permissible under Applicable Laws, that it has conducted all necessary due diligence, including a background check on all Independent Contractors and/or Covered Employees prior to the finalization of their respective employment agreements and/or Independent Contractor Agreements. Client shall perform all necessary enhanced diligence and/or additional background checks on all Independent Contractors and/or Covered Employees prior to launching on the Platform. Client shall provide all copies of any background check findings to Helios in advance of its commencement of the Solutions; provided, however, that the Parties may agree for Helios to perform these background checks on Client’s behalf for the corresponding fee offered by Helios.
9.2 Documentation
Client shall be solely responsible for obtaining any necessary consents and background checks and providing any additional documents or information as reasonably required by Helios in order for its performance of the Solutions (collectively, “Documentation”). Client shall be solely and fully liable for any fraud, material misstatement or inaccuracy contained in any such Documentation. Client shall transmit all Documentation to Helios through the Platform or as otherwise requested and Helios must receive all Documentation prior to Helios’ commencement of the Solutions. For the avoidance of any doubt, CLIENT SHALL DEFEND, RELEASE, INDEMNIFY AND HOLD HELIOS INDEMNIFIED PARTIES HARMLESS FROM ANY CLAIMS AND/OR LOSSES RELATED TO, ARISING OUT OF AND/OR IN CONNECTION WITH CLIENT’S FAILURE TO COMPLY WITH THIS SECTION, AND FAILURE TO COMPLY WITH THIS SECTION SHALL BE A REASON FOR HELIOS TO IMMEDIATELY TERMINATE THE MSA AND/OR ANY SOW FOR CAUSE WITHOUT NOTICE. This shall apply specifically, without being limited to, any Documentation provided in the scope of a case of misclassification of an Independent Contractor under Agent of Record Solutions.
9.3 Licenses
In the event an Independent Contractor and/or Covered Employee is required to (a) be licensed, registered or certified under Applicable Laws or (b) to act under the supervision of such a licensed, registered or certified person or entity in performing its duties, in each case, Client shall be solely responsible for verifying such licensure, registration or certification and/or providing such required supervision.
9.4 Selection
Client shall be solely responsible for recruiting and selecting Covered Employees and/or Independent Contractors. All responsibility and/or liability with regard to any agreements between Helios and any Covered Employee and/or Client and Independent Contractors and/or Covered Personnel shall be the sole and exclusive responsibility of Client.
9.5 Supervision
Client shall supervise, direct, and control Covered Employees and/or Independent Contractors and Client acknowledges that Helios has no responsibility to, and shall not, supervise, direct or control Covered Employees and/or Independent Contractors.
9.6 Client Provided Resources
As reasonably required by Helios to fulfill its obligations under the MSA, Client agrees to provide prompt, sufficient, and safe access to Client’s facilities, systems, information, personnel, and resources. Prior to making it available to Helios, Client agrees to obtain any licenses or approvals for Helios or its subcontractors to use, access, and modify any of the Client’s software, hardware, networks or other similar resources to the extent necessary for Helios to perform the Solutions.
9.7 Business Operations
Client shall oversee all aspects of the operation of Client’s business, including, but not limited to the production and delivery of services and products, product design, accounting, cash control, and loss, breakage, and theft prevention. Client acknowledges and understands that Helios shall not and cannot make any strategic, operational or other business-related decisions with regard to Client's business. Any such decisions, including their implementation, even if by a Covered Employee and/or Independent Contractor, shall be the exclusive responsibility of Client.
9.8 Record Keeping
Client shall grant Helios and/or its designated representative access during normal working hours, upon reasonable notice to Client, to any Client work locations in relation to the Solutions. Such access shall include the ability of Helios and/or its designated representative to examine books and records of Client, or to discuss with Client personnel, Covered Personnel, Covered Employees and/or Independent Contractors, each as reasonably deemed appropriate by Helios or the designated representative in order to determine compliance with the MSA and any applicable SOW.
While on Client’s premises, if applicable, Helios shall comply with Client’s reasonable workplace safety and physical security processes and procedures for contractors that have been provided in writing in advance and acknowledged in writing by Helios before entering into a SOW.
