Last updated December 14, 2021

This Embedded Payroll Service Agreement (this “Agreement”) sets forth the terms and conditions under which Gusto, Inc. (“Gusto”) agrees to provide eligible companies (each, a “Company”), in addition to Companies’ eligible employees and independent contractors (each, an “Individual User”) with certain payroll calculation, payment, and related tax reporting services made available through third-party platform providers (each, a “Platform Provider”) (collectively, the “Embedded Payroll Service”).

If you register for or use the Embedded Payroll Service as an Individual User, references to “you” are to you. If you register for or use the Embedded Payroll Service on behalf of a Company, you (i) understand that references to “you” are to such Company; (ii) represent that you are authorized to bind Company to this Agreement; and (iii) agree to this Agreement on behalf of such Company.

  1. Relationship to Platform Providers

    You understand and agree that Gusto is a separate entity from the Platform Provider. As such, (i) Gusto cannot control and is not responsible for the actions, errors, or omissions of any Platform Provider; and (ii) Platform Provider liability for any such actions, errors, or omissions would be governed by your End User Agreement (“EUA”) with such Platform Provider.

    This Agreement is in addition to and separate from any agreements between you and Service Provider. Please read this Agreement carefully. To the extent that there is a conflict between this Agreement and any other Platform Provider agreement as it relates to Gusto’s provision of the Embedded Payroll Service, regardless of the platform on which those services are made available, this Agreement will control.

  2. Platform Providers Manage Your Gusto Account

    Gusto provides Platform Providers with the ability to offer and assist you with your registration, access, and use of the Embedded Payroll Service. You understand and agree that your Platform Provider may (i) assist your registration to the Embedded Payroll Service by sharing information about you to Gusto; and (ii) conduct activity on your behalf, provided that it does so in each case in accordance with your agreement(s) with such Platform Provider.

    You acknowledge that your Platform Provider may also restrict, suspend, or terminate your ability to view, access or activate the Embedded Payroll Solution, provided that it does so in each case in accordance with your agreement(s) with such Platform Provider.

  3. Data Privacy

    You understand and agree that Platform Providers and Gusto may share data with one another in order to facilitate your use of the Embedded Payroll Service. Data that Gusto receives from Platform Providers will be subject to and governed by Gusto’s Privacy Policy, made available at https://gusto.com/about/privacy. Data that a Platform Provider receives from Gusto will be subject to and governed by each Platform Provider’s privacy policy.

    If you are a Company and provide Individual User data to Gusto, either directly or through your Platform Provider, you represent and warrant that you have provided notice to and obtained consent from those Individual Users regarding your sharing of Individual User data with Gusto.

    If you are an Individual User, you acknowledge and understand that in providing the Embedded Payroll Service, Gusto and Platform Provider act as an intermediary between you and Company; as such, you authorize Gusto to share with your employer any information that you provide to Gusto in connection with the Embedded Payroll Payroll Service.

  4. Service Fees

    You understand and agree that pricing for the Embedded Payroll Service will be set by your Platform Provider and invoiced in accordance with your Platform Provider agreement (the “Embedded Payroll Service Fees”). You acknowledge that Gusto (i) does not control and is not responsible for the Embedded Payroll Service Fees charged to you by Platform Provider; and (ii) may invoice you directly for services, not including the Embedded Payroll Service, that you have elected to receive directly from Gusto, but for which Gusto charges a fee.

  5. Payments

    Payments processed through the Embedded Payroll Service are transmitted by Gusto, Inc. (fka ZenPayroll, Inc.), a licensed money transmitter (NMLS ID: 1737896). For more information on our licenses or the rights afforded to you under applicable laws, please visit https://gusto.com/about/licenses

  6. Embedded Payroll Service

    Provided that you meet your obligations and comply with this Agreement, Gusto will provide you with the Embedded Payroll Service, which includes (i) onboarding and managing human resources; (ii) calculating payroll and associated liabilities on behalf of the Company; (iii) processing payments, on behalf of Company, to Individual Users; (iv) withholding, filing, and remitting payroll tax payments and filings; and (v) remitting certain wage garnishments on behalf of Company to local, state, or federal agencies.

  7. Identity and Bank Account Verification

    Gusto will review the information you submit to your Platform Provider or through the Embedded Payroll Service to verify information about you. Gusto, either directly or through your Platform Provider, may request additional identification documents from you or identify verifying information about you, including a consumer or credit report. Gusto may, at its discretion, decline to offer you the Embedded Payroll Service or any other Gusto services for any reason, including in the event that your enrollment is not satisfactorily completed, Gusto is unable to satisfactorily verify the information you provide, or for any other lawful business reason.

