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PEO Additional Terms

PEO Additional Terms

Last Updated: Jan 21, 2025

This Niural PEO Terms of Service (“Niural PEO Terms of Service” or “PEO TOS”) is a part of the operative Niural Customer Terms of Service (“Niural TOS”) (and are hereby incorporated into the Niural TOS by reference), available at https://niural.com/legal, and set forth the terms and conditions under which Niural PEO 1 LLC. (“Niural PEO” or “PEO”), a Texas corporation and affiliate of People Center, Inc. doing business as Niural (“Niural”), agrees to provide Customer certain professional employer organization services as further described herein (the “PEO Services”). To the extent Customer has multiple entities receiving PEO Services, then all references to Customer shall include those related entities. Niural and Customer are sometimes referred to collectively as the “Parties,” and individually as a “Party.” Capitalized terms used but not otherwise defined in this Niural PEO TOS will have the meanings set forth in the Niural TOS. This PEO TOS sets forth the additional terms and conditions under which Niural will provide Customer with certain PEO Services, as set forth herein. In the event of a conflict between this PEO TOS and the Niural TOS, this Niural PEO Terms of Service shall control. In all other respects the Niural TOS remains in effect as written. PLEASE REVIEW THIS NIURAL PEO TERMS OF SERVICE CAREFULLY. BY ACCEPTING THIS NIURAL PEO TERMS OF SERVICE OR USING THE PEO SERVICES DESCRIBED HEREIN, YOU AGREE TO BE BOUND BY THE NIURAL TOS, INCLUDING THIS NIURAL PEO TERMS OF SERVICE, AND TO THE COLLECTION AND USE OF YOUR INFORMATION AS SET FORTH IN THE NIURAL PRIVACY POLICY, WHICH IS PART OF THIS AGREEMENT.

1. EFFECTIVE DATE AND SERVICE COMMENCEMENT DATE.

This PEO TOS shall be effective as of the Effective Date set forth on the Order Form (“Effective Date”), and the PEO Services will commence on the date set forth in the Order Form or as otherwise updated by the Parties.

2. SCOPE OF PEO TOS.

2.1. This PEO TOS will pertain to and cover only those Customer employees who occupy the job positions listed in Rate Sheet, for whom the Customer has timely submitted all required onboarding paperwork, including payruns and pay data, and for whom Niural PEO has acknowledged acceptance in writing (hereinafter “Covered Employees”). No worker shall be considered a Covered Employee, nor should any person begin work at the job site, until Niural PEO has approved the new hire paperwork and accepted such worker as a Covered Employee. Niural PEO Services shall not apply to Customer employees living and/or working outside of the United States or in United States territories, nor to contractors or subcontractors, and such individuals shall not be Covered Employees.

2.2. Niural PEO has no responsibility for Customer workers who are not Covered Employees, or any other worker, laborer or contractor, or subcontractor, providing services to Customer. Niural workers’ compensation insurance for Covered Employees is strictly limited to covered claims made by Covered Employees during the Term. In the event Niural PEO has more than one workers’ compensation insurance policy, the coverage provided by such policy or policies is strictly limited to the employees specified in the insurance policy documents. Customer will secure and maintain workers’ compensation insurance for all Customer’s workers, if any, who are not Covered Employees under the Niural PEO Terms of Service.

3. RESERVATIONS OF RIGHTS.

This PEO TOS may reserve certain rights to Niural PEO for the purpose of Niural PEO delivering PEO Services in compliance with applicable PEO licensing, registration, certification and other laws authorizing the delivery of PEO Services. The reservation of rights in this PEO TOS is not an admission that Niural PEO either has exercised, or will exercise, such rights. It is the intent of the Parties that no inference of liability arises from the reservation of rights, other than the liabilities arising from the express terms of this PEO TOS. Furthermore, notwithstanding any reservation of rights set forth in this PEO TOS, Customer remains solely responsible for the day-to-day supervision of Covered Employees and for the selection of qualified workers for employment.

4. OBLIGATIONS OF NIURAL PEO.

Niural PEO’s obligations are as follows with respect to the Covered Employees:

4.1. NOTICE OF PROFESSIONAL EMPLOYER ORGANIZATION RELATIONSHIP.

Niural PEO will provide, and Customer will cooperate with Niural PEO in providing, written notice to Covered Employees of the general nature of the Professional Employer Organization relationship, as required under applicable law.

4.2. PAYROLL ADMINISTRATION.

PEO will process payroll payments in accordance with the applicable laws and regulations conditioned upon Client timely and accurately supplying all payroll data and funds necessary for PEO to perform its payroll processing services. In the event Client fails to pay PEO for its services, Client authorizes PEO to elect to pay Covered Employees on behalf of Client using only the applicable minimum hourly wage and/or applicable minimum salary for exempt employees. Client acknowledges that by doing so: (i) PEO in no way waives any right to recover from Client; (ii) PEO in no way admits to any employer or joint employer obligation to pay wages following a failure by Client to pay PEO absent an express obligation arising from state PEO licensing and registration laws; and (iii) Client is not relieved of its obligation to pay any unpaid wages owed to Covered Employees.

