Gusto
Terms
Contracts
- Employer Terms of Service
- Members Terms of Service
- Accountant Program Terms of Service
- Privacy Policy
- Gusto Cookie Policy
- Acceptable Use Policy
- Electronic Communications Consent
- Terms for Promotional Offers & Discounts
- Accessibility Statement
- Payroll Service Terms
- Health Insurance Benefits Service Terms
- International Contractor Payments Service Terms
- Human Resources Service Terms
- Tax-Advantaged Accounts Service Terms
- Workers’ Compensation Insurance Terms
- Kiosk Service Terms
- State Registration Agreement
- Background Checks Terms of Service
- R&D Tax Credit Services Terms
- R&D Tax Credit Redemption Service Terms
- R&D Tax Credit Services Referral Partner Program
- Tax Form Printing & Mailing Terms
- Check Mailing and Printing Terms
- Learning Management System Terms of Service
- 401(k) Automation Terms of Service
- Developer Terms of Service
- Referral Rewards Terms
- October 2024 Partner Promotion Terms
- Arbitration Opt-Out Notice
Employer Terms of Service
Effective March 24th 2024
DownloadTable of Contents
Last updated February 21, 2024
ARBITRATION NOTICE: SECTION 24 OF THESE TERMS CONTAIN TERMS THAT REQUIRE EMPLOYER AND GUSTO TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. EMPLOYER UNDERSTANDS THAT: (1) EMPLOYER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) EMPLOYER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF EMPLOYER’S CLAIMS.
These Gusto Employer Terms of Service (“Employer Terms” or “Terms”) form part of the binding contract between Employer (as defined below) and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”, “us”, “we” or “our”). These Terms contain the terms and conditions that govern the use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program. The Platform and Services are only available to users who are authorized to form legally binding contracts under applicable laws in the jurisdictions in which the Platform and Services are offered or made available.
"Employer" is the organization, company, or business entity that you represent in accepting this Agreement. For example, if you are accepting this Agreement in connection with creating a new Gusto account for and on behalf of your limited liability company, your limited liability company is the Employer. If you are using the Gusto Platform as a representative of Employer and Administrator for Employer’s Account (each term as further defined below) your use of the Platform is subject to this Agreement.
In contrast, if you are Employer's employee, contractor, or other type of member of Employer’s business, and Employer has invited you to create an account in order to view your paystubs, enroll in benefits, or access other Services enabled by Employer, you are a "Member" and the Members Terms of Service govern your access to and use of the Platform and Services in your individual capacity.
If you are an accountant or bookkeeper using Gusto Pro and/or are managing your client’s or customer’s use of the Platform or Services, this Agreement and the Gusto Accountant Terms of Service govern your access to and use of the Platform and Services on behalf of your clients or customers (each an Employer).
Individual Services and Gusto policies, promotions, and other offerings made available to Employer, Accountant, or to Member directly are or may be subject to additional terms (“Additional Terms”) as listed on www.gusto.com/legal/terms. Any applicable Additional Terms are incorporated into and made part of this Agreement. To the extent any Additional Terms conflict with these Employer Terms, the Additional Terms will control with respect to the applicable subject matter.
By accessing or using the Platform, including any Services, Employer agrees to be bound by these Terms, any Additional Terms specific to Services that Employer accesses or uses, and our Acceptable Use Policy (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Employer (e.g. in your capacity as agent or authorized representative of Employer), you represent that you have the authority to bind Employer to this Agreement and that Employer accepts this Agreement.
1. Employer Accounts and Administrators
Employer must create an account in order to use the Services (“Employer Account”). The Employer Account is affiliated with and owned by the Employer and contains information relating to the Employer (e.g., payroll information or business expenses). Employer must authorize at least one employee or third party representative to act as an authorized administrator for each Employer Account (each, an “Administrator”). If you are creating a Employer Account on behalf of and for Employer, you are doing so as an Administrator and you understand and acknowledge that Employer (and not you) is the owner of the Employer Account. We may require you to follow a policy regarding Employer Account ownership disputes and may update this policy from time to time with or without notice.
Each Administrator will access the Employer Account through an Administrator profile (“Administrator Profile”). Each Administrator must maintain a unique and confidential username and password for their Administrator Profile. Gusto may require additional identification and authentication information from each Administrator in order to access their Administrator Profile. Employer is responsible for ensuring that all Administrators secure any log-in credentials, including passwords, phone numbers, or other authentication information that may be required by Gusto to access the Administrator Profile, and keep such information strictly confidential.
A. Accountant Administrators
Employer may choose to invite a third party bookkeeper or accountant to act as Administrator for the Employer Account (each an “Accountant Administrator”) and create an Administrator Profile. For the avoidance of doubt, the term “Administrator” as used in these Terms encompasses Accountant Administrators. In addition to the actions, rights, and responsibilities applicable to Employer’s Administrators, Employer’s Accountant Administrators are subject to their compliance with this Agreement and the Gusto Accountant Terms of Service. Employer understands and agrees that Accountant Administrator may be enabled to take certain actions within the Employer Account, including but not limited to inviting additional Accountant Administrators to create Administrator Profiles within the Employer Account, enabling Third-Party Services on behalf of Employers, and managing certain Administrator permissions on Employer’s behalf. Employer may also authorize Accountant Administrators to pay Employer’s Service Fees on Employer’s behalf, subject to Section 10 below.
Employer understands and agrees that by inviting an Accountant Administrator to create an Administrator Profile within the Employer Account, Employer is authorizing such Accountant Administrator to act as an authorized representative of the Employer Account on the Gusto Platform, and that such Accountant Administrator is authorized to provide information to Gusto at Gusto’s request regarding the Employer Account, including without limitation, information about the Employer Bank Account and Employer’s payment of Service Fees (among other things).
B. Administrator Permissions
Depending on the permissions Employer grants to an Administrator Profile, the applicable Administrator or Accountant Administrator may be authorized to take certain actions on Employer’s behalf and on behalf of the Employer Account. Such actions include (but are not limited to) inputting information, approving and running payrolls, enrolling in Services, and accepting Additional Terms on Employer’s behalf. Employer should regularly review Employer’s Administrators and the permissions granted to their Administrator Profiles to ensure that only authorized individuals retain access to the Employer Account. If Employer is unable to remove an Administrator from the Employer Account, Employer must contact Gusto directly to request that such individual’s access be revoked.
Employer is responsible for ensuring that Employer’s Administrators comply with this Agreement. Gusto may review Employer’s and Employer’s Administrators’ conduct for compliance purposes but is not obligated to do so. We encourage Employer to review our Help Center content closely in order to ensure that Employer is granting the minimum appropriate permissions to each Administrator Profile.
2. Employer is Responsible for the Employer Account
Employer is responsible for (a) the security and confidentiality of any credentials or log-in information used to access the Employer Account, including any Administrator Profile credentials, (b) for securing and maintaining confidential any information accessible via the Employer Account, and (c) following instructions Gusto may provide regarding the security of the Employer Account. Please review important information about how to protect your credentials and the Employer Account from fraud and online phishing schemes here.
Employer is responsible for all actions and transactions taken under the Employer Account, regardless of whether Employer knew of or authorized such actions (“Authorized Actions”). Authorized Actions may include but are not limited to (a) actions taken by an authorized Administrator, and (b) actions or transactions that Employer, or anyone that Gusto reasonably believes to be Employer or an Administrator, directs or instructs Gusto to take on Employer’s behalf whether orally (e.g., over the phone to one of our team members) or in writing.
3. Unauthorized Third Party Access to Employer Account
Employer accepts all risks of unauthorized use of Employer’s Account. Employer must immediately notify Gusto if Employer believes that the Employer Account or any of Employer’s Administrator Profiles, Member log-in credentials, or Administrator log-in credentials have been compromised. Gusto may suspend the Employer Account, including all Administrator access to the Employer Account, if Gusto has reason to believe that the Employer Account or any of Employer’s Administrator's log-in credentials have been compromised.
Employer agrees not to grant Employer Account access to, or disclose any confidential log-in credentials to, Prohibited Third Parties. A “Prohibited Third Party” is a third party that seeks to access or accesses the Platform or Services using an Administrator Profile or an Administrator’s log-in credentials, regardless of Employer’s purported consent or authorization, in order to harvest, crawl, or scrape information from the Platform or Services without Gusto’s express written authorization.
4. Identity and Bank Account Verification
To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions like Gusto to obtain, verify, record, and monitor information that identifies Employer’s business entity, each Administrator authorized to access and/or manage the Employer Account, and Employer’s designated responsible party (also referred to as Employer’s signatory). To that end, Gusto will require Employer to provide certain information to us from time to time, but in particular during onboarding of the Employer Account, to help us verify Employer’s business entity information, the identity of Employer’s Administrators and signatory, and perform other additional due diligence as we may deem necessary in our sole discretion. This information may include (but is not limited to) full name, address, date of birth, Employer taxpayer ID, telephone number, email address, business entity ownership documentation, and other information that will allow us to identify Employer, Employer’s signatory, and/or Employer’s Administrators (“Identification Information”). We may also require Employer to provide identifying documentation about Employer’s business entity, Administrators and signatory, which may include passports, drivers licenses, or other government issued identification (“Identification Documents”). We may also use Identification Information and/or Identification Documents to confirm the identity of an Administrator and their legal relationship to Employer in the event that there is a dispute between Employer’s Administrator(s) regarding management of and/or access to the Employer Account.
Employer must link one (1) or more United States bank accounts to Employer’s Account for purposes of processing payments via the Services and/or in order for Gusto to debit Employer for applicable Service Fees (as defined below) (each, a “Bank Account”) unless otherwise instructed or permitted by Gusto in writing. The Bank Account must be in the United States. Gusto will also need to collect, review and verify certain information about the Bank Account in order to confirm Employer’s eligibility for the Platform and Services and in order to set up the Employer Account. This information includes identifying information about the Bank Account such as (but not limited to) the number and financial institution name, identifying information about the Bank Account signatory, as well as information about payment recipients and transactions (“Employer Banking Information”). Gusto will also use Employer Banking Information to conduct Know Your Customer (“KYC”) reviews and Sanctions Screening as described in Section 5 below, to verify the Bank Account ownership, to verify that the Employer and Employer’s Bank Account are eligible for the Services (as determined by us in our sole discretion), and to confirm and share Employer Banking Information with our service providers and/or Employer’s Bank Account provider. Please review our Help Center content for more information on how we conduct bank account verification and about what types of bank accounts we accept.
Employer represents and warrants that Employer has the authority to share any Identification Information, Identification Documents, and Employer Banking Information provided to Gusto during the identity and bank account verification process described in this Section 4. Employer further represents and warrants that all Identification Information, Identification Documents, and Employer Banking Information provided to Gusto are truthful, current, accurate and complete, and that Employer is not submitting such information on behalf of a third party. Employer is responsible for ensuring that all Identification Information, Identification Documents, and Employer Banking Information that may be requested by Gusto from time to time are provided in a timely manner, and Employer understands that failure to comply with this Section 4 means that Gusto may be unable to provide Employer with the Services, and may result in the immediate termination of this Agreement and the Services with or without notice and without liability to Employer.
Employer authorizes Gusto to obtain information about Employer as a business entity, and to report adverse business information about Employer to third parties including but not limited to federal or state tax authorities. Gusto reserves the right to terminate this Agreement immediately with or without notice or liability to Employer if Gusto is unable to verify Employer’s satisfactory financial standing, or for any other lawful business reason (including, without limitations, reasons that are confidential to Gusto or which Gusto may not legally disclose).
5. KYC and Sanctions Screening
Gusto's account opening and maintenance processes include controls designed to gather information required under the Bank Secrecy Act, FinCEN’s Employer Due Diligence (“CDD”) Rule, and other information required under Gusto's KYC program. Gusto’s KYC program includes standards and controls designed to enable Gusto to form a reasonable belief as to an Employer's true identity, the nature and purpose of the transactions an Employer conducts, and the level of risk an Employer's relationship and related financial activities may pose to Gusto.
All U.S. persons, including U.S. banks, bank holding companies, and non-bank subsidiaries, must comply with the Office of Foreign Asset Control’s (“OFAC”) regulations. This means that Gusto may institute a hold on Employer’s Bank Account or funds, or terminate this Agreement immediately without notice, if Gusto determines (in Gusto’s sole discretion) that Employer or any of Employer’s Administrators are a Specially Designated National (as defined by OFAC), if Employer or any of Employer’s Administrators fall into the scope of a country-based sanction program, or if Employer attempts to send funds to a country or recipient that is sanctioned or that Gusto reasonably believes is sanctioned in Gusto’s sole discretion.
6. Members
Employer may invite and authorize its Members to each create a Member account (“Member Account”) associated with the Employer Account. Member Accounts may also be referred to as “employee profiles.” Member Accounts will enable Members to enter, modify, or delete personal information (e.g. bank account or withholding information); upload, view, access, modify and/or download certain documents and information associated with or provided by Employer via the Employer Account (e.g. Form W-4 or an offer letter from Employer); and use Services and Third-Party Services to which Employer has granted them access, among other things (collectively, “Employer-Provided Services”). Employer is responsible for ensuring that its Members comply with this Agreement in the course of completing such actions or accessing Employer-Provided Services. Employer may modify or restrict Member’s access to Employer-Provided Services, subject to any Additional Terms applicable to such Employer-Provided Services.
In addition to and apart from Member’s access to Employer-Provided Services, once a Member has created a Member Account, such Member will (a) maintain a limited lifetime access to such Member Account and (b) have access to a variety of Services and Third-Party Services provided directly to Members by Gusto and Gusto’s third-party partners, in all cases subject to the Member Terms of Service (collectively “Member Services”). Except where specifically stated, Member Services will be available to Member regardless of Member’s relationship with Employer. Employer understands and acknowledges that Employer will be unable to restrict, remove, or modify Member’s access to Member Services once Member accepts Employer’s invitation to create an Member Account. Employer further acknowledges and understands that certain Member Services will enable a Member to share or disclose certain Employer Data (as defined below) that is provided by or accessible to the Member with third parties.
7. Employer Data and Privacy
Employer may upload content or information through the Platform, such as files, employment documents, messages, and personal information about Members or Administrators. Employer may also direct Members to upload such content or information directly for use in the Employer Account or any Employer-Provided Services. Collectively, all such content or information is referred to herein as “Employer Data.”
Employer is solely responsible for ensuring that the collection and/or processing of Employer Data is compliant with all applicable laws and regulations. Employer represents and warrants that Employer has received all required rights, licenses, consents and authorizations to use and make available any Employer Data uploaded or submitted to the Platform via Employer’s Account, and that Employer may instruct Gusto on what to do with such Employer Data. For example, Employer may elect to enable or disable third party integrations, manage permissions, and grant certain Administrators or Members access to view or edit Employer Data submitted by other Members or Administrators. These instructions may result in the access, use, disclosure, modification or deletion of certain Employer Data, and Employer should review the Gusto Help Center for more information about these choices, permissions and instructions. Employer is solely responsible for responding to and resolving disputes that may arise between Employer and Members relating to or based on Employer Data, the Platform, Services, or Employer’s failure to fulfill any of the foregoing responsibilities.
As a financial institution, Gusto is subject to certain retention requirements under state and federal law. As a result, certain types of Employer Data may not be removed from the Platform. Gusto is not responsible or liable to Employer for the removal or deletion of (or the failure to remove or delete) such Employer Data. Employer acknowledges and agrees that Gusto is not responsible for the loss or modification of any Employer Data, and that Employer’s use of the Platform and Services is at Employer’s own risk.
Employer understands and agrees that Employer Data transmitted, entered or otherwise uploaded by Employer, on Employer’s behalf, and by Employer’s Members to the Platform and Services will be processed, stored and retained in accordance with our legal obligations and our Privacy Policy, as it may be updated from time to time, including processing for the purpose of improving our products and services. Our Privacy Policy is incorporated into this Agreement by reference and is available at gusto.com/legal/privacy. Employer should periodically review our website for updates to the Privacy Policy.
8. Employer Responsibilities Related to the Services
Employer is responsible for following instructions that Gusto provides to Employer with respect to the Platform and Services from time to time, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Services.
Employer acknowledges and understands that Gusto’s provision of all Services will rely on information provided to Gusto by Employer (including, but not limited to, Employer Data, tax information, payroll information, benefits information, and employment information about Employer and/or Members). Employer understands and agrees that Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. Employer accepts sole responsibility for any liability arising from Employer’s failure to correct or update such information. Employer is responsible for promptly verifying the accuracy of any content generated by Gusto based on information provided by Employer and timely notifying Gusto of any inaccuracies in such content.
Employer will promptly notify Gusto of any third-party notices (including, but not limited to, notices from the IRS, other government agencies, or insurance carriers, as applicable) that Employer receives which could affect (a) Gusto’s ability to effectively provide the Services or (b) increase the likelihood that a Claim (as defined below) is brought against Employer or Gusto in connection with the Services.
9. Service Plans
Certain Services are only available to Employers who have subscribed to one of our monthly service plans, as described at www.gusto.com/product/pricing (“Service Plans”). In order to subscribe to any Service Plan, use any Service (including any applicable add-on services), make a Service available to Members, Employer must be enrolled in the applicable Service Plan and/or accept the applicable Additional Terms (as defined below). Gusto may limit access to Services or Service Plans for Employers who engage in certain high risk business activities (as determined by Gusto).
10. Employer’s Payment Obligations
Employer agrees to pay the fees for the Services as listed at gusto.com/product/pricing or other applicable posted or agreed upon rates for any Service. We may also charge additional fees for exceptions processing, setup, and other special services (including optional add-on services). Collectively, all such fees are referred to as “Service Fees.” Unless we state otherwise, Service Fees are charged for any full or partial calendar months in which Employer is enrolled in the Service, even if Employer or Employer’s Members do not use the Service in such month.
Gusto will invoice Employer for all Service Fees. Employer must promptly notify Gusto of any inaccuracies or errors in any Gusto-issued invoice. Employer authorizes Gusto to debit the Bank Account for all applicable Service Fees on a monthly basis in arrears as they become payable and to debit Employer’s Bank Account for any outstanding Service Fees at any time. Employer agrees to pay any invoice within fifteen (15) days of receipt via a payment method Gusto deems acceptable in our sole discretion.
Unless we state otherwise, all Service Fees are non-refundable. In the event of a refund, Employer agrees to reimburse Gusto for any sales, use, and/or similar taxes arising from the provision of the Services that any federal, state, and/or local governments may impose.