  8. Necessary Information and Authorizations

    If you are a Company, in order for Gusto to provide you with the Embedded Payroll Service, you must (i) successfully connect your business checking account (each, a “Company Bank Account” or “Bank Account”); (ii) execute a Power of Attorney; (iii) register and authorize Gusto as your Reporting Agent using IRS Form 8655 (Reporting Agent Authorization); and (iv) complete and sign any additional actions as required by law or otherwise necessary to provide you with the Embedded Payroll Service.

    If you are an Individual User, in order for Gusto to provide you with the Embedded Payroll Service, you must (a) enroll or be enrolled on Gusto by a Company; (ii) connect or have your bank account connected to Gusto (each, a “Bank Account”); and (iii) agree or allow Company to agree on your behalf to this Agreement.

    You also understand and agree that you are responsible for (a) depositing any federal, state, and local withholding liabilities incurred prior to enrolling in the Embedded Payroll Service; (b) submitting any payroll returns to tax agencies (state, federal, and/or local) that were due for payroll tax liabilities incurred prior to enrolling in the Embedded Payroll Service; and (c) cancelling any prior payroll service or services of professional employee organizations/employee leasing companies.

  9. Running Payroll; Bank Account Debiting and Crediting

    If you are a Company, you will be required to designate certain individuals who are authorized to provide information, take certain actions, and enter into agreements on behalf of the Company (each an, “Account Administrator”), including but not limited to the ability to review, submit, amend, or cancel payrolls (each, a “Payroll Entry”) as part of the Embedded Payroll Service. Gusto will use reasonable efforts to verify, but does not guarantee, that anyone who submits a Payroll Entry is an Account Administrator authorized to take such action.

    You understand and agree that, by submitting a Payroll Entry, you authorize Gusto to debit and/or credit your Company Bank Account, on the date communicated to you by your Platform Provider, as necessary to process Payroll Entries, including but not limited to (i) fund direct deposits; (ii) remit payroll taxes; (iii) remit payments owed relating to garnishments; (iv) pay any debit, correction, or reversing entry initiated; (v) return funds to Company that were collected but unsuccessfully remitted to intended recipients (“Unpaid Funds,” the handling of which is described further in Section 16); and (vi) pay any other amount that is owing under this Agreement or in connection with the Embedded Payroll Service (each debit, a “Payroll Debit”).

    Gusto relies on the information you provide when performing the Embedded Payroll Service. Gusto is not responsible or liable for any errors, including penalties and interest, resulting from such reliance. You understand and accept that Gusto does not and is not obligated to verify or review Payroll Entries or corresponding Payroll Debits for accuracy or completeness (including incorrect information related to recipient name, bank account number, or intended payment dollar amount). If a Payroll Entry describes a financial institution inconsistently by name and identification number or identifies a non-existent or unidentifiable person or account, Gusto reserves the right to choose to reject the Payroll Entry, process the Payroll Entry, or return funds obtained from the Payroll Debit. You further agree that Company shall indemnify and hold Gusto and any other Indemnified Parties harmless from and against any Claims arising from the execution of a Payroll Entry.

    These authorizations are to remain in full force and effect until (a) Company and/or Individual User revoke in writing to Gusto such authorization; or (b) Gusto receives notice from your Platform Provider of such revocation; and (c) Gusto and the corresponding bank partner have a reasonable opportunity to act upon such notice. Gusto is not responsible for determining whether the bank accounts of any Individual Users have deposit or withdrawal restrictions.

  10. Standard Payroll Processing Schedule

    Gusto will process each Payroll Entry in accordance with Gusto’s then-current processing schedule, provided that (i) the required payroll information is received by Gusto no later than Company's applicable cut-off time; and (ii) the ACH and banking partners are open for business on that day (each, a “Business Day”) in order for Gusto to successfully process the Payroll Debit. If Gusto receives required information either after the applicable cut-off time or on a non-Business Day, Gusto will not be responsible for failure to process the Payroll Entry on that day. Instead, Gusto will use reasonable efforts to process the Payroll Entry and Payroll Debit via ACH on the next occurring Business Day.

  11. Expedited Payroll Processing Schedule

    Gusto’s standard processing time for payroll and contractor payments is four (4) business days. Certain Platform Providers and Companies may but are not guaranteed to qualify for one of Gusto’s expedited payroll processing programs (each, an “Expedited Payroll Program”). If you are enrolled in an Expedited Payroll Program, Gusto will process your Company’s Payroll Entries in less than four (4) business days. Eligibility is not guaranteed and may be withdrawn at any time.

  12. Bank Account Funds

    If you are a Company, you agree to maintain in your Company Bank Account available funds sufficient to cover all disbursements, fees, payroll taxes or any other amounts due (collectively, the “Amounts Due”) under this Agreement. By initiating a Payroll Entry, you guarantee that your Company Bank Account will have sufficient funds at the time Gusto originates the Payroll Debit(s) from the Company Bank Account.

