Agent Terms of Service

THESE WORKSTREAM AGENT TERMS OF SERVICE (“AGENT SERVICE TERMS”) IS ENTERED INTO BETWEEN WORKSTREAM, INC. (“WORKSTREAM”) AND ("YOU" OR "YOUR" OR "THIRD PARTY AGENT") AS IDENTIFIED ON THE ORDER.  BY EXECUTING THE ORDER, CLICKING THE APPROPRIATE BUTTON, LOGGING INTO, INSTALLING, ASSESSING OR OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE AGENT SERVICE TERMS. IF YOU ARE ENTERING INTO THESE AGENT SERVICE TERMS ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY (IN WHICH CASE SUCH ENTITY IS THE "THIRD PARTY AGENT"). WORKSTREAM AND THIRD PARTY AGENT MAY ALSO BE REFERRED TO INDIVIDUALLY AS "PARTY" OR COLLECTIVELY AS THE "PARTIES" UNDER THIS AGREEMENT. 

These Agent Service Terms, together with the Workstream Subscription Services Agreement, including the applicable Service-Specific Terms and Order (“Workstream Terms”, collectively with the Agent Service Terms, the “Agent Agreement”), contain the terms and conditions that govern the Third Party Agent’s access to and use of  the Services on behalf of the Customer (“Agent Services”.)

Capitalized terms used but not defined in these Agent Service Terms have the meanings ascribed to them in the Workstream Terms.

To the extent any terms of these Terms conflict with terms of the Payroll Terms or Workstream  Terms, the  Terms will control with respect to the Agent Services, and the Payroll Services Terms will control with respect to the Payroll Services. 

These Agent Service Terms are a legally binding agreement between Workstream and the Third Party Agent acting on behalf of a Customer.

To the extent Third Party Agent accesses or uses the Services on behalf of a Customer, the term “Customer” as used in the Workstream Terms, including by not limited to the Payroll Terms of Service  shall, as applicable, mean or include “Third-Party Agent”.

Third Party Agrentrepresents and warrants to Workstream that the Third Party Agent  has been expressly authorized by Customer to manage Customer’s use of the Services and provide the Agent Services. 

1. Accounts and Services

A. Accounts and Permissions

Third Party Agents must have an account set up by Workstream in order to access or use the Services  (“Agent Account”). The Agent Account is affiliated with and owned by the Third Party Agent and contains information related to the Third Party Agent, its Customers and its Customer’s Services. If you are creating an Agent Account on behalf of and for a Third Party Agent, you are doing so as an Agent Administrator (as defined below) and you understand and acknowledge that the Third Party Agent (and not you) is the owner of the Agent Account. Third Party Agents must authorize at least one representative to act as an administrator for the Agent Account (each, a “Agent Administrator”).

Each Agent Administrator will access the Agent Account through an Agent Administrator profile (“Administrator Profile”). The Agent Administrator will be able to take certain actions within the Agent Account, including but not limited to, inviting additional firm members (“Firm Members”) to become Agent Administrators. Agent Administrators and Firm Members (collectively, “Agent Users”) will be able to add Customers to the Agent Account, authorize the transfer of Customer Data from Customer’s Service to Third Party Services, accept additional service terms on behalf of Customer, and accept authorization to pay Customer’s Service Fees on Customer’s behalf.

Third Party Agent represents that by adding Customers to the Agent Account, Third Party Agent is authorized by Customer to act as an agent of Customer’s business the Service. Third Party Agent understands and agrees that Customers may provide information to Workstream at Workstream’s request. Such information may include but is not limited to information regarding the Agent Account and Third Party Agent’s payment of Customer Service Fees (defined below).

Third Party Agent should regularly review Agent User permissions to ensure that only authorized individuals retain access to the Agent Account. If a Third Party Agent is unable to remove an Agent User from the Agent Account, the Third Party Agent must contact Workstream to request that such individual’s access be revoked. Workstream may review Agent User conduct within the Agent Account for compliance purposes, but is not obligated to do so..

B. Agent Services

Subject to Third Party Agent’s compliance with this Agreement, Workstream will provide Third Party Agent with the following Agent Services:

Access to the Services to manage and track Customers who use the Services to run payroll, or access other Services Customer uses;

Manage Payroll and Onboarding features on behalf of Customers;

Add new Customers;

View and manage other Firm Members that have access to and use of the Agent Account; and

View and manage Agent Administrators.

