Terms and Policies

End user terms of use

Last Updated: May 10, 2021.

Welcome to Pinwheel!

Underdog Technologies Inc., d/b/a Pinwheel (“Pinwheel,” “we,” “our,” and/or “us”) provides a platform and services (“Services”) that enables you (and other customers) to connect your payroll or other account (each, an “Account”), that you have in place with a third party, such as a payroll provider, a government entity, or the like (each, an “Account Provider”), to web sites and applications such as the one you are using (the “App”) that are made available to you by other third parties (the “App Provider”) to enable the Apps and App Provider to provide you with certain functions and features related to your Account(s).

PLEASE READ THE FOLLOWING TERMS CAREFULLY

This End User Terms of Use (“Agreement”) is an agreement between you and Pinwheel.  By electing to continue, or by otherwise using the functionality enabled by the Services in the App, you are agreeing to all of the terms and conditions in this Agreement, and you certify to us that you have all rights necessary to do so, including from your employer and the Account Provider.  You are also authorizing the App Provider to access, use and otherwise exploit the information in your Account, and to control and change the destination account into which your paycheck or other payment to you is deposited from the Account, as described in this Agreement below.

The decision to use the Services, and to enable this functionality, is entirely yours. If you do not wish to enable this functionality or agree to any terms or conditions in this Agreement, then you must decline this Agreement and decline use of this functionality in the App.


Eligibility

You represent and warrant to us that: (a) you are at least 18 years old; and (b) you have not previously been suspended or removed from using the Services.


Arbitration notice

Except as otherwise provided in Sections 17.b and 17.b17.c of this Agreement, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ENTERING INTO THIS AGREEMENT, YOU AND PINWHEEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights in connection with this Agreement (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, as more particularly explained in Section 17 below.


Pinwheel services

A full description of the Services, and the functionality it enables, is available on Pinwheel’s web site at pinwheelapi.com.

In summary, Pinwheel’s Services are designed to empower you by enabling more convenient control over your paycheck and other payment deposits and of the information in your Account (such as information about your wages, salary, hours worked, hourly rate or the like). In particular, Pinwheel’s Services establish a connection between your Account and the App that is intended to enable the App Provider to help you do things with your paychecks, other payments and personal information, such as to switch the account into which your paycheck or other payment is deposited and to provide information from your Account to the App and App Provider.

We have the right to perform our obligations and provide and operate the Services using third parties. The App and Account are not part of the Services.


Third party solutions and terms

Pinwheel has no control over, and is not responsible for, the manner in which the App, App Provider, Account, or Account Provider function or exploit your data; the acts or omissions of such third-party providers or what such parties do with your personal information; and Pinwheel does not guarantee that any Apps or Accounts will remain available or compatible with the Services. 

Additionally, your use of the App and of your Account, and the App Provider’s and Account Provider’s exploitation of your data and deposit of your paychecks and other payments, is governed by separate terms between you and the applicable Account Provider or App Provider. It is important that you carefully read and understand the terms of use and privacy policy made available to you by each of the App Provider and the Account Provider, including to understand how the App and the App Provider may access and exploit your personal information and may change the account into which your paychecks and other payments are deposited as a result of the use of the Services.

You hereby certify to Pinwheel that you have read, understand and have agreed to such terms, including in particular any notices and confirmations to which the App Provider and/or Account Provider requires you to agree in connection with direct deposit or changing direct deposit of your paychecks or payments.

You warrant that use of and access to your Account and data therein by the App, App Provider, and Services complies with all relevant terms that pertain to your Account or such data, including those of the Account Provider.


Transmission of funds

Pinwheel does not transmit, transfer, or take possession of any funds from your paychecks or other payments at any time. Rather, the Services are limited to enabling communications between the App and your Account and all transmission and transfer of funds is directly from your Account to the deposit account specified by the App. Any errors or issues in fund transmission and transfer, including determination of the accounts into which funds are deposited, must be resolved by you directly with the App Provider, your employer and the Account Provider and not with Pinwheel.  Among other things, Pinwheel is not responsible for any nonpayment of funds, payment of funds to an incorrect direct deposit account, or any other issues related to the disbursement of funds from Accounts.


How pinwheel uses your data

While collection, use, storage, and disclosure of your personal information by or for the App, App Provider, Account, and Account Provider is governed by the privacy policy of the respective party, you will need to review Pinwheel’s Privacy Policy to learn how Pinwheel collects, uses, stores, and discloses your data and personal information beyond the activities by or on behalf of the App, App Provider, Account, and Account Provider. By entering into this Agreement, you are agreeing and consenting to use of your personal information in accordance with Pinwheel’s privacy policy. If you have questions, contact us at privacy@pinwheelapi.com. The privacy policy of Pinwheel is incorporated by this reference into, and made a part of, this Agreement.


Account credentials

In order to use the Services and the functionality it enables in the App, you will need to have Account credentials, such as user ID and password, to log in to your Account with the Account Provider through the App. This account information may be provided to the Services, and the Services may store the information, including to enable ongoing access to your Account by the App Provider.  You hereby authorize Pinwheel to use your Account credentials in order to operate the Services and enable communication between the App and your Account, including to specify or change the account into which your paychecks and other payments will be deposited, all in accordance with your instructions and consent.


Accuracy of information you provide

It is very important that you confirm and ensure that all information you provide to the App Provider, Pinwheel, and your Account Provider, particularly names, account numbers, and routing numbers for deposit accounts, is accurate, complete and up-to-date at all times.  Among other things, depositing your paycheck or other payment into the correct account relies upon the accuracy of this information, and errors in this information could result in a deposit of your paycheck or other payment into the wrong account.  You hereby authorize Pinwheel, the App Provider, and Account Provider to rely upon all information that you provide and hereby waive all responsibility and liability of such parties as a result of any inaccuracies or errors in the information you provide.


Your responsibilities

You represent and warrant that you have all necessary rights and that use of the Account, information from your Account, App and Services does not violate any applicable terms, including those of the App Provider and Account Provider, and you agree to comply with all laws and regulations applicable to your use, as well as any rules and guidelines that we post.

You must not (1) use or access anyone else’s Accounts or related data or infringe, misappropriate or violate any intellectual property, proprietary or other right of any party, (2) submit information about anyone else’s identity or Accounts; or (3) use the Services for any fraudulent, illegal, misleading, or other inappropriate purpose. You also agree not to (a) modify, reverse engineer or seek to gain unauthorized access to the Services or related systems, data or source code, (b) bypass or circumvent measures designed to prevent or limit access to any part of the Services or bypass or circumvent any other security-related features or functions, (c) impersonate, or claim false affiliation or relationship to, any party or falsify any identity, name, age or date of birth; (d) rent, lease, provide access to or sublicense any elements of the Services to a third party or use the Services on behalf of or to provide services to third parties, (d) copy, modify or create derivative works of the Services or remove any of Pinwheel’s proprietary notices, (e) access the Services for competitive purposes or publish any benchmark or performance information about the Services, (f) use the Services in any manner that could damage, disable, overburden, interfere with, or impair the functioning of the Services or interfere with, disrupt or negatively affect others; or (g) assist or permit any other party in engaging in any of the acts described in this Section 9 above.


Rights to and modification of the services

You agree that Pinwheel owns all right, title and interest (including intellectual property rights) in and to the Services (including pinwheelapi.com) and our related websites and technology. If you choose to give us feedback, suggestions or other inputs about the Services, you hereby grant to Pinwheel the right and license to use, disclose, license and otherwise exploit them and derivatives thereof (as well as associated intellectual property rights) without restriction.

Pinwheel reserves the right to modify or discontinue the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice to you. Pinwheel will have no liability for any change to the Services or any suspension or termination of access to or use of the Services (whether liability for late payment or non payment of bills; overdraft fees; or otherwise).


Disclaimers and limitations

TO THE EXTENT PERMITTED BY LAW, THE SERVICES (INCLUDING PINWHEELAPI.COM) IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, AND ANY USE IS AT YOUR OWN DISCRETION AND RISK. PINWHEEL, ITS AFFILIATES AND ITS AND THEIR SERVICE PROVIDERS AND OTHER VENDORS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ALL REPRESENTATIONS AND WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. PINWHEEL DOES NOT WARRANT THAT USE WILL BE UNINTERRUPTED; ERROR-FREE; FREE FROM VIRUSES, TROJAN HORSES OR OTHER MALWARE; THAT YOUR DATA WILL BE ACCURATE, COMPLETE OR SECURE; OR THAT PINWHEEL WILL MAINTAIN ANY DATA WITHOUT LOSS.  


Liability limitations

TO THE EXTENT PERMITTED BY LAW, PINWHEEL ITS AFFILIATES AND ITS AND THEIR SERVICE PROVIDERS AND OTHER VENDORS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR OR BASED UPON (I) ANY APP, ACCOUNT, OR OTHER THIRD PARTY PRODUCT OR SERVICE, INCLUDING ANY ERROR OR DEFECT IN ANY OF THE FOREGOING; (II) ANY INFORMATION TO THE EXTENT CONTAINED IN OR TRANSMITTED OR PROCESSED BY OR ON BEHALF OF ANY OF THE FOREGOING, (III) ANY FAILURE OR DEFICIENCY IN SECURITY OF ANY OF THE FOREGOING; (IV) ANY ENTRY OR TRANSMISSION TO THE SERVICES OF ANY INCORRECT ACCOUNT NUMBER, ROUTING NUMBER, MONETARY AMOUNT, OR OTHER INFORMATION; (V) ANY ACTION OR INACTION OF ANY APP PROVIDER, ACCOUNT PROVIDER, OR OTHER THIRD PARTY, OR (VI) ANY ACCESS OR USE USING COMPROMISED, FAKE, OR SIMILARLY INVALID CREDENTIALS.  