    If you have insufficient funds in the Company Bank Account at the time Gusto originates the Payroll Debit(s), Gusto may, in its sole discretion and with no liability, (i) set off any amounts you owe Gusto against any amounts Gusto owes you; (ii) refrain from processing the Payroll Entry, including paying out intended recipients; (iii) debit the Company Bank Account or any other account owned in whole or in part by Company to pay for amounts due; (iv) suspend you from the Embedded Payroll Service; and/or (v) immediately terminate this Agreement.

    If (a) a Payroll Entry has been processed but the Payroll Debit is later reversed by your bank institution, or (b) a Payroll Entry has been processed through an Expedited Payroll Program but the corresponding Payroll Debit fails due to insufficient funds, you will owe and be liable to Platform Provider and its Indemnified Parties, (such Indemnified Parties include Gusto, Inc.), for those funds. This provision shall not limit Gusto from exercising any other rights or remedies it may have under this Agreement to recover amounts owed.

    In the event, you cause Gusto to erroneously credit a Bank Account in excess of the amount that had been intended to be credited (the “Excess Credit Amount”), if any, then you shall promptly notify Platform Provider and/or Gusto as soon as you become aware of such erroneous credit. You authorize Gusto to debit any Excess Credit Amounts from the Bank Account, and if the Bank Account contains insufficient funds to cover the Excess Credit Amount, Company agrees to promptly refund the Excess Credit Amount to Gusto through other payment methods that Gusto deems acceptable.

  13. Payroll Reversals and Corrections

    Once a Payroll Entry is submitted, you may not be able to cancel or amend it. If as a Company you request to reverse a Payroll Entry or Payroll Debit, Gusto will make a reasonable effort to reverse such Payroll Entry and/or Payroll Debit, to the extent permissible by law or industry regulation. You understand that Gusto will have no responsibility for the failure of any other person or entity to honor your reversal request. Gusto cannot guarantee that any Payroll Entry or Payroll Debit will be successfully reversed. You further acknowledge that Gusto will have no obligation to retransmit any returned Payroll Debits. You agree to reimburse Platform Provider or Gusto for any costs or expenses incurred in attempting to honor such a reversal request. You also agree that, to the extent required under NACHA Rules or the UCC, to obtain a payee’s consent before attempting to reverse a Payroll Entry that was credited to their Bank Account. By initiating a request to reverse a Payroll Entry that was credited to a payee, you represent and warrant to Gusto that you have already obtained the payee’s consent for the reversal, if such consent is required under the NACHA Rules or the UCC.

  14. Payroll Taxes

    If you are a Company, Gusto will only file tax returns on your behalf once you have successfully processed Payroll Entries through the Embedded Payroll Service. It is your responsibility to submit complete, timely, and accurate information to Gusto and/or your Platform Provider, as applicable, in connection with the Embedded Payroll Service. You agree to respond timely and accurately to requests for additional information, as may be requested from time to time by Gusto, either directly or through your Platform Provider. Any penalty or interest incurred, or any other Claim that arises, due to inaccurate or incomplete information provided by you to Gusto will be Company's sole responsibility.

    Gusto reserves the right to not file payroll tax returns, remit payroll taxes, or otherwise process Payroll Entries if there are any unresolved problems or outstanding information requests. Gusto’s sole liability and Company's sole remedy for Gusto’s negligent failure to perform the payroll tax portion of the Embedded Payroll Service shall be as follows: (i) Gusto will remit the payroll taxes received from Company to the appropriate taxing authority; and (ii) Gusto will reimburse Company or pay directly to the appropriate taxing authority any penalties resulting from such negligent error or omission by Gusto, provided that Company has used reasonable efforts to mitigate any penalties or losses resulting from such negligent error or omission by Gusto.

    Important Tax Information: Even though you have authorized a third party, such as Gusto, to file payroll tax returns and remit payroll tax payments on your behalf, ultimately, you are held responsible by taxing authorities for the timely filing of payroll tax returns and the timely payment of payroll taxes for your Company and Individual Users. Gusto and the IRS recommend that you enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”), to monitor your IRS account and ensure that timely tax payments are being made for you. You may enroll in the EFTPS online at www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments. You should contact the appropriate state offices directly for details.

  15. NACHA

    Through the Embedded Payroll Service, Payroll Admins can submit Payroll Entries to Gusto for the creation, formatting, and transmission of Payroll Debits in accordance with the National Automated Clearinghouse Association (“NACHA”) rules and the UCC. As the Company, you acknowledge that you are the “Originator” (as defined in the NACHA Rules) of each Payroll Entry and assume the responsibilities of an Originator under the NACHA Rules. Company further acknowledges that under the NACHA Rules and the UCC, Gusto, as a “Third-Party Sender” (as defined in the NACHA Rules), is required to make certain warranties on behalf of the Originator with respect to each Debit Entry.

