Thank you for choosing the NAV Payroll Product offered by NAV Accounting Solutions, LLC and/or its subsidiaries and affiliates(referred to as "NAV Payroll”). Review this End User License Agreement (“EULA”) carefully. This EULA constitutes a legal agreement between the End User (“You”) and NAV Payroll and governs Your use of the NAV Payroll Product. By using the NAV Payroll Product, You agree to be bound by the terms of this EULA. If You do not agree to this EULA, then You may not use the Primo Payday Product.
1. Definitions. For the purposes of this EULA, the following definitions apply.
1.1 You/Your. “You”/“Your” means the End User (either an individual or a single entity) that enters into a license to use the Product through an Approved Source for purposes other than redistributing or reselling the Product.
1.2 Product(s). “Product(s)” means software products and content, including any subsequent upgrades and updates and all accompanying Documentation.
1.3 Documentation. “Documentation” means Product program documentation, accompanying manuals and other materials describing the use, design, installation, operation and maintenance of the Product.
1.4 Support Services. “Support Services” means any Product support services made available by NAV Payroll.
1.5 Approved Source. “Approved Source” means (i) NAV Payroll or (ii) an authorized reseller or distributor (“Partner”) of the Product with a current license to resell/redistribute the Product.
1.6 Partner.“Partner” means a certified Microsoft Dynamics NAV reseller who maintains a current and valid agreement with Microsoft for the resale or distribution of Microsoft products.
1.7 Configurations. “Configurations” means any Product modifications or additions made by a person or entity other than NAV Payroll.
1.8 Product Object Files.“Product Object Files” means a Dynamics NAV Object Container file with the FOB file extension. These are files that reference objects like tables and pages. Product Object Filesmay also be referred to as Navision Attain Object files.
1.9 Annual Fee.“Annual Fee” means the payment due to license the Product every year and includes the enhancement fee and tax table updates.
2. Grant of License. So long as You obtained the Product from an Approved Source, NAV Payroll hereby grants You a non-exclusive and non-transferable license and right to (1) Use the Product for Your internal use with as many logins as Your current Microsoft Partner license allows; (2) Access the Product remotely through terminal or other remote services.
3. Restrictions and Limitations. You agree that You will not, nor permit any third party to: (1) Reproduce, copy, reverse-engineer, sell, trade or resell the Product; (2) Provide Product access to any third party other than Approved Source except as expressly permitted in Section 7; (3) Transfer this EULA to any other party without the prior written approval of Approved Source; (4) Use the Product in a manner contrary to applicable law; (5) Make the Product available on any file-sharing or application hosting service (excluding any necessary Product Object Files that You need to share with Approved Source).
4. Export Restrictions. You agree that You will not export the Product or any copies thereof except in compliance with all relevant international and national laws that apply to the Product.
5. Ownership. You acknowledge and agree that copyright and other intellectual property laws protect the Product. All rights, title and interest in and to the Product and associated Documentation, including without limitation all copyrights, patent rights, trademark and service mark rights, trade secret rights and other intellectual property rights are and will remain the property of NAV Payroll, and You may only use such items as expressly permitted by this EULA. You shall not remove, alter or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the Product or related Documentation.
6. Product Support Services. NAV Payroll will make Product Support Services available so long as You are current on the Annual Fee and/or Support Service fees.
7. Third Party Use. You may permit a third party to use the Product and accompanying materials if such use is for internal operations and is solely for Your behalf. Third party use described in this section must comply with all terms and conditions of this EULA.
8. Updates and Upgrades
8.1 Additional Software and Support Services. This EULA applies to updates, upgrades, supplements, add-on components, or Support Services that NAV Payroll may make available to You after the date You obtain Your initial Product license, unless they are accompanied by separate terms.
8.2 Product Updates. Due to the annual revision of the tax code, NAV Payroll will make one or more annual updates to the tax table via a Microsoft NAV web service. Tax table updates require that You have access and a connection via a web service to NAV Payroll’s tax table. To be eligible for a particular Product update, You must first be licensed for the Product identified by NAV Payroll as eligible for the update.
8.3 Product Upgrades. To be eligible for a particular Product upgrade, You must first be licensed for the Product identified by NAV Payroll as eligible for the upgrade. After installing the upgrade, You may no longer use the original Product that formed the basis for Your upgrade eligibility (other than as part of the upgraded Product).