Client agrees that during the Term of the MSA and for a period of two (2) years thereafter, it will not, directly or indirectly, (i) solicit or direct to be solicited for purposes of employment, offer to hire, engage as a consultant or otherwise enter into any contract with, any person who is an employee of Helios or any of its Affiliates first introduced to Client in connection with the Solutions, the MSA and/or any applicable SOW or any current or former employees of Helios or any of its Affiliates, and/or (ii) otherwise induce or attempt to induce any such person to terminate or otherwise cease their employment relationship with Helios or any of its Affiliates; provided, however, the foregoing provision will not prevent Client from the solicitation and/or hiring of a person (a) who responds to general advertising or a general solicitation not targeted to the employees of Helios or any of its Affiliates; or (b) who is contacted by a recruitment agency (provided that Client did not, directly or indirectly, identify any employees of Helios or any of its Affiliates to such recruitment agency or otherwise instruct such agency to target any employees of Helios of any of its Affiliates), and in each instance, who has not been employed by Helios or any of its Affiliates for the six (6) months prior to such employment.
In addition to the representations, covenants, and warranties of each Party as stated elsewhere in the MSA and/or in an applicable SOW, each Party hereby represents, covenants, and warrants to the other Party: (a) it is an entity validly existing and in good standing under the laws of the jurisdiction in which it was incorporated; (b) it has all requisite corporate or legal power and authority to execute, deliver and perform its obligations under the MSA and/or SOW; (c) by entering into and performing the obligations set out in the MSA and/or SOW, it shall not be in breach of any Applicable Laws and shall not be in breach of any contract by which it is bound, which breach thereof would have a material adverse effect on the Party, the other Party hereto, the Solutions, the MSA and/or any applicable SOW; and (d) it shall at all times comply with all Applicable Laws.
Each Party hereby agrees to cooperate fully with the other Party with respect to the Solutions and each Party’s respective obligations under the MSA and/or any applicable SOW. This duty to cooperate includes the obligation of each Party to timely supply information, documents, payments and other evidence as is reasonably necessary for the other Party to fulfill its obligations under the MSA and/or any applicable SOW.
Each Party shall assign personnel that are qualified to perform the tasks required to deliver the Solutions or exercise its rights under the MSA and/or any applicable SOW and shall be responsible for the supervision, direction, and control of its respective personnel. Except for Covered Employees or Independent Contractors in relation to and to the extent required by the EOR or AOR Solutions, if applicable, the Parties hereby acknowledge and agree that (i) neither Party’s respective personnel shall be considered employees, agents or representatives of the other Party, and (ii) each Party shall be solely responsible for the compensation and benefits provided to its employees, and for its compliance with all laws and regulations governing the employment of its respective employees, including laws governing wages and benefits, discrimination and harassment, employment agreements (whether express or implied, or written or oral), labor practices, workers’ compensation, disability, and unemployment insurance.
Helios may engage subcontractors or affiliates to provide or assist in providing any or all of the Solutions. In no event shall Helios be relieved of its obligations under the MSA as a result of its use of any subcontractors or affiliates.
Should Client require additional services not included in this MSA, the Fees for any such additional services shall be established by Helios through the Platform and/or in the applicable SOW and paid separately by Client. The Fees are subject to adjustment by Helios based upon changes in Applicable Laws or costs directly attributable to Client, Covered Personnel, Covered Employees and/or Independent Contractors or changes in the Client’s payroll. Client shall receive an invoice, whether through the Platform or as otherwise provided in the applicable SOW, with the updated charges or additional charges for any additional Solutions and Client shall pay that invoice promptly upon receipt.
Other than as set forth above, Helios may specify additional types of Fees and charges in the MSA, SOW and/or through the Platform. Any additional Fees and charges are subject to the MSA. Solutions for which Client prepays, if any, must be used within the applicable period as specified on the Platform and/or applicable SOW and are not subject to refund or credit. Additional Fees or charges may apply for some Solutions (as described in the applicable SOW) and shall be passed through to the Client in each invoice as necessary. If applicable, Helios shall be reimbursed for any required travel and other expenses it and/or its personnel directly incurs in performing the Solutions. Client is responsible for paying any additional miscellaneous charges promptly upon receipt of the applicable invoice.
Unless otherwise specified under the applicable SOW, Helios’ rates and fees are exclusive of any Taxes. Helios shall list any applicable Taxes as a separate line item on any invoices submitted to Client for payment. If any authority imposes upon any Solutions a duty, tax, levy, or fee (expressly excluding those based on Helios’s net income), Client hereby agrees to pay such amounts upon its receipt of the applicable invoice. If Client is required by Applicable Law to deduct any taxes or to make a withholding from any amount payable under this MSA, then, notwithstanding anything to the contrary contained in this MSA and/or any SOW, the gross amount payable by Client shall be increased so that Helios receives an amount equal to the sum it would have received had no such deduction or withholding been made. Client acknowledges that additional taxes and tax-related charges may apply, including administrative processing fees, if Helios platform is used and utilized in any Helios’ Solution outside the agreed and contracted tax jurisdiction. Helios shall provide Client with advance notice prior to incurring such additional charges.
