These Agency Terms and Conditions (“Terms”) govern the use of Keeper’s software-as-a-service earnings management and payment service platform (the “Service”) by entities that serve as employers, payroll processors, time and attendance or related workforce-facing systems (“Agency Entities,” the “Company” or “you”). These Terms are incorporated into, and supplement, the separately executed agreement between Keeper and the Company (the “Master Service Agreement”).
By accessing, integrating or enabling any aspect of the Service on behalf of your own employees, clients, users or system participants (“End Users”), you agree to be bound by these Terms, including all operational, technical and compliance requirements set forth herein. If you do not agree to these Terms, you must not access or enable use of the Service.
These terms are intended to clarify and document the ongoing obligations, permissions and restrictions applicable to Agency Entities using the Service, including in connection with Employer clients or platform integrations.
For clarity:
Keeper provides an earned wage access and payment facilitation platform (the “Service”) designed to allow Authorized End Users to access a portion of their earned but unpaid wages in advance of their regularly scheduled payday. The Service is delivered through a software-as-a-service (SaaS) model and may include:
The Service may also include access to financial wellness content and is delivered to End User’s under the terms and conditions provided to the End Users upon initial registration with Keeper.
The Service is designed to support various stakeholder roles, including but not limited to:
Subject to these Terms, Keeper grants Company a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service solely for internal business purposes.
Restrictions: Company shall not:
a. Keeper shall provide the Service in accordance with all applicable laws and government regulations and shall use commercially reasonable efforts to always make the Service available, except for planned downtime and any unavailability caused by Force Majeure Events (as defined below).
b. Keeper shall maintain appropriate administrative, technical, and physical safeguards to protect the security, confidentiality and integrity of the Service and any Company Data stored on, or accessible via, the Service.
c. Keeper may suspend access to the Service for any User if (A) Company fails to make payroll payments for such User pursuant to Section 2(a)(vii), or (B) in the sole professional judgement of Keeper, said User presents a risk of fraud or unauthorized use.
d. Keeper represents and warrants that it is compliant and shall ensure at all times during the Term that it will remain compliant, with the Payment Card Industry Data Security Standard requirements (“PCI-DSS”), in each case, to the extent PCI-DSS applies to the Service.
a. Company shall promote the availability of the Service and shall designate at least one (1) individual and one (1) backup individual at its corporate office responsible for the administration of the Service for Company who will act as a point of contact between Keeper and Company to address any questions or issues that arise (each such employee accessing the Service is hereinafter referred to as a “User”).
b. Company shall make User information related to Eligible End Users available to Keeper through an API (or other agreed upon method) for Keeper to use in connection with the Service. Company shall secure any rights necessary for Keeper to access and use the Company API at no cost to Keeper.
c. Company shall ensure that all relevant User information shared with Keeper via the API or through the other agreed upon method is accurate and updated timely. Failure to comply with providing accurate and timely records may result in delay or a denial to Users, suspension of access to the Service and/or Company’s liability for overpayments caused by inaccurate data. Company shall make all payroll payments (including off‐cycle and termination payments) for Users in accordance with Company’s regular payroll timeline.
d. Company shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service and notify Keeper immediately of any such unauthorized access or use of which Company becomes aware. This includes maintaining up-to-date system access controls, employee access restrictions, and data transmission protections that are consistent with industry best practices. Agency Entity shall promptly notify Keeper in writing of any actual or suspected unauthorized access to or use of the Service, Keeper APIs, or related data of which it becomes aware, and shall cooperate with Keeper in investigating and remediating any such incident. Upon Keeper’s written request, Agency Entity shall complete a data security questionnaire or assessment provided by Keeper (or its designee), solely to confirm compliance with these obligations and applicable law. Keeper reserves the right to suspend or restrict Agency Entity’s access to the Service where material data security deficiencies are identified and not promptly resolved.
e. In addition to the restrictions set forth in Section 2, Company will not, and will not permit Users to, (A) interfere with or disrupt the integrity or performance of the Service, (B) attempt to gain unauthorized access to the Service or its related systems or networks, (C) interfere with or disrupt the Service, or attempt to prove, scan, or test for vulnerabilities in the Service, or (D) use the Service in a way that imposes, or may impose, in Keeper’s sole discretion, an unreasonable or disproportionately large load on the Service.