4.3. PAYROLL TAXES AND UNEMPLOYMENT INSURANCE.

Niural PEO will withhold, report, and remit federal, state, and local payroll taxes, including, without limitation, unemployment insurance contributions, for the Covered Employees. Niural PEO will administer unemployment insurance filings and claims, including contesting unemployment claims when appropriate. PEO shall prepare and submit tax reporting forms required by law or regulation with respect to such compensation and benefits, including but not limited to Forms W-2 (Wage and Tax Statement); W-4 (Covered Employee’s Withholding Allowable Certificate); and comparable and/or counterpart forms prescribed by any state or local government. PEO shall process and receive any tax credits that may be due to clients as a result of PEO’s efforts, including but not limited to any work opportunity tax credits (“WOTC”).

PEO shall administer unemployment compensation filings and claims, including opposing unemployment claims when appropriate. In those states or other jurisdictions in which PEO may or must use Client’s employer account for purposes of reporting and remitting unemployment insurance contributions or any other payroll taxes, Client authorizes PEO to do so and agrees to cooperate with PEO in the use of Client’s account. Client shall provide all required and requested forms, signatures, powers of attorney, reports, documents, and current and historical data.

4.4. EMPLOYEE BENEFITS.

As requested by Client, PEO shall offer certain employee benefits to eligible Covered Employees and their eligible dependents through PEO sponsored plans (“PEO Benefit Plans”) and administer PEO Benefit Plans in compliance with applicable laws and regulations and the terms and provisions of the applicable plan documents. Solely to the extent required by law in order to administer PEO Benefit Plans, PEO retains a right to control, hire and fire the Covered Employees. The applicable plan documents will control eligibility for benefits and the extent of benefits provided under the PEO Benefit Plans. Client will cooperate with PEO in all matters necessary for PEO to properly administer the PEO Benefit Plans, including, without limitation, executing all necessary agreements or other documents. PEO’s obligations with respect to employee benefits will not extend beyond the scope of the PEO Benefit Plans.

4.5. INSURANCE.

During the Term of this PEO TOS, Customer will at a minimum maintain the following insurance coverage unless otherwise agreed to by Niural PEO: (i) comprehensive general liability insurance; (ii) automobile liability insurance, including non-owned and hired autos (to the extent any Covered Employees will be assigned to positions requiring them to drive for Customer); (iii) professional liability insurance, if appropriate or required, including, without limitation, malpractice or errors and omissions coverage and in compliance with any regulation mandating such coverage of such policies will have as a minimum a limit of liability not less than $1,000,000 per occurrence; and (iv) Employment Practices Liability Insurance (“EPLI”). The EPLI coverage requirement shall be deemed satisfied for any period during which Customer obtains access to EPLI coverage through Niural PEO's policy, as described below. Upon request, Niural PEO will be listed as an insured, or additional insured on the policy or on an alternate employer endorsement, or other similar endorsement. Upon request, Customer will furnish Niural PEO with Certificates of Insurance as evidence of coverage. Client must notify PEO at least thirty (30) days prior to the cancellation or modification of such policy. The policy shall name the PEO as an additional insured.

4.6. WORKERS’ COMPENSATION INSURANCE.

As requested by Client, PEO shall offer certain employee benefits to eligible Covered Employees and their eligible dependents through PEO sponsored plans (“PEO Benefit Plans”) and administer PEO Benefit Plans in compliance with applicable laws and regulations and the terms and provisions of the applicable plan documents. Solely to the extent required by law in order to administer PEO Benefit Plans, PEO retains a right to control, hire and fire the Covered Employees. The applicable plan documents will control eligibility for benefits and the extent of benefits provided under the PEO Benefit Plans. Client will cooperate with PEO in all matters necessary for PEO to properly administer the PEO Benefit Plans, including, without limitation, executing all necessary agreements or other documents. PEO’s obligations with respect to employee benefits will not extend beyond the scope of the PEO Benefit Plans.

4.7. HR AND COMPLIANCE TOOLS.

Niural PEO will provide Customer with a suite of HR and compliance tools, including employee management, I-9 compliance software, and access to various HR services via the Niural app. All HR and Compliance Tools provided by Niural PEO are provided as Human Resource consulting services, Niural PEO is not providing such services as a joint employer, Niural PEO is not a third-party plan administrator of Niural PEO Benefit Plans, and Niural PEO is not providing legal or tax advice. Niural PEO shall not be a decision maker/joint employer regarding any human resource matter. Customer is responsible for all personnel decisions, and for verifying the sufficiency of all HR and Compliance Tools against Customer requirements, and consulting with legal counsel regarding Human Resource or employment-related issues, as needed.

4.8. 401(k) ADMINISTRATION

As part of our service offerings, the PEO provides administration and access to a 401(k) program (the "401(k) Plan"). The PEO will provide the Client with necessary documentation for enrolling employees, assist in administering the 401(k) Plan as per its documents, and manage related administrative tasks. The Client is responsible for completing enrollment documentation accurately and fulfilling all obligations under the 401(k) Plan documents. This provision remains effective as long as the Order Form is active, and termination of participation in the 401(k) Plan requires Order termination. The Client agrees to indemnify and hold the PEO harmless from claims, costs, or damages arising from the Client’s negligent or wrongful actions under this agreement, excluding cases of sole or gross negligence by the PEO. This indemnification includes employment and administrative matters, attorney fees, and related expenses, ensuring mutual accountability and compliance with the 401(k) Plan’s terms.