The MSA shall automatically terminate when all SOWs under it are terminated. Any SOW or part of it is automatically renewed for an additional term, as originally entered into an agreement, unless (a) either Party provided ninety (90) days' written notice to the other Party prior to a renewal term as outlined in the SOW, or (b) terminated in the event the other Party (i) is in breach of the MSA and fails to cure such breach within thirty (30) days of its receipt of written notice thereof from the non-breaching Party, and/or (ii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Notwithstanding anything to the contrary, Client can only terminate an EOR or AOR SOW once all contractual relationships with all Covered Employees and Independent Contractors have been terminated in accordance with the MSA. If Client does not comply with the notice period for termination for convenience established in this clause, Client shall pay Helios a compensatory amount equivalent to all Fees that would have had to be paid through the next renewal terms as defined in the applicable SOW, based on the Solutions and their Fees applicable at the time of termination.
The Parties shall negotiate in good faith Helios’ completion of any Solutions that may extend beyond the termination date. To the extent Helios agreed to perform any Solutions beyond the termination date, the MSA and the applicable SOW will continue to operate in full force and effect with respect to such Solutions until completion.
The MSA is binding on and inures to the benefit of the Parties to the MSA and their respective permitted successors and permitted assigns.
In the event of a conflict between and the MSA and any Exhibit, the order of prevalence shall be as follows: Exhibit B, C, D, A, E, MSA. In the event that any one or more of the provisions contained in the MSA including any Exhibit or in any other instrument referred to therein, shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality, or unenforceability shall not affect any other provision of the MSA, or Exhibit or any other such instrument. Furthermore, in lieu of any such invalid or unenforceable term or provision, the Parties hereto intend that there shall be added as a part of the MSA or Exhibit, and shall negotiate in good faith to so add, a provision to effect, as closely as possible, the original intent of the Parties hereto. For the purposes of this MSA, defined terms used in the singular form shall also include their plural form, and vice versa, unless the context clearly requires otherwise. All defined terms are subject to the same meaning and interpretation regardless of whether they are used in the singular or plural form.
The Parties hereby acknowledge, agree and consent to the utilization of Helios’ Platform as an acceptable method to send and receive communications in connection with their business relationship arising out of the MSA and/or applicable SOW through the Platform. Notwithstanding the foregoing, all formal and/or legal notices, requests, consents, claims, demands, waivers, and other communications under the MSA and/or applicable SOW must be in writing and addressed to the other Party at its address as indicated on the Platform or to such other address that the receiving Party may designate from time to time upon written notice thereof to the other Party. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the MSA, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section.
Client acknowledges and agrees that Client shall be solely responsible for any Claims and Losses related to, arising out of and/or in connection with (a) any and all Independent Contractor Agreements between Helios and Independent Contractors, and (b) any and all employment agreements between Helios and Covered Employees just as if Client was the direct customer/employer of any Independent Contractor/Covered Employee. CLIENT SHALL DEFEND, RELEASE, INDEMNIFY AND HOLD HELIOS INDEMNIFIED PARTIES HARMLESS FROM ANY CLAIMS AND/OR LOSSES RELATED TO, ARISING OUT OF AND/OR IN CONNECTION WITH CLIENT’S LIABILITY UNDER (A) AND (B) ABOVE.
As between the Parties, each Party shall retain exclusive ownership of all right, title, and interest in and to any and all Intellectual Property created prior to or independent from the MSA and/or any applicable SOW. Use of the Solutions, the Platform and any software or Materials does not grant any ownership rights in or to the Solutions, Platform and/or Materials, all of which (and all modifications, improvements or derivatives thereof, whether made by Helios, Client or a third party) shall remain the exclusive property of Helios. All terms and conditions in relation to Client’s use of the Platform are governed by Helios’ Platform License Agreement, which the Client shall accept prior to Client’s use and access to the Platform.
Helios works with several HR tools and other software. Client may choose to allow Helios to automatically retrieve data from their own or third-party systems or services (“Integrations”). Client hereby represents and warrants, to have the permission, authority, and rights necessary for such Integrations, and hereby grants Helios permission to integrate its own or third-party systems through its user account or via tools provided by Helios.
If Helios develops and delivers Client Owned Materials to Client, then such Client Owned Materials shall be owned solely by Client and shall be deemed Client’s Confidential Information. Client hereby grants Helios an irrevocable, nonexclusive, worldwide, fully paid-up, royalty-free license to use, execute, reproduce, display, perform, sublicense, distribute, and prepare derivative works based on, Client Owned Materials, during the Term hereof solely to perform Helios’s obligations under the MSA and/or any applicable SOW.