f. Company consents to the processing and storage of Company Data (as defined below) on hardware owned or controlled by third parties (i.e., AWS, GCP).
g. Company grants Keeper the right to communicate with its Employees in regards to the Service via Text, Email, Phone, etc.
h. Company understands that Keeper may offer Users the option to bifurcate their earned wages and have a portion of their paycheck sent to an account designated via the Service. Company will cooperate with Keeper to ensure that User’s earned wages are deposited in the accounts designated via the Service. If the Company is an Employer Company, it agrees to cooperate with Keeper to ensure that earned wages of Eligible End Users are deposited into the designated accounts. If the Company is a third-party vendor, it shall transmit data reasonably required to enable this function.
i. Company acknowledges and agrees that Keeper may use third parties in connection with its provision of the Service, that such third parties may have access to Company Data in assisting Keeper with providing the Service, and that Keeper may also share such data with third parties when necessary to provide specific offerings requested by Users in order to provide those offerings, or when otherwise required or permitted by law. Company will ensure that any rights, permissions, consents or any other authorizations necessary for such purposes are obtained.
j. The Service is dependent on proper integration with Company’s payroll company via an API or other agreed upon method. Company agrees to give Keeper advance notice prior to changing payroll company and give Keeper an opportunity to determine whether the Service will be compatible with the new payroll company.
Keeper retains all right, title and interest, including all intellectual property rights, in and to the Service, Documentation, and Materials.
Company grants Keeper the right to access and use the Company API (if applicable) for the limited purposes of providing the Service to Company and making Earnings available to Users.
Company hereby grants Keeper the right to use any ideas, suggestions, comments, recommendations, enhancement requests or other input provided by Company, its employees or agents, or Users about the Service to Keeper in any form in any way whatsoever.
Company shall not be required to pay any fees to Keeper, unless otherwise agreed upon in writing by the parties. Notwithstanding the foregoing, if Company (during initial or renewal term) changes its payroll system and/or makes similar changes which impact the Keeper Service, Keeper shall be entitled to invoice Company for Keeper’s related costs and fees. All Fees are due within fifteen (15) days of receipt of an invoice. Except as otherwise set forth herein, Fees are non-cancelable and non refundable.
Keeper shall charge Users the fees set forth in the User Terms and Conditions and agreed in writing by the parties, or Keeper’s then-current rates (which may be changed from time to time) if no separate fee agreement is in place with Company for each Earnings payment made via the Service (the “User Fee”).
Company shall be responsible for payment of all taxes related to its payment of Earnings to Users and the Service.
Keeper may suspend or adjust Company and/or User access to the Service if Fees remain unpaid more than thirty (30) days after they were due. Additionally, if Company fails to fund the pay roll for Users on a timely basis, Keeper may immediately suspend or adjust Company and/or User access to the Service.
“Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure. However, Confidential Information does not include information that:
The occurrence of a situation described in subsections (i) through (iv) will not reduce or limit the Receiving Party’s obligation to protect Personal Data in compliance with all applicable laws and regulations.
Each Party agrees that all non-public, proprietary, or confidential information disclosed by the other Party in connection with this Agreement shall be kept in strict confidence and shall not be disclosed or used for any purpose other than as required to fulfill its obligations under this Agreement. Without limiting the foregoing, each Party shall:
a. Use at least the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own confidential information of a similar nature, but in no event less than reasonable care;
b. Limit access to Confidential Information to those of its and its Affiliates’ employees, contractors, advisors, service providers, or agents who have a legitimate need to access such Confidential Information and are subject to confidentiality obligations at least as restrictive as those set forth herein;
c. Not copy, modify, or otherwise use Confidential Information except as necessary to carry out its obligations under this Agreement or as expressly permitted in writing by the Disclosing Party;
d. Promptly notify the Disclosing Party of any unauthorized access to or disclosure of Confidential Information of which it becomes aware; and
e. Upon termination or expiration of this Agreement, promptly return or permanently destroy all Confidential Information, except to the extent required to comply with applicable laws or internal recordkeeping policies (subject to continued confidentiality obligations).
The Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled by law to do so, however, the Receiving Party must provide the Disclosing Party prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest or limit the scope of the disclosure.