TO THE EXTENT PERMITTED BY LAW, PINWHEEL, ITS AFFILIATES AND ITS AND THEIR SERVICE PROVIDERS AND VENDORS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY NON-PAYMENT OR FAILURE TO DEPOSIT; ANY LATE OR INCORRECT PAYMENT OR DEPOSIT; OVERDRAFT OR LATE FEES; FAILURE TO IMPLEMENT CHANGES OR MODIFICATIONS TO YOUR ACCOUNT OR DIRECT DEPOSIT INSTRUCTIONS; OR FAILURE TO DELIVER OR INACCURACY IN DELIVERING INFORMATION; IN EACH CASE REGARDLESS OF THE CAUSE, EVEN IF CAUSED BY THE SERVICES.

TO THE EXTENT PERMITTED BY LAW, PINWHEEL, ITS AFFILIATES AND ITS AND THEIR SERVICE PROVIDERS AND OTHER VENDORS SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR: (A) ANY LOST PROFITS, LOSS OF USE, LOST OR INACCURATE DATA, OTHER FAILURES OF SECURITY MECHANISMS, FINANCIAL LOSSES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND OR (B) ANY DAMAGES OR AMOUNTS EXCEEDING, IN THE AGGREGATE, THE GREATER OF (1) THE AMOUNT YOU PAID DIRECTLY TO PINWHEEL TO USE THE SERVICES AND (2) ONE HUNDRED U.S. DOLLARS (US $100).

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 11 AND 12 OF THIS AGREEMENT APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. 

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN YOU AND PINWHEEL. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.


Modification of this agreement

Pinwheel reserves the right to modify this Agreement on a going-forward basis at any time. Unless we specify otherwise, modifications take effect (and govern future use of the Services, including pinwheelapi.com) when we post the modified version. Accordingly, please check this Agreement periodically for changes. You may be required to agree to the modified version as a condition to your continued use of the Services or the functionality it enables in the App. If you do not agree to the modifications, your sole remedy shall be to cease using the Services and such functionality. Except as expressly permitted in this paragraph, this Agreement may be amended only by a written agreement signed by authorized representatives of both parties. Disputes arising under this Agreement shall be resolved in accordance with the version of this Agreement that is in effect at the time the dispute first arises.


Notices

Pinwheel may provide notices or communications to you through the email associated with your Pinwheel profile, through pinwheelapi.com or through other reasonable methods. All notices, requests and other communications to Pinwheel under this Agreement must be in writing to hello@pinwheelapi.com and will be deemed given when delivered.


Ending this agreement

If you violate any provision of this Agreement, your authorization to access and use the Services shall be deemed terminated automatically. In addition, Pinwheel may terminate or suspend this Agreement (or your use of the Services) at any time in its discretion, with or without notice and for any or no reason, including if Pinwheel suspects that you have violated this Agreement. Pinwheel will have no liability to you for any termination or suspension, nor will such action limit any other rights or remedies Pinwheel may have. You may terminate your Pinwheel account and this Agreement at any time by contacting customer service at hello@pinwheelapi.com. Except for your right to use the Services, this Agreement will survive any termination.


Indemnity

To the fullest extent permitted by law, you are responsible for your use of the Services, App, and Account, and you will defend and indemnify Pinwheel and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Pinwheel Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Services, App, or Account; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party, including the App Provider and Account Provider. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.


Dispute resolution and arbitration

Generally. In the interest of resolving disputes between you and Pinwheel in the most expedient and cost effective manner, and except as described in Sections 17.b and 17.c below, you and Pinwheel agree that every dispute arising in connection with this Agreement, or use of the Services, will be resolved by binding arbitration in accordance with this Section 17. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PINWHEEL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Exceptions. Despite Section 17.a, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to this Agreement by sending a letter to Underdog Technologies Inc, DBA Pinwheel, Attention: Legal Department – Arbitration Opt-Out, 335 Madison Ave, Floor 16, New York NY 10017 that specifies: [your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration] (“Opt-Out Notice”). Once Pinwheel receives your Opt-Out Notice, the obligation to use binding arbitration under this Section 17 will be void and any action arising out of this Agreement will be resolved as set forth in Section 18.d. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.

Arbitrator. Any arbitration between you and Pinwheel will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Pinwheel. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

Notice of arbitration; process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Pinwheel’s address for Notice is: Underdog Technologies Inc, DBA Pinwheel, 335 Madison Ave, Floor 16, New York NY 10017. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Pinwheel may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Pinwheel must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Pinwheel in settlement of the dispute prior to the award, Pinwheel will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

Fees. If you commence arbitration in accordance with this Agreement, Pinwheel will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York county, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Pinwheel for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

No class actions. YOU AND PINWHEEL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Pinwheel agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

Modifications to this arbitration provision. If Pinwheel makes any future change to this arbitration provision, other than a change to Pinwheel’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Pinwheel’s address for Notice of Arbitration, in which case your account with Pinwheel, and right to use the Services and functionality it enables in the App, will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

Enforceability. If Section 17.g or the entirety of this Section 17 is found to be unenforceable, or if Pinwheel receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, exclusive jurisdiction and venue described in Section 18.d will govern any action arising out of or related to this Agreement.


Miscellaneous

Entire agreement. This Agreement, together with Pinwheel’s Privacy Policy and any other agreements expressly incorporated by reference into this Agreement, are the entire and exclusive understanding and agreement between you and Pinwheel regarding your use of the Services.

Assignment. You may not assign or transfer this Agreement or your rights under this Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We have the right to assign and otherwise transfer this Agreement at any time without notice or consent.

No Waiver. No waiver will be valid unless in writing and signed by the party to be charged with the waiver.

Enforceability.  If any part of these Terms is held to be illegal, invalid or unenforceable, the illegal, invalid or unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

Governing law. Subject to Section 17 above, this Agreement, and all disputes arising out of or in connection with this Agreement, the Services, or a Pinwheel privacy policy, shall be governed by the laws of the State of New York without regard to conflict of law principles. You and Pinwheel submit to the personal and exclusive jurisdiction of the state courts and federal courts having within their jurisdiction New York county, New York for resolution of any lawsuit or court proceeding permitted under this Agreement.

Consent to electronic communications. By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

Contact information. The Services are offered by Underdog Technologies Inc., DBA Pinwheel, located at 335 Madison Ave, Floor 16, New York NY 10017. You may contact us by sending correspondence to that address or by emailing us at hello@pinwheelapi.com.

Notice to california residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Services or to receive further information regarding use of the Services.

No support. We are under no obligation to provide support for the Services. In instances where we may offer support, the support will be subject to published policies.

Use of services limited to the united states of america. The Services are intended only for individuals located within the United States. We make no representation that the Services is appropriate or available for use outside of the United States. Access to or use the Services from countries or territories or by individuals where such access or use, or any provision of this Agreement, is illegal, invalid or unenforceable is hereby prohibited.

Privacy policy

Last Updated: May 10, 2021.

Underdog Technologies Inc. d/b/a Pinwheel (“Pinwheel,” “we,” “our,” and/or “us”) values the privacy of individuals who use our websites (including https://www.pinwheelapi.com) and any of our applications or services that link to this Privacy Policy (collectively, our “Services”).  This privacy policy (the “Privacy Policy”) explains how we collect, use, and disclose personal information from users of our Services.  In addition to our Site, our Services enable individuals (“End Users”) to connect financial accounts and related platforms offered by third parties, including but not limited to payroll providers, government entities, and employers (each an “Account Provider”) to services operated by or on behalf of our customers, such as financial institutions (“Customers”).

By using our Services, you agree to the collection, use, and disclosure of your information as described in this Privacy Policy.  Beyond this Privacy Policy, your use of our Services is also subject to our Terms of Service.

Please note that this Privacy Policy does not describe how the Customers whom you grant access to your payroll accounts use and share your Personal Information. Please review the privacy policies made available by such Customers to learn more about their practices.


Information we collect

We may collect a variety of information from or about you or your devices from various sources, as described below.


A. Information you provide to us

Communications.
If you contact us directly, we will receive personal information about you.  For example, when you contact us to learn more about Pinwheel, we will receive your email address and the contents of your message.  If you subscribe to our blog, we will receive your name and email address.

Connecting to an Account Provider.  When you use our Services to connect to an Account Provider, we will ask you for your personal information, such as your payroll provider account credentials, the name of your employer, your first and last name, your phone number, the last four digits of your social security number, and/or your date of birth.  The specific pieces of personal information we collect from you when you use our Services to connect to an Account Provider will depend on the requirements of the Account Provider.

Data Regarding your Financial Account(s). Our Customers provide us with the identifiers for your financial accounts, such as routing number, account number, account type, etc. so that Pinwheel may edit the settings for your direct deposit allocations.

Sharing Income and Employment Data.  When you use our Services we will collect certain personal information from your Account Provider depending on the type of verification we are providing to the applicable Customer.  For example, to verify your employment, we may collect your job title, start date, termination date, and/or your employer’s name, address, and government identification number.

Developers.  If you use our Services as a developer, we will ask you for your first name, last name, and email address. 

Careers.  If you decide to apply for a job with us, you may submit your contact information and your resume online. We will collect the personal information you choose to provide us as part of your job application, such as your contact information, current employment information, and other information you choose to submit with your application and on your resume.  If you apply for a job with us through a third-party platform (such as Glassdoor or LinkedIn), we will collect the personal information you make available to us through such third-party platform.


B. Information we collect when you use our services

Location Information.  When you use our Services, we may infer your general location information.  For example, your IP address may indicate your general geographic region.

Device Information.  We receive information about the device and software you use to access our Services, including your internet protocol (IP) address, web browser type, operating system version, and device identifiers.