5. OBLIGATIONS OF CUSTOMER.

Customer ’s obligations are as follows:

5.1. IN GENERAL.

Customer will comply with Niural PEO policies and procedures, including any such policies set forth in software, documentation, or as may be developed in the future (“Niural PEO Policies”), regarding the requirements to access Niural PEO Services and onboard Covered Employees. Such Niural PEO Policies may include but are not limited to policies regarding: (a) preparing historic data to successfully transfer Customer information into the Niural PEO systems, (b) executing all necessary forms and agreements, including IRS Form 8655, powers of attorney as required by applicable tax authorities, ACH authorizations, wire authorizations, and reverse wire authorizations for Niural PEO or its affiliates to represent you as your agent before bank or credit union, federal, state or local taxing authorities or as otherwise reasonably required by Niural PEO to provide the Niural PEO Services, (c) minimum Covered Employee threshold requirements, including minimum participation levels for benefits, and (d) submitting onboarding documents to Niural PEO before a newly hired employee commences work.

5.2 WORK SITE SAFETY

Client is the sole Employer with respect to safety-related compliance, and Client agrees that Client and Niural PEO are not joint employers or dual employers, as those terms are defined by any applicable state law and regulations or OSHA. Client retains exclusive control over the safety of the workplace(s) where Covered Employees work, and thus retains sole responsibility for compliance with applicable federal, state and local health and safety laws, regulations, ordinances, directives and rules relating to the workplace (“Workplace Safety Laws”). Client is solely responsible to identify and eliminate all known workplace threats to Covered Employees’ health or safety. Client acknowledges and agrees that Client has not retained PEO to manage or control Client’s business or operations, and PEO has no duty or authority to inspect, install, modify, repair, or maintain any equipment, tools, vehicles, or machinery that Covered Employees may use. However, PEO reserves the right to inspect Client’s workplace for the sole purpose of verifying compliance with the terms of the Agreement. Any inspections that PEO or its workers’ compensation insurance carrier may conduct are not for the purpose of identifying the unique threats to the health and safety of Covered Employees that may exist in Client’s workplace(s), thus such inspections would not fulfill a requirement for a full safety audit or inspection under applicable laws or regulations. Thus, Client will at its sole cost and expense take all necessary steps to comply with Workplace Safety Laws, including, without limitation, the following:

5.1.1 Client shall take reasonable steps to evaluate worksite conditions pertaining to the health and safety of Covered Employees, by doing periodic inspections;

5.1.2 Client shall identify all known hazards to Covered Employees’ health and safety, inform Covered Employees of such health and safety hazards, and take all reasonable measures to eliminate such health and safety hazards;

5.1.3 Client shall provide Covered Employees with appropriate and required PPE;

5.1.4 Client shall provide legally required training to Covered Employees regarding the safe performance of job duties, the proper use of PPE, and the maintenance of a safe work environment;

5.1.5 Client shall establish and maintain a written, effective Injury and Illness Prevention Program (“IIPP”) that protects Covered Employees, and Client shall fully implement Client’s IIPP;

5.1.6 Client shall implement specific safety programs as required by state mandated and OSHA requirements, depending on the work environment and the type of work being performed by Covered Employees;

5.1.7 Client shall ensure that each Covered Employee has, and is informed of, the following protections: (i) Covered Employees have the right to complain or report work conditions that the Covered Employee reasonably believes to be unsafe, unhealthful, or hazardous; (ii) Covered Employees have the right to refuse to work in conditions that the Covered Employee reasonably believes to be unsafe, unhealthful, or hazardous; and (iii) Covered Employees will not be subjected to any sort of retaliation or discrimination for reporting unsafe, unhealthful, or hazardous conditions or for refusing to work in unsafe, unhealthful, or hazardous conditions;

5.1.8 Client shall immediately report accidents or injuries and work-related illnesses involving Covered Employees (including “first-aid” events). Client shall deliver a complete written report of an accident or injury to PEO as soon as possible after the occurrence of such accident or injury. Client’s failure to timely report an accident or injury involving Covered Employees may result in one or more substantial fines, or other costs, pursuant to applicable law or to insurance company protocols and/or operating procedures. Any fines or any other costs incurred as a consequence of Client’s failure to comply with the provisions of this Section 5 shall be the sole responsibility of Client. Client agrees that if PEO receives a citation as a consequence of Client’s failure to comply with this Section 5, Client’s indemnification obligations, set forth in Section 8 shall apply;

5.1.9 Client will cooperate in accident/injury investigations by the applicable workers’ compensation carrier or its representative;

5.1.10 If modified or light duty is required for a Covered Employee by applicable law or requested by PEO or its workers’ compensation carrier for the purpose of reducing the costs of claims that may be incurred, PEO will assist Client in providing modified or light duty for the costs outlined in a signed separate addendum between the Parties;

5.1.11 In the event PEO safety consultants provide advice or information to Client regarding safety in the workplace, PEO does so as a consultant only and not as the employer in control of the workplace. Client at all times retains sole responsibility for providing appropriate training regarding job duties, workplace safety, and other related topics.