Gusto may change any of our Service Fees at any time. Gusto will notify Employer of such change(s) at least thirty (30) days in advance. Employer’s continued use of the Platform or applicable Service(s) after a Service Fee change takes effect constitutes Employer’s acceptance of the change.
If we are unable to collect Service Fees owed by the payment due date for any reason, or if Employer (or Accountant) attempts to cancel or claw back fees properly debited by Gusto from Employer’s Bank Account under this Agreement, we may terminate or suspend the Employer Account and/or Employer’s access to the Platform or Services until we receive the outstanding amounts due. The foregoing does not limit any remedies available to Gusto under the Accountant Program Terms. Termination or suspension of the Employer Account will not relieve Employer’s obligation to pay outstanding amounts due plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection (including costs Gusto reasonably incurs from third party debt collection services) as permitted by law.
Employer may authorize an Accountant Administrator to pay Employer’s Service Fees on Employer’s behalf. By so authorizing, Employer understands and agrees that Employer and Accountant Administrator are jointly and severally liable for any unpaid Service Fees and for any associated bank fees or costs of collection reasonably incurred by Gusto.
11. Promotions and Insurance Products Disclosure
We may offer discounts or promotional pricing on our Services, and features in accordance with our Terms for Promotional Offers & Discounts.
We provide and sell certain insurance products and services through our affiliate entity, With Gusto Insurance Services, LLC. We also provide Services unaffiliated with health insurance or the purchase of an insurance contract, including HR services and payroll services. Employer is under no obligation to purchase any insurance product from us or our affiliates in exchange for receiving those non-insurance Services. Similarly, Employer is not required to purchase any insurance product from us or our affiliates in order to qualify for or receive any discount or promotion we may offer.
12. Switching Service Plans; Enrolling in or Removing Services
If Employer subscribes to one of our Service Plans, Employer may switch to a new Service Plan at any time, but no more than once per calendar month. If Employer upgrades Service Plans, Employer will begin receiving access to the features and Services available under the new upgraded Service Plan immediately. Unless we state otherwise, the Service Fees for the upgraded Service Plan will be reflected on Employer’s monthly invoice at the end of the calendar month in which Employer upgraded to the new Service Plan. If Employer downgrades to a less expensive Service Plan, then, unless we state otherwise, the downgrade (including loss of access to any relevant features or Services) and the downgraded plan Service Fees will not take effect until the next calendar month.
Employer may also enroll in Services separate and apart from one of our Service Plans. Employer may enroll in, or remove, any Service at any time unless otherwise stated in the applicable Additional Terms. When Employer enrolls in a new Service, Employer will have access to such Service immediately. When Employer removes a Service, Employer will retain access to such Service until the end of the calendar month in which Employer removed it.
13. Beta Features
We may provide Employer or Members with access to beta, pilot, trial, or pre-release features or products (collectively “Beta Features”) via the Platform. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature, Employer agrees to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
14. Third-Party Services, Websites, and Resources
Employer will be able to elect to receive services from our third party partners (each a “Third-Party Service”). Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. Employer is solely responsible for, and assumes all risk from, Employer’s choice to receive, use or access any Third-Party Service. Employer’s use of any Third-Party Service, including any Employer Data or personal information Employer may share with or input into such Third-Party Service, is between Employer and the owner of such Third-Party Service. If Employer chooses to and authorizes Gusto to share Employer Data with a Third-Party Service (“Shared Employer Data”) then Employer (a) represents it has obtained all legal rights to do so, (b) assumes all risks related to such Shared Employer Data, (c) acknowledges it is solely responsible for the accuracy of such Shared Employer Data, and (d) agrees that it is solely responsible for the lawfulness of sharing such Shared Employer Data with the applicable Third-Party Service. Employer waives and releases any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Employer Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto is not responsible for the content, products, or services, or links available or displayed on those websites or resources. Employer is solely responsible for, and assumes all risk arising from, Employer’s use of any Third-Party Service, third-party websites or resources.
15. Employer’s Proprietary Rights
Subject to the terms of this Agreement, Employer (for itself and all of its Members) grants Gusto a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Employer Data, only as necessary (a) to provide, maintain and update the Platform and Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted under our Privacy Policy; and (d) as expressly authorized by Employer. Employer represents and warrants that it has secured all rights in and to Employer Data from its Members as may be necessary to grant this license. Employer is solely responsible for the accuracy, quality and legality of Employer Data, the means by which Employer acquired Employer Data, Employer’s use of Employer Data within the Platform and Services and Employer’s interoperation of any Employer Data with the Platform and Services.
Gusto may periodically monitor Employer Data and Employer’s use of Employer Data for compliance but is not obligated to do so. Gusto reserves the right to remove Employer Data from the Platform and Services at any time and without notice in the event that Gusto determines (in our sole discretion) that any Employer Data or use of Employer Data is in violation of this Agreement, including the Acceptable Use Policy.
16. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services and all content included therein (excluding Employer Data and Third-Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Employer in this Agreement are reserved by us. This Agreement does not grant Employer any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Platform, Services, or Gusto Content not specifically set forth herein.
Employer acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Employer agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, or Gusto Content.
If Employer sends us any feedback or suggestions (“Feedback”), Employer gives that Feedback entirely voluntarily and grants Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind to Employer. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about Employer’s experience with the Platform or Services.
Gusto grants Employer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Employer-facing components of the Gusto Content, Platform and Services solely as necessary for Employer to use the Services and in accordance with this Agreement and all applicable Additional Terms.
17. No Professional or Legal Advice; No Guaranteed Outcomes
Employer’s use of the Platform and Services is entirely at Employer’s own risk. Except as and unless otherwise stated in applicable Additional Terms, Employer acknowledges that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. Employer is solely responsible for ensuring Employer’s compliance with applicable law and regulation, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our customer support team regarding Employer’s use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
18. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about Employer Account activity, (4) service alerts and (5) soliciting feedback about our customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
19. Termination and Suspension
Employer’s Termination: Employer may cancel the Employer Account at any time from within the Employer Account. Unless we state otherwise, Employer’s termination of the Employer Account constitutes the termination of this Agreement. Unless we state otherwise, Gusto will not prorate any applicable Service Fees and Employer Accounts canceled in the middle of a month will be charged the full month’s fees for all Services to which Employer was subscribed at the time of cancellation. Employer understands and agrees that Employer is solely responsible for ensuring Employer’s compliance with all applicable law, including any wage and hour, taxation, and employment regulation that may affect Employer’s obligations to Members paid through the Payroll Service following cancellation or termination of the Services.
Gusto’s Termination and Suspension: Gusto may terminate or suspend Services if you violate this Agreement or any other Gusto terms or your use of the Services is improper or substantially exceeds or differs from normal use by other Employers, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.
Effect of Termination: Upon termination of the Services, and except as otherwise stated in this Section 19 or the applicable Additional Terms, Employer’s and Members’ rights to access and use all applicable Services(s) to which Employer subscribed or enrolled will automatically terminate. The Employer Account and Member accounts will remain accessible in a limited, read-only capacity, subject to compliance with this Agreement.
The termination of any of the Services or this Agreement will not affect Employer’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Any section of this Agreement or applicable Additional Terms which by their nature should survive termination will survive, including without limitation all applicable payment obligations, privacy rights and obligations of Gusto and Employer under Gusto’s Privacy Policy, Gusto’s responsibilities to comply with federal anti-money laundering regulation, use restrictions and indemnity obligations, warranty disclaimers, and limitations of liability.
20. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF THE SERVICES OR ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY EMPLOYER OR MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH DATA AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (a) MEET EMPLOYER’S EXPECTATIONS OR REQUIREMENTS; (b) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (c) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s or Services’ uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice to Employer. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect Employer’s use of or access to the Platform and Services. No oral or written information or advice given by Gusto, its agents, employees, or representatives will create a warranty or in any way increase the scope of the warranties in this Agreement.
To the extent any error results from Gusto’s reliance on information provided by or on behalf of Employer or Member, or anyone that Gusto reasonably believes to be Company or Member (each, a “Resulting Error”), then Gusto may attempt to correct the Resulting Error, but makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error and will not be liable for any failure to partially or fully correct such Resulting Error.
21. Indemnity
Employer agrees to indemnify and hold harmless Gusto and its officers, directors, employees, successors, assigns, representatives, subsidiaries, affiliates, and agents (the “Indemnified Parties”), from and against any losses, damages, expenses, claims, actions, disputes, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), without regard to merit or lack thereof arising out of or related in any way to (a) Employer’s or its Member’s access to, use of, or participation in the Platform and Services or Gusto Content; (b) Employer Data or Shared Employer Data; (c) violation or alleged violation of this Agreement or any instructions provided by Gusto with respect to Employer’s or Employer’s Member’s use of the Platform and Services; (d) Employer’s or its Member’s violation or alleged violation of any third party right; (e) Employer’s or its Member’s violation or alleged violation of any applicable law, rule, or regulation; (f) Employer’s or its Member’s gross negligence, fraudulent activity, or willful misconduct; (g) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Employer; (h) actions that Gusto or any other Indemnified Party undertakes at the request or instruction of Employer or anyone that Gusto or any other Indemnified Party reasonably believes to be Employer or acting with authority on behalf of Employer (each such action a “Requested Action”); or (i) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.
22. Limitation of Liability
To the extent permitted by applicable law, Gusto is not liable, and Employer agrees not to hold Gusto responsible for, any damages or losses resulting directly or indirectly from (a) Employer Data or Gusto’s or a third party’s reliance on certain Employer Data; (b) Resulting Errors; (c) Employer’s delay in providing, or failure to provide, Gusto with information necessary for its provision of the Services; (d) Employer’s violation of applicable law, rule, regulation or other applicable legal obligation; (e) unauthorized third-party actions taken in Employer’s Account or sharing of your Account credentials; (f) Employer’s or its Member’s negligence; (g) any Claims that could have reasonably been avoided or mitigated by Employer through reasonable efforts; (h) any Requested Actions; (j) Employer’s or Members’ failure to properly follow Gusto’s instructions with respect to the Platform, Gusto Content, or Services; or (k) Employer’s or its Member’s use or inability to use the Platform or the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, GUSTO CONTENT, THIRD PARTY CONTENT, OR THIRD-PARTY SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO EMPLOYER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS EMPLOYER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR GUSTO CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM.
23. Changes to the Agreement, Platform, or Services
Gusto may modify this Agreement at any time, in Gusto’s sole discretion, effective upon posting of an updated version of this Agreement. It is important that Employer reviews each modified version of the Agreement as Employer’s continued use of the Platform or Services after such changes are posted constitutes Employer’s agreement to be bound by the modified Agreement. If Employer does not agree to be bound by the modified Agreement, then Employer may not continue to use the Platform or Services. Because the Platform and Services evolve over time, Gusto may change or discontinue all or any part of the Platform or Services at any time and without notice, and without liability to Employer, at Gusto’s sole discretion.
24. Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 24.C BELOW.
Informal Dispute Resolution. “Dispute” includes any past, present, or future dispute, claim (including initial claims, counter-claims, third-party claims, or otherwise), or controversy relating to or arising out of this Agreement, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 24 or the Agreement. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide a neutral and cost effective means of resolving the Dispute quickly. Before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. We will also undertake reasonable efforts to contact you to resolve any Dispute informally before taking any formal action. If your Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate a formal action as described in this Section 24.
Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 24 (the “Arbitration Provision”), unless you opt out as provided in Section 24.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights (an “IP Protection Action”).
Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice as described below within thirty (30) days of the date of your electronic acceptance of these Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Employers, within thirty (30) days of Gusto’s notice of modifications to these Terms. For your convenience we have provided a form Arbitration Opt-Out Notice here. Please complete and email the completed form, including all required fields, to [email protected]. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 24.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 24 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 24.B ABOVE.
NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 24.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. A single arbitrator will be mutually selected by Gusto and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS Rules that satisfies the Arbitrator Requirements. Notwithstanding any language to the contrary in this Section 24, if a party seeks injunctive relief that would significantly impact other Employers as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 24 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the JAMS Rules, or in accordance with countervailing law if contrary to the JAMS Rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 24.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 24.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 24.D.
25. Force Majeure
Gusto is not liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Employer, Employer’s agents, assigns or any other third party acting on Employer’s behalf.
26. General
This Agreement (including all applicable Additional Terms, Gusto’s Privacy Policy, the Acceptable Use Policy, and any supplemental policies or terms which Gusto may present for review and acceptance at the time Employer subscribes to the applicable Service or Service Plan), constitutes the entire agreement between Gusto and Employer regarding the Platform and Services and replaces all prior agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the validity or enforceability of the remainder of the Agreement. Employer may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Employer to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (a) via email; or (b) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
27. Electronic Transmission of the Agreement
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (a) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (b) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
28. Contact Information
If Employer has any questions about this Agreement, the Platform, or the Services, Employer may contact Gusto at [email protected]. Gusto will not be able to accept Employer questions, Feedback, or complaints at Gusto’s physical locations. If Employer is a California resident, Employer may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective March 24th 2024 to March 24th 2024
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Table of Contents
Last updated February 21, 2024
ARBITRATION NOTICE: SECTION 24 OF THESE TERMS CONTAIN TERMS THAT REQUIRE EMPLOYER AND GUSTO TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. EMPLOYER UNDERSTANDS THAT: (1) EMPLOYER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) EMPLOYER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF EMPLOYER’S CLAIMS.
These Gusto Employer Terms of Service (“Employer Terms” or “Terms”) form part of the binding contract between Employer (as defined below) and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”, “us”, “we” or “our”). These Terms contain the terms and conditions that govern the use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program. The Platform and Services are only available to users who are authorized to form legally binding contracts under applicable laws in the jurisdictions in which the Platform and Services are offered or made available.
"Employer" is the organization, company, or business entity that you represent in accepting this Agreement. For example, if you are accepting this Agreement in connection with creating a new Gusto account for and on behalf of your limited liability company, your limited liability company is the Employer. If you are using the Gusto Platform as a representative of Employer and Administrator for Employer’s Account (each term as further defined below) your use of the Platform is subject to this Agreement.
In contrast, if you are Employer's employee, contractor, or other type of member of Employer’s business, and Employer has invited you to create an account in order to view your paystubs, enroll in benefits, or access other Services enabled by Employer, you are a "Member" and the Members Terms of Service govern your access to and use of the Platform and Services in your individual capacity.
If you are an accountant or bookkeeper using Gusto Pro and/or are managing your client’s or customer’s use of the Platform or Services, this Agreement and the Gusto Accountant Terms of Service govern your access to and use of the Platform and Services on behalf of your clients or customers (each an Employer).
Individual Services and Gusto policies, promotions, and other offerings made available to Employer, Accountant, or to Member directly are or may be subject to additional terms (“Additional Terms”) as listed on www.gusto.com/legal/terms. Any applicable Additional Terms are incorporated into and made part of this Agreement. To the extent any Additional Terms conflict with these Employer Terms, the Additional Terms will control with respect to the applicable subject matter.
By accessing or using the Platform, including any Services, Employer agrees to be bound by these Terms, any Additional Terms specific to Services that Employer accesses or uses, and our Acceptable Use Policy (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Employer (e.g. in your capacity as agent or authorized representative of Employer), you represent that you have the authority to bind Employer to this Agreement and that Employer accepts this Agreement.
1. Employer Accounts and Administrators
Employer must create an account in order to use the Services (“Employer Account”). The Employer Account is affiliated with and owned by the Employer and contains information relating to the Employer (e.g., payroll information or business expenses). Employer must authorize at least one employee or third party representative to act as an authorized administrator for each Employer Account (each, an “Administrator”). If you are creating a Employer Account on behalf of and for Employer, you are doing so as an Administrator and you understand and acknowledge that Employer (and not you) is the owner of the Employer Account. We may require you to follow a policy regarding Employer Account ownership disputes and may update this policy from time to time with or without notice.
Each Administrator will access the Employer Account through an Administrator profile (“Administrator Profile”). Each Administrator must maintain a unique and confidential username and password for their Administrator Profile. Gusto may require additional identification and authentication information from each Administrator in order to access their Administrator Profile. Employer is responsible for ensuring that all Administrators secure any log-in credentials, including passwords, phone numbers, or other authentication information that may be required by Gusto to access the Administrator Profile, and keep such information strictly confidential.
A. Accountant Administrators
Employer may choose to invite a third party bookkeeper or accountant to act as Administrator for the Employer Account (each an “Accountant Administrator”) and create an Administrator Profile. For the avoidance of doubt, the term “Administrator” as used in these Terms encompasses Accountant Administrators. In addition to the actions, rights, and responsibilities applicable to Employer’s Administrators, Employer’s Accountant Administrators are subject to their compliance with this Agreement and the Gusto Accountant Terms of Service. Employer understands and agrees that Accountant Administrator may be enabled to take certain actions within the Employer Account, including but not limited to inviting additional Accountant Administrators to create Administrator Profiles within the Employer Account, enabling Third-Party Services on behalf of Employers, and managing certain Administrator permissions on Employer’s behalf. Employer may also authorize Accountant Administrators to pay Employer’s Service Fees on Employer’s behalf, subject to Section 10 below.
Employer understands and agrees that by inviting an Accountant Administrator to create an Administrator Profile within the Employer Account, Employer is authorizing such Accountant Administrator to act as an authorized representative of the Employer Account on the Gusto Platform, and that such Accountant Administrator is authorized to provide information to Gusto at Gusto’s request regarding the Employer Account, including without limitation, information about the Employer Bank Account and Employer’s payment of Service Fees (among other things).
B. Administrator Permissions
Depending on the permissions Employer grants to an Administrator Profile, the applicable Administrator or Accountant Administrator may be authorized to take certain actions on Employer’s behalf and on behalf of the Employer Account. Such actions include (but are not limited to) inputting information, approving and running payrolls, enrolling in Services, and accepting Additional Terms on Employer’s behalf. Employer should regularly review Employer’s Administrators and the permissions granted to their Administrator Profiles to ensure that only authorized individuals retain access to the Employer Account. If Employer is unable to remove an Administrator from the Employer Account, Employer must contact Gusto directly to request that such individual’s access be revoked.
Employer is responsible for ensuring that Employer’s Administrators comply with this Agreement. Gusto may review Employer’s and Employer’s Administrators’ conduct for compliance purposes but is not obligated to do so. We encourage Employer to review our Help Center content closely in order to ensure that Employer is granting the minimum appropriate permissions to each Administrator Profile.