Workstream reserves the right to change, modify, or terminate any of the Agent Services at any time with or without notice.

 

2. Third Party Agent Responsibilities Related to the Service

A. Third Party Agent is responsible for securing Agent Account login information

Third Party Agent is responsible for (a) the security and confidentiality of any credentials or log-in information used to access the Agent Account, (b) securing and maintaining confidential any information accessible via the Agent Account which may include Customer Data, and (c) following instructions Workstream may provide regarding the security of the Agent Account. 

B. Third Party Agent is responsible for all actions taken under the Agent Account

Third Party Agent is responsible for all actions and transactions taken under or through the Agent Account, regardless of whether Third Party Agent knew of such actions (“Authorized Actions”). Authorized Actions may include but are not limited to (a) actions taken by a Agent User and (b) actions or transactions that a Agent User directs Workstream to take on Third Party Agent’s behalf whether orally (e.g., over the phone to one of our team members) or in writing.

Third Party Agent accepts all risks of unauthorized use of the Agent Account. Third Party Agents must immediately notify Workstream if the Third Party Agent believes that the Agent Account, any of the Agent User Profiles or Agent User log-in credentials have been compromised. Workstream may suspend the Agent Account and/or any Customer Services including all Agent User access to the Agent Account, if Workstream has reason to believe that the Agent Account or any of Agent User's log-in credentials have been compromised.

Third Party Agent agrees not to grant Agent Account access to, or disclose any Agent User log-in credentials to an unauthorized third party or a third party that seeks to access or accesses the  Services or Agent Services using a Agent User Profile or a Agent User’s log-in credentials, regardless of Third Party Agent’s purported consent or authorization, in order to harvest, crawl, or scrape information from the Agent Services or Services without Workstream’s express written authorization.

 

3. Agent Data 

Third Party Agent may upload content or information through the Services, such as files, employment documents, messages, and personal information about Customer and Customer’s authorized users. Third Party Agent may also direct Customer and Customer’s authorized Users to upload such content or information directly for use in the Agent Account or any Agent Services. Collectively, all such content or information is referred to herein as “Agent Data”.

Third Party Agent is solely responsible for ensuring that the collection and/or processing of Agent Data is compliant with all applicable laws and regulations. Third Party Agent represents and warrants that Third Party Agent has received all required rights, licenses, consents and authorizations to use and make available any Agent Data uploaded or submitted to the Services, and that Third Party Agent may instruct Workstream on what to do with such Agent Data. For example, Third Party Agent may elect to enable or disable third party integrations, manage permissions, and grant certain Customer Authorized Users access to view or edit Agent Data submitted by other Customer Authorized Users. Third Party Agent is solely responsible for responding to and resolving any dispute that may arise between Third Party Agent and Customer and/or Customer’s Authorized Users relating to or based on Agent Data, and the Services, or Third Party Agent’s failure to fulfill any of these responsibilities.

Workstream and its third party partners are subject to certain retention requirements under state and federal law. As a result, certain types of Agent Data may not be removed from the Services. Workstream is not responsible or liable to Third Party Agent for the removal or deletion of (or the failure to remove or delete) any Agent Data. Third Party Agent acknowledges and agrees that Workstream is not responsible for the loss or modification of any Agent Data, and that Third Party Agent’s use of the Services is at Third Party Agent’s own risk.

Third Party Agent understands and agrees that Agent Data transmitted, entered or otherwise uploaded by Third Party Agent, on Third Party Agent’s behalf, and by Customer or by Customer’s Authorized Users to the Services will be processed in accordance with our the terms of our Workstream Terms and Privacy Policy, as applicable, and as each may be updated from time to time, including processing for the purpose of improving our products and services.

 

4. FEES AND PAYMENT.

4.1 Fees. Third Party Agent agrees pursuant to the Order to receive Service Fee invoices on behalf of Customers or agrees to be invoiced directly (“Service Fees”), then Third Party Agent is responsible for timely paying all invoices. Workstream will invoice Third Party Agent for all Service Fees per this election. Third Party Agent shall pay Workstream all undisputed Services Fees. Except as expressly set forth in these Agent Service Terms, all payment obligations are non-cancelable, and all Fees paid are non-refundable.  Fees for renewal Subscription Terms are at Workstream's then-current rates, regardless of any discounted pricing set forth in a prior Order.  