Usage Information.  To help us understand how you use our Services and to help us improve it, we automatically receive information about your interactions with our Services, such as the pages or other content you view, the searches you conduct, objects with which you interact, and the dates and times of your visits. 

Information from Cookies and Similar Technologies.  We and our third-party partners may collect information using cookies, pixel tags, or similar technologies.  Our third-party partners, such as analytics and advertising partners, may use these technologies to collect information about your online activities over time and across different services.  Cookies are small text files containing a string of alphanumeric characters.  We may use both session cookies and persistent cookies.  A session cookie disappears after you close your browser.  A persistent cookie remains after you close your browser and may be used by your browser on subsequent visits to our Services.

Please review your web browser’s “Help” file to learn the proper way to modify your cookie settings.  Please note that if you delete or choose not to accept cookies from our Services, you may not be able to utilize the features of our Services to their fullest potential.


C. Information we receive from third parties

Partners.  We may receive additional information about you from third parties such as data or marketing partners and combine it with other personal information we have about you.


How we use the information we collect

We use the information we collect:

  • To provide, maintain, debug, improve, and enhance our Services;
  • To uniquely identify and authenticate End Users;
  • To understand and analyze how you use our Services, and develop new products, services, features, and functionalities;
  • To understand and analyze usage patterns;
  • To process your job application;
  • To bill for our Services 
  • To communicate with you, provide you with updates and other information relating to our Services, provide information that you request, respond to comments and questions, and otherwise provide customer support;
  • To find and prevent fraud, and respond to trust and safety issues that may arise;
  • In de-identified and aggregated form (“Aggregated Data”) for any lawful purpose; 
  • For compliance purposes, including enforcing our Terms of Service or other legal rights, or as may be required by applicable laws and regulations or requested by any judicial process or governmental agency; and
  • For other purposes for which we provide specific notice at the time the information is collected.

How we share the information we collect

We do not share or otherwise disclose personal information we collect from you except as described below or otherwise disclosed to you at the time of the collection.  

Marketing.  We do not rent, sell, or share information about you with nonaffiliated companies for their direct marketing purposes.

Affiliates. We may share any information we receive with our affiliates for any of the purposes described in this Privacy Policy.

Vendors and Service Providers.  We may share any information we receive with vendors and service providers retained in connection with the provision of our Services.

Customers. We may provide the personal information you make available to us through our Services with the Customer who is requesting your personal information. For example, if your lender uses our Services for income verification purposes, we will provide the personal information you make available to us through our Services to your lender with your authorization.

Aggregated Data.  We may generate or derive from personal information Aggregated Data regarding the general behavior and characteristics of the users of our Services, and we may share such Aggregated Data (e.g., aggregated user statistics) to the extent permitted by applicable law.

Analytics Partners.  We use analytics services such as Google Analytics, Retool, Segment, Looker, and Datadog to collect and/or process certain analytics data.  These services may also collect information about your use of other websites, apps, and online resources.  You can learn about Google’s practices by going to https://www.google.com/policies/privacy/partners/ and opt out of them by downloading the Google Analytics opt-out browser add-on, available at https://tools.google.com/dlpage/gaoptout.

As Required by Law and Similar Disclosures. We may access, preserve, and disclose your personal information if we believe doing so is required or appropriate to: (a) comply with law enforcement requests and legal process, such as a court order or subpoena; (b) respond to your requests; or (c) protect your, our, or others’ rights, property, or safety.

Merger, Sale, or Other Asset Transfers. We may disclose and transfer your personal information to service providers, advisors, potential transactional partners, or other third parties in connection with the consideration, negotiation, or completion of a corporate transaction in which we are acquired by or merged with another company or we sell, liquidate, or transfer all or a portion of our business or assets.

Consent.  We may also disclose personal information with your permission.


Your choices

Marketing Communications.  You can unsubscribe from our promotional emails via the link provided in the emails.  Even if you opt out of receiving promotional messages from us, you will continue to receive administrative messages from us.

Do Not Track.  There is no accepted standard on how to respond to Do Not Track signals, and we do not respond to such signals.

If you choose not to provide us with the information we collect, some features of our Services may not work as intended.

Third parties

Our Services may contain links to other websites, products, or services that we do not own or operate (“Third-Party Services”). We are not responsible for the privacy practices of these Third-Party Services. Please be aware that this Privacy Policy does not apply to your activities on these Third-Party Services or any information you disclose to these Third-Party Services. We encourage you to read the privacy policies of these Third-Party Services.

Security

We make reasonable efforts to protect your personal information by using physical and electronic safeguards designed to improve the security of the personal information we maintain. However, as no electronic transmission or storage of information can be entirely secure, we can make no guarantees as to the security or privacy of your personal information.

International visitors

Our Services are hosted in the United States and intended for visitors located within the United States.  If you choose to use our Services from the European Union or other regions of the world with laws governing data collection and use that may differ from U.S. law, then please note that you are transferring your personal information outside of those regions to the United States for storage and processing.  Also, we may transfer your data from the U.S. to other countries or regions in connection with storage and processing of data, fulfilling your requests, and operating our Services.  By providing any information, including personal information, on or to our Services, you consent to such transfer, storage, and processing.

Children's privacy

We do not knowingly collect, maintain, or use personal information from children under 16 years of age (“Minors”), and no parts of our Services are directed to Minors.  If you learn that a Minor has provided us with personal information in violation of this Privacy Policy, please alert us at hello@pinwheelapi.com.

Changes to this privacy policy

We will post any adjustments to the Privacy Policy on this page, and the revised version will be effective when it is posted.  If we materially change the ways in which we use or share personal information previously collected from you through our Services, we will attempt to notify you through our Services, by email, or by other means.

Contact information

If you have any questions, comments, or concerns about our processing activities, please email us at privacy@pinwheelapi.com or write to us at:

Pinwheel
335 Madison Avenue
Floor 16
New York, NY 10017

Whistleblower protection policy

Last Updated: June 23, 2020.

Underdog Technologies, Inc. dba Pinwheel (“Pinwheel”) requires directors, officers and employees to observe high standards of business and personal ethics in the conduct of their duties and responsibilities. As employees and representatives of the Pinwheel, we must practice honesty and integrity in fulfilling our responsibilities and comply with all applicable laws and regulations.


Reporting responsibility

This Whistleblower Policy is intended to encourage and enable employees and others to raise serious concerns internally so that Pinwheel can address and correct inappropriate conduct and actions. It is the responsibility of all board members, officers, employees and volunteers to report concerns about violations of Pinwheel’s code of ethics or suspected violations of law or regulations that govern Pinwheel’s operations.


No retaliation

It is contrary to the values of Pinwheel for anyone to retaliate against any board member, officer, employee or volunteer who in good faith reports an ethics violation, or a suspected violation of law, such as a complaint of discrimination, or suspected fraud, or suspected violation of any regulation governing the operations of Pinwheel. An employee who retaliates against someone who has reported a violation in good faith is subject to discipline up to and including termination of employment


Reporting procedure

Pinwheel has an open door policy and suggests that employees share their questions, concerns, suggestions or complaints with their supervisor. If you are not comfortable speaking with your supervisor or you are not satisfied with your supervisor’s response, you are encouraged to speak with the Board of Directors. All correspondences should go to hello@pinwheelapi.com. The Chief Compliance Officer is the only one who will receive access to that inbox. Supervisors and managers are required to report complaints or concerns about suspected ethical and legal violations in writing to the Pinwheel’s Chief Compliance Officer, who has the responsibility to investigate all reported complaints. Employees with concerns or complaints may also submit their concerns in writing directly to their supervisor or the Board of Directors or the organization’s Chief Compliance Officer.


Accounting and auditing matters

Pinwheel’s Chief Compliance Officer shall immediately notify the Board of Directors of any concerns or complaint regarding corporate accounting practices, internal controls or auditing and work with the committee until the matter is resolved.


Acting in good faith

Anyone filing a written complaint concerning a violation or suspected violation must be acting in good faith and have reasonable grounds for believing the information disclosed indicates a violation. Any allegations that prove not to be substantiated and which prove to have been made maliciously or knowingly to be false will be viewed as a serious disciplinary offense.


Confidentiality

Violations or suspected violations may be submitted on a confidential basis by the complainant. Reports of violations or suspected violations will be kept confidential to the extent possible, consistent with the need to conduct an adequate investigation.


Handling of reported violations

Pinwheel’s Chief Compliance Officer will notify the person who submitted a complaint and acknowledge receipt of the reported violation or suspected violation. All reports will be promptly investigated and appropriate corrective action will be taken if warranted by the investigation. Chief Compliance Officer: Curtis Lee, Member of the Board of Directors.

Pinwheel Vulnerability Disclosure Policy

Last Updated: April 8, 2022.

Pinwheel is committed to ensuring the safety and security of our users. Toward this end, Pinwheel has now formalized our policy for accepting vulnerability reports in our products. We hope to foster an open partnership with the security community, and we recognize that the work the community does is important in continuing to ensure safety and security for all of our customers. We have developed this policy to both reflect our company values and to uphold our legal responsibility to good-faith security researchers that are providing us with their expertise.


Initial scope

Pinwheel’s Vulnerability Disclosure Program initially covers the following products:

While Pinwheel may develop other products, we ask that all security researchers submit vulnerability reports only for the stated product list. We intend to increase our scope as we build capacity and experience with this process. 

Within the above product list, we will address vulnerabilities, but the following issues are out of scope:

  • Any activity that could lead to the disruption of our service (DoS).
  • Attacks requiring MITM (Man in the Middle)
  • Clickjacking on pages with no sensitive actions.
  • Unauthenticated/logout/login CSRF.
  • Content spoofing and text injection issues without showing an attack vector/without being able to modify HTML/CSS
  • User account enumeration
  • Vulnerabilities that require attackers to use social engineering to access another user's authenticated session, tokens, or require physical access to their devices.
  • Issues that depend on unpatched or outdated browsers or mobile platforms
  • Vulnerabilities as reported by automated tools without additional analysis as to how they're an issue.
  • Version disclosure, detailed error messages, and any other findings whose only security impact is ‘attacker reconnaissance’
  • SPF and email antispam 'hygiene' issues.