To the extent that either Party processes personal information or personal data (as defined under applicable law) in connection with the performance of this Agreement (“Personal Data”), the Parties agree as follows:
a. Each Party shall comply with all applicable laws governing the collection, access, use, storage, disclosure, and processing of Personal Data, including but not limited to:
b. The Parties have entered into a separate data processing addendum (“DPA”) pursuant to the Master Service Agreement, which shall govern the processing of Personal Data in accordance with applicable law.
c. The Parties shall implement and maintain appropriate technical and organizational measures to protect Personal Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access. These measures shall include, where appropriate, encryption, access controls, personnel training, and secure data storage.
d. Each Party shall notify the other within twenty-four (24) hours upon discovering a security incident or data breach involving Personal Data and shall cooperate reasonably in any investigation or required notification to regulators or impacted individuals.
e. Keeper shall process Personal Data solely on behalf of the Company and only as necessary to provide the Service and shall not sell or share such Personal Data.
f. The Company represents and warrants that it has obtained and will maintain all necessary rights, consents, and legal bases to permit Keeper to collect, access, use, and process Personal Data as described in this Agreement.
These Terms shall become effective on the Effective Date and will continue until the Agreement is terminated by either Party.
Either Party may terminate this Agreement for any reason upon ninety (90) days written notice to the other Party.
Either Party may terminate this Agreement upon written notice in the event of a material breach by the other Party, provided that such breach remains uncured thirty (30) days after receipt of written notice specifying the nature of the breach in reasonable detail; should the breach be deemed uncurable, termination will go into effect immediately.
Upon termination or expiration of this Agreement for any reason, (a) each Party shall promptly return or securely destroy all Confidential Information of the other Party in its possession or control, except to the extent required to comply with applicable law or record retention policies (subject to continued confidentiality obligations); (b) all licenses and rights granted under this Agreement shall automatically terminate; (c) the Company shall pay Keeper for any Earnings paid to Users by Keeper but not funded to the End User Account by Company as of the date of termination or expiration within two (2) business days of such date; and (d) the provisions of this Agreement that by their nature are intended to survive termination, including but not limited to those relating to confidentiality, intellectual property, indemnification and limitations of liability, shall continue in full force and effect.
Each Party represents and warrants that it has the right to enter into and perform its obligations under this Agreement, and that such performance does not conflict with any other agreement or judgement of such Party by which it is bound.
Company represents and warrants that it is solely responsible for compliance with all applicable wage and hour laws, labor regulations, fair scheduling practices and employment classification standards in the jurisdictions in which its workforce operates. This includes, but is not limited to, accurately calculating, tracking and paying all wages, overtime, breaks, tips, commissions and other forms of compensation due to its Eligible and Participating Users. Company further acknowledges that Keeper does not control or verify timekeeping practices, employment classifications or compensation structures, and Keeper shall not be held liable for any failure by Company or its vendors, contractors or clients to comply with applicable laws or regulations. If Company utilizes third-party payroll processors, staffing firms or time and attendance systems, Company remains fully responsible for ensuring those third parties provide timely, accurate and lawful data sufficient for wage determination and earned wage access purposes.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND ALL RELATED CONTENT, DATA, AND MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND,
WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KEEPER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, SYSTEM INTEGRATION, OR DATA ACCURACY.
WITHOUT LIMITING THE FOREGOING, KEEPER MAKES NO WARRANTY OR REPRESENTATION THAT:
Keeper shall not be liable for any deletion, destruction, damage, loss, corruption, or failure to store any data or content maintained or transmitted through the Service,
except where such loss is directly caused by Keeper’s gross negligence, willful misconduct, or fraud, and occurred solely within Keeper’s control.