4.2 Payment Terms.  Unless otherwise stated in an applicable Order, all Service Fees will be billed annually in advance and in United States dollars.  All invoices for Service Fees are due and payable within the timeframe set forth in the applicable Order, without deduction or set off.   If Third Party Agent  provides Workstream with credit card information for payment, Third Party Agent acknowledges (a) that an invoice may not be sent and Third Party Agent authorizes Workstream to charge the credit card or debit card for the Services as set forth in the Order and/or for additional subscriptions added during the Subscription Term (as applicable), and (b) Third Party Agent will promptly update its account information with any changes to the credit card or debit card information provided.  Interest accrues from the due date at the higher of 1.5% per month or the highest rate allowed by law (“Late Payment Interest”), plus all expenses of collection. Third Party Agent is responsible for providing complete and accurate billing and contact information to Workstream and notifying Workstream of any changes to such information.  If Third Party Agent fails to pay any undisputed portion of a past due invoice within 30 days after receiving notice that its account is overdue, Workstream may, without limiting its other rights and remedies, suspend the applicable Services until such amounts are paid in full (“Suspension for Non-Payment”).  Workstream will not be obligated to continue to provide Services without payment of applicable Fees.

4.3 Use of Purchase Orders.  No additional or inconsistent terms of any purchase order, or other form provided by Third Party Agent or Customer, will modify, or supplement the Agreement, regardless of any failure of Workstream to object to such terms, and any such additional or inconsistent terms in the purchase order will be void.

4.4 Taxes. Unless otherwise provided, Fees do not include any Taxes. Third Party Agent is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on Workstream’s net income or property. If Workstream includes on the invoice such Taxes for which Third Party Agent is responsible, the tax amount invoiced shall be paid by Third Party Agent, unless Third Party Agent provides a valid tax exemption certificate authorized by the appropriate taxing authority upon execution of these Agent Service Terms. Taxes not included on a Workstream invoice shall be the responsibility of the Third Party Agent to remit to the appropriate tax authorities as necessary.

4.5. Recurring Billing. If Third Party Agent chooses a recurring payment plan, Workstream will automatically charge Third Party Agent’s credit card or debit card the monthly or annual amount in accordance with the Order until the Agent Services is terminated. By choosing a recurring payment plan, Customer acknowledges that such Services have a recurring payment feature, and Third Party Agent accepts responsibility for all recurring charges prior to cancellation. WORKSTREAM MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM THIRD PARTY AGENT, UNTIL THIRD PARTY AGENT PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY WORKSTREAM) THAT THIRD PARTY AGENT HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE SUCH PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WORKSTREAM REASONABLY COULD ACT.

 

5. Beta Services

We may provide Third Party Agent with access to Beta Services pursuant to the terms of the Workstream Terms

 

6. No Professional Advice; No Fiduciary Relationship; No Employment Relationship

Third Party Agent’s use of the Services, including Agent Services is entirely at Third Party Agent’s own risk. Third Party Agent acknowledges that the Services, including Agent Service are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. Third Party Agent is solely responsible for ensuring Third Party Agent’s compliance with applicable law and regulation, and nothing in the Services, including Agent Service (including, without limitation, any communications from our customer support team regarding Third Party Agent’s use of Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Third Party Agent understands and agrees that Workstream is not acting in a fiduciary capacity for Third Party Agent or Third Party Agent’s Customers in performing any of the Services, including the Payroll Services. Other than as expressly set forth in the Workstream Terms, Workstream does not guarantee or warrant any results or outcome with respect to Services, Agent Services

 

7. Termination and Suspension

A. Agent Account Termination

Third Party Agent may cancel the Agent Account upon 45 days advance written notice to Workstream by emailing such  cancellation request to om@workstream.is.  Unless otherwise stated in an applicable Order, Third Party Agent’s termination of the Agent Account constitutes the termination of these Agent Service Terms. Unless otherwise stated in an applicable Order, Workstream will not prorate any applicable Service Fees, and Agent Accounts canceled in the middle of a month will be charged the full month’s fees for all Services to which Third Party Agent was subscribed at the time of cancellation. Third Party Agent understands and agrees that Third Party Agent is solely responsible for ensuring Third Party Agent’s compliance with all applicable laws, including any wage and hour, taxation, and employment regulation that may affect Third Party Agent’s obligations to Customers and Customer’s authorized users paid through the Payroll Service following cancellation.