2. Employer is Responsible for the Employer Account
Employer is responsible for (a) the security and confidentiality of any credentials or log-in information used to access the Employer Account, including any Administrator Profile credentials, (b) for securing and maintaining confidential any information accessible via the Employer Account, and (c) following instructions Gusto may provide regarding the security of the Employer Account. Please review important information about how to protect your credentials and the Employer Account from fraud and online phishing schemes here.
Employer is responsible for all actions and transactions taken under the Employer Account, regardless of whether Employer knew of or authorized such actions (“Authorized Actions”). Authorized Actions may include but are not limited to (a) actions taken by an authorized Administrator, and (b) actions or transactions that Employer, or anyone that Gusto reasonably believes to be Employer or an Administrator, directs or instructs Gusto to take on Employer’s behalf whether orally (e.g., over the phone to one of our team members) or in writing.
3. Unauthorized Third Party Access to Employer Account
Employer accepts all risks of unauthorized use of Employer’s Account. Employer must immediately notify Gusto if Employer believes that the Employer Account or any of Employer’s Administrator Profiles, Member log-in credentials, or Administrator log-in credentials have been compromised. Gusto may suspend the Employer Account, including all Administrator access to the Employer Account, if Gusto has reason to believe that the Employer Account or any of Employer’s Administrator's log-in credentials have been compromised.
Employer agrees not to grant Employer Account access to, or disclose any confidential log-in credentials to, Prohibited Third Parties. A “Prohibited Third Party” is a third party that seeks to access or accesses the Platform or Services using an Administrator Profile or an Administrator’s log-in credentials, regardless of Employer’s purported consent or authorization, in order to harvest, crawl, or scrape information from the Platform or Services without Gusto’s express written authorization.
4. Identity and Bank Account Verification
To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions like Gusto to obtain, verify, record, and monitor information that identifies Employer’s business entity, each Administrator authorized to access and/or manage the Employer Account, and Employer’s designated responsible party (also referred to as Employer’s signatory). To that end, Gusto will require Employer to provide certain information to us from time to time, but in particular during onboarding of the Employer Account, to help us verify Employer’s business entity information, the identity of Employer’s Administrators and signatory, and perform other additional due diligence as we may deem necessary in our sole discretion. This information may include (but is not limited to) full name, address, date of birth, Employer taxpayer ID, telephone number, email address, business entity ownership documentation, and other information that will allow us to identify Employer, Employer’s signatory, and/or Employer’s Administrators (“Identification Information”). We may also require Employer to provide identifying documentation about Employer’s business entity, Administrators and signatory, which may include passports, drivers licenses, or other government issued identification (“Identification Documents”). We may also use Identification Information and/or Identification Documents to confirm the identity of an Administrator and their legal relationship to Employer in the event that there is a dispute between Employer’s Administrator(s) regarding management of and/or access to the Employer Account.
Employer must link one (1) or more United States bank accounts to Employer’s Account for purposes of processing payments via the Services and/or in order for Gusto to debit Employer for applicable Service Fees (as defined below) (each, a “Bank Account”) unless otherwise instructed or permitted by Gusto in writing. The Bank Account must be in the United States. Gusto will also need to collect, review and verify certain information about the Bank Account in order to confirm Employer’s eligibility for the Platform and Services and in order to set up the Employer Account. This information includes identifying information about the Bank Account such as (but not limited to) the number and financial institution name, identifying information about the Bank Account signatory, as well as information about payment recipients and transactions (“Employer Banking Information”). Gusto will also use Employer Banking Information to conduct Know Your Customer (“KYC”) reviews and Sanctions Screening as described in Section 5 below, to verify the Bank Account ownership, to verify that the Employer and Employer’s Bank Account are eligible for the Services (as determined by us in our sole discretion), and to confirm and share Employer Banking Information with our service providers and/or Employer’s Bank Account provider. Please review our Help Center content for more information on how we conduct bank account verification and about what types of bank accounts we accept.
Employer represents and warrants that Employer has the authority to share any Identification Information, Identification Documents, and Employer Banking Information provided to Gusto during the identity and bank account verification process described in this Section 4. Employer further represents and warrants that all Identification Information, Identification Documents, and Employer Banking Information provided to Gusto are truthful, current, accurate and complete, and that Employer is not submitting such information on behalf of a third party. Employer is responsible for ensuring that all Identification Information, Identification Documents, and Employer Banking Information that may be requested by Gusto from time to time are provided in a timely manner, and Employer understands that failure to comply with this Section 4 means that Gusto may be unable to provide Employer with the Services, and may result in the immediate termination of this Agreement and the Services with or without notice and without liability to Employer.
Employer authorizes Gusto to obtain information about Employer as a business entity, and to report adverse business information about Employer to third parties including but not limited to federal or state tax authorities. Gusto reserves the right to terminate this Agreement immediately with or without notice or liability to Employer if Gusto is unable to verify Employer’s satisfactory financial standing, or for any other lawful business reason (including, without limitations, reasons that are confidential to Gusto or which Gusto may not legally disclose).
5. KYC and Sanctions Screening
Gusto's account opening and maintenance processes include controls designed to gather information required under the Bank Secrecy Act, FinCEN’s Employer Due Diligence (“CDD”) Rule, and other information required under Gusto's KYC program. Gusto’s KYC program includes standards and controls designed to enable Gusto to form a reasonable belief as to an Employer's true identity, the nature and purpose of the transactions an Employer conducts, and the level of risk an Employer's relationship and related financial activities may pose to Gusto.
All U.S. persons, including U.S. banks, bank holding companies, and non-bank subsidiaries, must comply with the Office of Foreign Asset Control’s (“OFAC”) regulations. This means that Gusto may institute a hold on Employer’s Bank Account or funds, or terminate this Agreement immediately without notice, if Gusto determines (in Gusto’s sole discretion) that Employer or any of Employer’s Administrators are a Specially Designated National (as defined by OFAC), if Employer or any of Employer’s Administrators fall into the scope of a country-based sanction program, or if Employer attempts to send funds to a country or recipient that is sanctioned or that Gusto reasonably believes is sanctioned in Gusto’s sole discretion.
6. Members
Employer may invite and authorize its Members to each create a Member account (“Member Account”) associated with the Employer Account. Member Accounts may also be referred to as “employee profiles.” Member Accounts will enable Members to enter, modify, or delete personal information (e.g. bank account or withholding information); upload, view, access, modify and/or download certain documents and information associated with or provided by Employer via the Employer Account (e.g. Form W-4 or an offer letter from Employer); and use Services and Third-Party Services to which Employer has granted them access, among other things (collectively, “Employer-Provided Services”). Employer is responsible for ensuring that its Members comply with this Agreement in the course of completing such actions or accessing Employer-Provided Services. Employer may modify or restrict Member’s access to Employer-Provided Services, subject to any Additional Terms applicable to such Employer-Provided Services.
In addition to and apart from Member’s access to Employer-Provided Services, once a Member has created a Member Account, such Member will (a) maintain a limited lifetime access to such Member Account and (b) have access to a variety of Services and Third-Party Services provided directly to Members by Gusto and Gusto’s third-party partners, in all cases subject to the Member Terms of Service (collectively “Member Services”). Except where specifically stated, Member Services will be available to Member regardless of Member’s relationship with Employer. Employer understands and acknowledges that Employer will be unable to restrict, remove, or modify Member’s access to Member Services once Member accepts Employer’s invitation to create an Member Account. Employer further acknowledges and understands that certain Member Services will enable a Member to share or disclose certain Employer Data (as defined below) that is provided by or accessible to the Member with third parties.
7. Employer Data and Privacy
Employer may upload content or information through the Platform, such as files, employment documents, messages, and personal information about Members or Administrators. Employer may also direct Members to upload such content or information directly for use in the Employer Account or any Employer-Provided Services. Collectively, all such content or information is referred to herein as “Employer Data.”
Employer is solely responsible for ensuring that the collection and/or processing of Employer Data is compliant with all applicable laws and regulations. Employer represents and warrants that Employer has received all required rights, licenses, consents and authorizations to use and make available any Employer Data uploaded or submitted to the Platform via Employer’s Account, and that Employer may instruct Gusto on what to do with such Employer Data. For example, Employer may elect to enable or disable third party integrations, manage permissions, and grant certain Administrators or Members access to view or edit Employer Data submitted by other Members or Administrators. These instructions may result in the access, use, disclosure, modification or deletion of certain Employer Data, and Employer should review the Gusto Help Center for more information about these choices, permissions and instructions. Employer is solely responsible for responding to and resolving disputes that may arise between Employer and Members relating to or based on Employer Data, the Platform, Services, or Employer’s failure to fulfill any of the foregoing responsibilities.
As a financial institution, Gusto is subject to certain retention requirements under state and federal law. As a result, certain types of Employer Data may not be removed from the Platform. Gusto is not responsible or liable to Employer for the removal or deletion of (or the failure to remove or delete) such Employer Data. Employer acknowledges and agrees that Gusto is not responsible for the loss or modification of any Employer Data, and that Employer’s use of the Platform and Services is at Employer’s own risk.
Employer understands and agrees that Employer Data transmitted, entered or otherwise uploaded by Employer, on Employer’s behalf, and by Employer’s Members to the Platform and Services will be processed, stored and retained in accordance with our legal obligations and our Privacy Policy, as it may be updated from time to time, including processing for the purpose of improving our products and services. Our Privacy Policy is incorporated into this Agreement by reference and is available at gusto.com/legal/privacy. Employer should periodically review our website for updates to the Privacy Policy.
8. Employer Responsibilities Related to the Services
Employer is responsible for following instructions that Gusto provides to Employer with respect to the Platform and Services from time to time, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Services.
Employer acknowledges and understands that Gusto’s provision of all Services will rely on information provided to Gusto by Employer (including, but not limited to, Employer Data, tax information, payroll information, benefits information, and employment information about Employer and/or Members). Employer understands and agrees that Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. Employer accepts sole responsibility for any liability arising from Employer’s failure to correct or update such information. Employer is responsible for promptly verifying the accuracy of any content generated by Gusto based on information provided by Employer and timely notifying Gusto of any inaccuracies in such content.
Employer will promptly notify Gusto of any third-party notices (including, but not limited to, notices from the IRS, other government agencies, or insurance carriers, as applicable) that Employer receives which could affect (a) Gusto’s ability to effectively provide the Services or (b) increase the likelihood that a Claim (as defined below) is brought against Employer or Gusto in connection with the Services.
9. Service Plans
Certain Services are only available to Employers who have subscribed to one of our monthly service plans, as described at www.gusto.com/product/pricing (“Service Plans”). In order to subscribe to any Service Plan, use any Service (including any applicable add-on services), make a Service available to Members, Employer must be enrolled in the applicable Service Plan and/or accept the applicable Additional Terms (as defined below). Gusto may limit access to Services or Service Plans for Employers who engage in certain high risk business activities (as determined by Gusto).
10. Employer’s Payment Obligations
Employer agrees to pay the fees for the Services as listed at gusto.com/product/pricing or other applicable posted or agreed upon rates for any Service. We may also charge additional fees for exceptions processing, setup, and other special services (including optional add-on services). Collectively, all such fees are referred to as “Service Fees.” Unless we state otherwise, Service Fees are charged for any full or partial calendar months in which Employer is enrolled in the Service, even if Employer or Employer’s Members do not use the Service in such month.
Gusto will invoice Employer for all Service Fees. Employer must promptly notify Gusto of any inaccuracies or errors in any Gusto-issued invoice. Employer authorizes Gusto to debit the Bank Account for all applicable Service Fees on a monthly basis in arrears as they become payable and to debit Employer’s Bank Account for any outstanding Service Fees at any time. Employer agrees to pay any invoice within fifteen (15) days of receipt via a payment method Gusto deems acceptable in our sole discretion.
Unless we state otherwise, all Service Fees are non-refundable. In the event of a refund, Employer agrees to reimburse Gusto for any sales, use, and/or similar taxes arising from the provision of the Services that any federal, state, and/or local governments may impose.
Gusto may change any of our Service Fees at any time. Gusto will notify Employer of such change(s) at least thirty (30) days in advance. Employer’s continued use of the Platform or applicable Service(s) after a Service Fee change takes effect constitutes Employer’s acceptance of the change.
If we are unable to collect Service Fees owed by the payment due date for any reason, or if Employer (or Accountant) attempts to cancel or claw back fees properly debited by Gusto from Employer’s Bank Account under this Agreement, we may terminate or suspend the Employer Account and/or Employer’s access to the Platform or Services until we receive the outstanding amounts due. The foregoing does not limit any remedies available to Gusto under the Accountant Program Terms. Termination or suspension of the Employer Account will not relieve Employer’s obligation to pay outstanding amounts due plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection (including costs Gusto reasonably incurs from third party debt collection services) as permitted by law.
Employer may authorize an Accountant Administrator to pay Employer’s Service Fees on Employer’s behalf. By so authorizing, Employer understands and agrees that Employer and Accountant Administrator are jointly and severally liable for any unpaid Service Fees and for any associated bank fees or costs of collection reasonably incurred by Gusto.
11. Promotions and Insurance Products Disclosure
We may offer discounts or promotional pricing on our Services, and features in accordance with our Terms for Promotional Offers & Discounts.
We provide and sell certain insurance products and services through our affiliate entity, With Gusto Insurance Services, LLC. We also provide Services unaffiliated with health insurance or the purchase of an insurance contract, including HR services and payroll services. Employer is under no obligation to purchase any insurance product from us or our affiliates in exchange for receiving those non-insurance Services. Similarly, Employer is not required to purchase any insurance product from us or our affiliates in order to qualify for or receive any discount or promotion we may offer.
12. Switching Service Plans; Enrolling in or Removing Services
If Employer subscribes to one of our Service Plans, Employer may switch to a new Service Plan at any time, but no more than once per calendar month. If Employer upgrades Service Plans, Employer will begin receiving access to the features and Services available under the new upgraded Service Plan immediately. Unless we state otherwise, the Service Fees for the upgraded Service Plan will be reflected on Employer’s monthly invoice at the end of the calendar month in which Employer upgraded to the new Service Plan. If Employer downgrades to a less expensive Service Plan, then, unless we state otherwise, the downgrade (including loss of access to any relevant features or Services) and the downgraded plan Service Fees will not take effect until the next calendar month.
Employer may also enroll in Services separate and apart from one of our Service Plans. Employer may enroll in, or remove, any Service at any time unless otherwise stated in the applicable Additional Terms. When Employer enrolls in a new Service, Employer will have access to such Service immediately. When Employer removes a Service, Employer will retain access to such Service until the end of the calendar month in which Employer removed it.
13. Beta Features
We may provide Employer or Members with access to beta, pilot, trial, or pre-release features or products (collectively “Beta Features”) via the Platform. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature, Employer agrees to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
14. Third-Party Services, Websites, and Resources
Employer will be able to elect to receive services from our third party partners (each a “Third-Party Service”). Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. Employer is solely responsible for, and assumes all risk from, Employer’s choice to receive, use or access any Third-Party Service. Employer’s use of any Third-Party Service, including any Employer Data or personal information Employer may share with or input into such Third-Party Service, is between Employer and the owner of such Third-Party Service. If Employer chooses to and authorizes Gusto to share Employer Data with a Third-Party Service (“Shared Employer Data”) then Employer (a) represents it has obtained all legal rights to do so, (b) assumes all risks related to such Shared Employer Data, (c) acknowledges it is solely responsible for the accuracy of such Shared Employer Data, and (d) agrees that it is solely responsible for the lawfulness of sharing such Shared Employer Data with the applicable Third-Party Service. Employer waives and releases any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Employer Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto is not responsible for the content, products, or services, or links available or displayed on those websites or resources. Employer is solely responsible for, and assumes all risk arising from, Employer’s use of any Third-Party Service, third-party websites or resources.
15. Employer’s Proprietary Rights
Subject to the terms of this Agreement, Employer (for itself and all of its Members) grants Gusto a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Employer Data, only as necessary (a) to provide, maintain and update the Platform and Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted under our Privacy Policy; and (d) as expressly authorized by Employer. Employer represents and warrants that it has secured all rights in and to Employer Data from its Members as may be necessary to grant this license. Employer is solely responsible for the accuracy, quality and legality of Employer Data, the means by which Employer acquired Employer Data, Employer’s use of Employer Data within the Platform and Services and Employer’s interoperation of any Employer Data with the Platform and Services.
Gusto may periodically monitor Employer Data and Employer’s use of Employer Data for compliance but is not obligated to do so. Gusto reserves the right to remove Employer Data from the Platform and Services at any time and without notice in the event that Gusto determines (in our sole discretion) that any Employer Data or use of Employer Data is in violation of this Agreement, including the Acceptable Use Policy.
16. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services and all content included therein (excluding Employer Data and Third-Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Employer in this Agreement are reserved by us. This Agreement does not grant Employer any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Platform, Services, or Gusto Content not specifically set forth herein.
Employer acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Employer agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, or Gusto Content.
If Employer sends us any feedback or suggestions (“Feedback”), Employer gives that Feedback entirely voluntarily and grants Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind to Employer. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about Employer’s experience with the Platform or Services.
Gusto grants Employer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Employer-facing components of the Gusto Content, Platform and Services solely as necessary for Employer to use the Services and in accordance with this Agreement and all applicable Additional Terms.
17. No Professional or Legal Advice; No Guaranteed Outcomes
Employer’s use of the Platform and Services is entirely at Employer’s own risk. Except as and unless otherwise stated in applicable Additional Terms, Employer acknowledges that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. Employer is solely responsible for ensuring Employer’s compliance with applicable law and regulation, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our customer support team regarding Employer’s use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
18. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about Employer Account activity, (4) service alerts and (5) soliciting feedback about our customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
19. Termination and Suspension
Employer’s Termination: Employer may cancel the Employer Account at any time from within the Employer Account. Unless we state otherwise, Employer’s termination of the Employer Account constitutes the termination of this Agreement. Unless we state otherwise, Gusto will not prorate any applicable Service Fees and Employer Accounts canceled in the middle of a month will be charged the full month’s fees for all Services to which Employer was subscribed at the time of cancellation. Employer understands and agrees that Employer is solely responsible for ensuring Employer’s compliance with all applicable law, including any wage and hour, taxation, and employment regulation that may affect Employer’s obligations to Members paid through the Payroll Service following cancellation or termination of the Services.
Gusto’s Termination and Suspension: Gusto may terminate or suspend Services if you violate this Agreement or any other Gusto terms or your use of the Services is improper or substantially exceeds or differs from normal use by other Employers, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.
Effect of Termination: Upon termination of the Services, and except as otherwise stated in this Section 19 or the applicable Additional Terms, Employer’s and Members’ rights to access and use all applicable Services(s) to which Employer subscribed or enrolled will automatically terminate. The Employer Account and Member accounts will remain accessible in a limited, read-only capacity, subject to compliance with this Agreement.