How to Submit a Vulnerability

To submit a vulnerability report to Pinwheel’s Product Security Team, please utilize the following email: security@pinwheelapi.com.


Preference, Prioritization, and Acceptance Criteria

We will use the following criteria to prioritize and triage submissions.  

What we would like to see from you: 

  • Well-written reports in English will have a higher chance of resolution. 
  • Reports that include proof-of-concept code equip us to better triage. 
  • Reports that include only crash dumps or other automated tool output may receive lower priority. 
  • Reports that include products not on the initial scope list may receive lower priority. 
  • Please include how you found the bug, the impact, and any potential remediation. 

What you can expect from us: 

  • A timely response to your email (within 2 business days). 
  • After triage, we will send an expected timeline and commit to being as transparent as possible about the remediation timeline as well as on issues or challenges that may extend it. 
  • An open dialog to discuss issues. 
  • Notification when the vulnerability analysis has completed each stage of our review. 
  • Credit after the vulnerability has been validated and fixed. 

Master Services Agreement

Last Updated: June 23, 2020.

THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S ACQUISITION AND USE OF PINWHEEL’S PRODUCTS AND SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY EXECUTING AN ORDER THAT REFERENCES THIS MASTER SERVICES AGREEMENT CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. PINWHEEL MAY MODIFY THIS AGREEMENT FROM TIME TO TIME, SUBJECT TO THE TERMS SET FORTH IN SECTION 12.7 BELOW.
If an individual is accepting this Agreement on behalf of Customer, such individual represents that they have the authority to bind Customer to the terms of this Agreement. If the individual accepting this Agreement does not have such authority, such individual must not accept this Agreement and Customer may not use Pinwheel’s products or services.
This Agreement was last updated on July 29, 2022 and is effective between Customer and Underdog Technologies, Inc. dba Pinwheel as of the date of Customer accepting this Agreement.


Background

  1. Pinwheel is in the business of developing and commercializing cloud-based products and services intended to simplify interactions with consumer payroll accounts.
  2. Pinwheel’s Direct Deposit Switching service enables Pinwheel’s customers to offer a service to their clients, whereby clients can quickly and easily direct their paycheck from their payroll provider to their account with Pinwheel’s customer. In providing this service, Pinwheel does not directly handle or store client funds, but instead provides a mechanism by which funds are allocated from the client’s payroll provider to the client’s account with Pinwheel’s customer.
  3. Pinwheel’s Income and Employment services allows Pinwheel’s customers to verify an individual’s income or employment, and Pinwheel’s Earned Wage Access service allows Pinwheel’s customers to enable the provision of wages to their clients on a more frequent cadence than a typical bi-weekly salary schedule.
  4. In providing these services, Pinwheel obtains the Express Consent (defined below) of each individual client utilizing the services so that Pinwheel may utilize their Consumer Credentials (defined below) to access the client’s payroll provider’s platform and to collect, capture and access certain data from the pay provider platform’s user interface. To enable such access, Pinwheel also relies upon Pinwheel’s customer to provide information about each client, including each client’s applicable account and routing numbers.


Terms

1. Certain Definitions

1.1 “API” means the proprietary application programming interface made available by Pinwheel to enable solutions of its customers to interact with payroll systems as described in the API Materials.

1.2 “API Key” means a digital credential issued by Pinwheel that enables access to and use of the API.

1.3 “API Materials” means all of the documentation, code and other materials related to the API that are made available by Pinwheel at docs.getpinwheel.com as such documentation, code, materials, and URL may be updated by Pinwheel from time to time.

1.4 “Consumer” means, with respect to a Payroll Account, an individual or entity that is the recipient from his, her or its employer of the salary or wages described in the Payroll Account and with whom Customer has a contractual relationship.

1.5 “Consumer Payroll Data” means the data obtained from a Consumer’s Payroll Account.

1.6 “Consumer Provided Information” mean the applicable credentials a Consumer utilizes to access such Consumer’s Payroll Account that are provided to Pinwheel by the Consumer via a user interface made available by Pinwheel through the Service.

1.7 “Customer” means the company or other legal entity identified as “Customer” on an Order.

1.8 “Customer Provided Information” means routing numbers and account numbers for Consumer bank accounts (or other financial institution accounts), as well as any other identifying information about a Consumer or other individual (including Personal Information), provided (or previously provided) to Pinwheel or the Service by Customer.

1.9 “Customer Solution” means any solution developed, marketed and commercialized by Customer on its own behalf in or for which the API is used and integrated pursuant to this Agreement.

1.10 “Customer User” means an employee, contractor or agent of Customer that accesses and uses the Services or API Materials using Customer Credentials solely on behalf of Customer or the Consumer (and not any third party).

1.11 “Express Consent” means the electronic or written communication, including acceptance of electronic “click through” or “browse-wrap” terms, from a Consumer or Customer User to Pinwheel granting permission for Pinwheel to access and use its information, either on a one-time or continuous basis.

1.12 “Order” means a mutually agreed and executed order form referencing and incorporating this Agreement and setting forth the particular Services to be provided pursuant to this Agreement, the fees therefor, and any additional terms applicable thereto.

1.13 “Party” means Pinwheel or Customer individually, and “Parties” means Pinwheel and Customer collectively.

1.14 “Payroll Account” means an account or government portal that describes salary or wages received by an employee from his or her employer and enables the employee to specify the deposit account into which the salary or wages will be deposited.

1.15 “Payroll Account Terms” means all terms under which Consumer is allowed to access and use his or her Payroll Account, including to provide instructions for deposit of salary and wages.

1.16 “Personal Information” means any data or information from which a specific individual may be identified, contacted or located or that qualifies as “personal data,” “personal information,” or “personally identifiable information” under any Law applicable to the Processing of such data or information pursuant to this Agreement.

1.17 “Pinwheel” means Underdog Technologies, Inc. dba Pinwheel.

1.18 “Privacy Policy” means a policy of Pinwheel describing Pinwheel’s access to and use of Personal Information to which a Customer User or Consumer, as the case may be, is required to agree in connection with the Services, as such policy is updated by Pinwheel from time to time. As of the date first set forth above, the Privacy Policy for Customer Users is available at https://www.pinwheelapi.com/terms-and-policies#privacyPolicy.

1.19 “Process” means any disclosure, use, processing or action with respect to Personal Information.

1.20 “Provided Information” means Consumer Provided Information, Customer Provided Information, and any other data and information provided or obtained by a party other than Pinwheel to or through the API or Service in connection with the operation or use of any Customer Solution.

1.21 “Services” means the API and all other products, services and solutions made available by Pinwheel to Customer from time to time as set forth in an Order.

1.22 “Subscription Term” means the subscription term for Services as set forth in the applicable Order.

1.23 “Terms of Use” means the terms of Pinwheel to which a Consumer is required to agree as a condition to accessing or using the Services as part of a Customer Solution; as such terms are updated by Pinwheel from time to time. As of the date first set forth above, the Terms of Use are available at https://www.pinwheelapi.com/terms-and-policies#termsOfUse.

1.24 “Territory” means the United States of America.

2. Services

2.1 License. Subject to the terms of this Agreement (including any additional limitations or restrictions set forth in the applicable Order and timely payment of all applicable fees), Pinwheel hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right during the applicable Subscription Term to: (a) allow Customer Users in the Territory to use the API Materials and access the API through use of an API Key, in each case solely as necessary to integrate the API into the Customer Solution; (b) use the integrated API to enable the Customer Solution to communicate with Payroll Accounts of Consumers in the Territory; and (c) to the extent the Customer Solution is distributed to Consumers in object code form, distribute the API to Consumers in the Territory as integrated within such object code.

2.2 Customer Account Credentials. Subject to the terms of this Agreement Pinwheel will issue “production” account credentials to Customer for Customer Users after the “Start Date” set forth in the applicable Order (“Customer Credentials”). Customer must cause all Customer Credentials to be maintained confidentially within Customer and to be used only by the individual to which the Customer Credential is registered by Pinwheel. Customer must cause Customer Credentials to be terminated if compromised or otherwise desired by Customer (e.g., an individual is no longer employed by Customer). Customer is solely responsible for all activities and use of the Services under any Customer Credential or by any individual to which a Customer Credential has been issued, including unauthorized access and use, in each case as if by Customer.

2.3 Terms of Use; Privacy Policy. All Consumers will be required to agree to the applicable Terms of Use and Privacy Policy, and all individuals using Customer Credentials will be required to agree to the Privacy Policy, as a condition to using the Services, API Materials, and Customer Solution (to the extent using the Services). Pinwheel has the right to update and modify all Terms of Use and Privacy Policies at any time in its sole discretion. If Pinwheel does so, then the Consumers will be required to agree to the updated Terms of Use and Privacy Policy, and all individuals using Customer Credentials will be required to agree to the updated Privacy Policy, as the case may be, before being allowed to make further use of the Service (or the Customer Solution to the extent using the Service).