Helios warrants that it performs each Solution using reasonable care and skill and according to the current description (including any completion criteria) contained in the MSA and any applicable SOW. Client shall provide timely written notice of any failure to comply with this warranty so that Helios can correct the corresponding Solution. For the avoidance of doubt, Helios’ Platform License Agreement shall govern the warranties for the Platform and any Third-Party Content contained therein. Helios does not warrant uninterrupted or error-free operation of any Material or Solution, that Helios shall correct all defects, or that any Material or Solution shall meet Client’s specific requirements. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, HELIOS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Each Party retains sole responsibility for the maintenance and protection of its Confidential Information, other than personnel and payroll information regarding the Covered Personnel, Covered Employees and/or Independent Contractors, the confidentiality of which shall be the joint responsibility of Client and Helios. Neither Party shall use or disclose the other Party’s Confidential Information any more than is necessary to receive and/or perform the Solutions under the MSA and/or any applicable SOW. Each Party shall: (a) protect and safeguard the confidentiality of the other Party's Confidential Information (including the Confidential Information of Covered Personnel, Covered Employees and/or Independent Contractors) with at least the same degree of care as it would need to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Confidential Information of another, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the MSA and/or any applicable SOW; and (c) not disclose any such Confidential Information to any person or entity, except to its Representatives who need to know the Confidential Information to assist with the exercise of such Party’s rights or to perform its obligations under the MSA and/or any applicable SOW. Each Party shall be responsible for a breach of this section by its respective Representatives. Upon written request and/or the expiration or termination of the MSA and/or any applicable SOW, a Party and its Representatives shall promptly return all copies, whether in written, electronic or other form or media, of a Party’s Confidential Information, or destroy all such copies and certify in writing to such Party that such Confidential Information has been destroyed. In the event of any violation or attempted violation of this section by a Party and/or its Representatives, the other Party shall be entitled to specific performance and injunctive relief or other equitable remedy without any showing of irreparable harm or damage, and the breaching Party hereby waives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with any such remedy.
30.1 BY CLIENT
EXPRESSLY EXCLUDING ANY CLAIMS AND/OR LOSSES CAUSED BY THE ACTS OR OMISSIONS OF HELIOS AND/OR THE FAILURE OF HELIOS TO COMPLY WITH ITS RESPONSIBILITIES UNDER THE MSA AND/OR ANY APPLICABLE SOW, CLIENT SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS HELIOS INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES OF WHATEVER NATURE, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, THAT MAY BE ASSERTED OR BROUGHT AGAINST ANY HELIOS INDEMNIFIED PARTY WHICH IS IN ANY WAY RELATED TO, IN CONNECTION WITH AND/OR ARISING FROM (X) THE MSA AND/OR APPLICABLE SOW, (Y) THE SOLUTIONS, (Z) THE ACTIONS OR INACTIONS OF ANY INDEPENDENT CONTRACTOR, COVERED PERSONNEL, COVERED EMPLOYEE OR ANY PERSON EMPLOYED BY CLIENT, OR OF ANY OTHER INDIVIDUAL, INCLUDING WITHOUT LIMITATION, ANY VIOLATION OF ANY APPLICABLE LAWS OR OTHER LEGAL PROCESS WHATSOEVER, AND ALL EMPLOYMENT-RELATED MATTERS. WITHOUT IN ANY WAY LIMITING THE FOREGOING, CLIENT SHALL INDEMNIFY, HOLD HARMLESS, PROTECT AND DEFEND HELIOS INDEMNIFIED PARTIES AGAINST ANY AND ALL ASPECTS OF THE EMPLOYMENT OF COVERED EMPLOYEES, COVERED PERSONNEL AND/OR INDEPENDENT CONTRACTORS, OR THE TERMINATION OF EMPLOYMENT OF THE FOREGOING.
30.2 BY HELIOS
HELIOS SHALL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS CLIENT INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS AND/OR LOSSES OF WHATEVER NATURE (INCLUDING LIABILITY TO THIRD PARTIES), AND OTHER CONSEQUENCES OF ANY SORT, ARISING OUT OF (A) HELIOS’ NON-COMPLIANCE WITH THIS SECTION, (B) FAILURE OF ANY PERSON EMPLOYED BY HELIOS AT ITS CORPORATE OFFICE (EXCLUDING COVERED EMPLOYEES) TO COMPLY WITH APPLICABLE PENSIONS, BENEFITS OR WITHHOLDING TAX, ERISA OR SIMILAR LAWS, RULES AND REGULATIONS, OR (C) WHERE ANY ACTION IS TAKEN BY CLIENT IN COMPLIANCE WITH A WRITTEN CORPORATE HELIOS POLICY, PROCEDURE, OR DIRECTION THAT IS NOT CONSISTENT WITH APPLICABLE LAWS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE MSA AND/OR ANY APPLICABLE SOW, HELIOS SHALL HAVE NO OBLIGATION TO RELEASE, DEFEND, INDEMNIFY AND/OR HOLD HARMLESS ANY CLIENT INDEMNIFIED PARTY AS SET FORTH IN THIS SECTION IF HELIOS’S NON-COMPLIANCE OR FAILURE ARISES FROM, OR IS ENHANCED AS A RESULT OF ANY BREACH, DEFAULT, OMISSION OR NON-COMPLIANCE BY ANY CLIENT INDEMNIFIED PARTY.