The termination of any of the Services or this Agreement will not affect Employer’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Any section of this Agreement or applicable Additional Terms which by their nature should survive termination will survive, including without limitation all applicable payment obligations, privacy rights and obligations of Gusto and Employer under Gusto’s Privacy Policy, Gusto’s responsibilities to comply with federal anti-money laundering regulation, use restrictions and indemnity obligations, warranty disclaimers, and limitations of liability.
20. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF THE SERVICES OR ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY EMPLOYER OR MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH DATA AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (a) MEET EMPLOYER’S EXPECTATIONS OR REQUIREMENTS; (b) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (c) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s or Services’ uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice to Employer. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect Employer’s use of or access to the Platform and Services. No oral or written information or advice given by Gusto, its agents, employees, or representatives will create a warranty or in any way increase the scope of the warranties in this Agreement.
To the extent any error results from Gusto’s reliance on information provided by or on behalf of Employer or Member, or anyone that Gusto reasonably believes to be Company or Member (each, a “Resulting Error”), then Gusto may attempt to correct the Resulting Error, but makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error and will not be liable for any failure to partially or fully correct such Resulting Error.
21. Indemnity
Employer agrees to indemnify and hold harmless Gusto and its officers, directors, employees, successors, assigns, representatives, subsidiaries, affiliates, and agents (the “Indemnified Parties”), from and against any losses, damages, expenses, claims, actions, disputes, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), without regard to merit or lack thereof arising out of or related in any way to (a) Employer’s or its Member’s access to, use of, or participation in the Platform and Services or Gusto Content; (b) Employer Data or Shared Employer Data; (c) violation or alleged violation of this Agreement or any instructions provided by Gusto with respect to Employer’s or Employer’s Member’s use of the Platform and Services; (d) Employer’s or its Member’s violation or alleged violation of any third party right; (e) Employer’s or its Member’s violation or alleged violation of any applicable law, rule, or regulation; (f) Employer’s or its Member’s gross negligence, fraudulent activity, or willful misconduct; (g) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Employer; (h) actions that Gusto or any other Indemnified Party undertakes at the request or instruction of Employer or anyone that Gusto or any other Indemnified Party reasonably believes to be Employer or acting with authority on behalf of Employer (each such action a “Requested Action”); or (i) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.
22. Limitation of Liability
To the extent permitted by applicable law, Gusto is not liable, and Employer agrees not to hold Gusto responsible for, any damages or losses resulting directly or indirectly from (a) Employer Data or Gusto’s or a third party’s reliance on certain Employer Data; (b) Resulting Errors; (c) Employer’s delay in providing, or failure to provide, Gusto with information necessary for its provision of the Services; (d) Employer’s violation of applicable law, rule, regulation or other applicable legal obligation; (e) unauthorized third-party actions taken in Employer’s Account or sharing of your Account credentials; (f) Employer’s or its Member’s negligence; (g) any Claims that could have reasonably been avoided or mitigated by Employer through reasonable efforts; (h) any Requested Actions; (j) Employer’s or Members’ failure to properly follow Gusto’s instructions with respect to the Platform, Gusto Content, or Services; or (k) Employer’s or its Member’s use or inability to use the Platform or the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, GUSTO CONTENT, THIRD PARTY CONTENT, OR THIRD-PARTY SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO EMPLOYER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS EMPLOYER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR GUSTO CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM.
23. Changes to the Agreement, Platform, or Services
Gusto may modify this Agreement at any time, in Gusto’s sole discretion, effective upon posting of an updated version of this Agreement. It is important that Employer reviews each modified version of the Agreement as Employer’s continued use of the Platform or Services after such changes are posted constitutes Employer’s agreement to be bound by the modified Agreement. If Employer does not agree to be bound by the modified Agreement, then Employer may not continue to use the Platform or Services. Because the Platform and Services evolve over time, Gusto may change or discontinue all or any part of the Platform or Services at any time and without notice, and without liability to Employer, at Gusto’s sole discretion.
24. Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 24.C BELOW.
Informal Dispute Resolution. “Dispute” includes any past, present, or future dispute, claim (including initial claims, counter-claims, third-party claims, or otherwise), or controversy relating to or arising out of this Agreement, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 24 or the Agreement. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide a neutral and cost effective means of resolving the Dispute quickly. Before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. We will also undertake reasonable efforts to contact you to resolve any Dispute informally before taking any formal action. If your Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate a formal action as described in this Section 24.
Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 24 (the “Arbitration Provision”), unless you opt out as provided in Section 24.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights (an “IP Protection Action”).
Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice as described below within thirty (30) days of the date of your electronic acceptance of these Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Employers, within thirty (30) days of Gusto’s notice of modifications to these Terms. For your convenience we have provided a form Arbitration Opt-Out Notice here. Please complete and email the completed form, including all required fields, to [email protected]. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 24.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 24 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 24.B ABOVE.
NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 24.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. A single arbitrator will be mutually selected by Gusto and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS Rules that satisfies the Arbitrator Requirements. Notwithstanding any language to the contrary in this Section 24, if a party seeks injunctive relief that would significantly impact other Employers as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 24 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the JAMS Rules, or in accordance with countervailing law if contrary to the JAMS Rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 24.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 24.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 24.D.
25. Force Majeure
Gusto is not liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Employer, Employer’s agents, assigns or any other third party acting on Employer’s behalf.
26. General
This Agreement (including all applicable Additional Terms, Gusto’s Privacy Policy, the Acceptable Use Policy, and any supplemental policies or terms which Gusto may present for review and acceptance at the time Employer subscribes to the applicable Service or Service Plan), constitutes the entire agreement between Gusto and Employer regarding the Platform and Services and replaces all prior agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the validity or enforceability of the remainder of the Agreement. Employer may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Employer to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (a) via email; or (b) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
27. Electronic Transmission of the Agreement
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (a) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (b) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
28. Contact Information
If Employer has any questions about this Agreement, the Platform, or the Services, Employer may contact Gusto at [email protected]. Gusto will not be able to accept Employer questions, Feedback, or complaints at Gusto’s physical locations. If Employer is a California resident, Employer may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective February 21st 2024 to March 24th 2024
DownloadTable of Contents
Please note: These terms will take effect on the earlier of March 22, 2024, or on the date you click to accept them in your Gusto account. Your continued use of our products and services after March 22, 2024 will constitute your acceptance of these updates. To review the outgoing terms, please click here.
Last updated February 21, 2024
ARBITRATION NOTICE: SECTION 24 OF THESE TERMS CONTAIN TERMS THAT REQUIRE EMPLOYER AND GUSTO TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. EMPLOYER UNDERSTANDS THAT: (1) EMPLOYER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) EMPLOYER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF EMPLOYER’S CLAIMS.
These Gusto Employer Terms of Service (“Employer Terms” or “Terms”) form part of the binding contract between Employer (as defined below) and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”, “us”, “we” or “our”). These Terms contain the terms and conditions that govern the use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program. The Platform and Services are only available to users who are authorized to form legally binding contracts under applicable laws in the jurisdictions in which the Platform and Services are offered or made available.
"Employer" is the organization, company, or business entity that you represent in accepting this Agreement. For example, if you are accepting this Agreement in connection with creating a new Gusto account for and on behalf of your limited liability company, your limited liability company is the Employer. If you are using the Gusto Platform as a representative of Employer and Administrator for Employer’s Account (each term as further defined below) your use of the Platform is subject to this Agreement.
In contrast, if you are Employer's employee, contractor, or other type of member of Employer’s business, and Employer has invited you to create an account in order to view your paystubs, enroll in benefits, or access other Services enabled by Employer, you are a "Member" and the Members Terms of Service govern your access to and use of the Platform and Services in your individual capacity.
If you are an accountant or bookkeeper using Gusto Pro and/or are managing your client’s or customer’s use of the Platform or Services, this Agreement and the Gusto Accountant Terms of Service govern your access to and use of the Platform and Services on behalf of your clients or customers (each an Employer).
Individual Services and Gusto policies, promotions, and other offerings made available to Employer, Accountant, or to Member directly are or may be subject to additional terms (“Additional Terms”) as listed on www.gusto.com/legal/terms. Any applicable Additional Terms are incorporated into and made part of this Agreement. To the extent any Additional Terms conflict with these Employer Terms, the Additional Terms will control with respect to the applicable subject matter.
By accessing or using the Platform, including any Services, Employer agrees to be bound by these Terms, any Additional Terms specific to Services that Employer accesses or uses, and our Acceptable Use Policy (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Employer (e.g. in your capacity as agent or authorized representative of Employer), you represent that you have the authority to bind Employer to this Agreement and that Employer accepts this Agreement.
1. Employer Accounts and Administrators
Employer must create an account in order to use the Services (“Employer Account”). The Employer Account is affiliated with and owned by the Employer and contains information relating to the Employer (e.g., payroll information or business expenses). Employer must authorize at least one employee or third party representative to act as an authorized administrator for each Employer Account (each, an “Administrator”). If you are creating a Employer Account on behalf of and for Employer, you are doing so as an Administrator and you understand and acknowledge that Employer (and not you) is the owner of the Employer Account. We may require you to follow a policy regarding Employer Account ownership disputes and may update this policy from time to time with or without notice.
Each Administrator will access the Employer Account through an Administrator profile (“Administrator Profile”). Each Administrator must maintain a unique and confidential username and password for their Administrator Profile. Gusto may require additional identification and authentication information from each Administrator in order to access their Administrator Profile. Employer is responsible for ensuring that all Administrators secure any log-in credentials, including passwords, phone numbers, or other authentication information that may be required by Gusto to access the Administrator Profile, and keep such information strictly confidential.
A. Accountant Administrators
Employer may choose to invite a third party bookkeeper or accountant to act as Administrator for the Employer Account (each an “Accountant Administrator”) and create an Administrator Profile. For the avoidance of doubt, the term “Administrator” as used in these Terms encompasses Accountant Administrators. In addition to the actions, rights, and responsibilities applicable to Employer’s Administrators, Employer’s Accountant Administrators are subject to their compliance with this Agreement and the Gusto Accountant Terms of Service. Employer understands and agrees that Accountant Administrator may be enabled to take certain actions within the Employer Account, including but not limited to inviting additional Accountant Administrators to create Administrator Profiles within the Employer Account, enabling Third-Party Services on behalf of Employers, and managing certain Administrator permissions on Employer’s behalf. Employer may also authorize Accountant Administrators to pay Employer’s Service Fees on Employer’s behalf, subject to Section 10 below.
Employer understands and agrees that by inviting an Accountant Administrator to create an Administrator Profile within the Employer Account, Employer is authorizing such Accountant Administrator to act as an authorized representative of the Employer Account on the Gusto Platform, and that such Accountant Administrator is authorized to provide information to Gusto at Gusto’s request regarding the Employer Account, including without limitation, information about the Employer Bank Account and Employer’s payment of Service Fees (among other things).
B. Administrator Permissions
Depending on the permissions Employer grants to an Administrator Profile, the applicable Administrator or Accountant Administrator may be authorized to take certain actions on Employer’s behalf and on behalf of the Employer Account. Such actions include (but are not limited to) inputting information, approving and running payrolls, enrolling in Services, and accepting Additional Terms on Employer’s behalf. Employer should regularly review Employer’s Administrators and the permissions granted to their Administrator Profiles to ensure that only authorized individuals retain access to the Employer Account. If Employer is unable to remove an Administrator from the Employer Account, Employer must contact Gusto directly to request that such individual’s access be revoked.
Employer is responsible for ensuring that Employer’s Administrators comply with this Agreement. Gusto may review Employer’s and Employer’s Administrators’ conduct for compliance purposes but is not obligated to do so. We encourage Employer to review our Help Center content closely in order to ensure that Employer is granting the minimum appropriate permissions to each Administrator Profile.
2. Employer is Responsible for the Employer Account
Employer is responsible for (a) the security and confidentiality of any credentials or log-in information used to access the Employer Account, including any Administrator Profile credentials, (b) for securing and maintaining confidential any information accessible via the Employer Account, and (c) following instructions Gusto may provide regarding the security of the Employer Account. Please review important information about how to protect your credentials and the Employer Account from fraud and online phishing schemes here.
Employer is responsible for all actions and transactions taken under the Employer Account, regardless of whether Employer knew of or authorized such actions (“Authorized Actions”). Authorized Actions may include but are not limited to (a) actions taken by an authorized Administrator, and (b) actions or transactions that Employer, or anyone that Gusto reasonably believes to be Employer or an Administrator, directs or instructs Gusto to take on Employer’s behalf whether orally (e.g., over the phone to one of our team members) or in writing.
3. Unauthorized Third Party Access to Employer Account
Employer accepts all risks of unauthorized use of Employer’s Account. Employer must immediately notify Gusto if Employer believes that the Employer Account or any of Employer’s Administrator Profiles, Member log-in credentials, or Administrator log-in credentials have been compromised. Gusto may suspend the Employer Account, including all Administrator access to the Employer Account, if Gusto has reason to believe that the Employer Account or any of Employer’s Administrator's log-in credentials have been compromised.
Employer agrees not to grant Employer Account access to, or disclose any confidential log-in credentials to, Prohibited Third Parties. A “Prohibited Third Party” is a third party that seeks to access or accesses the Platform or Services using an Administrator Profile or an Administrator’s log-in credentials, regardless of Employer’s purported consent or authorization, in order to harvest, crawl, or scrape information from the Platform or Services without Gusto’s express written authorization.
4. Identity and Bank Account Verification
To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions like Gusto to obtain, verify, record, and monitor information that identifies Employer’s business entity, each Administrator authorized to access and/or manage the Employer Account, and Employer’s designated responsible party (also referred to as Employer’s signatory). To that end, Gusto will require Employer to provide certain information to us from time to time, but in particular during onboarding of the Employer Account, to help us verify Employer’s business entity information, the identity of Employer’s Administrators and signatory, and perform other additional due diligence as we may deem necessary in our sole discretion. This information may include (but is not limited to) full name, address, date of birth, Employer taxpayer ID, telephone number, email address, business entity ownership documentation, and other information that will allow us to identify Employer, Employer’s signatory, and/or Employer’s Administrators (“Identification Information”). We may also require Employer to provide identifying documentation about Employer’s business entity, Administrators and signatory, which may include passports, drivers licenses, or other government issued identification (“Identification Documents”). We may also use Identification Information and/or Identification Documents to confirm the identity of an Administrator and their legal relationship to Employer in the event that there is a dispute between Employer’s Administrator(s) regarding management of and/or access to the Employer Account.
Employer must link one (1) or more United States bank accounts to Employer’s Account for purposes of processing payments via the Services and/or in order for Gusto to debit Employer for applicable Service Fees (as defined below) (each, a “Bank Account”) unless otherwise instructed or permitted by Gusto in writing. The Bank Account must be in the United States. Gusto will also need to collect, review and verify certain information about the Bank Account in order to confirm Employer’s eligibility for the Platform and Services and in order to set up the Employer Account. This information includes identifying information about the Bank Account such as (but not limited to) the number and financial institution name, identifying information about the Bank Account signatory, as well as information about payment recipients and transactions (“Employer Banking Information”). Gusto will also use Employer Banking Information to conduct Know Your Customer (“KYC”) reviews and Sanctions Screening as described in Section 5 below, to verify the Bank Account ownership, to verify that the Employer and Employer’s Bank Account are eligible for the Services (as determined by us in our sole discretion), and to confirm and share Employer Banking Information with our service providers and/or Employer’s Bank Account provider. Please review our Help Center content for more information on how we conduct bank account verification and about what types of bank accounts we accept.
Employer represents and warrants that Employer has the authority to share any Identification Information, Identification Documents, and Employer Banking Information provided to Gusto during the identity and bank account verification process described in this Section 4. Employer further represents and warrants that all Identification Information, Identification Documents, and Employer Banking Information provided to Gusto are truthful, current, accurate and complete, and that Employer is not submitting such information on behalf of a third party. Employer is responsible for ensuring that all Identification Information, Identification Documents, and Employer Banking Information that may be requested by Gusto from time to time are provided in a timely manner, and Employer understands that failure to comply with this Section 4 means that Gusto may be unable to provide Employer with the Services, and may result in the immediate termination of this Agreement and the Services with or without notice and without liability to Employer.
Employer authorizes Gusto to obtain information about Employer as a business entity, and to report adverse business information about Employer to third parties including but not limited to federal or state tax authorities. Gusto reserves the right to terminate this Agreement immediately with or without notice or liability to Employer if Gusto is unable to verify Employer’s satisfactory financial standing, or for any other lawful business reason (including, without limitations, reasons that are confidential to Gusto or which Gusto may not legally disclose).
5. KYC and Sanctions Screening
Gusto's account opening and maintenance processes include controls designed to gather information required under the Bank Secrecy Act, FinCEN’s Employer Due Diligence (“CDD”) Rule, and other information required under Gusto's KYC program. Gusto’s KYC program includes standards and controls designed to enable Gusto to form a reasonable belief as to an Employer's true identity, the nature and purpose of the transactions an Employer conducts, and the level of risk an Employer's relationship and related financial activities may pose to Gusto.
All U.S. persons, including U.S. banks, bank holding companies, and non-bank subsidiaries, must comply with the Office of Foreign Asset Control’s (“OFAC”) regulations. This means that Gusto may institute a hold on Employer’s Bank Account or funds, or terminate this Agreement immediately without notice, if Gusto determines (in Gusto’s sole discretion) that Employer or any of Employer’s Administrators are a Specially Designated National (as defined by OFAC), if Employer or any of Employer’s Administrators fall into the scope of a country-based sanction program, or if Employer attempts to send funds to a country or recipient that is sanctioned or that Gusto reasonably believes is sanctioned in Gusto’s sole discretion.
6. Members
Employer may invite and authorize its Members to each create a Member account (“Member Account”) associated with the Employer Account. Member Accounts may also be referred to as “employee profiles.” Member Accounts will enable Members to enter, modify, or delete personal information (e.g. bank account or withholding information); upload, view, access, modify and/or download certain documents and information associated with or provided by Employer via the Employer Account (e.g. Form W-4 or an offer letter from Employer); and use Services and Third-Party Services to which Employer has granted them access, among other things (collectively, “Employer-Provided Services”). Employer is responsible for ensuring that its Members comply with this Agreement in the course of completing such actions or accessing Employer-Provided Services. Employer may modify or restrict Member’s access to Employer-Provided Services, subject to any Additional Terms applicable to such Employer-Provided Services.