Each Party agrees to indemnify, defend, and hold harmless the other Party, its affiliates, and their respective officers, directors, employees, contractors, agents, and successors, from and against any and all third-party claims, demands, actions, losses, damages, liabilities, settlements, judgments, costs and expenses, including reasonable attorneys’ fees (collectively, the “Claims”), arising out of, or related to:
Keeper shall indemnify, defend, and hold harmless the Company and its affiliates from and against any Claims arising out of, or relating to:
Company shall indemnify, defend and hold harmless Keeper and its affiliates from and against any claims arising out of, or relating to:
The Indemnified Party must promptly notify the Indemnifying Party in writing of any Claim (provided that failure to provide prompt notice will not relieve the Indemnifying Party of its obligations except to the extent materially prejudiced). The Indemnifying Party shall have sole control over the defense and settlement of the Claim, provided that it may not settle any Claim in a manner that imposes liability or obligations on the Indemnified Party without the Indemnified Party’s prior written consent (not to be unreasonably withheld). The Indemnified Party will provide reasonable cooperation and assistance at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense with counsel of its choice at its own expense.
These Terms and Conditions shall be governed by the laws of the State of New York. Notwithstanding the preceding provision with respect to the applicable substantive law, any arbitration conducted pursuant to this Agreement shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1, et. seq.
In the event of any dispute arising out of or relating to this Agreement, the parties agree to first attempt to resolve the dispute through good faith mediation, facilitated by a mutually agreed-upon mediator. Mediation shall take place in New York, NY, and the costs shall be shared equally by both parties. If mediation does not result in a resolution within 30 days, the dispute shall proceed to binding arbitration in accordance with the rules of the American Arbitration Association
Any dispute, claim or controversy arising out of or relating to these terms or the Master Service Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York City, New York before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Within fifteen (15) days after the commencement of arbitration, the Parties shall jointly select the sole arbitrator. If the Parties are unable or fail to select the arbitrator within the allotted time, that arbitrator shall be appointed by JAMS in accordance with its rules. The arbitrator shall serve as a neutral, independent, and impartial arbitrator.
The arbitrator shall award to the prevailing Party, if any, the costs, expenses, and attorneys’ fees reasonably incurred in connection with the arbitration.
The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the Hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision.
The Parties agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective action basis. There shall be no right or any authority for any dispute to be brought, heard or arbitrated as a class or collective action.
Except as specifically set forth in this Agreement, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the foregoing, either party may seek interim injunctive or other interim equitable relief in any court of competent jurisdiction in the event of a material breach of this Agreement. A material breach is defined as a breach that substantially impairs the rights, benefits, or obligations of a party under this Agreement, including but not limited to breaches involving non-payment, violation of intellectual property rights, or failure to comply with confidentiality obligations.
Company acknowledges that the Site Terms of Use (“Site TOU”) between Keeper and the End Users includes an Arbitration Agreement (as defined in the Site TOU). Company agrees to be bound by the Arbitration Agreement and to arbitrate any Covered Claims (as defined in the Site TOU) between Company and an End User in accordance with the Arbitration Agreement in the Site TOU.
Any notice, consent, or other communication intended to have legal effect hereunder will be in writing and will be sent to the e-mail address for such Party indicated in this Agreement (or such other address as provided by that Party). Notices will be deemed given when Sent with Open Receipt Requested, and confirmation of receipt is issued by the recipient’s email account.
Keeper may utilize Company’s name and/or logo to indicate that Company is a customer as part of Keeper’s on and offline sales and marketing materials.
The Parties are independent contractors and nothing in this Agreement will be construed as creating a partnership or joint venture of any kind between the parties. Neither Party will have the authority or power to bind the other Party or represent that is has such right.
Neither party shall have the authority to assign this Agreement or any of their respective interests in this Agreement without the prior written consent of the other; provided, however, either party shall have the right to: (i) assign this Agreement to the Parent of the party or to an Affiliate of the party having the same Parent as the party; (ii) consummate any transaction that is the result of a merger of the Parent of the party; or (iii) consummate any transaction that is the result of a merger of the Parent of the party’s Parent, or any other Parent entity in a direct line of ownership between the party and the party’s ultimate parent entity. This Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section will be null and void.
A Party’s failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
If performance is rendered impossible by events beyond a Parties reasonable control, the obligation of the party so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, except as hereinafter provided, but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch.
Titles and headings used in this Agreement are intended solely for convenience of reference and do not affect its meaning.
If any term or provision of these Terms is held to be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. In addition, the Parties shall renegotiate in good faith any term or provision held to be invalid or unenforceable and be bound by the mutually agreed upon substitute provision..