9. Payment of Annual Fees and Support Services Fees. NAV Payroll will apply payment to overdue invoices in the order that the invoices were issued. NAV Payroll reserves the right to terminate the Product license for failure to timely pay Annual Fees and/or Support Services fees.
10. Consent to Data Use. You agree that NAV Payroll and its affiliates may collect and use technical information gathered as part of the Product Support Services provided to You. NAV Payroll may use this information solely to improve products or to provide customized services or technologies to You. NAV Payroll will not disclose this information in a form that personally identifies You.
11. Links to Third Party Sites. NAV Payroll is not responsible for the contents of any third-party sites or services, any links contained in third-party sites or services, or any changes or updates to third-party sites or services. NAV Payroll is providing these links and access to third-party sites and services to You only as a convenience, and the inclusion of any link or access does not imply an endorsement by NAV Payroll of the third-party site or service.
12. Hardware. At Your request, NAV Payroll will offer hardware recommendations. You acknowledge that any hardware You elect to use or purchase, regardless of whether such use or purchase was recommended by NAV Payroll, is at Your sole discretion and is Your sole responsibility. Any hardware problems must be directed to the appropriate hardware supplier.
13. Term and Termination
13.1 Term. This User Agreement shall take effect on date that You install the Product and is effective until terminated by You or NAV Payroll. Your rights under this EULA will terminate automatically without notice from NAV Payroll if You fail to comply with any term(s) of this EULA.
13.2 Effect of Termination. In the event of expiration or termination of this EULA, NAV Payroll will cease all Product updates and upgrades and suspend all Support Services and all rights granted to You hereunder will immediately cease. NAV Payroll may, in its sole discretion and without notice, restrict or terminate your use of the Product under this User Agreement, or suspend the Product or related services immediately, in whole or in part, for suspicion of fraud, security, illegal activity or unauthorized access issues to protect the integrity of the Product, or if You fail to comply with this EULA. Upon the expiration or termination of this EULA, You will pay all amounts due and outstanding amounts will become immediately due, and You will not be entitled to receive any refund for any Annual Fees or Support Service fees. Any termination of this EULA shall not affect NAV Payroll’s rights to any payments due to it. In the event of expiration or termination of this EULA, obligations that require performance will survive.
14. DISCLAIMER OF WARRANTIES. YOUR USE OF THE SOFTWARE AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS EULA, THE SOFTWARE IS PROVIDED "AS IS." UNLESS EXPRESSLY STATED IN THIS EULA, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NAV PAYROLL DISCLAIMS AND EXCLUDES ALL WARRANTIESON THE PRODUCT, MAINTENANCE AND SUPPORT SERVICES, AND PROFESSIONAL SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DUE TO THE COMPLEX NATURE OF THE PRODUCT, YOU RECOGNIZE THAT PRODUCT ERRORS AND INTERRUPTION MAY ARISE AND THAT NAV PAYROLL DOES NOT WARRANT THAT THE PRODUCT WILL OPERATE WITHOUT ERROR OR INTERRUPTION. NAV PAYROLL MAKES NO WARRANTY THAT PRODUCT WILL FUNCTION CORRECTLY IN CONNECTION WITH ANY PARTNER OR THIRD PARTY CONFIGURATION OR THAT SUCH CONFIGURATIONS WILL CONTINUE TO FUNCTION PROPERLY WITH SUBSEQUENT VERSIONS OF THE PRODUCT.IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER. NAV PAYROLL, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE PRODUCT WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
15. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS EULA (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS OR BUSINESS INTERRUPTION), REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. THIS LIMITATION APPLIES IRRESPECTIVE OF WHETHER SUCH CLAIM IS BASED ON TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY. THIS SECTION DOES NOT APPLY TO LIMIT YOUR OBLIGATIONS IN RESPECT TO ANY PAYMENT AMOUNTS DUE OR ARISING OUT OF A BREACH UNDER SECTION 3.
16. LIMITATION ON DAMAGES. EXCEPT AS EXPRESSLY PROVIDED BY THIS EULA, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES EVER EXCEED THE AMOUNTS YOU ACTUALLY PAID TO NAV PAYROLL IN ONE (1) YEAR PERIOD PRIOR TO THE INCIDENT. THIS SECTION DOES NOT APPLY TO LIMIT YOUR OBLIGATIONS IN RESPECT TO ANY PAYMENT AMOUNTS DUE OR ARISING OUT OF A BREACH UNDER SECTION 3.