In addition to and apart from Member’s access to Employer-Provided Services, once a Member has created a Member Account, such Member will (a) maintain a limited lifetime access to such Member Account and (b) have access to a variety of Services and Third-Party Services provided directly to Members by Gusto and Gusto’s third-party partners, in all cases subject to the Member Terms of Service (collectively “Member Services”). Except where specifically stated, Member Services will be available to Member regardless of Member’s relationship with Employer. Employer understands and acknowledges that Employer will be unable to restrict, remove, or modify Member’s access to Member Services once Member accepts Employer’s invitation to create an Member Account. Employer further acknowledges and understands that certain Member Services will enable a Member to share or disclose certain Employer Data (as defined below) that is provided by or accessible to the Member with third parties.
7. Employer Data and Privacy
Employer may upload content or information through the Platform, such as files, employment documents, messages, and personal information about Members or Administrators. Employer may also direct Members to upload such content or information directly for use in the Employer Account or any Employer-Provided Services. Collectively, all such content or information is referred to herein as “Employer Data.”
Employer is solely responsible for ensuring that the collection and/or processing of Employer Data is compliant with all applicable laws and regulations. Employer represents and warrants that Employer has received all required rights, licenses, consents and authorizations to use and make available any Employer Data uploaded or submitted to the Platform via Employer’s Account, and that Employer may instruct Gusto on what to do with such Employer Data. For example, Employer may elect to enable or disable third party integrations, manage permissions, and grant certain Administrators or Members access to view or edit Employer Data submitted by other Members or Administrators. These instructions may result in the access, use, disclosure, modification or deletion of certain Employer Data, and Employer should review the Gusto Help Center for more information about these choices, permissions and instructions. Employer is solely responsible for responding to and resolving disputes that may arise between Employer and Members relating to or based on Employer Data, the Platform, Services, or Employer’s failure to fulfill any of the foregoing responsibilities.
As a financial institution, Gusto is subject to certain retention requirements under state and federal law. As a result, certain types of Employer Data may not be removed from the Platform. Gusto is not responsible or liable to Employer for the removal or deletion of (or the failure to remove or delete) such Employer Data. Employer acknowledges and agrees that Gusto is not responsible for the loss or modification of any Employer Data, and that Employer’s use of the Platform and Services is at Employer’s own risk.
Employer understands and agrees that Employer Data transmitted, entered or otherwise uploaded by Employer, on Employer’s behalf, and by Employer’s Members to the Platform and Services will be processed, stored and retained in accordance with our legal obligations and our Privacy Policy, as it may be updated from time to time, including processing for the purpose of improving our products and services. Our Privacy Policy is incorporated into this Agreement by reference and is available at gusto.com/legal/privacy. Employer should periodically review our website for updates to the Privacy Policy.
8. Employer Responsibilities Related to the Services
Employer is responsible for following instructions that Gusto provides to Employer with respect to the Platform and Services from time to time, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Services.
Employer acknowledges and understands that Gusto’s provision of all Services will rely on information provided to Gusto by Employer (including, but not limited to, Employer Data, tax information, payroll information, benefits information, and employment information about Employer and/or Members). Employer understands and agrees that Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. Employer accepts sole responsibility for any liability arising from Employer’s failure to correct or update such information. Employer is responsible for promptly verifying the accuracy of any content generated by Gusto based on information provided by Employer and timely notifying Gusto of any inaccuracies in such content.
Employer will promptly notify Gusto of any third-party notices (including, but not limited to, notices from the IRS, other government agencies, or insurance carriers, as applicable) that Employer receives which could affect (a) Gusto’s ability to effectively provide the Services or (b) increase the likelihood that a Claim (as defined below) is brought against Employer or Gusto in connection with the Services.
9. Service Plans
Certain Services are only available to Employers who have subscribed to one of our monthly service plans, as described at www.gusto.com/product/pricing (“Service Plans”). In order to subscribe to any Service Plan, use any Service (including any applicable add-on services), make a Service available to Members, Employer must be enrolled in the applicable Service Plan and/or accept the applicable Additional Terms (as defined below). Gusto may limit access to Services or Service Plans for Employers who engage in certain high risk business activities (as determined by Gusto).
10. Employer’s Payment Obligations
Employer agrees to pay the fees for the Services as listed at gusto.com/product/pricing or other applicable posted or agreed upon rates for any Service. We may also charge additional fees for exceptions processing, setup, and other special services (including optional add-on services). Collectively, all such fees are referred to as “Service Fees.” Unless we state otherwise, Service Fees are charged for any full or partial calendar months in which Employer is enrolled in the Service, even if Employer or Employer’s Members do not use the Service in such month.
Gusto will invoice Employer for all Service Fees. Employer must promptly notify Gusto of any inaccuracies or errors in any Gusto-issued invoice. Employer authorizes Gusto to debit the Bank Account for all applicable Service Fees on a monthly basis in arrears as they become payable and to debit Employer’s Bank Account for any outstanding Service Fees at any time. Employer agrees to pay any invoice within fifteen (15) days of receipt via a payment method Gusto deems acceptable in our sole discretion.
Unless we state otherwise, all Service Fees are non-refundable. In the event of a refund, Employer agrees to reimburse Gusto for any sales, use, and/or similar taxes arising from the provision of the Services that any federal, state, and/or local governments may impose.
Gusto may change any of our Service Fees at any time. Gusto will notify Employer of such change(s) at least thirty (30) days in advance. Employer’s continued use of the Platform or applicable Service(s) after a Service Fee change takes effect constitutes Employer’s acceptance of the change.
If we are unable to collect Service Fees owed by the payment due date for any reason, or if Employer (or Accountant) attempts to cancel or claw back fees properly debited by Gusto from Employer’s Bank Account under this Agreement, we may terminate or suspend the Employer Account and/or Employer’s access to the Platform or Services until we receive the outstanding amounts due. The foregoing does not limit any remedies available to Gusto under the Accountant Program Terms. Termination or suspension of the Employer Account will not relieve Employer’s obligation to pay outstanding amounts due plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection (including costs Gusto reasonably incurs from third party debt collection services) as permitted by law.
Employer may authorize an Accountant Administrator to pay Employer’s Service Fees on Employer’s behalf. By so authorizing, Employer understands and agrees that Employer and Accountant Administrator are jointly and severally liable for any unpaid Service Fees and for any associated bank fees or costs of collection reasonably incurred by Gusto.
11. Promotions and Insurance Products Disclosure
We may offer discounts or promotional pricing on our Services, and features in accordance with our Terms for Promotional Offers & Discounts.
We provide and sell certain insurance products and services through our affiliate entity, With Gusto Insurance Services, LLC. We also provide Services unaffiliated with health insurance or the purchase of an insurance contract, including HR services and payroll services. Employer is under no obligation to purchase any insurance product from us or our affiliates in exchange for receiving those non-insurance Services. Similarly, Employer is not required to purchase any insurance product from us or our affiliates in order to qualify for or receive any discount or promotion we may offer.
12. Switching Service Plans; Enrolling in or Removing Services
If Employer subscribes to one of our Service Plans, Employer may switch to a new Service Plan at any time, but no more than once per calendar month. If Employer upgrades Service Plans, Employer will begin receiving access to the features and Services available under the new upgraded Service Plan immediately. Unless we state otherwise, the Service Fees for the upgraded Service Plan will be reflected on Employer’s monthly invoice at the end of the calendar month in which Employer upgraded to the new Service Plan. If Employer downgrades to a less expensive Service Plan, then, unless we state otherwise, the downgrade (including loss of access to any relevant features or Services) and the downgraded plan Service Fees will not take effect until the next calendar month.
Employer may also enroll in Services separate and apart from one of our Service Plans. Employer may enroll in, or remove, any Service at any time unless otherwise stated in the applicable Additional Terms. When Employer enrolls in a new Service, Employer will have access to such Service immediately. When Employer removes a Service, Employer will retain access to such Service until the end of the calendar month in which Employer removed it.
13. Beta Features
We may provide Employer or Members with access to beta, pilot, trial, or pre-release features or products (collectively “Beta Features”) via the Platform. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature, Employer agrees to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
14. Third-Party Services, Websites, and Resources
Employer will be able to elect to receive services from our third party partners (each a “Third-Party Service”). Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. Employer is solely responsible for, and assumes all risk from, Employer’s choice to receive, use or access any Third-Party Service. Employer’s use of any Third-Party Service, including any Employer Data or personal information Employer may share with or input into such Third-Party Service, is between Employer and the owner of such Third-Party Service. If Employer chooses to and authorizes Gusto to share Employer Data with a Third-Party Service (“Shared Employer Data”) then Employer (a) represents it has obtained all legal rights to do so, (b) assumes all risks related to such Shared Employer Data, (c) acknowledges it is solely responsible for the accuracy of such Shared Employer Data, and (d) agrees that it is solely responsible for the lawfulness of sharing such Shared Employer Data with the applicable Third-Party Service. Employer waives and releases any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Employer Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto is not responsible for the content, products, or services, or links available or displayed on those websites or resources. Employer is solely responsible for, and assumes all risk arising from, Employer’s use of any Third-Party Service, third-party websites or resources.
15. Employer’s Proprietary Rights
Subject to the terms of this Agreement, Employer (for itself and all of its Members) grants Gusto a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Employer Data, only as necessary (a) to provide, maintain and update the Platform and Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted under our Privacy Policy; and (d) as expressly authorized by Employer. Employer represents and warrants that it has secured all rights in and to Employer Data from its Members as may be necessary to grant this license. Employer is solely responsible for the accuracy, quality and legality of Employer Data, the means by which Employer acquired Employer Data, Employer’s use of Employer Data within the Platform and Services and Employer’s interoperation of any Employer Data with the Platform and Services.
Gusto may periodically monitor Employer Data and Employer’s use of Employer Data for compliance but is not obligated to do so. Gusto reserves the right to remove Employer Data from the Platform and Services at any time and without notice in the event that Gusto determines (in our sole discretion) that any Employer Data or use of Employer Data is in violation of this Agreement, including the Acceptable Use Policy.
16. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services and all content included therein (excluding Employer Data and Third-Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Employer in this Agreement are reserved by us. This Agreement does not grant Employer any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Platform, Services, or Gusto Content not specifically set forth herein.
Employer acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Employer agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, or Gusto Content.
If Employer sends us any feedback or suggestions (“Feedback”), Employer gives that Feedback entirely voluntarily and grants Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind to Employer. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about Employer’s experience with the Platform or Services.
Gusto grants Employer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Employer-facing components of the Gusto Content, Platform and Services solely as necessary for Employer to use the Services and in accordance with this Agreement and all applicable Additional Terms.
17. No Professional or Legal Advice; No Guaranteed Outcomes
Employer’s use of the Platform and Services is entirely at Employer’s own risk. Except as and unless otherwise stated in applicable Additional Terms, Employer acknowledges that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. Employer is solely responsible for ensuring Employer’s compliance with applicable law and regulation, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our customer support team regarding Employer’s use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
18. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about Employer Account activity, (4) service alerts and (5) soliciting feedback about our customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
19. Termination and Suspension
Employer’s Termination: Employer may cancel the Employer Account at any time from within the Employer Account. Unless we state otherwise, Employer’s termination of the Employer Account constitutes the termination of this Agreement. Unless we state otherwise, Gusto will not prorate any applicable Service Fees and Employer Accounts canceled in the middle of a month will be charged the full month’s fees for all Services to which Employer was subscribed at the time of cancellation. Employer understands and agrees that Employer is solely responsible for ensuring Employer’s compliance with all applicable law, including any wage and hour, taxation, and employment regulation that may affect Employer’s obligations to Members paid through the Payroll Service following cancellation or termination of the Services.
Gusto’s Termination and Suspension: Gusto may terminate or suspend Services if you violate this Agreement or any other Gusto terms or your use of the Services is improper or substantially exceeds or differs from normal use by other Employers, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.
Effect of Termination: Upon termination of the Services, and except as otherwise stated in this Section 19 or the applicable Additional Terms, Employer’s and Members’ rights to access and use all applicable Services(s) to which Employer subscribed or enrolled will automatically terminate. The Employer Account and Member accounts will remain accessible in a limited, read-only capacity, subject to compliance with this Agreement.
The termination of any of the Services or this Agreement will not affect Employer’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Any section of this Agreement or applicable Additional Terms which by their nature should survive termination will survive, including without limitation all applicable payment obligations, privacy rights and obligations of Gusto and Employer under Gusto’s Privacy Policy, Gusto’s responsibilities to comply with federal anti-money laundering regulation, use restrictions and indemnity obligations, warranty disclaimers, and limitations of liability.
20. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF THE SERVICES OR ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY EMPLOYER OR MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH DATA AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (a) MEET EMPLOYER’S EXPECTATIONS OR REQUIREMENTS; (b) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (c) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s or Services’ uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice to Employer. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect Employer’s use of or access to the Platform and Services. No oral or written information or advice given by Gusto, its agents, employees, or representatives will create a warranty or in any way increase the scope of the warranties in this Agreement.
To the extent any error results from Gusto’s reliance on information provided by or on behalf of Employer or Member, or anyone that Gusto reasonably believes to be Company or Member (each, a “Resulting Error”), then Gusto may attempt to correct the Resulting Error, but makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error and will not be liable for any failure to partially or fully correct such Resulting Error.
21. Indemnity
Employer agrees to indemnify and hold harmless Gusto and its officers, directors, employees, successors, assigns, representatives, subsidiaries, affiliates, and agents (the “Indemnified Parties”), from and against any losses, damages, expenses, claims, actions, disputes, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), without regard to merit or lack thereof arising out of or related in any way to (a) Employer’s or its Member’s access to, use of, or participation in the Platform and Services or Gusto Content; (b) Employer Data or Shared Employer Data; (c) violation or alleged violation of this Agreement or any instructions provided by Gusto with respect to Employer’s or Employer’s Member’s use of the Platform and Services; (d) Employer’s or its Member’s violation or alleged violation of any third party right; (e) Employer’s or its Member’s violation or alleged violation of any applicable law, rule, or regulation; (f) Employer’s or its Member’s gross negligence, fraudulent activity, or willful misconduct; (g) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Employer; (h) actions that Gusto or any other Indemnified Party undertakes at the request or instruction of Employer or anyone that Gusto or any other Indemnified Party reasonably believes to be Employer or acting with authority on behalf of Employer (each such action a “Requested Action”); or (i) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.
22. Limitation of Liability
To the extent permitted by applicable law, Gusto is not liable, and Employer agrees not to hold Gusto responsible for, any damages or losses resulting directly or indirectly from (a) Employer Data or Gusto’s or a third party’s reliance on certain Employer Data; (b) Resulting Errors; (c) Employer’s delay in providing, or failure to provide, Gusto with information necessary for its provision of the Services; (d) Employer’s violation of applicable law, rule, regulation or other applicable legal obligation; (e) unauthorized third-party actions taken in Employer’s Account or sharing of your Account credentials; (f) Employer’s or its Member’s negligence; (g) any Claims that could have reasonably been avoided or mitigated by Employer through reasonable efforts; (h) any Requested Actions; (j) Employer’s or Members’ failure to properly follow Gusto’s instructions with respect to the Platform, Gusto Content, or Services; or (k) Employer’s or its Member’s use or inability to use the Platform or the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, GUSTO CONTENT, THIRD PARTY CONTENT, OR THIRD-PARTY SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO EMPLOYER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS EMPLOYER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR GUSTO CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM.
23. Changes to the Agreement, Platform, or Services
Gusto may modify this Agreement at any time, in Gusto’s sole discretion, effective upon posting of an updated version of this Agreement. It is important that Employer reviews each modified version of the Agreement as Employer’s continued use of the Platform or Services after such changes are posted constitutes Employer’s agreement to be bound by the modified Agreement. If Employer does not agree to be bound by the modified Agreement, then Employer may not continue to use the Platform or Services. Because the Platform and Services evolve over time, Gusto may change or discontinue all or any part of the Platform or Services at any time and without notice, and without liability to Employer, at Gusto’s sole discretion.
24. Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 24.C BELOW.
Informal Dispute Resolution. “Dispute” includes any past, present, or future dispute, claim (including initial claims, counter-claims, third-party claims, or otherwise), or controversy relating to or arising out of this Agreement, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 24 or the Agreement. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide a neutral and cost effective means of resolving the Dispute quickly. Before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. We will also undertake reasonable efforts to contact you to resolve any Dispute informally before taking any formal action. If your Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate a formal action as described in this Section 24.
Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 24 (the “Arbitration Provision”), unless you opt out as provided in Section 24.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights (an “IP Protection Action”).
Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice as described below within thirty (30) days of the date of your electronic acceptance of these Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Employers, within thirty (30) days of Gusto’s notice of modifications to these Terms. For your convenience we have provided a form Arbitration Opt-Out Notice here. Please complete and email the completed form, including all required fields, to [email protected]. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 24.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 24 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 24.B ABOVE.
NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 24.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. A single arbitrator will be mutually selected by Gusto and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS Rules that satisfies the Arbitrator Requirements. Notwithstanding any language to the contrary in this Section 24, if a party seeks injunctive relief that would significantly impact other Employers as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 24 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the JAMS Rules, or in accordance with countervailing law if contrary to the JAMS Rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 24.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 24.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 24.D.
25. Force Majeure
Gusto is not liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Employer, Employer’s agents, assigns or any other third party acting on Employer’s behalf.
26. General
This Agreement (including all applicable Additional Terms, Gusto’s Privacy Policy, the Acceptable Use Policy, and any supplemental policies or terms which Gusto may present for review and acceptance at the time Employer subscribes to the applicable Service or Service Plan), constitutes the entire agreement between Gusto and Employer regarding the Platform and Services and replaces all prior agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the validity or enforceability of the remainder of the Agreement. Employer may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Employer to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (a) via email; or (b) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
27. Electronic Transmission of the Agreement
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (a) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (b) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
28. Contact Information
If Employer has any questions about this Agreement, the Platform, or the Services, Employer may contact Gusto at [email protected]. Gusto will not be able to accept Employer questions, Feedback, or complaints at Gusto’s physical locations. If Employer is a California resident, Employer may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective February 21st 2024 to February 21st 2024
DownloadTable of Contents
Please note: These terms will take effect on the earlier of March 22, 2024, or on the date you click to accept them in your Gusto account. Your continued use of our products and services after March 22, 2024 will constitute your acceptance of these updates. To review the outgoing terms, please click here.