    Company acknowledges that the origination of any Automated Clearing House (“ACH”) transactions and the transmission of funds via ACH must comply with applicable laws, rules, and regulations, including the NACHA Rules and Article 4A of the Uniform Commercial Code, as adopted in California and as may be amended from time to time. You agree to indemnify Gusto for any Claim which results, directly or indirectly, from a breach of such a warranty made by Gusto on behalf of Company, unless such breach results solely from Gusto’s own gross negligence or intentional misconduct. You also acknowledge that under the NACHA Rules and the UCC, Gusto is required to indemnify certain persons, including, without limitation, the Originating Depository Financial Institution, for the Originator’s failure to perform its obligations thereunder. You therefore agree that the Company will indemnify Gusto for any Claims which result from the enforcement of such an indemnity, unless the enforcement results solely from Gusto’s own gross negligence or intentional misconduct.

    Gusto may reject any Payroll Entry or Payroll Debit which does not comply with this Agreement, NACHA Rules, or the UCC. Notice of a rejection of a Payroll Entry (each, a “Rejection Notice”) will be effective when sent, and may be sent via email or through your Platform Provider account. If rejected, Gusto will make a reasonable effort to promptly notify you so that you may correct or request that Gusto correct and/or resubmit the Payroll Entry and/or corresponding Payroll Debit. Gusto will have no liability to Company, Platform Provider, or Individual User for (i) the rejection of any Payroll Entries; (ii) any delay in providing, or any failure to provide, Company with a Rejection Notice; or (iii) any Claims arising directly or indirectly from (i) or (ii). If you request that Gusto correct a Payroll Entry or Payroll Debit, Gusto may attempt to do so; provided, however, that Gusto is not obligated to make any requested correction, and Gusto is not liable for any Claims or other consequences that may directly or indirectly result from Gusto’s attempt to correct, or failure to correct, such Payroll Entry or Payroll Debit.

    Consistent with NACHA Rules applicable to ACH transactions involving your Company Bank Account, Gusto is not required to and therefore will not give next day notice to you of receipt of an ACH transaction. It is the responsibility of your Platform Provider to provide you with receipts of any Payroll Debits processed by Gusto through the Embedded Payroll Service.

    You expressly acknowledge that Gusto does not intentionally or knowingly engage in or support International ACH Transactions (“IATs”), as defined in the NACHA Rules. You represent and warrant that (a) the direct funding for the Debit Entries originated by Gusto on your behalf do not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (b) you will not instruct Gusto to create, originate, or transmit Entries that use IAT as the Standard Entry Class Code (as defined in the NACHA Rules), or are otherwise required to be IATs under the NACHA Rules; and (c) you will not engage in any act or omission that causes or results in Gusto creating, originating, or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to the NACHA Rules.

  16. Unpaid Funds

    In the event that Gusto has in its possession Unpaid Funds, Gusto will notify and return to Company such Unpaid Funds to Company in accordance with this Section. Company, not Gusto, is required to contact payees and/or otherwise resolve the Unpaid Funds. If you are a Company, you acknowledge that you are responsible for complying with state unclaimed or abandoned property laws applicable to Unpaid Funds. You also expressly release Gusto from all liability and Claims arising from state unclaimed or abandoned property laws, including any applicable penalties and/or interest. Gusto shall have no obligation to defend or otherwise indemnify your Company in the event of an audit, examination, assessment, or other enforcement action by a state related to the Unpaid Funds under its unclaimed or abandoned property laws.

  17. Effect of Termination

    If you are a Company, you acknowledge and understand that if you terminate your account with the Embedded Payroll Service or if Gusto terminates your account pursuant to this Agreement, then such termination may not be reversible. In the event that you terminate, then as of the time of such termination, Gusto will have no obligation to make further payroll tax filings on your or your Individual Users’ behalf. Notwithstanding the foregoing, if you terminate the Embedded Payroll Service, you will be asked to make specific elections regarding whether you would like Gusto to make certain final payroll tax filings (such filings, the “Final Payroll Tax Filings”) on your Company’s behalf following such termination of the Embedded Payroll Service (such elections, the “Post-Termination Filing Elections”). If you do not provide Gusto and/or your Platform Provider with your Post-Termination Filing Elections promptly following termination of the Embedded Payroll Service, then you authorize Gusto to make the Post-Termination Filing Elections for Company on Company’s behalf (the “Gusto Selections”). You acknowledge and agree that Gusto may rely on Company’s Post-Termination Filing Elections and the Gusto Selections, and Gusto is not responsible or liable for (i) any consequences or Claims arising (directly or indirectly) from such reliance; or (ii) any resulting errors, or any consequences or Claims arising (directly or indirectly) from any resulting errors in the Final Payroll Tax Filings.