30.3 Indemnification Procedure
In addition to the clause “Claims”, the indemnification provided for herein shall be subject to the following terms and conditions: (i) the indemnified Party must notify the indemnifying Party promptly in writing of any notice of the claim subject to indemnification; (ii) the indemnifying Party shall have sole control over such defense and all negotiations for the settlement and compromise of such claim; (iii) for so long as the indemnifying Party is diligently conducting such defense, it shall not be liable for any attorney’s fees of the Indemnified Party; and (iv) the indemnified Party shall cooperate with the Indemnifying Party in a defense and settlement of any such claim provided that, except if the last sentence of this paragraph is applicable, the indemnifying Party shall not be liable hereunder for any settlement or compromise negotiated by the indemnified Party unless the indemnifying Party agrees in writing to be so bound. If the indemnified Party provides notice of a claim in accordance with (a) and is not notified within ten (10) days thereafter that the indemnifying Party intends to defend the claim, the indemnified Party shall be entitled to defend such claim, and settle or compromise such claim, subject to the indemnification provided for herein.
31.1 CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL HELIOS BE RESPONSIBLE TO CLIENT INDEMNIFIED PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE SOLUTIONS, THE MSA AND/OR ANY APPLICABLE SOW.
31.2 OVERALL LIMITATION OF LIABILITY. EXPRESSLY EXCLUDING HELIOS’ LIABILITY FOR ACTUAL DAMAGES FOR BODILY INJURY (INCLUDING DEATH) OR DAMAGE TO PROPERTY CAUSED BY HELIOS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, HELIOS’ (INCLUDING ITS SUBCONTRACTORS AND EMPLOYEES’) ENTIRE LIABILITY FOR ALL CLAIMS AND/OR LOSSES IN THE AGGREGATE IN CONNECTION WITH, ARISING FROM AND/OR RELATED TO THE SOLUTIONS OR OTHERWISE UNDER THE MSA AND/OR ANY APPLICABLE SOW SHALL IN NO EVENT EXCEED THE GREATER OF (A) FIFTY THOUSAND DOLLARS ($50,000 USD) AND (B) EITHER, (I) FOR NON-RECURRING FEES, THE TOTAL AMOUNT OF THE FEES PAID BY CLIENT FOR THE SOLUTIONS GIVING RISE TO SUCH CLAIM AND/OR LOSS, OR (II) FOR RECURRING FEES, THE FEES RECEIVED FROM THE CLIENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING WHEN SUCH CLAIM AND/OR LOSS ACCRUED.
Nothing in the MSA and/or any applicable SOW shall prevent Helios from utilizing the services of any subcontractor of any tier as it deems appropriate to perform its obligations under the MSA and/or any applicable SOW. Helios shall require its subcontractors to comply with all applicable terms and conditions as described herein, in the MSA and/or applicable SOW and Helios shall remain primarily liable to the Client for the performance of the Solutions by such subcontractors.
Helios shall comply with all Applicable Laws applicable to Helios in its role as a service provider to Client for the Solutions. Client hereby agrees that Helios is not obligated to undertake any actions pursuant to the MSA and/or any applicable SOW, which Helios, in its sole reasonable determination, concludes does not comply with Applicable Laws. In Client’s receipt of the Solutions and performance of its obligations under the MSA and/or any applicable SOW, Client shall comply with any and all Applicable Laws. Unless otherwise expressly agreed in the MSA and/or applicable SOW and as permitted by Applicable Laws, Client acknowledges and agrees that Helios is not performing Client’s regulatory or management obligations, including the identification and interpretation of laws and regulations applicable to Client’s business. Each Party shall comply with applicable import and export control laws and regulations, including but not limited to those of the United States, United Kingdom, European Union and/or elsewhere, that prohibit or limit export for certain uses or to certain end users. The Parties agree to enter into all data transfer and/or data processing agreements required by law and provide in a timely manner to the other Party all such necessary and reasonable assistance, information and co-operation to enable it to carry out data protection impact assessments and respond to any data subject requests.