Last updated February 21, 2024
ARBITRATION NOTICE: SECTION 24 OF THESE TERMS CONTAIN TERMS THAT REQUIRE EMPLOYER AND GUSTO TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. EMPLOYER UNDERSTANDS THAT: (1) EMPLOYER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) EMPLOYER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF EMPLOYER’S CLAIMS.
These Gusto Employer Terms of Service (“Employer Terms” or “Terms”) form part of the binding contract between Employer (as defined below) and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”, “us”, “we” or “our”). These Terms contain the terms and conditions that govern the use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program. The Platform and Services are only available to users who are authorized to form legally binding contracts under applicable laws in the jurisdictions in which the Platform and Services are offered or made available.
"Employer" is the organization, company, or business entity that you represent in accepting this Agreement. For example, if you are accepting this Agreement in connection with creating a new Gusto account for and on behalf of your limited liability company, your limited liability company is the Employer. If you are using the Gusto Platform as a representative of Employer and Administrator for Employer’s Account (each term as further defined below) your use of the Platform is subject to this Agreement.
In contrast, if you are Employer's employee, contractor, or other type of member of Employer’s business, and Employer has invited you to create an account in order to view your paystubs, enroll in benefits, or access other Services enabled by Employer, you are a "Member" and the Members Terms of Service govern your access to and use of the Platform and Services in your individual capacity.
If you are an accountant or bookkeeper using Gusto Pro and/or are managing your client’s or customer’s use of the Platform or Services, this Agreement and the Gusto Accountant Terms of Service govern your access to and use of the Platform and Services on behalf of your clients or customers (each an Employer).
Individual Services and Gusto policies, promotions, and other offerings made available to Employer, Accountant, or to Member directly are or may be subject to additional terms (“Additional Terms”) as listed on www.gusto.com/legal/terms. Any applicable Additional Terms are incorporated into and made part of this Agreement. To the extent any Additional Terms conflict with these Employer Terms, the Additional Terms will control with respect to the applicable subject matter.
By accessing or using the Platform, including any Services, Employer agrees to be bound by these Terms, any Additional Terms specific to Services that Employer accesses or uses, and our Acceptable Use Policy (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Employer (e.g. in your capacity as agent or authorized representative of Employer), you represent that you have the authority to bind Employer to this Agreement and that Employer accepts this Agreement.
1. Employer Accounts and Administrators
Employer must create an account in order to use the Services (“Employer Account”). The Employer Account is affiliated with and owned by the Employer and contains information relating to the Employer (e.g., payroll information or business expenses). Employer must authorize at least one employee or third party representative to act as an authorized administrator for each Employer Account (each, an “Administrator”). If you are creating a Employer Account on behalf of and for Employer, you are doing so as an Administrator and you understand and acknowledge that Employer (and not you) is the owner of the Employer Account. We may require you to follow a policy regarding Employer Account ownership disputes and may update this policy from time to time with or without notice.
Each Administrator will access the Employer Account through an Administrator profile (“Administrator Profile”). Each Administrator must maintain a unique and confidential username and password for their Administrator Profile. Gusto may require additional identification and authentication information from each Administrator in order to access their Administrator Profile. Employer is responsible for ensuring that all Administrators secure any log-in credentials, including passwords, phone numbers, or other authentication information that may be required by Gusto to access the Administrator Profile, and keep such information strictly confidential.
A. Accountant Administrators
Employer may choose to invite a third party bookkeeper or accountant to act as Administrator for the Employer Account (each an “Accountant Administrator”) and create an Administrator Profile. For the avoidance of doubt, the term “Administrator” as used in these Terms encompasses Accountant Administrators. In addition to the actions, rights, and responsibilities applicable to Employer’s Administrators, Employer’s Accountant Administrators are subject to their compliance with this Agreement and the Gusto Accountant Terms of Service. Employer understands and agrees that Accountant Administrator may be enabled to take certain actions within the Employer Account, including but not limited to inviting additional Accountant Administrators to create Administrator Profiles within the Employer Account, enabling Third-Party Services on behalf of Employers, and managing certain Administrator permissions on Employer’s behalf. Employer may also authorize Accountant Administrators to pay Employer’s Service Fees on Employer’s behalf, subject to Section 10 below.
Employer understands and agrees that by inviting an Accountant Administrator to create an Administrator Profile within the Employer Account, Employer is authorizing such Accountant Administrator to act as an authorized representative of the Employer Account on the Gusto Platform, and that such Accountant Administrator is authorized to provide information to Gusto at Gusto’s request regarding the Employer Account, including without limitation, information about the Employer Bank Account and Employer’s payment of Service Fees (among other things).
B. Administrator Permissions
Depending on the permissions Employer grants to an Administrator Profile, the applicable Administrator or Accountant Administrator may be authorized to take certain actions on Employer’s behalf and on behalf of the Employer Account. Such actions include (but are not limited to) inputting information, approving and running payrolls, enrolling in Services, and accepting Additional Terms on Employer’s behalf. Employer should regularly review Employer’s Administrators and the permissions granted to their Administrator Profiles to ensure that only authorized individuals retain access to the Employer Account. If Employer is unable to remove an Administrator from the Employer Account, Employer must contact Gusto directly to request that such individual’s access be revoked.
Employer is responsible for ensuring that Employer’s Administrators comply with this Agreement. Gusto may review Employer’s and Employer’s Administrators’ conduct for compliance purposes but is not obligated to do so. We encourage Employer to review our Help Center content closely in order to ensure that Employer is granting the minimum appropriate permissions to each Administrator Profile.
2. Employer is Responsible for the Employer Account
Employer is responsible for (a) the security and confidentiality of any credentials or log-in information used to access the Employer Account, including any Administrator Profile credentials, (b) for securing and maintaining confidential any information accessible via the Employer Account, and (c) following instructions Gusto may provide regarding the security of the Employer Account. Please review important information about how to protect your credentials and the Employer Account from fraud and online phishing schemes here.
Employer is responsible for all actions and transactions taken under the Employer Account, regardless of whether Employer knew of or authorized such actions (“Authorized Actions”). Authorized Actions may include but are not limited to (a) actions taken by an authorized Administrator, and (b) actions or transactions that Employer, or anyone that Gusto reasonably believes to be Employer or an Administrator, directs or instructs Gusto to take on Employer’s behalf whether orally (e.g., over the phone to one of our team members) or in writing.
3. Unauthorized Third Party Access to Employer Account
Employer accepts all risks of unauthorized use of Employer’s Account. Employer must immediately notify Gusto if Employer believes that the Employer Account or any of Employer’s Administrator Profiles, Member log-in credentials, or Administrator log-in credentials have been compromised. Gusto may suspend the Employer Account, including all Administrator access to the Employer Account, if Gusto has reason to believe that the Employer Account or any of Employer’s Administrator's log-in credentials have been compromised.
Employer agrees not to grant Employer Account access to, or disclose any confidential log-in credentials to, Prohibited Third Parties. A “Prohibited Third Party” is a third party that seeks to access or accesses the Platform or Services using an Administrator Profile or an Administrator’s log-in credentials, regardless of Employer’s purported consent or authorization, in order to harvest, crawl, or scrape information from the Platform or Services without Gusto’s express written authorization.
4. Identity and Bank Account Verification
To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions like Gusto to obtain, verify, record, and monitor information that identifies Employer’s business entity, each Administrator authorized to access and/or manage the Employer Account, and Employer’s designated responsible party (also referred to as Employer’s signatory). To that end, Gusto will require Employer to provide certain information to us from time to time, but in particular during onboarding of the Employer Account, to help us verify Employer’s business entity information, the identity of Employer’s Administrators and signatory, and perform other additional due diligence as we may deem necessary in our sole discretion. This information may include (but is not limited to) full name, address, date of birth, Employer taxpayer ID, telephone number, email address, business entity ownership documentation, and other information that will allow us to identify Employer, Employer’s signatory, and/or Employer’s Administrators (“Identification Information”). We may also require Employer to provide identifying documentation about Employer’s business entity, Administrators and signatory, which may include passports, drivers licenses, or other government issued identification (“Identification Documents”). We may also use Identification Information and/or Identification Documents to confirm the identity of an Administrator and their legal relationship to Employer in the event that there is a dispute between Employer’s Administrator(s) regarding management of and/or access to the Employer Account.
Employer must link one (1) or more United States bank accounts to Employer’s Account for purposes of processing payments via the Services and/or in order for Gusto to debit Employer for applicable Service Fees (as defined below) (each, a “Bank Account”) unless otherwise instructed or permitted by Gusto in writing. The Bank Account must be in the United States. Gusto will also need to collect, review and verify certain information about the Bank Account in order to confirm Employer’s eligibility for the Platform and Services and in order to set up the Employer Account. This information includes identifying information about the Bank Account such as (but not limited to) the number and financial institution name, identifying information about the Bank Account signatory, as well as information about payment recipients and transactions (“Employer Banking Information”). Gusto will also use Employer Banking Information to conduct Know Your Customer (“KYC”) reviews and Sanctions Screening as described in Section 5 below, to verify the Bank Account ownership, to verify that the Employer and Employer’s Bank Account are eligible for the Services (as determined by us in our sole discretion), and to confirm and share Employer Banking Information with our service providers and/or Employer’s Bank Account provider. Please review our Help Center content for more information on how we conduct bank account verification and about what types of bank accounts we accept.
Employer represents and warrants that Employer has the authority to share any Identification Information, Identification Documents, and Employer Banking Information provided to Gusto during the identity and bank account verification process described in this Section 4. Employer further represents and warrants that all Identification Information, Identification Documents, and Employer Banking Information provided to Gusto are truthful, current, accurate and complete, and that Employer is not submitting such information on behalf of a third party. Employer is responsible for ensuring that all Identification Information, Identification Documents, and Employer Banking Information that may be requested by Gusto from time to time are provided in a timely manner, and Employer understands that failure to comply with this Section 4 means that Gusto may be unable to provide Employer with the Services, and may result in the immediate termination of this Agreement and the Services with or without notice and without liability to Employer.
Employer authorizes Gusto to obtain information about Employer as a business entity, and to report adverse business information about Employer to third parties including but not limited to federal or state tax authorities. Gusto reserves the right to terminate this Agreement immediately with or without notice or liability to Employer if Gusto is unable to verify Employer’s satisfactory financial standing, or for any other lawful business reason (including, without limitations, reasons that are confidential to Gusto or which Gusto may not legally disclose).
5. KYC and Sanctions Screening
Gusto's account opening and maintenance processes include controls designed to gather information required under the Bank Secrecy Act, FinCEN’s Employer Due Diligence (“CDD”) Rule, and other information required under Gusto's KYC program. Gusto’s KYC program includes standards and controls designed to enable Gusto to form a reasonable belief as to an Employer's true identity, the nature and purpose of the transactions an Employer conducts, and the level of risk an Employer's relationship and related financial activities may pose to Gusto.
All U.S. persons, including U.S. banks, bank holding companies, and non-bank subsidiaries, must comply with the Office of Foreign Asset Control’s (“OFAC”) regulations. This means that Gusto may institute a hold on Employer’s Bank Account or funds, or terminate this Agreement immediately without notice, if Gusto determines (in Gusto’s sole discretion) that Employer or any of Employer’s Administrators are a Specially Designated National (as defined by OFAC), if Employer or any of Employer’s Administrators fall into the scope of a country-based sanction program, or if Employer attempts to send funds to a country or recipient that is sanctioned or that Gusto reasonably believes is sanctioned in Gusto’s sole discretion.
6. Members
Employer may invite and authorize its Members to each create a Member account (“Member Account”) associated with the Employer Account. Member Accounts may also be referred to as “employee profiles.” Member Accounts will enable Members to enter, modify, or delete personal information (e.g. bank account or withholding information); upload, view, access, modify and/or download certain documents and information associated with or provided by Employer via the Employer Account (e.g. Form W-4 or an offer letter from Employer); and use Services and Third-Party Services to which Employer has granted them access, among other things (collectively, “Employer-Provided Services”). Employer is responsible for ensuring that its Members comply with this Agreement in the course of completing such actions or accessing Employer-Provided Services. Employer may modify or restrict Member’s access to Employer-Provided Services, subject to any Additional Terms applicable to such Employer-Provided Services.
In addition to and apart from Member’s access to Employer-Provided Services, once a Member has created a Member Account, such Member will (a) maintain a limited lifetime access to such Member Account and (b) have access to a variety of Services and Third-Party Services provided directly to Members by Gusto and Gusto’s third-party partners, in all cases subject to the Member Terms of Service (collectively “Member Services”). Except where specifically stated, Member Services will be available to Member regardless of Member’s relationship with Employer. Employer understands and acknowledges that Employer will be unable to restrict, remove, or modify Member’s access to Member Services once Member accepts Employer’s invitation to create an Member Account. Employer further acknowledges and understands that certain Member Services will enable a Member to share or disclose certain Employer Data (as defined below) that is provided by or accessible to the Member with third parties.
7. Employer Data and Privacy
Employer may upload content or information through the Platform, such as files, employment documents, messages, and personal information about Members or Administrators. Employer may also direct Members to upload such content or information directly for use in the Employer Account or any Employer-Provided Services. Collectively, all such content or information is referred to herein as “Employer Data.”
Employer is solely responsible for ensuring that the collection and/or processing of Employer Data is compliant with all applicable laws and regulations. Employer represents and warrants that Employer has received all required rights, licenses, consents and authorizations to use and make available any Employer Data uploaded or submitted to the Platform via Employer’s Account, and that Employer may instruct Gusto on what to do with such Employer Data. For example, Employer may elect to enable or disable third party integrations, manage permissions, and grant certain Administrators or Members access to view or edit Employer Data submitted by other Members or Administrators. These instructions may result in the access, use, disclosure, modification or deletion of certain Employer Data, and Employer should review the Gusto Help Center for more information about these choices, permissions and instructions. Employer is solely responsible for responding to and resolving disputes that may arise between Employer and Members relating to or based on Employer Data, the Platform, Services, or Employer’s failure to fulfill any of the foregoing responsibilities.
As a financial institution, Gusto is subject to certain retention requirements under state and federal law. As a result, certain types of Employer Data may not be removed from the Platform. Gusto is not responsible or liable to Employer for the removal or deletion of (or the failure to remove or delete) such Employer Data. Employer acknowledges and agrees that Gusto is not responsible for the loss or modification of any Employer Data, and that Employer’s use of the Platform and Services is at Employer’s own risk.
Employer understands and agrees that Employer Data transmitted, entered or otherwise uploaded by Employer, on Employer’s behalf, and by Employer’s Members to the Platform and Services will be processed, stored and retained in accordance with our legal obligations and our Privacy Policy, as it may be updated from time to time, including processing for the purpose of improving our products and services. Our Privacy Policy is incorporated into this Agreement by reference and is available at gusto.com/legal/privacy. Employer should periodically review our website for updates to the Privacy Policy.
8. Employer Responsibilities Related to the Services
Employer is responsible for following instructions that Gusto provides to Employer with respect to the Platform and Services from time to time, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Services.
Employer acknowledges and understands that Gusto’s provision of all Services will rely on information provided to Gusto by Employer (including, but not limited to, Employer Data, tax information, payroll information, benefits information, and employment information about Employer and/or Members). Employer understands and agrees that Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. Employer accepts sole responsibility for any liability arising from Employer’s failure to correct or update such information. Employer is responsible for promptly verifying the accuracy of any content generated by Gusto based on information provided by Employer and timely notifying Gusto of any inaccuracies in such content.
Employer will promptly notify Gusto of any third-party notices (including, but not limited to, notices from the IRS, other government agencies, or insurance carriers, as applicable) that Employer receives which could affect (a) Gusto’s ability to effectively provide the Services or (b) increase the likelihood that a Claim (as defined below) is brought against Employer or Gusto in connection with the Services.
9. Service Plans
Certain Services are only available to Employers who have subscribed to one of our monthly service plans, as described at www.gusto.com/product/pricing (“Service Plans”). In order to subscribe to any Service Plan, use any Service (including any applicable add-on services), make a Service available to Members, Employer must be enrolled in the applicable Service Plan and/or accept the applicable Additional Terms (as defined below). Gusto may limit access to Services or Service Plans for Employers who engage in certain high risk business activities (as determined by Gusto).
10. Employer’s Payment Obligations
Employer agrees to pay the fees for the Services as listed at gusto.com/product/pricing or other applicable posted or agreed upon rates for any Service. We may also charge additional fees for exceptions processing, setup, and other special services (including optional add-on services). Collectively, all such fees are referred to as “Service Fees.” Unless we state otherwise, Service Fees are charged for any full or partial calendar months in which Employer is enrolled in the Service, even if Employer or Employer’s Members do not use the Service in such month.
Gusto will invoice Employer for all Service Fees. Employer must promptly notify Gusto of any inaccuracies or errors in any Gusto-issued invoice. Employer authorizes Gusto to debit the Bank Account for all applicable Service Fees on a monthly basis in arrears as they become payable and to debit Employer’s Bank Account for any outstanding Service Fees at any time. Employer agrees to pay any invoice within fifteen (15) days of receipt via a payment method Gusto deems acceptable in our sole discretion.
Unless we state otherwise, all Service Fees are non-refundable. In the event of a refund, Employer agrees to reimburse Gusto for any sales, use, and/or similar taxes arising from the provision of the Services that any federal, state, and/or local governments may impose.
Gusto may change any of our Service Fees at any time. Gusto will notify Employer of such change(s) at least thirty (30) days in advance. Employer’s continued use of the Platform or applicable Service(s) after a Service Fee change takes effect constitutes Employer’s acceptance of the change.
If we are unable to collect Service Fees owed by the payment due date for any reason, or if Employer (or Accountant) attempts to cancel or claw back fees properly debited by Gusto from Employer’s Bank Account under this Agreement, we may terminate or suspend the Employer Account and/or Employer’s access to the Platform or Services until we receive the outstanding amounts due. The foregoing does not limit any remedies available to Gusto under the Accountant Program Terms. Termination or suspension of the Employer Account will not relieve Employer’s obligation to pay outstanding amounts due plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection (including costs Gusto reasonably incurs from third party debt collection services) as permitted by law.
Employer may authorize an Accountant Administrator to pay Employer’s Service Fees on Employer’s behalf. By so authorizing, Employer understands and agrees that Employer and Accountant Administrator are jointly and severally liable for any unpaid Service Fees and for any associated bank fees or costs of collection reasonably incurred by Gusto.
11. Promotions and Insurance Products Disclosure
We may offer discounts or promotional pricing on our Services, and features in accordance with our Terms for Promotional Offers & Discounts.