  18. No Legal, Professional, or Fiduciary Guarantees

    You understand and agree that Gusto is not acting in a fiduciary capacity in providing Company and Individual Users with the Embedded Payroll Service. You further acknowledge that the Embedded Payroll Service is (i) provided on an as-is basis; (ii) does not guarantee compliance with applicable laws; (iii) may not include functionality necessary to meet your or your Company’s specific needs; and (iv) any information provided therein is for informational purposes only and and should not be construed as legal, tax, accounting, or professional advice.

    In particular, you acknowledge that between Company and Gusto, Company is solely responsible for complying with applicable laws, including federal, state, and local wage and hour laws related to employee classification, minimum wage laws, wage deduction laws, meal period and rest break premiums, regular rate of pay calculations, overtime calculations and payments, paid sick leave accrual, itemization and issuance of pay statements, and laws pertaining to the timing of pay (including final pay).

  19. Certain Company Agreements and Acknowledgments

    Payroll Debits withdrawn from the Company Bank Account pursuant to Payroll Entries (“Payroll Funds”) will be held by Gusto in accounts at Gusto’s financial institutions (collectively, the “Payroll Account”) until such time as those payments are due to Company’s employees and/or independent contractors and the appropriate taxing agencies, and no interest will be paid to Company on these amounts. You acknowledge that Gusto is entitled to invest the Payroll Funds in accordance with its investment guidelines established from time to time, and that Gusto, in its own capacity, is entitled to all income and gains derived from or realized from such investments and is not accountable to Company, Company’s employees, or any other person for such income or gains. In order to facilitate the timely payment of payroll direct deposits and payroll taxes, Gusto may pledge any investments held in the Payroll Account in connection with a loan, rather than convert such investments to cash for each tax payment. To the extent Gusto receives the Payroll Funds, Gusto shall indemnify and hold Company harmless from and against any loss of any portion of the principal amount of the Payroll Funds (including any losses of principal resulting from the investment of the Payroll Funds) caused by Gusto while holding the funds in its Payroll Account. If Gusto incurs losses on the investment of the Payroll Funds or uses the Payroll Funds for any other purpose, Gusto will make the required payroll direct deposits and payroll tax deposits on Company’s behalf by using Gusto’s own funds or other assets. Company acknowledges that no state or federal agency monitors or assumes any responsibility for Gusto’s financial solvency.

    Gusto calculates applicable payroll taxes in accordance with state and local requirements; however, due to differences in computational methods (e.g., rounding), it is possible that Gusto’s computation of Company’s applicable taxes may deviate in a fractional manner from the amount charged by an applicable taxing authority (typically a difference of less than $0.10 per taxing authority per payroll). Sometimes, this will result in Gusto withdrawing slightly less than what ultimately is required to be remitted to the applicable taxing authority. In this case, Company agrees that Gusto’s computation is correct, but Gusto will cover the difference on Company’s behalf and will not seek additional funds from Company. Sometimes, this will result in Gusto withdrawing slightly more than what ultimately is required to be remitted to the applicable taxing authority. In this case, Company agrees that Gusto’s computation is correct, and that Company is not entitled to a refund of or credit for the excess funds.

  20. Your Obligations

    You are solely responsible for actions taken under your account with the Embedded Payroll Service. Any actions taken under your account will be deemed authorized by you, regardless of your knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by an Account Administrator or other authorized representative (“Authorized Representative”), and (ii) actions that an Account Administrator or an Authorized Representative (or anyone that Gusto reasonably believes to be an Account Administrator or an Authorized Representative) directs or instructs Gusto to take on its behalf.

    You are solely responsible for (a) following instructions that Gusto provides to you, either directly or through your Platform Provider, with respect to the Embedded Payroll Service; (b) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Embedded Payroll Service; and (c) maintaining applicable accounts with your Platform Provider.

    You understand and agree to take steps to adequately secure and keep confidential your account, including any information, passwords, or credentials that can be used to access your account. If you suspect that your account, passwords, or credentials have been improperly disclosed, accessed, or otherwise compromised, you must immediately notify your Platform Provider and/or Gusto, as applicable. Gusto reserves the right to prevent access to the Embedded Payroll Service if Gusto has reason to believe that your account has been compromised.

    You are responsible for timely providing your Platform Provider and/or Gusto with the information required for Gusto to perform the Embedded Payroll Service. You represent and warrant that for any information you share with Gusto or your Platform Provider, you have the authority to share such information. You are also responsible for the accuracy and completeness of information you provide to Gusto and your Platform Provider. Lastly, you are required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify your Platform Provider and/or Gusto of any changes to the information you had previously provided.

    You are responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) distributed to you by Gusto, either directly or through your Platform Provider. You must notify your Platform Provider and/or Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.

    You are obligated to promptly notify your Platform Provider and/or Gusto of any third-party notices that you receive which could affect Gusto’s ability to effectively provide you the Embedded Payroll Service or increase the likelihood that a Claim (as defined below) is brought against you, Gusto, or your Platform Provider in connection with the Embedded Payroll Service, such as but not limited to notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Embedded Payroll Service.