2.4 Restrictions. All use of the Services, API Materials and Pinwheel Property other than in accordance with this Agreement is hereby prohibited. Without limiting the foregoing, Customer must not, and must not authorize or enable any party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services (unless provided in the API Materials and except to the extent such restriction is prohibited by Law); (b) except as authorized in Section 2.1, modify, translate, or create any derivative works based on any element of the Services; (c) write or develop any portion of a competing product or service based upon or with reference to the Services or API Materials; (d) except as authorized in Section 2.1, rent, lease, distribute, sell, assign, or otherwise transfer any rights to use, access or install any Services or API Materials; (e) submit or transmit false or inaccurate, unlawful, harmful, or unauthorized Provided Information or other content to or using the Services; (f) use or enable use of the Services, the API Materials, or any Customer Solution that uses the API, for any Consumer or Payroll Account outside the Territory; (g) attempt to obscure, alter or remove any trademark or proprietary rights notices in or on the Services, or API Materials; (h) circumvent, disrupt or interfere with any authentication, security, or other aspect of the Services or any payroll system; (i) remove, modify, obscure or otherwise prevent Consumers from viewing or accessing the links to the Terms of Use and Privacy Policy in the Customer Solution (and to the extent Customer has the ability to modify the API or Service, Customer must ensure that the applicable Terms of Use and Privacy Policy are included in the Service or Customer Solution and agreed to by the Consumers); or (j) attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services or any payroll system without proper authorization or willfully render any part of the Services or any payroll system unusable.

2.5 Service Modifications. Pinwheel has the right to update, upgrade, and modify (including through additions, replacements, substitutions, removal and other changes to any functionality and features) the Services and API Materials at any time in its sole discretion, provided that no such modification during the Subscription Term will materially decrease the overall functionality of the applicable Service. Pinwheel will use commercially reasonable efforts to provide Customer with at least thirty (30) days’ advance notice of changes that break API functionality in the manner described in Pinwheel’s change management policy available on its website; but Pinwheel may be unable to provide such notice in exigent circumstances or for changes driven by factors external to Pinwheel. Updates and improvements may be subject to additional terms, conditions and fees. In addition, Customer acknowledges that Consumers, not Pinwheel, have the applicable contractual relationship with the providers of Payroll Accounts and that Pinwheel therefore cannot guarantee the continued availability of the Services, and may cease providing them with respect to any Consumer, if any such provider ceases to make its platform or an applicable Payroll Account available for interoperation with the corresponding Service features in a manner acceptable to Pinwheel.

2.6 Suspension of Services. Pinwheel’s standard practice is to provide notice of Service down time, if known in advance, unless Pinwheel believes in good faith there are exigent circumstances. Without limitation, Pinwheel has the right to suspend access and use of the Services and API Materials without notice if: (a) Pinwheel suspects fraud, misuse, illegality, or otherwise determines advisable to protect any Provided Information, Personal Information, the Services, or any party; (b) Pinwheel believes necessary avoid undue risk of liability or reputational harm; (c) Pinwheel has a good faith basis for believing there is a breach of this Agreement, Terms of Use or any Law; or (d) Customer fails to pay any amounts due, except those subject to a good faith dispute, in accordance with the payment terms of this Agreement Pinwheel will promptly restore the Service once any of the above circumstance are, in Pinwheel’s discretion, resolved.

2.7 Responsibility for Funds. Pinwheel does not transmit, transfer, or take possession of any funds. Rather, the Service is limited to enabling communications with payroll service providers through Payroll Accounts of Consumers. To the extent the Service involves deposit, transfer or transmission of funds from a Payroll Account into the account of a Consumer or of another party via a Customer Solution, Customer (and not Pinwheel) is responsible for ensuring compliance with all applicable Laws, including those regarding the Customer Solution, the funds, and deposit and transmissions of funds (e.g., anti-money laundering, know your customer, and any federal, state and other Laws applicable to money transmitters or depository institutions).

3. Additional Customer Responsibilities.

3.1 Records. Customer (or Customer’s vendor) will create and maintain records of all deposit, transfer and payment instructions from Consumers, and from Customer to Pinwheel, in a manner sufficient to resolve all disputes regarding such instructions. Customer will provide a copy of such records to Pinwheel upon request. Pinwheel is hereby authorized to disclose such records to Consumers, payroll service providers, and employers as reasonably necessary to resolve any disputes.

3.2 Accuracy and Completeness of Information. As between the Parties, Customer is responsible for the accuracy and completeness of all Customer Provided Information and must not alter the substance of any routing numbers or account numbers for Consumer bank accounts (or other financial institution accounts) or any other identifying information about a Consumer or other individual. Customer agrees that Pinwheel is, and all Consumer all employers and payroll service providers are, entitled to rely on, and that Pinwheel is not obligated to confirm, any Customer Provided Information.

3.3 Customer Systems. Customer is solely responsible for obtaining, configuring, operating and maintaining, at its own cost and expense, all hardware, software, network connectivity, and other technology and services (collectively, “Customer Systems”) necessary or desirable for enabling and implementing the Customer Solution or using the Service or API Materials. Pinwheel will have no obligation or responsibility with respect to the Customer Systems, whether for security, performance, connectivity, or otherwise except as expressly set forth in this Agreement.

3.4 Responsibility for Affiliates. Subject to the terms of this Agreement, the Services may be used by and for the benefit of Customer affiliates, provided that Customer causes each affiliate to be bound by the terms of this Agreement in the same manner as Customer, including sufficient to enable Pinwheel to enforce the terms of this Agreement against the affiliate. Customer is responsible for all actions and inactions of affiliates, and all individuals using Customer Credentials, and for all actions performed with all API Keys issued to Customer, as if by Customer.

4. Information Rights and Obligations

4.1 Customer Obligations.

  • Customer must not use, and must not enable the Customer Solution to use, the Service to transmit or provide any Provided Information except as required to use the API in accordance with the API Materials.
  • To the extent that Customer is providing Pinwheel with Customer Provided Information and/or processing Provided Information utilizing the Customer Solution, Customer will obtain all necessary consents, authorizations, and provide all notices required for such activities, either by way of ensuring Customer’s own privacy policies address such activities or as otherwise desired by Customer. Customer hereby grants and will grant to Pinwheel the right to Process Customer Provided Information for the Customer Solution, including on behalf of Customer Users and Consumers. Customer is not required to otherwise obtain consents or authorizations, or provide notices, for other activities conducted pursuant to Pinwheel’s Privacy Policy.
  • Customer must provide all disclosure, access and communication regarding Processing of Personal Information in connection with the Customer Solution as required by Law.

4.2 Pinwheel Rights and Obligations.

  1. Pinwheel, through the applicable Terms of Use and Privacy Policy to be agreed by Consumers, will obtain Express Consent and from Consumers as required under applicable Law for Pinwheel to communicate with payroll service providers through their respective Payroll Accounts.
  2. Customer agrees that Pinwheel has the right to Process Provided Information in accordance with its Privacy Policies and Terms of Use and will have no responsibility for storing, or providing access to, any Provided Information, except in accordance with its Privacy Policy. Without limitation to Pinwheel’s rights under its Privacy Policies, Pinwheel is not a reseller of data and acknowledges that (i) each Consumer owns all right, title, and interest in and to its data included in the Customer Provided Information; and (ii) nothing in this Agreement grants Customer any rights in or to such data except for the limited right to use same as permitted by this Agreement and any consent from the Consumer as Customer may deem necessary.
  3. Customer acknowledges that Pinwheel has the right, but is not obligated, to access, archive and monitor use of the Service and all Provided Information, including to operate, evaluate, maintain, develop and improve the Service, API Materials, quality, and security, and to evaluate compliance with this Agreement and applicable Laws. Customer acknowledges that tools, scripts, software, cookies, utilities, and other technology may be used for such purpose, including with respect to the Customer Solution.
  4. Notwithstanding anything to the contrary set forth in this Agreement, Pinwheel reserves the right to access, preserve, and disclose any Provided Information as Pinwheel believes in good faith is necessary to (i) satisfy any applicable Law, legal process, or governmental or similar request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, legality, liability or technological or security issues; (iv) respond to support requests from Customer; or (v) protect the rights, property, or safety of Pinwheel, its contractors or their employees, Consumers, payroll service providers, or any other users or customers of Pinwheel’s services. Nothing in this Agreement will be construed to limit Pinwheel’s right to make information about an individual that is in the possession or control of Pinwheel available at any time to that individual.

4.3 Mutual Responsibilities.

  1. Subject to the following sentence, each Party will comply with all laws, regulations and orders (“Laws”) applicable to it in connection with its performance under or exercise of rights under this Agreement, including (to the extent applicable): (a) anti-bribery and recordkeeping laws, including the U.S. Foreign Corrupt Practices Act; and (c) privacy Laws, including but not limited to the California Consumer Privacy Act. Notwithstanding anything to the contrary, with respect to operation of the Services, Pinwheel will comply with all Laws that are applicable to Pinwheel’s operation of the Services but will not have any liability for any provision of Customer Provided Information in violation of applicable Law or for Customer’s integration of the API into the Solution in a manner that violates applicable Law. Customer will comply with all Laws applicable to the Customer Solution and use of the Services, API Materials, and Provided Information.
  2. The Parties will comply with their respective obligations set forth in the California Data Processing Addendum (the “CCPA Addendum”), which is attached hereto as Exhibit A. The CCPA Addendum is incorporated into and made part of the Agreement, and it will apply to the extent Pinwheel processes Customer Personal Information (as defined by the CCPA Addendum) to provide the Services to Customer.
5. Fees and Payment Terms

5.1 Fees. Fees will be calculated in accordance with each applicable Order. Customer is responsible for all fees under this Agreement, even if incurred due to unauthorized use of the Customer Solution. All payments obligations are non-cancellable, and all fees paid are non-refundable and non-creditable.

5.2 Payment Terms. Pinwheel will invoice Customer for all fees incurred in a calendar month (and associated Taxes) following the end of the calendar month. Subject to Section 5.4, Customer will pay invoiced amounts no later than thirty (30) days after Pinwheel’s invoice by bank wire transfer in immediately available funds to Pinwheel’s bank account specified in its invoice or otherwise in writing. Unless expressly indicated to the contrary, all amounts set forth in each Order are in US dollars. Late payments will accrue interest at a rate of one and one-half percent (1.5%) per month.