We provide and sell certain insurance products and services through our affiliate entity, With Gusto Insurance Services, LLC. We also provide Services unaffiliated with health insurance or the purchase of an insurance contract, including HR services and payroll services. Employer is under no obligation to purchase any insurance product from us or our affiliates in exchange for receiving those non-insurance Services. Similarly, Employer is not required to purchase any insurance product from us or our affiliates in order to qualify for or receive any discount or promotion we may offer.
12. Switching Service Plans; Enrolling in or Removing Services
If Employer subscribes to one of our Service Plans, Employer may switch to a new Service Plan at any time, but no more than once per calendar month. If Employer upgrades Service Plans, Employer will begin receiving access to the features and Services available under the new upgraded Service Plan immediately. Unless we state otherwise, the Service Fees for the upgraded Service Plan will be reflected on Employer’s monthly invoice at the end of the calendar month in which Employer upgraded to the new Service Plan. If Employer downgrades to a less expensive Service Plan, then, unless we state otherwise, the downgrade (including loss of access to any relevant features or Services) and the downgraded plan Service Fees will not take effect until the next calendar month.
Employer may also enroll in Services separate and apart from one of our Service Plans. Employer may enroll in, or remove, any Service at any time unless otherwise stated in the applicable Additional Terms. When Employer enrolls in a new Service, Employer will have access to such Service immediately. When Employer removes a Service, Employer will retain access to such Service until the end of the calendar month in which Employer removed it.
13. Beta Features
We may provide Employer or Members with access to beta, pilot, trial, or pre-release features or products (collectively “Beta Features”) via the Platform. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature, Employer agrees to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
14. Third-Party Services, Websites, and Resources
Employer will be able to elect to receive services from our third party partners (each a “Third-Party Service”). Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. Employer is solely responsible for, and assumes all risk from, Employer’s choice to receive, use or access any Third-Party Service. Employer’s use of any Third-Party Service, including any Employer Data or personal information Employer may share with or input into such Third-Party Service, is between Employer and the owner of such Third-Party Service. If Employer chooses to and authorizes Gusto to share Employer Data with a Third-Party Service (“Shared Employer Data”) then Employer (a) represents it has obtained all legal rights to do so, (b) assumes all risks related to such Shared Employer Data, (c) acknowledges it is solely responsible for the accuracy of such Shared Employer Data, and (d) agrees that it is solely responsible for the lawfulness of sharing such Shared Employer Data with the applicable Third-Party Service. Employer waives and releases any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Employer Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto is not responsible for the content, products, or services, or links available or displayed on those websites or resources. Employer is solely responsible for, and assumes all risk arising from, Employer’s use of any Third-Party Service, third-party websites or resources.
15. Employer’s Proprietary Rights
Subject to the terms of this Agreement, Employer (for itself and all of its Members) grants Gusto a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Employer Data, only as necessary (a) to provide, maintain and update the Platform and Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted under our Privacy Policy; and (d) as expressly authorized by Employer. Employer represents and warrants that it has secured all rights in and to Employer Data from its Members as may be necessary to grant this license. Employer is solely responsible for the accuracy, quality and legality of Employer Data, the means by which Employer acquired Employer Data, Employer’s use of Employer Data within the Platform and Services and Employer’s interoperation of any Employer Data with the Platform and Services.
Gusto may periodically monitor Employer Data and Employer’s use of Employer Data for compliance but is not obligated to do so. Gusto reserves the right to remove Employer Data from the Platform and Services at any time and without notice in the event that Gusto determines (in our sole discretion) that any Employer Data or use of Employer Data is in violation of this Agreement, including the Acceptable Use Policy.
16. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services and all content included therein (excluding Employer Data and Third-Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Employer in this Agreement are reserved by us. This Agreement does not grant Employer any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Platform, Services, or Gusto Content not specifically set forth herein.
Employer acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Employer agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, or Gusto Content.
If Employer sends us any feedback or suggestions (“Feedback”), Employer gives that Feedback entirely voluntarily and grants Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind to Employer. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about Employer’s experience with the Platform or Services.
Gusto grants Employer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Employer-facing components of the Gusto Content, Platform and Services solely as necessary for Employer to use the Services and in accordance with this Agreement and all applicable Additional Terms.
17. No Professional or Legal Advice; No Guaranteed Outcomes
Employer’s use of the Platform and Services is entirely at Employer’s own risk. Except as and unless otherwise stated in applicable Additional Terms, Employer acknowledges that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. Employer is solely responsible for ensuring Employer’s compliance with applicable law and regulation, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our customer support team regarding Employer’s use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
18. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about Employer Account activity, (4) service alerts and (5) soliciting feedback about our customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
19. Termination and Suspension
Employer’s Termination: Employer may cancel the Employer Account at any time from within the Employer Account. Unless we state otherwise, Employer’s termination of the Employer Account constitutes the termination of this Agreement. Unless we state otherwise, Gusto will not prorate any applicable Service Fees and Employer Accounts canceled in the middle of a month will be charged the full month’s fees for all Services to which Employer was subscribed at the time of cancellation. Employer understands and agrees that Employer is solely responsible for ensuring Employer’s compliance with all applicable law, including any wage and hour, taxation, and employment regulation that may affect Employer’s obligations to Members paid through the Payroll Service following cancellation or termination of the Services.
Gusto’s Termination and Suspension: Gusto may terminate or suspend Services if you violate this Agreement or any other Gusto terms or your use of the Services is improper or substantially exceeds or differs from normal use by other Employers, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.
Effect of Termination: Upon termination of the Services, and except as otherwise stated in this Section 19 or the applicable Additional Terms, Employer’s and Members’ rights to access and use all applicable Services(s) to which Employer subscribed or enrolled will automatically terminate. The Employer Account and Member accounts will remain accessible in a limited, read-only capacity, subject to compliance with this Agreement.
The termination of any of the Services or this Agreement will not affect Employer’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Any section of this Agreement or applicable Additional Terms which by their nature should survive termination will survive, including without limitation all applicable payment obligations, privacy rights and obligations of Gusto and Employer under Gusto’s Privacy Policy, Gusto’s responsibilities to comply with federal anti-money laundering regulation, use restrictions and indemnity obligations, warranty disclaimers, and limitations of liability.
20. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF THE SERVICES OR ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY EMPLOYER OR MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH DATA AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (a) MEET EMPLOYER’S EXPECTATIONS OR REQUIREMENTS; (b) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (c) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s or Services’ uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice to Employer. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect Employer’s use of or access to the Platform and Services. No oral or written information or advice given by Gusto, its agents, employees, or representatives will create a warranty or in any way increase the scope of the warranties in this Agreement.
To the extent any error results from Gusto’s reliance on information provided by or on behalf of Employer or Member, or anyone that Gusto reasonably believes to be Company or Member (each, a “Resulting Error”), then Gusto may attempt to correct the Resulting Error, but makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error and will not be liable for any failure to partially or fully correct such Resulting Error.
21. Indemnity
Employer agrees to indemnify and hold harmless Gusto and its officers, directors, employees, successors, assigns, representatives, subsidiaries, affiliates, and agents (the “Indemnified Parties”), from and against any losses, damages, expenses, claims, actions, disputes, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), without regard to merit or lack thereof arising out of or related in any way to (a) Employer’s or its Member’s access to, use of, or participation in the Platform and Services or Gusto Content; (b) Employer Data or Shared Employer Data; (c) violation or alleged violation of this Agreement or any instructions provided by Gusto with respect to Employer’s or Employer’s Member’s use of the Platform and Services; (d) Employer’s or its Member’s violation or alleged violation of any third party right; (e) Employer’s or its Member’s violation or alleged violation of any applicable law, rule, or regulation; (f) Employer’s or its Member’s gross negligence, fraudulent activity, or willful misconduct; (g) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Employer; (h) actions that Gusto or any other Indemnified Party undertakes at the request or instruction of Employer or anyone that Gusto or any other Indemnified Party reasonably believes to be Employer or acting with authority on behalf of Employer (each such action a “Requested Action”); or (i) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.
22. Limitation of Liability
To the extent permitted by applicable law, Gusto is not liable, and Employer agrees not to hold Gusto responsible for, any damages or losses resulting directly or indirectly from (a) Employer Data or Gusto’s or a third party’s reliance on certain Employer Data; (b) Resulting Errors; (c) Employer’s delay in providing, or failure to provide, Gusto with information necessary for its provision of the Services; (d) Employer’s violation of applicable law, rule, regulation or other applicable legal obligation; (e) unauthorized third-party actions taken in Employer’s Account or sharing of your Account credentials; (f) Employer’s or its Member’s negligence; (g) any Claims that could have reasonably been avoided or mitigated by Employer through reasonable efforts; (h) any Requested Actions; (j) Employer’s or Members’ failure to properly follow Gusto’s instructions with respect to the Platform, Gusto Content, or Services; or (k) Employer’s or its Member’s use or inability to use the Platform or the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, GUSTO CONTENT, THIRD PARTY CONTENT, OR THIRD-PARTY SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO EMPLOYER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS EMPLOYER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR GUSTO CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM.
23. Changes to the Agreement, Platform, or Services
Gusto may modify this Agreement at any time, in Gusto’s sole discretion, effective upon posting of an updated version of this Agreement. It is important that Employer reviews each modified version of the Agreement as Employer’s continued use of the Platform or Services after such changes are posted constitutes Employer’s agreement to be bound by the modified Agreement. If Employer does not agree to be bound by the modified Agreement, then Employer may not continue to use the Platform or Services. Because the Platform and Services evolve over time, Gusto may change or discontinue all or any part of the Platform or Services at any time and without notice, and without liability to Employer, at Gusto’s sole discretion.
24. Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 24.C BELOW.
Informal Dispute Resolution. “Dispute” includes any past, present, or future dispute, claim (including initial claims, counter-claims, third-party claims, or otherwise), or controversy relating to or arising out of this Agreement, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 24 or the Agreement. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide a neutral and cost effective means of resolving the Dispute quickly. Before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. We will also undertake reasonable efforts to contact you to resolve any Dispute informally before taking any formal action. If your Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate a formal action as described in this Section 24.
Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 24 (the “Arbitration Provision”), unless you opt out as provided in Section 24.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights (an “IP Protection Action”).
Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice as described below within thirty (30) days of the date of your electronic acceptance of these Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Employers, within thirty (30) days of Gusto’s notice of modifications to these Terms. For your convenience we have provided a form Arbitration Opt-Out Notice here. Please complete and email the completed form, including all required fields, to [email protected]. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 24.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 24 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 24.B ABOVE.
NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 24.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. A single arbitrator will be mutually selected by Gusto and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS Rules that satisfies the Arbitrator Requirements. Notwithstanding any language to the contrary in this Section 24, if a party seeks injunctive relief that would significantly impact other Employers as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 24 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the JAMS Rules, or in accordance with countervailing law if contrary to the JAMS Rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 24.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 24.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 24.D.
25. Force Majeure
Gusto is not liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Employer, Employer’s agents, assigns or any other third party acting on Employer’s behalf.
26. General
This Agreement (including all applicable Additional Terms, Gusto’s Privacy Policy, the Acceptable Use Policy, and any supplemental policies or terms which Gusto may present for review and acceptance at the time Employer subscribes to the applicable Service or Service Plan), constitutes the entire agreement between Gusto and Employer regarding the Platform and Services and replaces all prior agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the validity or enforceability of the remainder of the Agreement. Employer may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Employer to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (a) via email; or (b) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
27. Electronic Transmission of the Agreement
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (a) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (b) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
28. Contact Information
If Employer has any questions about this Agreement, the Platform, or the Services, Employer may contact Gusto at [email protected]. Gusto will not be able to accept Employer questions, Feedback, or complaints at Gusto’s physical locations. If Employer is a California resident, Employer may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective February 21st 2024 to February 21st 2024
DownloadTable of Contents
Please note: These terms will take effect on the earlier of March 22, 2024, or on the date you click to accept them in your Gusto account. Your continued use of our products and services after March 22, 2024 will constitute your acceptance of these updates. To review the outgoing terms, please click here.
Last updated February 21, 2024
ARBITRATION NOTICE: SECTION 24 OF THESE TERMS CONTAIN TERMS THAT REQUIRE EMPLOYER AND GUSTO TO RESOLVE DISPUTES THROUGH FINAL, BINDING ARBITRATION. EMPLOYER UNDERSTANDS THAT: (1) EMPLOYER WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) EMPLOYER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF EMPLOYER’S CLAIMS.
These Gusto Employer Terms of Service (“Employer Terms” or “Terms”) form part of the binding contract between Employer (as defined below) and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”, “us”, “we” or “our”). These Terms contain the terms and conditions that govern the use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program. The Platform and Services are only available to users who are authorized to form legally binding contracts under applicable laws in the jurisdictions in which the Platform and Services are offered or made available.
"Employer" is the organization, company, or business entity that you represent in accepting this Agreement. For example, if you are accepting this Agreement in connection with creating a new Gusto account for and on behalf of your limited liability company, your limited liability company is the Employer. If you are using the Gusto Platform as a representative of Employer and Administrator for Employer’s Account (each term as further defined below) your use of the Platform is subject to this Agreement.
In contrast, if you are Employer's employee, contractor, or other type of member of Employer’s business, and Employer has invited you to create an account in order to view your paystubs, enroll in benefits, or access other Services enabled by Employer, you are a "Member" and the Members Terms of Service govern your access to and use of the Platform and Services in your individual capacity.
If you are an accountant or bookkeeper using Gusto Pro and/or are managing your client’s or customer’s use of the Platform or Services, this Agreement and the Gusto Accountant Terms of Service govern your access to and use of the Platform and Services on behalf of your clients or customers (each an Employer).
Individual Services and Gusto policies, promotions, and other offerings made available to Employer, Accountant, or to Member directly are or may be subject to additional terms (“Additional Terms”) as listed on www.gusto.com/legal/terms. Any applicable Additional Terms are incorporated into and made part of this Agreement. To the extent any Additional Terms conflict with these Employer Terms, the Additional Terms will control with respect to the applicable subject matter.
By accessing or using the Platform, including any Services, Employer agrees to be bound by these Terms, any Additional Terms specific to Services that Employer accesses or uses, and our Acceptable Use Policy (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Employer (e.g. in your capacity as agent or authorized representative of Employer), you represent that you have the authority to bind Employer to this Agreement and that Employer accepts this Agreement.
1. Employer Accounts and Administrators
Employer must create an account in order to use the Services (“Employer Account”). The Employer Account is affiliated with and owned by the Employer and contains information relating to the Employer (e.g., payroll information or business expenses). Employer must authorize at least one employee or third party representative to act as an authorized administrator for each Employer Account (each, an “Administrator”). If you are creating a Employer Account on behalf of and for Employer, you are doing so as an Administrator and you understand and acknowledge that Employer (and not you) is the owner of the Employer Account. We may require you to follow a policy regarding Employer Account ownership disputes and may update this policy from time to time with or without notice.
Each Administrator will access the Employer Account through an Administrator profile (“Administrator Profile”). Each Administrator must maintain a unique and confidential username and password for their Administrator Profile. Gusto may require additional identification and authentication information from each Administrator in order to access their Administrator Profile. Employer is responsible for ensuring that all Administrators secure any log-in credentials, including passwords, phone numbers, or other authentication information that may be required by Gusto to access the Administrator Profile, and keep such information strictly confidential.
A. Accountant Administrators
Employer may choose to invite a third party bookkeeper or accountant to act as Administrator for the Employer Account (each an “Accountant Administrator”) and create an Administrator Profile. For the avoidance of doubt, the term “Administrator” as used in these Terms encompasses Accountant Administrators. In addition to the actions, rights, and responsibilities applicable to Employer’s Administrators, Employer’s Accountant Administrators are subject to their compliance with this Agreement and the Gusto Accountant Terms of Service. Employer understands and agrees that Accountant Administrator may be enabled to take certain actions within the Employer Account, including but not limited to inviting additional Accountant Administrators to create Administrator Profiles within the Employer Account, enabling Third-Party Services on behalf of Employers, and managing certain Administrator permissions on Employer’s behalf. Employer may also authorize Accountant Administrators to pay Employer’s Service Fees on Employer’s behalf, subject to Section 10 below.
Employer understands and agrees that by inviting an Accountant Administrator to create an Administrator Profile within the Employer Account, Employer is authorizing such Accountant Administrator to act as an authorized representative of the Employer Account on the Gusto Platform, and that such Accountant Administrator is authorized to provide information to Gusto at Gusto’s request regarding the Employer Account, including without limitation, information about the Employer Bank Account and Employer’s payment of Service Fees (among other things).
B. Administrator Permissions
Depending on the permissions Employer grants to an Administrator Profile, the applicable Administrator or Accountant Administrator may be authorized to take certain actions on Employer’s behalf and on behalf of the Employer Account. Such actions include (but are not limited to) inputting information, approving and running payrolls, enrolling in Services, and accepting Additional Terms on Employer’s behalf. Employer should regularly review Employer’s Administrators and the permissions granted to their Administrator Profiles to ensure that only authorized individuals retain access to the Employer Account. If Employer is unable to remove an Administrator from the Employer Account, Employer must contact Gusto directly to request that such individual’s access be revoked.
Employer is responsible for ensuring that Employer’s Administrators comply with this Agreement. Gusto may review Employer’s and Employer’s Administrators’ conduct for compliance purposes but is not obligated to do so. We encourage Employer to review our Help Center content closely in order to ensure that Employer is granting the minimum appropriate permissions to each Administrator Profile.
2. Employer is Responsible for the Employer Account
Employer is responsible for (a) the security and confidentiality of any credentials or log-in information used to access the Employer Account, including any Administrator Profile credentials, (b) for securing and maintaining confidential any information accessible via the Employer Account, and (c) following instructions Gusto may provide regarding the security of the Employer Account. Please review important information about how to protect your credentials and the Employer Account from fraud and online phishing schemes here.
Employer is responsible for all actions and transactions taken under the Employer Account, regardless of whether Employer knew of or authorized such actions (“Authorized Actions”). Authorized Actions may include but are not limited to (a) actions taken by an authorized Administrator, and (b) actions or transactions that Employer, or anyone that Gusto reasonably believes to be Employer or an Administrator, directs or instructs Gusto to take on Employer’s behalf whether orally (e.g., over the phone to one of our team members) or in writing.
3. Unauthorized Third Party Access to Employer Account
Employer accepts all risks of unauthorized use of Employer’s Account. Employer must immediately notify Gusto if Employer believes that the Employer Account or any of Employer’s Administrator Profiles, Member log-in credentials, or Administrator log-in credentials have been compromised. Gusto may suspend the Employer Account, including all Administrator access to the Employer Account, if Gusto has reason to believe that the Employer Account or any of Employer’s Administrator's log-in credentials have been compromised.