    You agree that, to the fullest extent permitted by law, if you provide Gusto with your login or identity verification credentials and/or authorize Gusto to take actions to your behalf (e.g., clicking the “Submit Payroll” or other buttons; verbally telling a Gusto representative to take an action), such actions will have the same effect as if you provided Gusto with written signature authorizing Gusto to make any electronic payments, filings, or take any other actions as it relates to the Embedded Payroll Service on your behalf.

  21. General Prohibitions

    You agree to not to take any of the following actions:

    • Use the Embedded Payroll Service other than as authorized in this Agreement;
    • Post, upload, publish, submit, share, distribute, or transmit any information or content that: (i) You lack the authority to take such action; (ii) infringes, misappropriates, or violates a third-party intellectual property right; (iii) violates or encourages any conduct that would violate any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
    • Resell, sublicense, timeshare, or otherwise share the Embedded Payroll Services with any third party that is not affiliate (any entity that controls, is controlled by, or is under common control with you);
    • Display, mirror, or frame any Gusto logos, marks, designs, components, pages, or proprietary information, in each case, without Gusto’s express prior written consent;
    • Access, tamper with, or use non-public areas of the Gusto Embedded Payroll Service, Gusto’s computer systems, or the technical delivery systems of Gusto’s providers;
    • Interfere or attempt to interfere with the Gusto Embedded Payroll Service, including but not limited to any application, function, or use of the Gusto Embedded Payroll Service;
    • Take any action that imposes or may impose (as determined by Gusto in Gusto’s sole discretion) an unreasonable or disproportionately large load on Gusto’s (or Partners’) infrastructure;
    • Use manual or automated software, devices, or other processes to crawl, spider, harvest, or scrape any information, content, components, pages or other proprietary or confidential information (including, without limitation, personally identifiable information), including but not limited to those made available through the Gusto Embedded Payroll Service), in each case, without Gusto’s express prior written consent and the express prior written consent or authorization of the applicable data subject or user;
    • Attempt to probe, scan, or test the vulnerability of any Gusto system or network or breach any security or authentication measures;
    • Avoid, bypass, remove, deactivate, impair, or otherwise circumvent any technological measure implemented by Gusto or any of Gusto’s providers or any other third party (including another Company or Individual User) to protect the Embedded Payroll Service;
    • Attempt to access, search, or download from the Embedded Payroll Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Gusto or other generally available third-party web browsers;
    • Access or caused to be accessed the Embedded Payroll Service for any benchmarking or competitive purposes;
    • Use any meta tags, hidden text, or metadata utilizing a Gusto trademark, logo, URL, or product name, in each case, without Gusto’s express prior written consent;
    • Use the Embedded Payroll Service (a) for any purpose other than your personal or internal business purposes, or (b) for the benefit of any third party or in any manner not permitted by this Agreement;
    • Use the Embedded Payroll Service to send altered, deceptive, or false source-identifying information;
    • Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Gusto Embedded Service;
    • Modify, translate, or otherwise create derivative works of any part of the Embedded Payroll Service other than for your own information or as made possible through your Platform Provider;
    • Interfere or attempt to interfere with, the access of any Company or Individual User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication;
    • Send, transmit, collect, or store on the Embedded Payroll Service any personal information of others without their express consent;
    • Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
    • Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time; or
    • Encourage, assist, or enable any other individual to do any of the foregoing.
  22. Custom Content

    You may be granted the ability to generate, upload, or share customized content (“Custom Content”) through the Embedded Payroll Service. When you do any of the foregoing actions related to Custom Content, you (i) hereby grant Gusto a non-exclusive, sublicensable, royalty-free license to use, copy, modify, create derivative works based upon, and distribute such Custom Content so that Gusto may provide you with Custom Content functionality as part of the Embedded Payroll Service; (ii) represent and warrant that you have sufficient rights to grant Gusto the license rights set out in subpart (i) of this Section 22; and (iii) agree that you are solely responsible for any and all Custom Content generated, uploaded, or shared through the Embedded Payroll Service. You further acknowledge that you may not be able to remove Custom Content, once uploaded and/or shared through the Embedded Payroll Service. Gusto is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any Custom Content.

    Although Gusto is not obligated to monitor Custom Content generated or shared via the Embedded Payroll Service, Gusto reserves the right to do so. Gusto reserves the right to investigate, remove, or disable access to any Custom Content, in its sole discretion. Gusto may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute individuals who violate the law. The actions or omissions of you, Gusto, or your Platform Provider may irrevocably modify and/or delete Custom Content. You acknowledge and agree that Gusto is not responsible for the loss or modification of any Custom Content and that your use of the Embedded Payroll Service is at your own risk.