5.3 Taxes. Fees invoiced by Pinwheel under this Agreement are exclusive of any taxes (including any sales, use, value-added withholding, and similar taxes), customs duties, or other government fees or charges (“Taxes”). Subject to the following sentence, Customer is responsible for all Taxes paid or payable, however designated or levied, based on amounts payable to Pinwheel hereunder or on any use or possession of any Service, Customer Solution, or API Materials under or in connection with this Agreement, and will indemnify Pinwheel for Customer’s non-payment thereof. Customer will not be responsible for United States federal, state and local taxes based on Pinwheel’s net income.

5.4 Payment Disputes. If Customer reasonably and in good faith disputes any amount in an invoice, it will provide a written explanation of the dispute to Pinwheel before the due date of the payment and will timely pay any undisputed amounts set forth in the invoice. Payment of any amounts disputed in accordance with this Section 5.4 may be withheld pending resolution of the dispute.

6. Proprietary Rights

6.1 IP Ownership. Customer agrees that (a) all right, title, and interest in and to the Services and API Materials, including all related intellectual property rights (collectively “Pinwheel Property”), are owned by Pinwheel, its affiliates, and licensors, and nothing herein will restrict Pinwheel from sharing, using or otherwise exploiting Pinwheel Property for any purpose or in any manner; and (b) no rights or licenses are granted by Pinwheel, including by implication or estoppel, except those expressly granted in Section 2.1. Customer understands that it is not required to provide or suggest any modifications, improvements, extensions or other changes (“Feedback”) regarding the Services or API Materials. If any Feedback is provided, however, Pinwheel is hereby granted a non-exclusive, world-wide, irrevocable right to use, disclose and commercialize such Feedback, and related intellectual property rights, for any purpose without restriction.

6.2 Customer Solution. Subject to Pinwheel’s, its affiliates and licensors ownership of all right, title and interest in and to the Pinwheel Property, as between the Parties, any materials or technology contributed to the Customer Solution by Customer are owned by Customer.

6.3 Reservation of Rights. All rights not expressly granted in this Agreement are reserved to the Party owning the applicable intellectual property, and no implied rights or licenses are granted.

6.4 Proprietary Rights Notices; Trademarks. Customer agrees that no proprietary rights notices on the Service or API Materials will be removed, modified, or obscured, and Customer will not use any trademark, service mark or logo of Pinwheel, without Pinwheels prior written consent, in each instance. Similarly, Pinwheel agrees that no proprietary rights notices on materials provided by Customer to Pinwheel under this Agreement will be removed, modified, or obscured by Pinwheel without Customer’s prior written consent, in each instance.

7. Confidentiality

7.1 Definition. “Confidential Information” means any non-public, confidential, or proprietary information that is disclosed by one Party to the other Party, directly or indirectly, and that is either (a) clearly marked or designated as proprietary or confidential at the time of disclosure; or (b) disclosed in a manner or under circumstances that the information would reasonably be understood to be proprietary or confidential in nature, but in each case excluding information that is or becomes (i) generally publicly known other than due to a breach of this Agreement or Terms of Use; (ii) disclosed or provided to the receiving Party by a third party not under an obligation of confidentiality to the disclosing Party; or (iii) independently developed by the receiving Party without use of and without reference to such information of the disclosing Party. For clarity, (x) when Pinwheel is the disclosing Party, Confidential Information includes the API Materials and other information and materials disclosed by or on behalf of Pinwheel or the Services, subject in each case to the foregoing exclusions in (i) through (iii); and (y) Provided Information does not constitute Confidential Information of either Party.

7.2 Restriction on Use and Disclosures. A Party receiving Confidential Information (“Recipient”) from the other (the “Disclosing Party”) must not (and Customer must cause the Customer Users not to) use Confidential Information of the Disclosing Party except as reasonably necessary for purposes of exercising its rights and performing its obligations under this Agreement. Similarly, Recipient must not disclose (and Customer must cause the Customer Users not to disclose) any Confidential Information of the Disclosing Party except (a) as expressly authorized in this Agreement; (b) pursuant to a subpoena, Law or similar requirement, provided that Recipient will provide prompt written notice of such required disclosure to Disclosing Party before the disclosure; or (c) with respect to Pinwheel as the Recipient, as reasonably necessary to provide the API and Services, including to third party service providers and vendors that Pinwheel uses to provide the Services.

7.3 Confidentiality of Agreement. Each Party agrees that the terms, but not the existence, of this Agreement must be treated as Confidential Information of the other Party and that no disclosure of such terms will be made without the prior written consent of the other; except that each Party may disclose the terms of this Agreement (a) as permitted by Section 7.2; (b) to its legal counsel; (c) in connection with the requirements of a public offering or securities filing; (d) in confidence, to accountants, banks, and actual or potential financing sources and their advisors; (e) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; and (f) in confidence, in connection with a merger or acquisition, proposed merger or acquisition, or similar transaction.

8. Warranties and Disclaimers

8.1 Mutual. Each Party represents and warrants to the other that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or organization; (b) it has the corporate right, power, and authority to enter into and perform its obligations under this Agreement; (c) the execution of an Order by its representative whose signature is set forth on the Order has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when an Order has be executed by each Party, this Agreement and each Order will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

8.2 By Pinwheel. Pinwheel represents, warrants, and covenants to Customer that: (a) Services will be provided in a professional and workmanlike manner consistent with generally accepted professional standards; (b) Pinwheel has the experience, skill and ability as necessary to perform the Services under this Agreement; (c) the Services will conform in all material respects to the API Materials; (d) Pinwheel maintains physical, network, and data security measures designed to ensure (i) the confidentiality, integrity, and availability of Provided Information; and (ii) the security of systems used by Pinwheel to Process Provided Information to provide the Services to Customer that are consistent with the reasonable commercial practices of similarly situation companies; and (e) Pinwheel will not knowingly introduce into the API or Services any virus, malware or other harmful or malicious code.

8.3 By Customer.

  1. Customer represents, warrants, and covenants to Pinwheel that: (a) except as set forth in Section 4.2, Customer has received all registrations, consents, licenses, and other approvals necessary for Customer, the Customer Users and Consumers to use the Customer Solution and Services pursuant to this Agreement, including to upload, view and access all Provided Information and to have Pinwheel and the Services Process Customer Provided Information for purposes of the Customer Solution, including Pinwheel making Customer Provided Information available to third parties for purposes of the Customer Solution; (b) the Customer Solution and Services will be used solely in accordance with applicable Laws; (c) all Processing of Provided Information by or on behalf of Customer on, by or through any Customer Solution or Service will be in accordance with applicable Laws; (d) each Customer User and Consumer is duly authorized to use the Customer Solution, the Services, and Provided Information, as applicable; (e) that Customer Users will use the Customer Solution, the Services, and any provided Information in accordance with this Agreement, the API Materials, and applicable Laws; (f) will not access the API in any manner other than through the API Key issued to Customer by Pinwheel; and (g) Customer will not provide any API Key issued to Customer by Pinwheel to any third party. Customer will notify Pinwheel in writing before or as soon as practicable after it knows or has reason to know of the occurrence of, any event which causes any change in the correctness of any of the foregoing.
  2. Customer further represents, warrants, and covenants to Pinwheel that (i) except to the extent Customer has obtained all required additional authorizations, all use of each Payroll Account, Provided Information and all Consumer Payroll Data by or under authority of Customer in connection with this Agreement will be solely for the benefit of the Consumer that controls the respective Payroll Account, Provided Information or Consumer Payroll Data; and (ii) Customer will not use any Consumer Payroll Data or Personal Information obtained by Customer or a Customer Solution in connection with this Agreement for purposes of making an eligibility determination, as defined by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.

8.4 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND AS OTHERWISE REQUIRED BY LAW, THE SERVICES AND API MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES IMPLIED BY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED, INCLUDING ON BEHALF OF PINWHEEL, ITS AFFILIATES AND THEIR CONTRACTORS AND SERVICE PROVIDERS. NONE OF SUCH PARTIES MAKES ANY REPRESENTATIONS OR WARRANTIES THAT (a) THE SERVICES OR API MATERIALS WILL BE UNINTERRUPTED, ERROR FREE, ACCURATE, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (b) ANY SYSTEMS, EQUIPMENT, CONNECTIVITY, OR INFORMATION AVAILABLE ON OR THROUGH THE SERVICES WILL REMAIN AVAILABLE, FREE FROM CORRUPTION AND WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (c) THE RESULTS OF USING THE SERVICES OR ANY CUSTOMER SOLUTIONS BASED UPON THE SERVICES, WILL MEET CUSTOMERS OR ANY EMPLOYEE’S, EMPLOYER’S, PAYROLL SERVICE PROVIDER’S OR OTHER PARTY’S REQUIREMENTS. PINWHEEL WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY DESTRUCTION, DISCLOSURE OR LOSS OF PROVIDED INFORMATION, EXCEPT TO THE EXTENT A DATA BREACH OF PINWHEEL’S SOFTWARE THAT PINWHEEL USES TO PROVIDE THE SERVICES IS CAUSED BY PINWHEEL’S GROSS NEGLIGENCE OR A FAILURE OF PINWHEEL TO COMPLY WITH APPLICABLE LAW FOR PROTECTING PROVIDED INFORMATION, AND IN EACH CASE APPLICABLE LAW REQUIRES PINWHEEL TO PROVIDE A REMEDY FOR THE FAILURE DIRECTLY TO AFFECTED INDIVIDUALS. ALL USE OF THE SERVICES IS SOLELY AT CUSTOMER’S OWN RISK. EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY APPLICABLE LAW, THE SOLE REMEDY OF CUSTOMER, AND THE EXCLUSIVE LIABILITY OF PINWHEEL, FOR ANY DOWNTIME, UNAVAILABILITY, DEFECTS OR OTHER ISSUES WITH THE SERVICES OR API MATERIALS WILL BE THAT CUSTOMER HAS THE RIGHT TO DISCONTINUE ALL USE OF THE SERVICES AT ANY TIME.