5.2 AT WILL EMPLOYMENT

PEO is not bound by any employment contract between Client and a Covered Employee, including without limitation a contract requiring cause for termination of employment. Upon termination of this Agreement for any reason, or upon Client’s failure either to provide payroll data as required herein or to timely pay as required herein, all Covered Employees shall no longer be Covered Employees serviced by PEO. Any and all services provided by PEO shall be retroactive to the last date of service for which PEO was fully paid by Client for PEO’s services.

5.3 WORKERS’ COMPENSATION CLASSIFICATION CODE ASSIGNMENT AND CHANGES IN JOB STATUS.

Client is solely responsible for the accuracy of the workers’ compensation classification code assignment. Client shall notify PEO immediately of any change that may affect the workers’ compensation status of any Covered Employee, including but not limited to any change in job duties or job locations. Any increase in charges or costs incurred as a consequence of Client’s failure to comply with the provisions of this Paragraph shall be the sole responsibility of Client.

5.4 CLIENT BENEFIT PLANS

Client will not provide employee benefits to Covered Employees or their dependents in addition to or in lieu of the benefits available under the PEO Benefit Plans (“Client Plans”) without the express written consent of PEO. To the extent employee benefits are provided to Covered Employees or their dependents under a Client Plan and such Client Plan is not administered by PEO, Client will: (i) ensure that the Client Plan is administered in compliance with applicable law and the terms and provisions of the applicable plan documents; and (ii) retain sole responsibility and liability for the Client Plan. Client understands, acknowledges and agrees that: (a) PEO is not a plan sponsor, plan administrator or fiduciary with respect to any Client Plan; (b) PEO shall have no other role, responsibility or liability with respect to any Client Plan, including, without limitation, that of a third-party administrator; and (c) to the extent that PEO provides any administrative or other services with respect to a Client Plan, (1) all such services are taken on behalf of Client and at Client’s specific direction, (2) PEO shall have no discretion with respect to such services, (3) PEO shall not take on any fiduciary or other obligations as a result of such services under the Employee Retirement Income Security Act of 1974, as amended (ERISA), or any other law and (4) Client shall remain solely responsible and liable for such services and any underlying Client obligations.

5.5 CONFIDENTIAL INFORMATION

Client retains sole responsibility for the maintenance and protection of Client’s confidential information, trade secrets, and proprietary information. Except to the extent required by law and/or to perform its duties under this Agreement, PEO will not disclose payroll- and/or health-related data and/or other confidential information it receives from Client.

5.6 CONTROL OF CLIENT BUSINESS

Client shall have exclusive responsibility for control of Client’s Business. For purposes of this Agreement, “Client’s Business” shall mean all aspects of Client’s business other than the services provided to Covered Employees by PEO during the term of the Agreement. Any action taken in connection with Client’s Business shall be deemed taken by or on behalf of the Client, and not by PEO. Neither this Agreement, nor the fact that one or more persons authorized to act on behalf of Client may be Covered Employees hereunder, shall be deemed to grant to PEO any right or authority, or place upon PEO any duty or responsibility, to make any decision regarding Client’s Business.

5.7 COOPERATION WITH NIURAL PEO

Client shall respond in a timely and accurate fashion to requests from PEO for records and data necessary for PEO to perform its services. Upon receipt Client shall immediately send PEO copies of demands, notices, claims, summons and other legal papers related to the Covered Employees. Client shall cooperate with PEO in the investigation, remediation, settlement, and defense of legal claims related to the Covered Employees.

5.8 EMPLOYEE SUPERVISION

Client shall be responsible for sufficiently supervising, directing, and controlling the Covered Employees in order for Client to safely and lawfully conduct its business.

5.9 DOWNSIZING NOTICES

Client shall provide all notices required by the Worker Adjustment and Retraining Notification Act (“WARN”), and similar state and local laws. Client will also provide PEO with no less than sixty-two (62) days’ notice of any layoff or plant closing that may immediately or in the future require the provision of notice under such laws.

5.10 EMPLOYEE DOCUMENTATION AND COMMUNICATION

Client will comply with PEO ’s directives regarding the requirements to onboard Covered Employees. Client shall cooperate with PEO to assure receipt by PEO of all properly completed new-hire onboarding documentation, including, but not limited to form W-4, form I-9, and such additional documentation as PEO may require, and Client shall not permit a newly-hired Covered Employee to commence work until PEO has approved the new hire onboarding paperwork and accepted such worker as a Covered Employee. Once accepted as a Covered Employee, PEO may freely communicate with the Covered Employee through text message or other mediums of communication in an effort to provide the Covered Employees with ancillary services unless such Covered Employee chooses to opt-out of receiving the communications.

6. SERVICE FEES AND PAYMENT

6.1. RATES.

Client shall pay PEO fees according to the rates set forth in the Order Form and such fees and other amounts accruing and due from Client to PEO shall be personally guaranteed through the execution of Schedule B. Should Client require additional services not included in this Agreement, the fee for any such additional services shall be negotiated and paid separately.