  23. E-Signatures

    Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that you the E-Sign Service, you are expressly (i) affirming that you able to access and view the document (the “Document”) you are electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document. Using the E-Sign Service to electronically sign Documents is optional and you can choose to manually sign Documents if you prefer. If you would like to manually sign a Document, you should (a) inform the party that sent you the Document of your decision to manually sign such Document; (b) make sure that you do not electronically sign the Document via the E-Sign Service; and (c) work with the sender of the Document for purposes of sending, uploading, and/or recordkeeping. If you are an Individual User, you should work with the applicable Company to obtain a physical, non-electronic copy of the Document; if you are a Company, you should work with your Platform Provider to obtain a physical, non-electronic copy of the Document.

    Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents. Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS YOUR RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.

  24. Availability of the Embedded Payroll Service

    Gusto makes no representations or warranties to Companies or Individual Users about the Embedded Payroll Service, including but not limited to uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Embedded Payroll Service may be inaccessible and unavailable, with or without notice.

  25. Consent to Receive Messages About Your Account

    Gusto may send you (i) email messages; and (ii) text messages related to your use of the Embedded Payroll Service, to the extent that you have given consent to receive such messages from Gusto, either directly or through your Platform Provider. Message frequency may vary. Standard message and data rates may apply. If you would like to opt out of receiving (a) promotional email messages from Gusto you can do so by using the unsubscribe link located at the bottom of Gusto promotional emails, contacting us as described below, or visiting https://go.gusto.com/pls-dont-leave-us.html; and/or (b) text messages from Gusto, you can do so by replying HELP for help or STOP to cancel.

  26. Gusto Intellectual Property

    The Embedded Payroll Service, including the text, graphics, images, photographs, videos, works of authorship, and other content made available through the Embedded Payroll Service (“Intellectual Property”) is owned by Gusto or its licensors and protected under domestic and foreign intellectual property laws. Except as explicitly stated in this Agreement, Intellectual Property is reserved by us or our licensors. Subject to your compliance with this Agreement, Gusto grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Embedded Payroll Service for your own use. You understand and agree that (i) removing, altering, obscuring or otherwise infringing upon Intellectual Property or (ii) using the Embedded Payroll Service other than as specifically authorized herein, is strictly prohibited and a violation of Gusto and its licensors’ Intellectual Property rights.

  27. Warranty Disclaimers

    Your use of the Embedded Payroll Service is entirely at your own risk. Gusto is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided via the Embedded Payroll Service is meant for informational purposes only and should not be interpreted as professional advice.

    TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE EMBEDDED PAYROLL SERVICE IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO DOES NOT WARRANT THAT THE EMBEDDED PAYROLL SERVICE WILL (I) MEET YOUR EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.

    If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by Company, Individual User, Account Administrator, Authorized Representative, or anyone Gusto reasonably believes to be any of the foregoing parties (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.

  28. Indemnity

    You agree to indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) your access to, use of, or reliance on the Embedded Payroll Service; (ii) your violation or alleged violation of this Agreement; (iii) your violation or alleged violation of any applicable law, rule, or regulation, including but not limited to NACHA rules, and labor, employment, and tax laws; (iv) your violation or alleged violation of any third party right, including but not limited to rights of privacy, publicity, intellectual property, and any other rights afforded to third parties by law, rule, or regulation; (v) your gross negligence, fraudulent activity, or willful misconduct; (vi) Indemnified Parties use of or reliance on information provided to Gusto by a Platform Provider, Company, Individual User, Account Administrator, Authorized Representative, or anyone Gusto reasonably believes to be any of the foregoing parties, in connection with this Embedded Payroll Service; (vii) actions that Indemnified Parties undertake in connection with the Embedded Payroll Service at the request or instruction of anyone that Indemnified Parties reasonably believe to be the Platform Provider, Company, Individual User, Account Administrator, Authorized Representative (each such action or activity, a “Requested Action”); (viii) Indemnified Parties use of or reliance on information or data resulting from such Requested Actions; and (ix) your failure to properly follow Gusto’s instructions with respect to the Embedded Payroll Service.

  29. Limitation of Gusto’s Liability

    Gusto is not responsible or liable for consequences or Claims related to (i) Custom Content; (ii) Requested Actions; (iii) Resulting Errors; (iv) failure to timely, accurately, or satisfactorily follow instructions or provide Gusto with information requested in order for Gusto to provide you with the Embedded Payroll Service; (v) your violation or alleged violation of any applicable law, rule, or regulation, including but not limited to NACHA rules, and labor, employment, and tax laws; (vi) unauthorized third-party actions taken on your account; (vii) your negligence; (viii) any Claims that could have reasonably been avoided or mitigated through reasonable efforts; and (ix) Platform Providers receipt, protection, processing, or sharing of your information.

    TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE EMBEDDED PAYROLL SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.