8.5 Income and Employment Service. PINWHEEL MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY PAYROLL ACCOUNT OR ANY CONSUMER PAYROLL DATA, ITS ACCURACY, COMPLETENESS, OR CURRENTNESS. CUSTOMER’S RELIANCE ON ANY CONSUMER PAYROLL DATA IS AT ITS OWN RISK. INFORMATION CONTAINED IN A CONSUMER’S PAYROLL ACCOUNT MAY DIFFER FROM THE CONSUMER PAYROLL DATA OBTAINED BY WAY OF THE SERVICE DUE TO DIFFERENT REPORTING METHODS, DELAYS, INTERRUPTIONS, AND OTHER FACTORS OUTSIDE OF PINWHEEL’S CONTROL. CUSTOMER SHOULD NOT TAKE ANY ACTION BASED ON THE CONSUMER PAYROLL DATA WITHOUT FIRST CONFIRMING ITS ACCURACY AND COMPLETENESS WITH THE APPLICABLE CONSUMER.

9. Indemnification

9.1 Indemnity by Pinwheel.

  1. Defense. Pinwheel will defend Customer and its officers, directors, and employees (the “Customer Indemnitees”) from any actual or threatened claim, action, suit, or proceeding (each, a “Claim”) brought by a third party against a Customer Indemnitee: (i) arising from Pinwheel’s fraud, gross negligence, or willful misconduct; or (ii) alleging that Services for which there is an active Subscription Term at the time of the Claim, in the form made available by Pinwheel, infringes or misappropriates any United States intellectual property right of a third party, except to the extent the Claim (x) is covered by Customer’s obligations under Section 9.2; or (y) arises from (A) modification of the Services by any party other than Pinwheel without Pinwheel’s express written consent to the particular modification; or (B) the combination, operation or use of the API or other Services with any application, product, services, or technology where the API and Services alone would not infringe.
  2. Indemnity. Pinwheel will indemnify the Customer Indemnitees from and pay:  all damages, costs, and attorneys’ fees that are finally awarded by a court of competent jurisdiction or arbitration body, or that are imposed by a governmental or other regulatory authority, against the Customer Indemnities in any Claim that is subject to defense under Section 9.1(a);  all out-of-pocket costs (including actual, reasonable attorneys’ fees) reasonably incurred by the Customer Indemnities in connection any such Claim (provided that with respect to costs incurred in the defense of such Claim, Pinwheel’s obligations hereunder will not extend to any such costs (including attorneys’ fees) incurred without Pinwheel’s consent after Pinwheel has accepted defense of the applicable Claim); and  all amounts that Pinwheel agrees to pay to any third party to settle any such Claim.

9.2 Indemnification by Customer.

  1. Defense. Customer will defend each of Pinwheel, its Affiliate, and their officers, directors, employees, contractors and service providers (the “Pinwheel Indemnitees”) from any actual or threatened Claim brought by a third party against a Pinwheel Indemnitee as a result of: (i) any conduct by the Customer, Customer Users or their agents that is fraudulent, negligent, illegal or involves misuse of the of the API, Services, Customer Provided Information, Consumer Payroll Data or API Materials; (ii) any failure of a Customer Solution, or use thereof, to comply with any Payroll Account Terms or any instructions of any Consumer; (iii) the Customer Solution (except to the extent the Claim is caused by an infringement of third party intellectual property rights for which Pinwheel is responsible under Section 9.1) or any designs, guidelines, plans or specifications provided or requested by Customer; (iv) Customer Provided Information (except to the extent the Claim is caused by Pinwheel’s use of the Customer Provided Information beyond that which is permitted under this Agreement or the applicable Privacy Policy); (v) any unauthorized access to or use of Customer Credentials or any actions or inactions of any Customer User; (vi) the removal, modification or obscuring of, or interference with a Consumer’s ability to view or access, links to the Terms of Use or Privacy Policy in the Customer Solution (or to the extent Customer has the ability to modify the API or Service, failure to include the applicable Terms of Use or Privacy Policy in the Service or Customer Solution); or (vii) any representations, warranties or commitments made by or on behalf of Customer with regard to any Customer Solution, the API or Services beyond the commitments made by Pinwheel in this Agreement.
  2. Indemnity. Customer will indemnify the Pinwheel Indemnities from and pay:  all damages, costs, and attorneys’ fees that are finally awarded by a court of competent jurisdiction or arbitration body, or that are imposed by a governmental or other regulatory authority, against the Pinwheel Indemnities in any Claim that is subject to defense under Section 9.2(a);  all out-of-pocket costs reasonably incurred by the Pinwheel Indemnities in connection any such Claim (provided that with respect to costs incurred in the defense of such Claim, Customer’s obligations hereunder will not extend to any such costs (including attorneys’ fees) incurred without Customer’s consent after Customer has accepted defense of the applicable Claim); and  all amounts that Customer agrees to pay to any third party to settle any such Claim.

9.3 Procedure. A Party that intends to seek defense or indemnification with respect to a Claim pursuant to this Section 9 (the “Indemnitee”) will promptly notify the Party from which defense or indemnification is sought (the “Indemnitor”) in writing of the Claim, and the Indemnitor will have sole control of the defense and settlement thereof. The Indemnitee will have the right to participate in the defense and settlement of a Claim with counsel of its own choosing at its own expense. The failure to deliver written notice to the Indemnitor within a reasonable time after the assertion or commencement of any Claim, if prejudicial to its ability to defend or settle such Claim, will relieve the Indemnitor of any liability to the Indemnitee under this Section 9, but will not relieve the Indemnitor of any liability that it may have to any Indemnitee other than under this Section 9. The Indemnitee will cooperate fully with the Indemnitor and the Indemnitor’s legal representatives in the investigation, defense and settlement of any Claim covered by this Section 9, including by providing reasonable information upon request. Notwithstanding anything to the contrary, neither Party will be responsible for any cost, expense or settlement incurred by the other without its prior written consent, such consent not to be unreasonably withheld, delayed, or conditioned.

9.4 Infringement Remedy. If the Services, or operation or use thereof, has become, or in Pinwheel’s opinion is likely to become, in whole or in part, the subject of any claim of infringement, Pinwheel may at its option and expense (a) procure for Customer the right to continue using and receiving the applicable Services; (b) replace or modify the applicable Services to make it non-infringing; or (c) terminate this Agreement or the applicable Order(s) and all use of the applicable Services upon notice to Customer. This Section 9 states Customer’s exclusive remedy, and Pinwheel’s sole liability and obligation, for any claim of any nature related to infringement or misappropriation of intellectual property, including if this Agreement is so terminated by Pinwheel.

10. Limitation of Liability

10.1 Disclaimer of Non-Direct Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT FOR CLAIMS BASED ON A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF SECTIONS 5 OR 7, OR UNAUTHORIZED USE OF INTELLECTUAL PROPERTY, UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, OR SERVICE PROVIDERS, HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF GOODWILL, LOST PROFITS OR REVENUE, LOST SALES OR BUSINESS, REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Cap on Liability. EXCEPT FOR CLAIMS BASED ON A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BREACH OF SECTIONS 5 OR 7, OR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND SERVICE PROVIDERS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS PAID BY CUSTOMER TO PINWHEEL UNDER THE APPLICABLE ORDER GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. CUSTOMER AGREES THAT ANY CLAIM OR CAUSE OF ACTION ARISING IN CONNECTION WITH THIS AGREEMENT, THE API, OTHER SERVICES OR API MATERIALS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES OR WILL BE BARRED.

10.3 Additional Disclaimers. NOTWITHSTANDING ANYTHING TO THE CONTRARY, UNDER NO CIRCUMSTANCES WILL PINWHEEL HAVE ANY RESPONSIBILITY OR LIABILITY (a) AS A RESULT OF ANY ACCESS TO OR USE OF ANY PAYROLL ACCOUNT USING COMPROMISED, FAKE, OR OTHERWISE INVALID CREDENTIALS, EXCEPT FOR SUCH ACCESS OR USE THAT IS THE DIRECT RESULT OF PINWHEEL’S BREACH OF THIS AGREEMENT, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (b) AS A RESULT OF ANY ENTRY OR TRANSMISSION TO THE SERVICES OF ANY INCORRECT ACCOUNT NUMBER, ROUTING NUMBER, MONETARY AMOUNT, OR THE LIKE; (c) TO PROVIDE ANY PAYMENT OR OTHER REMEDY FOR ANY PAYMENTS OR DEPOSITS; OR (d) FOR LOST OR INACCURATE INFORMATION OR DATA, IN EACH CASE IF RESULTING IN WHOLE OR IN PART FROM FAULT OR OTHER FACTORS ATTRIBUTABLE TO A PARTY OTHER THAN PINWHEEL.

10.4 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PINWHEEL TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

11. Termination

11.1 Term. This Agreement will commence on the earliest “Start Date” set forth in an Order and, unless terminated earlier in accordance with this Agreement, will continue until all Orders have expired or been terminated. The term of each Order will begin on the “Start Date” set forth therein and continue, unless otherwise terminated in accordance with this Agreement, until the end of the last-to-expire Subscription Term of such Order.

11.2 Termination. Each Party has the right to terminate this Agreement or any Order at any time by providing notice of termination to the other Party if such other Party has materially breached any provision of this Agreement or such Order and the breach has not been cured within thirty (30) days after notice to the breaching Party.