6.2 FEE ADJUSTMENTS.

The administrative fee reflected on the Order Form is based on conditions as of the Effective Date. The necessity of a revised administrative fee shall be determined from time to time as necessary to accommodate changes in job classifications of Covered Employees. In the event of a change in Client’s business, or in current taxes, laws or relationships related to the employer/Covered Employee relationship which affect PEO ’s costs, the administrative fee shall be adjusted for any increase in such costs. In the event any such changes are not reported to PEO, prior to calculation of the administrative fee for any Pay Period, the administrative fee for such Pay Period shall be subject to retroactive adjustment and PEO shall be entitled to payment of any such adjusted administrative fee. Annually on Agreement Effective Date, PEO ’s administrative fee is subject to an automatic minimum adjustment as necessary to accommodate changes in the market.

6.3 RETROACTIVE FEES OR CHARGES.

To the extent that any tax, premium or other cost of PEO is unilaterally increased by a governmental body or other third party beyond the control of PEO, whether prospectively or retroactively, Client understands, acknowledges and agrees that PEO will invoice Client for such increases and that any fees or charges associated with such increases will be due and payable in the same manner as any other fees or charges invoiced pursuant to this Agreement, even if such fees or charges are invoiced after the termination of this Agreement.

6.4 OPTIMAL BENEFITS PAYMENTS.

For each Pay Period, Client shall also pay to PEO an amount equal to PEO ’s costs and charges during such Pay Period related to optional benefits selected by Client and provided with respect to each Covered Employee, such as health insurance, dental insurance, life insurance, disability insurance, matching 401(k) contributions, or other benefits. (“Benefits Payment”).

7. PAYMENT PROCEDURES.

No later than 10 a.m. three (3) business days before the applicable payroll issuance date (“Payday”), Client will provide PEO, in the method authorized by PEO, with the payroll data upon which each Covered Employee’s compensation is calculated, in the format proscribed by PEO. As soon as practicable following receipt of the payroll data, PEO will send to Client an invoice for payment. Upon receipt of the invoice, Client will notify PEO of any errors or modifications proposed by Client and thereafter waives any right to dispute the content of the invoice. Client shall make payment no later than one (1) business day prior to each Payday. PEO requires the Fee to be paid one (1) business day before delivery of payroll. PEO furthermore requires all funds to be either (1) ACH deposited (PEO-initiated); (2) deposited via reverse wire transfer (PEO-initiated); or (3) deposited via wire transfer (Client-initiated) directly into PEO ’s payroll account being administered by its designated bank. The method of payment will be determined by PEO in its sole discretion and Client will provide all necessary bank account information during the client intake process, prior to the processing of Client’s first payroll under this Agreement. PEO does not accept checks as payment for services of any kind.

The Payday shall be the same day of each Pay Cycle as the First Payday. Any change in the Payday shall require PEO ’s prior consent at least thirty (30) days prior to such change. PEO may, if PEO determines in its sole discretion that Client is a credit risk, require Client to tender payment for the charges set forth in Schedule A for each Covered Employee, on the first business day prior to each payroll period in an amount equal to the estimated amount for the current payroll period. The estimated amount for the current payroll period will be the amount equal to the amount invoiced to and paid by the Client for the immediately preceding payroll unless PEO, in its sole discretion, contacts the Client with a different amount. PEO shall earn the amount concurrently with the accrual of the services PEO provides to Client. Upon receiving an invoice from PEO, Client shall immediately pay for any additional amount for that payroll period. Client understands and agrees that any overpayment can be used by PEO to offset the estimated amount due on the subsequent payroll period. If the Client does not make the payment on the first business day prior to each payroll period as required by this paragraph, PEO may, at its option, declare the Client to be in default and immediately terminate this Agreement.

8. INDEMNIFICATION.

8.1. The Customer (referred to as "You") will defend Niural and its affiliates against third-party claims related to violations of the Agreement or User Terms, indemnifying Niural for associated costs. Customer hereby agrees to indemnify and hold Niural PEO harmless from and against any and all claims, demands, damages (including liquidated, punitive and compensatory), injuries, deaths, actions and causes of actions, costs and expenses (including attorney's fees and expenses at all levels of proceedings), losses and liabilities of whatever nature (including liability to third parties), and all other consequences of any sort, whether known or unknown, without limit and without regard to the cause or causes thereof or the negligence of Niural PEO, arising from Customer's material breach of this Agreement, the products or services provided by Customer, the actions or inactions of any Covered Employee, the supervision and employment of Covered Employees and termination thereof, compliance with wages and hours rules in the workplace (including meal and rest breaks, minimum wage, and overtime), the actions of any agent or worker employed by Customer, or of any other individual, including without limitation, any violation of any local, state and/or federal law, regulation, ordinance, directive or rule whatsoever, and the State and Federal Employment Laws.

8.2. Niural PEO, except to the extent Customer assumes liability under the Agreement, hereby agrees to indemnify and hold Customer harmless from and against any and all claims, demands, damages (including liquidated, punitive and compensatory), injuries, deaths, actions and causes of actions, costs and expenses (including attorney's fees and expenses at all levels of proceedings), losses and liabilities arising from Niural PEO' gross negligence in the performance of duties expressly required by the terms of this Agreement. Niural PEO' indemnification obligation includes the obligation to indemnify Customer in the event payroll taxes, workers’ compensation premiums or state unemployment payments are not paid timely and accurately. Such obligation is contingent upon Customer providing Niural PEO with timely and accurate information, as well as payment by Customer to Niural PEO of the required fees under this Agreement.