B. Workstream’s Termination and Suspension

Workstream may terminate or suspend the Third Party Agent Services if you violate this Agent Agreement or any other Workstream agreement or Service terms or your use of the Third Party Agent Services is improper or substantially exceeds or differs from normal use by other users, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.

C. Effect of Termination

Upon termination of the Agent Services, and except as otherwise stated in this section or expressly provided for under the Workstream Terms, Third Party Agent’s rights to access and use all applicable Agent Services(s) to which Third Party Agent subscribed or enrolled will automatically terminate. The Agent Account and Agent User Profiles will remain accessible in a read only capacity, subject to compliance with this Agreement.

The termination of any of the Agent Services or these Agent Service Terms will not affect Third Party Agent’s or Workstream’s rights with respect to transactions which occurred before termination. Workstream will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Workstream’s termination of these Agent Service Terms. Any section of these Agent Service Terms or Workstream Terms which by their nature should survive termination will survive, including without limitation all applicable payment obligations, data rights and obligations. use restrictions and indemnity obligations, warranty disclaimers, and limitations of liability

 

8. Indemnity

Third Party Agent will indemnify and hold harmless Workstream and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against damages, losses, and expenses arising out of any claims, actions, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), arising out of (I) Third Party Agent’s, Agent User’s, Customer’s or Customer’s User’s (a) access to, use of, or participation in the Services, including Agent Services and Content; (b) Third Party Agent Data; (c) violation or alleged violation of this Agreement or any instructions provided by Workstream with respect to Third Party Agent’s, Agent User’s, Customer’s or Customer’s User’s use of the Services, including Agent Services and Content; (d) violation or alleged violation of any third party right; (e) violation or alleged violation of any applicable law, rule, or regulation; (f) gross negligence, fraudulent activity, or willful misconduct; and (II) (a) Workstream’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Third Party Agent; (b) actions that Workstream or any other Indemnified Party undertakes at the request or instruction of Third Party Agent or anyone that Workstream or any other Indemnified Party reasonably believes to be Third Party Agent or acting with authority on behalf of Third Party Agent (each such action a “Requested Action”); or (c) Workstream’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.

 

9. Limitation of Liability

Workstream is not responsible or liable for (a) Agent Data or anyone’s reliance on certain Agent Data which may be made available through the Services, including Agent Service; (b) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (c) any consequences or Claims directly or indirectly resulting from Third Party Agent’s delay in providing, or Third Party Agent’s failure to provide, Workstream with information necessary for its provision of the Services, including Agent Services; (d) Third Party Agent’s violation of applicable law, rule, regulation or other applicable legal obligation; (e) unauthorized third-party actions taken in the Agent Account and any transactions, consequences, or Claims arising therefrom; (f) Third Party Agent’s negligence or any negligence of Agent Users, or any more culpable acts or omissions of the same; (g) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by Third Party Agent through reasonable efforts; (h) any circumstances or Claims arising out of or related to a Third-Party Service’s use of Agent Data; (i) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (j) Third Party Agent’s failure to properly follow Workstream’s instructions with respect to the Services, including Agent Services.

NEITHER WORKSTREAM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, INCLUDING AGENT SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THE AGENT AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING AGENT SERVICES OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WORKSTREAM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO THIRD PARTY AGENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WORKSTREAM’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING AGENT SERVICES OR CONTENT, EXCEED THE AMOUNTS THIRD PARTY AGENT HAS PAID TO WORKSTREAM FOR USE OF THE SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WORKSTREAM AND THIRD PARTY AGENT

 

10. Changes to the Agreement, Platform, Programs, or Services

Workstream may modify Agent Service Terms and Workstream Terms at any time, in Workstream’s sole discretion, effective upon posting of an updated version of this Agent Service Terms or Workstream Terms, as applicable. It is important that Third Party Agent reviews each modified version of the Agent Service Terms and Workstream Terms as Third Party Agent’s continued use of the Services, including Agent Services, after such changes are posted constitutes Third Party Agent’s agreement to be bound by the modified Agent Service Terms and Workstream Terms. If Third Party Agent does not agree to be bound by the modified Agent Service Terms and Workstream Terms, then Third Party Agent may not continue to use the Services, including Agent Services. Because the Services, including Agent Services, evolve over time, Workstream may change or discontinue all or any part of the Services, including Agent Services, at any time and without notice, and without liability to Third Party Agent, at Workstream’s sole discretion.