In connection with the MSA and any applicable SOW between the Parties, whenever there is a Data Controller (Client) / Processor (Helios) relationship, which is the case in GMPS and CPS, the Parties hereby agree to protect and only Process PII in accordance with the terms and conditions set forth in the Data Protection Addendum which has been attached to the MSA as Exhibit E. The provisions of the Data Protection Addendum are an integral part of the MSA and are incorporated into it by reference. In connection with this MSA and any applicable SOW between the Parties, the Parties hereby agree to protect and only Process PII in accordance with the terms and conditions set forth in the Data Protection Addendum which has been attached hereto as Exhibit E. The provisions of the Data Protection Addendum are an integral part of this MSA and are hereby incorporated herein by reference.
Unless otherwise agreed in an applicable SOW, Client is responsible for (a) any data (including the accuracy, quality, and completeness thereof) and the content of any database Client makes available to Helios in connection with the Solutions, (b) the selection and implementation of procedures and controls regarding access, security, encryption, use, sharing, availability, and transmission of data in such database, and (c) backup and recovery of the database and any stored data therein. Each Party must comply in all respects with all applicable data protection laws, regulations and directives. Each Party shall implement administrative, physical and technical safeguards to protect personal data commensurate with type and amount of personal data under its control that are no less rigorous than accepted industry practices and will immediately notify the other Party in the event of any security breach and use commercially reasonable efforts to immediately mitigate such security breach. The Parties agree to provide in a timely manner all such necessary and reasonable assistance, information, and co-operation to the other Party to enable it to carry out data protection impact assessments and any prior consultations with any regulator and respond to any data subject requests.
Both Parties agree to the application of the laws of the State of Delaware to govern, interpret, and enforce all of Client’s and Helios’s respective rights, duties, and obligations arising from, or relating to, the Solutions, MSA and/or any applicable SOW, without regard to conflict of law principles. For any litigation that may arise under the MSA, or to enforce an award in accordance with this Section, the Parties irrevocably and unconditionally submit to the exclusive jurisdiction and venue (and waive any claim of forum non conveniens) of the courts located in Wilmington, Delaware. The Parties further consent to the jurisdiction of any court located within a district that encompasses assets of a Party against which judgment has been rendered for the enforcement of such judgment or award against the assets of such Party. EACH PARTY HEREBY AGREES TO WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THE SOLUTIONS, THE MSA AND/OR APPLICABLE SOW.
Except for the Client’s obligation to make payment as described under the MSA and/or the applicable SOW(s), neither Party shall be liable to the other for any failure or delay in fulfilling or performing any term of the MSA and/or any SOW when and to the extent such Party’s failure or delay is caused by or results from a Force Majeure Event. The impacted Party shall promptly provide notice of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. Delays in delivery or in meeting completion dates due to a Force Majeure Event shall automatically result in an extension of time to complete and/or perform the Solutions for a period equal to the duration of such Force Majeure Event. Notwithstanding the foregoing, if a Force Majeure Event is estimated to last beyond a period of time so that the Parties’ obligations or services are materially disrupted, the Parties shall agree as to temporary arrangements, the temporary cessation of the Solutions or the termination of the MSA and/or any applicable SOW.
The Parties hereby acknowledge and agree that neither the MSA, any applicable SOW and/or Solutions create an agency, joint venture, or partnership between Client and Helios. The relationship between the Parties is that of independent contractors. Except for Helios’ relationship with Covered Employees and Independent Contractors through its provision of EOR and AOR Solutions, nothing contained in this MSA and/or any applicable SOW shall be construed as creating any agency, partnership, franchise, business trust, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this MSA. Helios shall have sole and exclusive control over the manner in which it, its employees, and agents perform the Solutions.
Except where prohibited by Applicable Law, any Claim for breach of this MSA and/or any applicable SOW must be brought by the non-breaching Party within twelve (12) months from the date on which the non-breaching Party first became, or reasonably ought to have become, aware of the alleged breach, after which time any Claims shall lapse.
No right or cause of action for any third party shall be created by the MSA, nor is Helios responsible for any third-party claims against Client except as expressly set forth herein.
Helios reserves the right to update the conditions of the MSA including any SOW at any time (“Updates”), and such Updates will be effective upon notice (including via Platform) and/or posting on the Helios website. Client’s continued use of the Solutions following such posting will constitute Client’s acceptance of any Updates.
Changes and/or modifications to the MSA other than Updates shall be made in writing and documented in the MSA and/or applicable SOW and signed by the duly authorized representatives of both Parties.