8.3. Customer and Niural PEO expressly agree that the indemnification provisions of the Agreement shall not be limited to claims, expenses or liabilities for which one of them is solely liable, but shall also apply to claims, expenses and liabilities for which Customer and Niural PEO are jointly or concurrently liable. In such an event, if either of them advances funds in connection with a claim, expense or liability in excess of its pro rata share, such party shall be entitled to recover from the other party the difference between such party’s share and the actual amount paid. The indemnification provisions of the Agreement shall survive termination of the Agreement.

9. CUSTOMER’S REPRESENTATIONS AND WARRANTIES.

Customer represents and warrants as follows:

9.1. CUSTOMER’S OBLIGATIONS TO COVERED EMPLOYEES.

(i) All compensation of the Covered Employees accrued prior to the Effective Date and for which Customer or any third party is responsible and obligated has been paid in full; (ii) there are no separate contracts, agreements or other arrangements existing with respect to the Covered Employees as a group or any of them which would bind or obligate Customer, except as expressly set forth herein; (iii) Customer will notify Niural PEO of the principal location of the workplace of each Covered Employee and each location where such Covered Employee performs services for Customer, and of any changes in such locations; and (iv) all pension, profit-sharing, or other employee benefit plans existing at the Effective Date are current and in compliance with applicable law, and execution of this PEO TOS will not be deemed a breach under the terms of those plans.

9.2. ACCURACY OF DATA.

As of the Effective Date, and throughout the Term of this PEO TOS, all information provided by the Customer in contemplation of this PEO TOS or pursuant hereto, including but not limited to financial data, employee lists, job descriptions and classifications, compensation, benefits, and time reports is and will be true and correct. Niural PEO will rely on the data provided by Customer and will not be responsible for any claims, actions, or penalties that result from inaccurate or incomplete data. CUSTOMER FAILURE TO TIMELY AND ACCURATELY SUBMIT ALL REQUIRED INFORMATION VIA Niural PEO SERVICES OR TO CORRECT ANY DISCREPANCIES OR ERRORS MAY RESULT IN DELAYED OR ERRONEOUS REMITTANCE OF WAGES, TAXES, AND GARNISHMENTS FOR WHICH CUSTOMER IS SOLELY RESPONSIBLE, AND MAY RESULT IN ADDITIONAL SERVICE OR PROCESSING FEES. Customer maintains, and will continue to maintain during the Term, to the extent required by law, systems and controls that ensure Covered Employees: i) record and receive credit for all hours worked; ii) receive breaks and rest periods; and iii) receive credit for applicable premium and overtime hours. No material adverse change has occurred in the financial condition of the Customer or any guarantor of Customer’s obligations under this PEO TOS since the date upon which any financial data of Customer or guarantor were provided to Customer.

9.3. NO AMOUNTS OWING.

Customer has satisfied and paid any and all premium obligations in relation to workers’ compensation premiums or other insurance carriers and all fee payments to any employee leasing company or Niural PEO, and as of the PEO Start Date of this PEO TOS, Customer does not owe any fees, premiums, or other payments to any insurance carrier, employee leasing company, or Niural. Additionally, Customer has satisfied all federal, state, and local payroll liabilities that Customer incurred prior to the Effective Date of this PEO TOS. Customer further represents and warrants that Customer has met any and all prior premium and fee obligations with regard to workers' compensation premiums and employee leasing or professional employer organization payments, to all prior employee leasing or professional employer organization and workers' compensation carriers, with which Customer has previously had a contractual relationship, if applicable.

9.4. COLLECTIVE BARGAINING AGREEMENT.

Customer has not entered into a CBA pertaining to any Covered Employee during the Term unless such CBA is attached as an exhibit to this PEO TOS.

9.5. NO LITIGATION.

Except as previously disclosed to Niural PEO in writing, there is no action, suit, proceeding or investigation pending, or, to the knowledge of Customer, threatened against Customer, related to the Covered Employees or the Customer’s employer/employee relationship with the Covered Employees or which may result in a material adverse change in the financial condition of Customer or of any guarantor of Customer’s obligations under this PEO TOS. Customer will advise Niural PEO promptly upon the inception of any such action, suit, proceeding, investigation or threat thereof.

9.6. COMPLIANCE WITH APPLICABLE LAW.

Customer has not violated any applicable statute or regulation in any respect, which would adversely affect the Covered Employees or Customer’s employment relationship with the Covered Employees. Customer is and will remain in compliance with all applicable statutes, regulations, and executive orders respecting Covered Employees and employment practices, including but not limited to the state and federal employment laws.

9.7. WORK SITE SAFETY.

Customer is in compliance with all applicable Workplace Safety Laws, and Customer has maintained, and will continue to maintain throughout the Term of the Niural PEO Terms of Service, Customer’s workplace(s), machinery, equipment, and environmental factors in compliance with applicable Workplace Safety Laws.

10. TERM AND TERMINATION.

10.1. TERM.

The Term is as set forth in the Niural TOS.

10.2. NOTICED TERMINATION.

Either Party may terminate this PEO TOS following thirty (30) days’ advance notice.