    IN NO EVENT WILL GUSTO’S TOTAL LIABILITY TO ANY COMPANY OR INDIVIDUAL USER FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE EMBEDDED PAYROLL SERVICE EXCEED THE AMOUNTS SUCH COMPANY WOULD ORDINARILY PAY TO GUSTO FOR GUSTO’S BASE PAYROLL SERVICE IN THE THREE (3) 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 GUSTO AND COMPANY AND/OR INDIVIDUAL USER.

  30. Duty to Mitigate

    If you become aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against you or Gusto in connection with this Agreement, you must use reasonable efforts to mitigate any loss that may give rise to such a Claim.

  31. Term; Termination; Suspension

    The Embedded Payroll Service and this Agreement will continue until terminated by either party. If you are a Company, you may terminate your enrollment in the Embedded Payroll Service through your Platform Provider or the Embedded Payroll Service. If you are an Individual User, you should contact your employer about what options are available to you, including but not limited to receiving wages outside of the Embedded Payroll Service.

    Gusto may terminate your use of the Embedded Payroll Service and this Agreement with thirty (30) days’ prior written notice. Gusto also may immediately suspend, restrict access, or terminate your Embedded Payroll Service account in the event that: (i) Gusto has any reason to suspect that you may be in violation of this Agreement; (ii) Gusto determines that you are likely to cause legal liability for or negative impact to Gusto; (iii) Gusto believes that you have misrepresented any information or engaged in fraudulent, deceptive practices or illegal activities; (iv) if you are a Company, you file or have filed against you a petition under the U.S. Bankruptcy Code or a similar state or federal law; or (v) your Platform Provider provides Gusto with written instructions to suspend, restrict, or terminate your Embedded Payroll Service account.

    Termination of the Embedded Payroll Service or this Agreement will not affect your or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Sections 17 (Effect of Termination), 21 (General Prohibitions), 23 (E-Signatures), 26 (Gusto Intellectual Property), 27 (Warranty Disclaimers), 28 (Indemnity), 29 (Limitation of Gusto’s Liability), 30 (Duty to Mitigate), 31 (Term; Termination; Suspension), 33 (Governing Law), 34 (Arbitration), 35 (Gusto Is Not Responsible for Things That Gusto Cannot Control), 36 (General), and Section 37 (Electronic Transmission) of this Agreement will survive termination of this Agreement.

    Upon termination of this Agreement, your right to access and use the Embedded Payroll Service will automatically terminate; provided, however, that Gusto will generally continue to provide you with the ability to access your account, including but not limited to view or download information that was available in your account at the time of termination (the “Limited Access Rights”). Gusto may deny or revoke your Limited Access Rights at any time, in its sole discretion, if Gusto believes you are in violation of this Agreement.

  32. Changes to the Agreement or the Embedded Payroll Service

    Gusto may modify this Agreement at any time, in Gusto’s sole discretion. In order for you to continue to use or access the Embedded Payroll Service, you shall be required to read, understand, and agree to be bound by the then-current Agreement. Because the Embedded Payroll Service is evolving over time, Gusto may change or discontinue all or any part of the Embedded Payroll Service at any time and without notice, at Gusto’s sole discretion.

  33. Governing Law

    This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.

  34. Arbitration

    Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either you or Gusto have any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement or the Embedded Payroll Service, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between you and Gusto, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by you and Gusto. A single arbitrator will be mutually selected by Gusto and you and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and you cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon you and Gusto. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Gusto may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that you owe to Gusto (each, an “Action”). You hereby waive any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Gusto in such courts.

    You and Gusto agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. YOU FURTHER ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU AND GUSTO ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.

  35. Gusto Is Not Responsible for Things Gusto Cannot Control

    Gusto is not responsible or liable for any delays or failures in performance from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, pandemics, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of any Embedded Payroll Service user.

    Without limiting the generality of the foregoing or Section 27, the Embedded Payroll Service relies on third-party technology and services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, your use of or access to Gusto and/or the Embedded Payroll Service. Likewise, Gusto cannot guarantee that any information, data, or Custom Content hosted on a third-party server will remain secure.

  36. General

    This Agreement constitutes the entire agreement between you and Gusto regarding the Embedded Payroll Service and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 32 of this Agreement. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. You may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by you to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.

    Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; (ii) by posting to the Embedded Payroll Service; (iii) through your Platform Provider. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Embedded Payroll Service, either by Gusto or your Platform Provider, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

  37. Electronic Transmission

    This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.

  38. Contact Information

    If you have any questions about the Embedded Payroll Service, you may contact Gusto at [email protected] or your Platform Provider directly. If you have any questions about this Agreement, you may contact Gusto at [email protected]. Gusto, the provider of the Embedded Payroll Service, is located at 525 20th Street San Francisco, CA 94107. If you are a California resident, you may report complaints regarding the Embedded Payroll Service by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:

    Department of Consumer Affairs
    Consumer Information Division
    1625 North Market Blvd., Suite N 112
    Sacramento, CA 95834
    Phone Number: (800) 952-5210