Client may not assign this MSA, in whole or in part, without the prior written consent of Helios. Any attempt by Client to assign without Helios’s consent is void.
Nothing in this MSA and/or any applicable SOW shall affect any statutory rights of consumers that cannot be waived or limited by contract. No waiver by either Party of any of the provisions of the MSA and/or SOW is effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the MSA and/or SOW operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Any provisions of this MSA that by their nature extend beyond the termination of this MSA or any Solutions shall remain in effect in accordance with their terms, and also apply to both Parties’ successors and assignees, if applicable.
The invalidity or unenforceability of any one or more provisions of this MSA shall not affect the validity or enforceability of any other provision. If any provision of this MSA is held to be invalid or unenforceable, but would be valid and enforceable if appropriately modified, then such provision shall apply with the modification necessary to make it valid and enforceable consistent with its objective.
Section headings used in this MSA (including any Exhibit) and/or SOW shall have no legal significance and are used solely for convenience of reference.
This MSA and the Exhibits attached hereto, together with each SOW and the Appendices attached thereto, constitute the entire agreement and understanding between the Parties and supersedes all prior discussions and agreements between the Parties relating to the subject matter hereof. This MSA may only be modified by a written amendment executed by the duly authorized representatives of each Party.
“Affiliate” shall mean any Person which, directly or indirectly, Controls, is Controlled by, or is under common Control with another Person.
“Additional Fees” shall mean the fees, rates and charges as set forth on a SOW, other than Base Fees.
“Agent of Record Solutions” or “AOR Solutions” shall mean when Helios, through its corresponding local Affiliate or other subcontractor, in a jurisdiction where the Client or its Affiliates do not have a presence, serves as the sole legal hirer of Independent Contractors.
“Applicable Laws” shall mean any and all laws, ordinances, constitutions, regulations, statutes, treaties, rules, codes, principles of common law, requirements and orders adopted, enacted, implemented, promulgated, issued, entered or deemed applicable by or under the authority of any Governmental Body having jurisdiction over a specified Person or any of such Person’s properties, assets and/or services.
“Base Fees” shall mean the setup, Solution and/or other fees as specified in the applicable SOW and/or on the Platform, as mutually agreed upon between the Parties.
“Claims” shall mean any civil, criminal, administrative, arbitral or investigative claims, demands, suits, actions, charges, judgments, settlements, interest, awards, penalties, fines, fees and/or proceedings.
“Client” shall mean the entity on whose behalf the MSA is accepted on the Platform.
“Client Indemnified Parties” shall mean Client and its Affiliates, owners, shareholders, directors, officers, members, employees, agents and other representatives.
“Client Owned Materials” shall mean Client-specific Materials developed by Helios or any of its Affiliates as a part of the Solutions as specified under an applicable SOW (e.g., Client-specific documentation or Client-specific processes).
“Confidential Information” shall mean all non-public, proprietary, financial, legal, network or other business information, including but not limited to information relating to the businesses, operations, products, sales and materials, programs, techniques, plans and prospects, methods, pricing, fees, processes, specifications, reports, records, data, apparatus, programs, research, business activities, inventories, descriptions, concepts, materials, strategies, systems, PII, Intellectual Property, owned, used, stored or maintained by a Party and relating to its business whether or not prepared or gathered by such Party any of its respective Representatives, or any other person, whether or not specifically identified, designated or marked as confidential or otherwise, whether in written, oral, electronic or other form, or whether prepared prior to, on or after the Effective Date. Confidential Information shall also include this MSA including any applicable SOW. “Confidential Information” shall not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of the confidentiality obligations contained herein by the receiving Party or any of its Representatives; (b) is or becomes available to receiving Party and/or its Representatives on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of receiving Party or its Representatives prior to being disclosed by or on behalf of the disclosing Party; (d) was or is independently developed by the receiving Party and/or its Representatives without reference to or use of, in whole or in part, any of the disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable federal, state, or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction.
“Contractor Pay Solutions” or “CPS” shall mean Helios’ payment to Independent Contractors in accordance with the Independent Contractor Agreements between Client and each Independent Contractor, this MSA including the applicable SOW.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through record or beneficial ownership of voting securities, by contract, or otherwise.
“Covered Employee” shall mean, in relation to Helios’ performance of EOR Solutions, any person chosen and introduced to Helios by Client, for whom Helios shall serve as the sole legal employer of record through its corresponding local Affiliate or other subcontractor in a jurisdiction where the Client does not have a presence as specified in a SOW.
“Covered Personnel” shall mean any of the Client’s local entity hired employees (who have been identified by Client through the Platform) with whom Helios shall provide Global Managed Payroll Solutions.