10.3. IMMEDIATE TERMINATION.

10.3.1. BY NIURAL.

Niural PEO may terminate this PEO TOS immediately in the event of: 1) Customer’s material breach of this PEO TOS that has not been cured following Niural PEO issuing a notice of breach five (5) days prior to the effective date of termination; 2) Customer’s failure to pay any invoice when due or any other monetary obligation; 3) Customer’s failure to comply with any Niural PEO directive when such directive is for the purpose of compliance with applicable law, following reasonable notice; 4) Customer’s failure to comply with a directive by an insurance carrier providing coverage with respect to Covered Employees, following reasonable notice; 5) Customer making a direct payment of taxable wages in violation of this PEO TOS; 6) the threat of, or actual, filing by or against Customer for bankruptcy, reorganization or appointment of a receiver, supervisor, assignee, or liquidator over its assets or property; 7) a change in the composition or location of Covered Employees; 9) a money judgment against Customer which remains unsatisfied for more than thirty (30) days and has not been appealed; 10) Customer becomes a credit risk, as determined by Niural PEO in its sole discretion; and/or 11) Niural PEO reasonably suspects that you are engaged in prohibited or high risk activities, as set forth in our Restricted Businesses policy.

10.3.2. BY CUSTOMER.

Customer may terminate this PEO TOS in the event of a material breach of this PEO TOS by Niural PEO following (1) a notice of breach; and (2) a period of no less than thirty (30) days to cure the breach set forth in said notice.

10.4. REPLACEMENT COVERAGE.

In the event that this PEO TOS is terminated, regardless of the reason for the termination, Customer will immediately secure: (i) replacement workers’ compensation insurance for the benefit of the employees who continue their employment with Customer; and (ii) replacement group health insurance for the benefit of both the employees who continue their employment with Customer and any former employees (including dependents of such employees) of Customer who are maintaining COBRA continuation coverage under a Niural Benefits Plan or who are otherwise entitled to COBRA continuation coverage. Should Customer fail to obtain replacement group health insurance coverage in accordance with clause (ii) of the previous sentence, Customer will pay to Niural PEO a one-time fee of $500 plus $100 per month for each former Covered Employee, former employee of Customer, and/or dependent of a former Covered Employee or former employee of Customer who is maintaining COBRA continuation coverage under a Niural Benefits Plan for any period of time following the termination of this PEO TOS.

10.5. EFFECTIVE DATE OF TERMINATION.

To the extent permitted by law, in the circumstance of termination by Niural PEO due to Customer’s failure to pay one or more invoices when they are due, Niural PEO reserves the right to make the termination of the Niural PEO Terms of Service effective on the last day of the payroll period for which Niural received full payment by Customer.

10.6. TRANSITION COOPERATION.

In the event that this PEO TOS is terminated, regardless of the reason for termination, Niural PEO agrees to reasonably cooperate with Customer with the transitioning of payroll, workers’ compensation insurance, group health insurance, EPLI, and all other PEO-related functions to Customer or to Customer’s chosen vendor.

10.7. REVERSION UPON TERMINATION.

Upon termination of the Niural PEO Terms of Service for any reason, or upon Customer's failure either to provide payroll data as required herein or to timely pay as required herein, all Niural obligations set forth herein (including, without limitation, the payment of wages and the provision of benefits) will revert to Customer retroactive to the last date on which Niural PEO was paid in full for Niural PEO’s services.

10.8. DISPUTE RESOLUTION.

Except for claims for non-payment of fees and claims for injunctive relief, in the event of any claim, dispute or controversy (“Claim”) arising out of or relating to the interpretation, performance and/or breach of this PEO TOS, the Parties agree that such Claim, which would otherwise require or allow resort to any court or other governmental dispute resolution forum between Customer and Niural PEO will be resolved by way of the Arbitration procedures set forth in the Niural TOS. All claims shall be brought in the individual capacity of Customer and Niural PEO. Under no circumstances shall this Agreement be construed to allow or permit the consolidation or joinder of other claims or controversies involving any other parties or permit such claims or controversies to proceed as a class action or other similar basis.

11. STATE-SPECIFIC PROVISIONS.

The State Specific Provisions apply only in each respective state.

12. GENERAL.

12.1. APPLICABLE LAW.

In addition to the Governing Law provision set forth in the Niural TOS, the Niural PEO licensing laws of the state where the Covered Employee(s) work or worked shall apply, where applicable.

12.2. ENFORCEMENT COSTS.

In the event of any proceeding to enforce the provisions of the PEO TOS, the prevailing party will be entitled to an award of its costs and reasonable attorneys’ fees incurred at all levels of proceedings.

12.3. LIMITATION OF LIABILITY.

IN ADDITION TO THE LIMITATION OF LIABILITY PROVISION IN THE Niural TOS, NEITHER CUSTOMER NOR Niural PEO WILL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR BUSINESS INTERRUPTION DAMAGES) HOWEVER CAUSED OR UNDER ANY THEORY OF LIABILITY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12.4. ERRORS.

12.4.1. BY CUSTOMER.

If Customer becomes aware of a failure, possible failure, investigation, audit, or penalty relating to any PEO Services, Customer agrees to promptly notify Niural PEO in writing and agrees to cooperate in resolving any such issue. To the extent that an error, including a payroll or tax filing error (each, an “Error”) is partially or solely caused by Customer for any reason, Niural PEO will have no liability to Customer. Niural PEO may attempt to correct Errors. Customer may also request that Niural PEO do so; however, Niural PEO may not be obligated to make requested corrections, and as between Customer and Niural PEO, Niural PEO will not liable for any claims or other consequences that may directly or indirectly result from Niural PEO’s attempt to correct, or failure to correct such Error. Customer authorizes Niural PEO to charge supplemental fees to correct such Errors and/or to make deductions from Customer’s accounts as set forth in this PEO TOS.