11.3 Effect of Termination/Expiration.

  1. Confidential Information. Each Party will, to the extent reasonably practicable, delete or destroy all materials and media containing Confidential Information of the other Party within thirty (30) days after any termination or expiration of this Agreement; except that each Party may retain such Confidential Information to the extent contained in archived business records kept in the ordinary course and may retain other copies solely for record-keeping purposes or as necessary to comply with Law; provided that such Party will ensure that no retained Confidential Information is used or disclosed in any manner.
  2. Provided Information. Pinwheel has the right to retain Provided Information after termination or expiration of this Agreement, subject to its obligations under applicable Law, the terms of this Agreement and the applicable Privacy Policy. Except as required by applicable Law, Pinwheel has no obligation to retain or provide any access to or copies of any Provided Information, API Materials or Services after any termination or expiration of this Agreement. 
  3. Survival. Upon any termination or expiration of this Agreement (i) all outstanding Orders and all of Customer’s (and Customer Users’) rights to access and use the Services and API Materials will automatically terminate, and Customer will cause all access and use to immediately cease; and (ii) all terms of this Agreement will terminate and have no further force or effect, except that Sections 2.2, 2.4, 3.1, 3.4,4.1(b), 4.1(c), 4.2, 5, 6, 7, 8.3(b), 8.4, 8.5, 9, 10, 11.3 and 12 of this Agreement will survive any expiration or termination.
12. General

12.1 Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority to bind the other in any respect. There are no third-party beneficiaries to this Agreement or any Terms of Use.

12.2 Press Releases. Pinwheel has the right to issue reasonable and accurate press releases reflecting that the Parties have entered into this Agreement, provided that Pinwheel will give Customer an opportunity to review and comment on any press release in advance if it mentions Customer by name. Customer will provide any comments to Pinwheel within ten (10) business days of Pinwheel’s request, and Customer will be deemed to not have comments except to the extent the comments have been received by Pinwheel during such period. Pinwheel also has the right to include Customer’s name in Pinwheel’s customer lists, including on Pinwheel’s web site.

12.3 Insurance. Customer will provide and maintain in effect general liability and products liability insurance policies issued by companies with a rating of A-/VII or better in the current Best’s Insurance Reports published by A. M. Best Company, Inc. or equivalent, naming Pinwheel as an “additional insured” and having minimum limits of coverage acceptable to Pinwheel. Certificates of Insurance will be furnished to Pinwheel by Customer prior to any distribution or marketing of any Customer Solution and thirty (30) days prior to each policy renewal. The policies will be endorsed to stipulate that Customer’s insurance will be primary to and noncontributory with any and all other insurance maintained or otherwise afforded to Pinwheel. Customer and its respective insurers waive all rights of recovery or subrogation against Pinwheel and its insurers except as prohibited by Law. These requirements do not limit any liability of Customer.

12.4 Notices. Any notice required or permitted under this Agreement or by Law will be delivered by (as elected by the Party giving notice): (a) hand; (b) postage-prepaid first-class, registered or certified mail, return receipt requested; (c) a prepaid, nationally recognized, courier service; or (d) facsimile or electronic mail, but only if subsequently confirmed by a duplicate delivered by one of options (a), (b), or (c). All notices will be deemed delivered on the date of receipt (or if delivery fails due to some failure by the recipient, the date of tender). Notices to each Party will be directed to the address (i) set forth in the Order, in the case of Customer, and (ii) set forth below, in the case of Pinwheel. Either Party may change its address for notice by providing written notice to the other Party. Notices to Pinwheel must also be sent to legal@pinwheelapi.com.

12.5 Force Majeure. Pinwheel will not be responsible for, or be considered in breach under this Agreement due to, any delays or failure of performance resulting from acts or causes beyond its reasonable control, including acts of God, acts of war, acts of terror, civil unrest, strikes or other labor problems, unforeseen epidemics or pandemics, power failures, floods, earthquakes, other natural disasters, denial-of-service attacks, networking and communication infrastructure and services failures, terrorism, war, cyber-attacks (e.g. denial of service), failure of vendors, contractors or service providers, inability to access Payroll Accounts, any change in or the adoption of any Law, judgment or decree, or other similar events.

12.6 Entire Agreement. This Agreement, together with all Orders (which are incorporated by reference into this Agreement), the Privacy Policies and Terms of Use, constitute the entire agreement and understanding between the Parties with respect to the Services and related subject matter and supersede all prior and contemporaneous agreements (whether written or oral) with respect thereto. No oral or written information or advice given by either Party, its agents or employees will create or expand any warranty by such Party. No terms or conditions of any purchase order, or other document issued by Customer, will apply in connection with the Services, or have any force or effect, whether or not such purchase order or document appears to have been accepted by Pinwheel, unless mutually agreed upon in writing by both Parties. In the event of a conflict between the terms set forth in the body of this Agreement and an Order, the terms set forth in the body of this Agreement will control unless the Order states that a specific provision of this Agreement will be superseded by a specific provision of the Order.

12.7 Waiver; Changes to Agreement. No waiver of any right, obligation, or remedy arising under this Agreement will be effective unless in writing signed by both Parties. Failure to enforce any provision of this Agreement will not constitute a waiver. Pinwheel may modify this Agreement on a go-forward basis at any time. If a modification is made to this Agreement, an updated version of this Agreement will be posted to Pinwheel’s website (which, notwithstanding Section 12.4, shall serve as adequate notice).  By continuing to access or use the Services or API Materials after Pinwheel posts such modification(s), Customer accepts and agrees to the Agreement as revised by such modification(s). Modifications are effective upon publication.  If there are any material modifications made to this Agreement that materially impact the Customer and are not made for the purpose of complying with Laws, Customer may, as a, sole and exclusive remedy, terminate this Agreement or the applicable Order(s). Except as expressly permitted in this Section 12.7, this Agreement may be amended only by a written agreement signed by authorized representatives of the Parties. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.

12.8 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.9 Governing Law; Jurisdiction. This Agreement, and all disputes arising out of or relating to this Agreement, will be governed by the laws of the State of New York without regard to the conflict of law principles of any jurisdiction. The Parties hereby exclude the application of the UN Convention on the Sale of Goods or any another similar conventions or treaties to this Agreement or the activities hereunder. Each Party irrevocably submits to the exclusive jurisdiction and venue of the state and federal courts having within their jurisdiction New York County, New York, and agrees that service on it at its notice address will constitute valid service for any proceeding in any courts of that jurisdiction. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES.

12.10 Assignment. This Agreement may not be assigned or transferred in whole or in part by either Party except with the other Party’s prior written consent, except that either Party may assign or transfer this Agreement to any affiliate and otherwise in connection with a sale or transfer of all or substantially all of such Party’s business or assets to which this Agreement relates, whether by sale of stock or assets, merger, operation of the law, or otherwise, in each case without the other Party’s consent. Any attempted assignment or transfer in violation of the foregoing will be void.
Construction. The words “include” and “including” when used in this Agreement are not exclusive and mean “include, without limitation” and “including, without limitation,” respectively. This Agreement will be interpreted without regard to which Party drafted this Agreement or any part hereof and without any strict construction against either Party.

Pinwheel Contact Information:

Underdog Technologies, Inc. dba Pinwheel
335 Madison Ave, Floor 16
New York NY 10017
Email: legal@pinwheelapi.com


California Data Processing Addendum

Pinwheel and Customer, in furtherance of obligations under the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”), hereby adopt this CCPA Addendum (“Addendum”) for so long as Pinwheel maintains Personal Information on behalf of Customer. This Addendum prevails over any conflicting terms to the contrary within this Agreement, to the extent of such conflict. Capitalized terms used in this Addendum and not otherwise defined in this Addendum will have the definitions set forth in the CCPA.

1. Roles and Scope.

1.1 Provided Information (as defined in the Agreement) that constitutes Personal Information that is subject to the CCPA (“Customer Personal Information”).

1.2 The Parties acknowledge and agree that Customer is a Business and appoints Pinwheel as a Service Provider to process Customer Personal Information on behalf of Customer.

2. Restrictions on Processing.

2.1 Except as otherwise set forth in the Agreement, Pinwheel is prohibited from (i) retaining, using, or disclosing Customer Personal Information for any purpose other than for the specific purpose of performing the Services specified in the Agreement for Customer and (ii) further Collecting, Selling, or using Customer Personal Information except as necessary to perform the Services.

3. Sale of Information.

3.1 The Parties acknowledge and agree that the exchange of Personal Information between the Parties does not form part of any monetary or other valuable consideration exchanged between the Parties with respect to the Agreement or this Addendum.

4. Deidentified Information.

4.1 In the event that either Party shares Deidentified Information with the other Party, the receiving Party warrants that it: (i) has implemented technical safeguards that prohibit reidentification of the Consumer to whom the information may pertain; (ii) has implemented business processes that specifically prohibit reidentification of the information; (iii) has implemented business processes to prevent inadvertent release of Deidentified Information; and (iv) will make no attempt to reidentify the information.

5. Notice.

5.1 Customer represents and warrants that it has provided notice that Customer Personal Information is being used or shared consistent with Cal. Civ. Code 1798.140(t)(2)(C)(i).

6. Consumer Rights.

6.1 Pinwheel will provide commercially reasonable assistance to Customer for the fulfillment of Customer’s obligations to respond to CCPA-related Consumer rights requests regarding Customer Personal Information.

7. CCPA Exemption.

7.1 Notwithstanding any provision to the contrary of the Agreement or this Addendum, the terms of this Addendum will not apply to Pinwheel’s processing of Customer Personal Information that is exempt from the CCPA, including under Cal. Civ. Code 1798.145(a).

8. Security.

8.1 Pinwheel will implement and maintain no less than reasonable security procedures and practices, appropriate to the nature of the information, to protect Customer Personal Information from unauthorized access, destruction, use, modification, or disclosure.