“Data Protection Addendum” or “DPA” shall mean the supplemental agreement between the Parties and attached hereto as Exhibit E that governs the transfer of PII from one party to another in accordance with Applicable Laws relating to data privacy and data protection laws.
“Documentation” shall mean consents, background checks (including any associated records, results and/or findings) and any additional documents or information as reasonably required by Helios in order for its performance of the Solutions.
“Employer of Record Solutions” or “EOR Solutions” shall mean when Helios or its corresponding local Affiliate or other subcontractor, in a jurisdiction where the Client does not have a presence (as specified in a SOW), serves as the sole legal employer of record of Covered Employees.
“Fees” shall mean all fees applicable to a Solution as described in a SOW and/or on the Platform.
“Force Majeure Event” shall mean (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the Effective Date; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; and (h) other similar events beyond the reasonable control of the impacted Party.
“Global Managed Payroll Solutions” or “GMPS” shall mean Helios’ provision of the payroll functions for Covered Personnel through the Platform as further specified on the applicable SOW.
“Governmental Body” shall mean any (a) nation, state, commonwealth, province, territory, country, municipality, district or other jurisdiction of any nature, (b) federal, state, local municipal, foreign, or other government, or (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, instrumentality, official, organization, unit, body or entity and any court or other tribunal).
“Helios” shall mean Helios Global Payments Solutions Inc., a Delaware corporation with the registered address at 8 The Green, STE B Dover, DE 19901, United States.
“Helios Indemnified Parties” shall mean Helios, its subsidiaries, Affiliates, and related entities, and their respective owners, officers, directors, members, employees, subcontractors, agents and other representatives.
“Independent Contractor” shall mean independent contractors as identified by Client on the Platform with whom Client (CPS) or Helios or any of its Affiliates or other subcontractors (AOR Solutions) has entered into Independent Contractor Agreements.
“Independent Contractor Agreements” shall mean the agreements executed between Client (CPS) or Helios or any of its Affiliates or other subcontractors (AOR Solutions) and the Independent Contractor.
“Intellectual Property” shall mean computer programs (whether object code, source code, or otherwise), data, databases, inventions, patents, service marks, trade dress, trade names, trademarks, know-how, processes, customer lists, personally identifiable information, techniques, trade secrets (whether or not so defined under Applicable Law) and other intellectual property and the Intellectual Property Rights contained therein and/or thereto.
“Intellectual Property Rights” shall mean all intellectual property and proprietary rights of any nature or kind, anywhere in the world, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith, including patents, trademarks, service marks, trade names, trade dress, copyrights, moral rights, and trade secrets, whether or not such rights are registered or perfected, that were conceived, written, created, made, learned, reduced to practice, discovered, developed or generated, whether alone or jointly with others.
“Losses” shall mean any and all damages, fines, penalties, deficiencies, losses, injuries, liabilities (including settlements and judgments), claims, demands, suits actions, charges, costs and/or expenses (including reasonable attorneys’ fees).
“Materials” shall mean all Intellectual Property that Helios delivers to Client as part of the Solutions, including, but not limited to any works that pre-exist or were developed outside the Solutions and any improvements, modifications or enhancements thereto. “Materials” do not include any Third-Party Content.
“Person” shall mean an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a trust, any unincorporated organization, or other group, however organized (including their parents, subsidiaries, affiliates, joint ventures, divisions, successors and assigns).
“Personally Identifiable Information” or “PII” shall have the meaning set forth in the DPA.
“Platform” shall mean Helios’ platform, website(s) or forums which may be accessed through the Helios website domain www.helios.io.
“Process” shall have the meaning set forth in the DPA.
“Representatives” shall mean a Party’s respective officers, directors, employees, subcontractors, agents, and/or other representatives.
“Solution” shall mean, collectively, the Employer of Record Solutions, Contractor Pay Solutions, Global Managed Payroll Solutions and Agent of Record Solutions provided by Helios under this MSA as further specified under the applicable SOW(s) issued between the Parties pursuant to this MSA.
“Statement of Work” or “SOW” shall mean the transactional document(s) entered into from time to time by the Parties hereto pursuant to this MSA, which describes the obligations of the Parties with respect to such Solutions, including a description of the Solutions, Fees, reports, deliverables and other matters as the Parties may mutually agree.
“Taxes” shall mean any sales, use, excise taxes, value added (“VAT”), goods and service (“GST) and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder (expressly excluding taxes on or regarding Helios’ income, revenues, gross receipts, personnel, or real or personal property, or other assets).
“Third-Party Content” shall mean any third-party licensed programs, materials, documents or other information and other items (including all third-party materials) available under their own license terms or agreements.