12.4.2. BY NIURAL PEO.

To the extent that an Error is solely caused by Niural PEO, the penalties and interest associated with a correction of such Error shall be payable by Niural PEO, provided that Customer provide reasonable assistance to Niural PEO in correcting the Error and minimizing any fees or penalties due.

12.5. FALSE OR OMITTED INFORMATION.

Any false statement or omission with regard to any information supplied by Customer to Niural PEO in anticipation of Customer's contracting with Niural PEO or at any other time will be deemed a material breach of the Niural PEO Terms of Service, and Niural PEO, at its option, may terminate the Niural PEO Terms of Service and seek appropriate relief.

12.6. HEADINGS.

Captions and organization are for convenience and will not be used in construing meaning.

12.7. REFERENCE TO “DAY” OR “DAYS”.

Unless there is a specific reference to the contrary, any reference to "day" or "days" in the Niural PEO Terms of Service shall mean calendar days.

12.8. REFERENCE TO “NOTIFY”.

Unless there is a specific reference to the contrary, any reference to "notify" Niural PEO in the Niural PEO Terms of Service shall include notifications and submissions made available via the Niural PEO software.

12.9. INDEPENDENT CONTRACTOR RELATIONSHIP.

Niural PEO is an independent contractor of Customer and will not be its principal, director, agent, master, servant, or employee.

12.10. SCOPE OF SERVICES.

Customer acknowledges and agrees that Niural PEO is not engaged in the practice of law or the provision of legal, insurance, financial, tax, or investment advice or services, and that Customer alone is completely and independently responsible for its own legal rights and obligations, regardless of any human resource advice or form which may be supplied to Customer. Customer at all times retains the right to seek appropriate advice from professionals of its own choosing, including, but not limited to attorneys and accountants. Niural PEO’s agreement to perform certain employer functions does not establish an obligation to perform all employer related functions, and Niural PEO reserves the right to reject claims by Covered Employees with respect to matters that are not the responsibility of Niural PEO. Niural will provide only the services expressly described in this PEO TOS. No other services will be provided or implied. Niural PEO is not obligated to provide, nor is it responsible for, strategic, operational or other business-related decisions with regard to Customer's business. Nor shall Niural PEO have any obligation to provide equipment for Covered Employees.

12.11. SECURITY OR GUARANTEE.

Niural PEO may, at its option, request security from Customer. This security may, but is not required to be, in the form of a security deposit or personal guaranty.

12.12. ADVANCE PAYMENT, GUARANTEE OR OTHER SECURITY.

In addition to any other rights it may have under the Agreement, Niural PEO may, in its discretion and at any time, require Customer to provide one or more advance payments, guarantees or other forms of security, including, without limitation, a letter of credit. In any case, such security must be in form and substance reasonably satisfactory to Niural PEO.

12.13. SEVERABILITY.

Should any term, warranty, covenant, condition, or provision of this PEO TOS or the incorporated Niural TOS be held to be invalid or unenforceable by a court or other body of competent jurisdiction or pursuant to arbitration, the balance of this PEO TOS and the incorporated Niural TOS will remain in force and will stand as if the unenforceable part did not exist. The invalid or unenforceable provision will be replaced by a provision as similar as possible and which is valid and enforceable.

12.14. SUCCESSORS AND ASSIGNS.

This PEO TOS will be binding upon and inure to the benefit of the successors and assigns of the Parties hereto.

12.15. TERMS SURVIVING TERMINATION OF THIS PEO TOS.

Termination of this PEO TOS will not affect the continuation of any outstanding obligation or liability incurred by either Party during the Term of this PEO TOS. The obligation of either Party to notify, indemnify, defend and hold harmless the other under the terms of this PEO TOS will continue after the termination hereof with respect to events occurring prior to such termination.

12.16. THIRD PARTY BENEFICIARIES.

The Parties acknowledge and agree that no parties other than the Parties hereto are intended to benefit hereunder. No rights of any third party are created this PEO TOS and no person other than Parties hereto may rely on any aspect of this PEO TOS notwithstanding any representation, written or oral, to the contrary.

12.17. NO INDUCEMENT.

Customer understands, acknowledges and agrees that the Niural PEO services provided pursuant to this PEO TOS are not being provided as an inducement to purchase insurance coverage of any kind, nor do such services constitute insurance or the sale of insurance of any kind.

12.18. DUTY TO COOPERATE.

Each Party will have the duty to cooperate with the other in the event of any claim filed by an employee or former employee, or any government agency investigation of a complaint filed by an employee or former employee covered by this PEO TOS. Such duty will survive the termination of this PEO TOS. Customer agrees to cooperate with Niural PEO as needed for any state licensing and/or registration requirements. Customer further agrees to cooperate with Niural as needed for compliance with any additional state statute, regulation, or other requirement not aforementioned or referenced above or below. Such duties will survive the termination of this PEO TOS.