Except for indemnification claims or claims arising from gross negligence, willful misconduct, or breach of confidentiality obligations, in no event shall either Party be liable for any indirect, incidental, consequential, or punitive damages, including but not limited to lost profits or Operational Cost Offset Fees, regardless of whether such Party was advised of the possibility of such damages. The total aggregate liability of either Party under this Agreement shall not exceed the total amount paid or payable under this Agreement in the twelve (12) months preceding the event giving rise to the liability.
Company shall maintain complete and accurate books, records, data logs, and other documentation sufficient to demonstrate its compliance with these Terms. Such records shall include, without limitation, records related to data transmissions, payroll and timekeeping data, user access and activity, and relevant security or compliance practices. Company shall retain all such records for at least three (3) years following the date of creation, or longer if required under applicable law or regulation. If this Agreement is terminated, the retention obligation shall continue for records created during the term, unless a longer period is legally required. Upon Keeper’s request, Company shall provide Keeper access to any applicable documents.
Keeper and its authorized representatives (including auditors, Affiliates, regulators, and designated third parties, collectively, the “Auditors”) shall have the right to inspect and audit the books, records, and systems maintained by Agency Entity that are relevant to (i) the performance of Agency Entity’s obligations under this Agreement, (ii) compliance with applicable laws, or (iii) the integrity or accuracy of data provided to Keeper. Such audits may be conducted during normal business hours on business days and upon at least ten (10) business days’ prior written notice, unless otherwise required by law or regulatory authority. The costs of the audit shall be borne by the auditing party, unless the audit reveals a material breach of this Agreement, in which case Agency Entity shall reimburse Keeper for reasonable audit expenses.
These Terms, together with any applicable Master Service Agreement entered into by the Parties with respect to the Service constitute the entire agreement with respect to the subject matter herein.
Keeper may modify or update these Terms and Conditions at any time by providing at least thirty (30) days prior written notice to the Agency Entity. Continued use of the Service after the effective date of any changes shall constitute acceptance of the amended terms. If the Company does not agree to any material change, it may terminate the Agreement by providing written notice to Keeper before such changes become effective.
Agency Entity and/or Company: Any entity that enters into the Master Service Agreement with Keeper, and agrees to be bound by these Terms and Conditions, including but not limited to (i) Employer Companies, (ii) Payroll Vendors and (iii) Time & Attendance Vendors, each of which collaborates with Keeper to facilitate the Earned Wage Access Service for Eligible End Users.
API: Refers to the Application Programming Interface used for the integration between Keeper and the Company’s systems for system integration, data access/sharing, or service interaction.
Company Data: Any data, information or materials provided by, or on behalf of the Agency Customer to Keeper, including but not limited to employee information, time records, payroll data or other information necessary to operate the Service.
Confidential Information: Any nonpublic, proprietary, or sensitive information disclosed by one Party to the other, whether in oral, written, electronic, or other form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, but is not limited to, Company Data, Keeper’s platform specifications, pricing, business methods, and any security-related documentation.
Employer Company: An Agency Entity that directly employs Eligible End Users and offers Keeper’s Services as a benefit to its workforce.
Eligible End Users (or End User): An individual who is employed by, or affiliated with, an Employer Company, or whose earnings, hours or pay-related data is accessible through an Agency Entity and who is eligible to access or participate in Keeper’s Earned Wage Access Service, subject to program terms and eligibility criteria.
Master Service Agreement (or “MSA”): The primary contractual agreement entered into between Keeper and the Agency Entity that sets forth the general terms, conditions, and obligations under which the Service is provided. The MSA may reference or incorporate these Terms and Conditions and may include additional documents such as service exhibits.
Payroll Vendor: An Agency Entity that provides payroll administration, processing or disbursement services and enables Keeper to access relevant wage, earnings or payroll data necessary for the operation of the Service.
Service: Keeper’s proprietary earnings access and payment platform, including software, APIs, dashboards, administrative tools, integrations, and any other features or services offered by Keeper that allow Agency Entities and their End Users to access accrued but unpaid earnings in advance of regularly scheduled paydays, subject to eligibility and compliance requirements.
Time & Attendance Vendor: An Agency Entity that provides time-tracking, workforce scheduling, attendance data service or management solutions and facilitates Keeper’s access to hours worked or similar data required to determine earned wages under the Service.