17. Indemnification. You agree to indemnify and hold NAV Payroll and its affiliates harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of Your use of the Product or breach of this EULA (collectively referred to as "Claims"). NAV Payroll reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by NAV Payroll in the defense of any Claims.
18. Confidentiality. The parties agree to hold each other's Confidential Information in strict confidence. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than as specified in this EULA. Each party's Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of the use or disclosure by the other party, other than as specifically provided for in this EULA, the non-disclosing party may be entitled to equitable relief.
Confidential Information includes: (1) written, printed, or electronically recorded materials furnished by NAV Payroll for End User to use, including any Documentation and other materials describing the use, design, installation, operation and maintenance of the Product; (2) any software products, including any subsequent upgrades; (3) any written or tangible information stamped “confidential,” “proprietary,” or with a similar legend, or any information that NAV Payroll makes reasonable efforts to maintain the secrecy of; (4) business or marketing plans or strategies, operating procedures, trade secrets, design formulas and improvements of any kind, sales projections, and pricing information.
19. Other Liabilities and Requirements.
19.1 Automated Clearing House Liability. You agree that NAV Payroll transactions that go through the Automated Clearing House (ACH) will be governed by ACH rules. You certify to NAV Payroll all the same warranties that NAV Payroll must make as an ACH originator, and You must accept any liability that You or NAV Payroll may incur because of these transactions.
19.2 Payroll Tax Table Liability.Due to the complex and ever-changing nature of the tax code, You are responsible for verifying results from any tax table function and ensuring that results match current federal, state and local tax requirements. NAV PAYROLL DISCLAIMS AND EXCLUDES ANY TERM, REPRESENTATION, WARRANTY OR CONDITION THAT ANY TAX TABLE OR TAX TABLE FUNCTION WILL MEET ALL YOUR REQUIREMENTS, OR THAT THE USE OF THE TAX TABLES WILL BE UNINTERRUPTED OR ERROR FREE.
19.3 Other Warranties and Liabilities. NAV Payroll is not engaged in providing legal, tax, accounting or other regulatory compliance advice, including Affordable Care Act (ACA) compliance advice. YOU UNDERSTAND THAT LAWS, REGULATIONS AND OTHER COMPLIANCE ISSUES ADDRESSED BY THE PRODUCT ARE SUBJECT TO INTERPRETATION AND CHANGE, AND THAT YOU ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. NAV PAYROLL WAIVES ANY CLAIM FOR ANY LOSS, DAMAGE AND EXPENSE RESULTING FROM YOUR USE OF THE PRODUCT.
20. U.S. Government License Rights. All Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995, is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995, is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
21. Applicable Law. This EULA shall be governed by, and interpreted and construed in accordance with the laws of the State of Texas, USA, conflicts of law excluded. You agree that any legal action or proceeding with respect to this EULA may be initiated only in the state courts located in the State of Texas, County of Tarrant.
22. Relationship of the Parties. You acknowledge and agree that Your relationship with NAV Payroll is that of an independent contractor, and You will not act in a manner that expresses or implies a relationship other that that of an independent contractor. This EULA does not constitute either party an agent, employee, joint venture or legal representative of the other party. Unless expressly authorized in writing, neither party shall have any authority to make any representations, warranties, or commitments in the name of or on behalf of the other in any way.
23. Amendment to User Agreement. NAV Payroll reserves the right, in its sole discretion, to amend this User Agreement at any time. If there is a conflict between this User Agreement and the most current version of the NAV Payroll User Agreement, posted at www.navpayroll.com, the latter will prevail. If You do not accept amendments made to this User Agreement, then this User Agreement will be immediately terminated pursuant to Section 13. Your continued use of the Product and Support Services following any amendment of this User Agreement shall be conclusively deemed an acceptance of all such amendments.
24. Entire Agreement; Severability. This EULA (including any addenda or amendment to this EULA that is included with the Product) is the entire agreement between You and NAV Payroll relating to the Product and the Support Services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this EULA. To the extent the terms of any NAV Payroll’s policies or Support Services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.