Employer agrees not to grant Employer Account access to, or disclose any confidential log-in credentials to, Prohibited Third Parties. A “Prohibited Third Party” is a third party that seeks to access or accesses the Platform or Services using an Administrator Profile or an Administrator’s log-in credentials, regardless of Employer’s purported consent or authorization, in order to harvest, crawl, or scrape information from the Platform or Services without Gusto’s express written authorization.
4. Identity and Bank Account Verification
To help the government fight the funding of terrorism and money laundering activities, federal law requires financial institutions like Gusto to obtain, verify, record, and monitor information that identifies Employer’s business entity, each Administrator authorized to access and/or manage the Employer Account, and Employer’s designated responsible party (also referred to as Employer’s signatory). To that end, Gusto will require Employer to provide certain information to us from time to time, but in particular during onboarding of the Employer Account, to help us verify Employer’s business entity information, the identity of Employer’s Administrators and signatory, and perform other additional due diligence as we may deem necessary in our sole discretion. This information may include (but is not limited to) full name, address, date of birth, Employer taxpayer ID, telephone number, email address, business entity ownership documentation, and other information that will allow us to identify Employer, Employer’s signatory, and/or Employer’s Administrators (“Identification Information”). We may also require Employer to provide identifying documentation about Employer’s business entity, Administrators and signatory, which may include passports, drivers licenses, or other government issued identification (“Identification Documents”). We may also use Identification Information and/or Identification Documents to confirm the identity of an Administrator and their legal relationship to Employer in the event that there is a dispute between Employer’s Administrator(s) regarding management of and/or access to the Employer Account.
Employer must link one (1) or more United States bank accounts to Employer’s Account for purposes of processing payments via the Services and/or in order for Gusto to debit Employer for applicable Service Fees (as defined below) (each, a “Bank Account”) unless otherwise instructed or permitted by Gusto in writing. The Bank Account must be in the United States. Gusto will also need to collect, review and verify certain information about the Bank Account in order to confirm Employer’s eligibility for the Platform and Services and in order to set up the Employer Account. This information includes identifying information about the Bank Account such as (but not limited to) the number and financial institution name, identifying information about the Bank Account signatory, as well as information about payment recipients and transactions (“Employer Banking Information”). Gusto will also use Employer Banking Information to conduct Know Your Customer (“KYC”) reviews and Sanctions Screening as described in Section 5 below, to verify the Bank Account ownership, to verify that the Employer and Employer’s Bank Account are eligible for the Services (as determined by us in our sole discretion), and to confirm and share Employer Banking Information with our service providers and/or Employer’s Bank Account provider. Please review our Help Center content for more information on how we conduct bank account verification and about what types of bank accounts we accept.
Employer represents and warrants that Employer has the authority to share any Identification Information, Identification Documents, and Employer Banking Information provided to Gusto during the identity and bank account verification process described in this Section 4. Employer further represents and warrants that all Identification Information, Identification Documents, and Employer Banking Information provided to Gusto are truthful, current, accurate and complete, and that Employer is not submitting such information on behalf of a third party. Employer is responsible for ensuring that all Identification Information, Identification Documents, and Employer Banking Information that may be requested by Gusto from time to time are provided in a timely manner, and Employer understands that failure to comply with this Section 4 means that Gusto may be unable to provide Employer with the Services, and may result in the immediate termination of this Agreement and the Services with or without notice and without liability to Employer.
Employer authorizes Gusto to obtain information about Employer as a business entity, and to report adverse business information about Employer to third parties including but not limited to federal or state tax authorities. Gusto reserves the right to terminate this Agreement immediately with or without notice or liability to Employer if Gusto is unable to verify Employer’s satisfactory financial standing, or for any other lawful business reason (including, without limitations, reasons that are confidential to Gusto or which Gusto may not legally disclose).
5. KYC and Sanctions Screening
Gusto's account opening and maintenance processes include controls designed to gather information required under the Bank Secrecy Act, FinCEN’s Employer Due Diligence (“CDD”) Rule, and other information required under Gusto's KYC program. Gusto’s KYC program includes standards and controls designed to enable Gusto to form a reasonable belief as to an Employer's true identity, the nature and purpose of the transactions an Employer conducts, and the level of risk an Employer's relationship and related financial activities may pose to Gusto.
All U.S. persons, including U.S. banks, bank holding companies, and non-bank subsidiaries, must comply with the Office of Foreign Asset Control’s (“OFAC”) regulations. This means that Gusto may institute a hold on Employer’s Bank Account or funds, or terminate this Agreement immediately without notice, if Gusto determines (in Gusto’s sole discretion) that Employer or any of Employer’s Administrators are a Specially Designated National (as defined by OFAC), if Employer or any of Employer’s Administrators fall into the scope of a country-based sanction program, or if Employer attempts to send funds to a country or recipient that is sanctioned or that Gusto reasonably believes is sanctioned in Gusto’s sole discretion.
6. Members
Employer may invite and authorize its Members to each create a Member account (“Member Account”) associated with the Employer Account. Member Accounts may also be referred to as “employee profiles.” Member Accounts will enable Members to enter, modify, or delete personal information (e.g. bank account or withholding information); upload, view, access, modify and/or download certain documents and information associated with or provided by Employer via the Employer Account (e.g. Form W-4 or an offer letter from Employer); and use Services and Third-Party Services to which Employer has granted them access, among other things (collectively, “Employer-Provided Services”). Employer is responsible for ensuring that its Members comply with this Agreement in the course of completing such actions or accessing Employer-Provided Services. Employer may modify or restrict Member’s access to Employer-Provided Services, subject to any Additional Terms applicable to such Employer-Provided Services.
In addition to and apart from Member’s access to Employer-Provided Services, once a Member has created a Member Account, such Member will (a) maintain a limited lifetime access to such Member Account and (b) have access to a variety of Services and Third-Party Services provided directly to Members by Gusto and Gusto’s third-party partners, in all cases subject to the Member Terms of Service (collectively “Member Services”). Except where specifically stated, Member Services will be available to Member regardless of Member’s relationship with Employer. Employer understands and acknowledges that Employer will be unable to restrict, remove, or modify Member’s access to Member Services once Member accepts Employer’s invitation to create an Member Account. Employer further acknowledges and understands that certain Member Services will enable a Member to share or disclose certain Employer Data (as defined below) that is provided by or accessible to the Member with third parties.
7. Employer Data and Privacy
Employer may upload content or information through the Platform, such as files, employment documents, messages, and personal information about Members or Administrators. Employer may also direct Members to upload such content or information directly for use in the Employer Account or any Employer-Provided Services. Collectively, all such content or information is referred to herein as “Employer Data.”
Employer is solely responsible for ensuring that the collection and/or processing of Employer Data is compliant with all applicable laws and regulations. Employer represents and warrants that Employer has received all required rights, licenses, consents and authorizations to use and make available any Employer Data uploaded or submitted to the Platform via Employer’s Account, and that Employer may instruct Gusto on what to do with such Employer Data. For example, Employer may elect to enable or disable third party integrations, manage permissions, and grant certain Administrators or Members access to view or edit Employer Data submitted by other Members or Administrators. These instructions may result in the access, use, disclosure, modification or deletion of certain Employer Data, and Employer should review the Gusto Help Center for more information about these choices, permissions and instructions. Employer is solely responsible for responding to and resolving disputes that may arise between Employer and Members relating to or based on Employer Data, the Platform, Services, or Employer’s failure to fulfill any of the foregoing responsibilities.
As a financial institution, Gusto is subject to certain retention requirements under state and federal law. As a result, certain types of Employer Data may not be removed from the Platform. Gusto is not responsible or liable to Employer for the removal or deletion of (or the failure to remove or delete) such Employer Data. Employer acknowledges and agrees that Gusto is not responsible for the loss or modification of any Employer Data, and that Employer’s use of the Platform and Services is at Employer’s own risk.
Employer understands and agrees that Employer Data transmitted, entered or otherwise uploaded by Employer, on Employer’s behalf, and by Employer’s Members to the Platform and Services will be processed, stored and retained in accordance with our legal obligations and our Privacy Policy, as it may be updated from time to time, including processing for the purpose of improving our products and services. Our Privacy Policy is incorporated into this Agreement by reference and is available at gusto.com/legal/privacy. Employer should periodically review our website for updates to the Privacy Policy.
8. Employer Responsibilities Related to the Services
Employer is responsible for following instructions that Gusto provides to Employer with respect to the Platform and Services from time to time, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Services.
Employer acknowledges and understands that Gusto’s provision of all Services will rely on information provided to Gusto by Employer (including, but not limited to, Employer Data, tax information, payroll information, benefits information, and employment information about Employer and/or Members). Employer understands and agrees that Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. Employer accepts sole responsibility for any liability arising from Employer’s failure to correct or update such information. Employer is responsible for promptly verifying the accuracy of any content generated by Gusto based on information provided by Employer and timely notifying Gusto of any inaccuracies in such content.
Employer will promptly notify Gusto of any third-party notices (including, but not limited to, notices from the IRS, other government agencies, or insurance carriers, as applicable) that Employer receives which could affect (a) Gusto’s ability to effectively provide the Services or (b) increase the likelihood that a Claim (as defined below) is brought against Employer or Gusto in connection with the Services.
9. Service Plans
Certain Services are only available to Employers who have subscribed to one of our monthly service plans, as described at www.gusto.com/product/pricing (“Service Plans”). In order to subscribe to any Service Plan, use any Service (including any applicable add-on services), make a Service available to Members, Employer must be enrolled in the applicable Service Plan and/or accept the applicable Additional Terms (as defined below). Gusto may limit access to Services or Service Plans for Employers who engage in certain high risk business activities (as determined by Gusto).
10. Employer’s Payment Obligations
Employer agrees to pay the fees for the Services as listed at gusto.com/product/pricing or other applicable posted or agreed upon rates for any Service. We may also charge additional fees for exceptions processing, setup, and other special services (including optional add-on services). Collectively, all such fees are referred to as “Service Fees.” Unless we state otherwise, Service Fees are charged for any full or partial calendar months in which Employer is enrolled in the Service, even if Employer or Employer’s Members do not use the Service in such month.
Gusto will invoice Employer for all Service Fees. Employer must promptly notify Gusto of any inaccuracies or errors in any Gusto-issued invoice. Employer authorizes Gusto to debit the Bank Account for all applicable Service Fees on a monthly basis in arrears as they become payable and to debit Employer’s Bank Account for any outstanding Service Fees at any time. Employer agrees to pay any invoice within fifteen (15) days of receipt via a payment method Gusto deems acceptable in our sole discretion.
Unless we state otherwise, all Service Fees are non-refundable. In the event of a refund, Employer agrees to reimburse Gusto for any sales, use, and/or similar taxes arising from the provision of the Services that any federal, state, and/or local governments may impose.
Gusto may change any of our Service Fees at any time. Gusto will notify Employer of such change(s) at least thirty (30) days in advance. Employer’s continued use of the Platform or applicable Service(s) after a Service Fee change takes effect constitutes Employer’s acceptance of the change.
If we are unable to collect Service Fees owed by the payment due date for any reason, or if Employer (or Accountant) attempts to cancel or claw back fees properly debited by Gusto from Employer’s Bank Account under this Agreement, we may terminate or suspend the Employer Account and/or Employer’s access to the Platform or Services until we receive the outstanding amounts due. The foregoing does not limit any remedies available to Gusto under the Accountant Program Terms. Termination or suspension of the Employer Account will not relieve Employer’s obligation to pay outstanding amounts due plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection (including costs Gusto reasonably incurs from third party debt collection services) as permitted by law.
Employer may authorize an Accountant Administrator to pay Employer’s Service Fees on Employer’s behalf. By so authorizing, Employer understands and agrees that Employer and Accountant Administrator are jointly and severally liable for any unpaid Service Fees and for any associated bank fees or costs of collection reasonably incurred by Gusto.
11. Promotions and Insurance Products Disclosure
We may offer discounts or promotional pricing on our Services, and features in accordance with our Terms for Promotional Offers & Discounts.
We provide and sell certain insurance products and services through our affiliate entity, With Gusto Insurance Services, LLC. We also provide Services unaffiliated with health insurance or the purchase of an insurance contract, including HR services and payroll services. Employer is under no obligation to purchase any insurance product from us or our affiliates in exchange for receiving those non-insurance Services. Similarly, Employer is not required to purchase any insurance product from us or our affiliates in order to qualify for or receive any discount or promotion we may offer.
12. Switching Service Plans; Enrolling in or Removing Services
If Employer subscribes to one of our Service Plans, Employer may switch to a new Service Plan at any time, but no more than once per calendar month. If Employer upgrades Service Plans, Employer will begin receiving access to the features and Services available under the new upgraded Service Plan immediately. Unless we state otherwise, the Service Fees for the upgraded Service Plan will be reflected on Employer’s monthly invoice at the end of the calendar month in which Employer upgraded to the new Service Plan. If Employer downgrades to a less expensive Service Plan, then, unless we state otherwise, the downgrade (including loss of access to any relevant features or Services) and the downgraded plan Service Fees will not take effect until the next calendar month.
Employer may also enroll in Services separate and apart from one of our Service Plans. Employer may enroll in, or remove, any Service at any time unless otherwise stated in the applicable Additional Terms. When Employer enrolls in a new Service, Employer will have access to such Service immediately. When Employer removes a Service, Employer will retain access to such Service until the end of the calendar month in which Employer removed it.
13. Beta Features
We may provide Employer or Members with access to beta, pilot, trial, or pre-release features or products (collectively “Beta Features”) via the Platform. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature, Employer agrees to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
14. Third-Party Services, Websites, and Resources
Employer will be able to elect to receive services from our third party partners (each a “Third-Party Service”). Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. Employer is solely responsible for, and assumes all risk from, Employer’s choice to receive, use or access any Third-Party Service. Employer’s use of any Third-Party Service, including any Employer Data or personal information Employer may share with or input into such Third-Party Service, is between Employer and the owner of such Third-Party Service. If Employer chooses to and authorizes Gusto to share Employer Data with a Third-Party Service (“Shared Employer Data”) then Employer (a) represents it has obtained all legal rights to do so, (b) assumes all risks related to such Shared Employer Data, (c) acknowledges it is solely responsible for the accuracy of such Shared Employer Data, and (d) agrees that it is solely responsible for the lawfulness of sharing such Shared Employer Data with the applicable Third-Party Service. Employer waives and releases any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Employer Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto is not responsible for the content, products, or services, or links available or displayed on those websites or resources. Employer is solely responsible for, and assumes all risk arising from, Employer’s use of any Third-Party Service, third-party websites or resources.
15. Employer’s Proprietary Rights
Subject to the terms of this Agreement, Employer (for itself and all of its Members) grants Gusto a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Employer Data, only as necessary (a) to provide, maintain and update the Platform and Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted under our Privacy Policy; and (d) as expressly authorized by Employer. Employer represents and warrants that it has secured all rights in and to Employer Data from its Members as may be necessary to grant this license. Employer is solely responsible for the accuracy, quality and legality of Employer Data, the means by which Employer acquired Employer Data, Employer’s use of Employer Data within the Platform and Services and Employer’s interoperation of any Employer Data with the Platform and Services.
Gusto may periodically monitor Employer Data and Employer’s use of Employer Data for compliance but is not obligated to do so. Gusto reserves the right to remove Employer Data from the Platform and Services at any time and without notice in the event that Gusto determines (in our sole discretion) that any Employer Data or use of Employer Data is in violation of this Agreement, including the Acceptable Use Policy.
16. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services and all content included therein (excluding Employer Data and Third-Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Employer in this Agreement are reserved by us. This Agreement does not grant Employer any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Platform, Services, or Gusto Content not specifically set forth herein.
Employer acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Employer agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, or Gusto Content.
If Employer sends us any feedback or suggestions (“Feedback”), Employer gives that Feedback entirely voluntarily and grants Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind to Employer. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about Employer’s experience with the Platform or Services.
Gusto grants Employer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Employer-facing components of the Gusto Content, Platform and Services solely as necessary for Employer to use the Services and in accordance with this Agreement and all applicable Additional Terms.
17. No Professional or Legal Advice; No Guaranteed Outcomes
Employer’s use of the Platform and Services is entirely at Employer’s own risk. Except as and unless otherwise stated in applicable Additional Terms, Employer acknowledges that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. Employer is solely responsible for ensuring Employer’s compliance with applicable law and regulation, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our customer support team regarding Employer’s use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
18. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about Employer Account activity, (4) service alerts and (5) soliciting feedback about our customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
19. Termination and Suspension
Employer’s Termination: Employer may cancel the Employer Account at any time from within the Employer Account. Unless we state otherwise, Employer’s termination of the Employer Account constitutes the termination of this Agreement. Unless we state otherwise, Gusto will not prorate any applicable Service Fees and Employer Accounts canceled in the middle of a month will be charged the full month’s fees for all Services to which Employer was subscribed at the time of cancellation. Employer understands and agrees that Employer is solely responsible for ensuring Employer’s compliance with all applicable law, including any wage and hour, taxation, and employment regulation that may affect Employer’s obligations to Members paid through the Payroll Service following cancellation or termination of the Services.
Gusto’s Termination and Suspension: Gusto may terminate or suspend Services if you violate this Agreement or any other Gusto terms or your use of the Services is improper or substantially exceeds or differs from normal use by other Employers, raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues.
Effect of Termination: Upon termination of the Services, and except as otherwise stated in this Section 19 or the applicable Additional Terms, Employer’s and Members’ rights to access and use all applicable Services(s) to which Employer subscribed or enrolled will automatically terminate. The Employer Account and Member accounts will remain accessible in a limited, read-only capacity, subject to compliance with this Agreement.
The termination of any of the Services or this Agreement will not affect Employer’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Any section of this Agreement or applicable Additional Terms which by their nature should survive termination will survive, including without limitation all applicable payment obligations, privacy rights and obligations of Gusto and Employer under Gusto’s Privacy Policy, Gusto’s responsibilities to comply with federal anti-money laundering regulation, use restrictions and indemnity obligations, warranty disclaimers, and limitations of liability.
20. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF THE SERVICES OR ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY EMPLOYER OR MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH DATA AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (a) MEET EMPLOYER’S EXPECTATIONS OR REQUIREMENTS; (b) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (c) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s or Services’ uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice to Employer. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect Employer’s use of or access to the Platform and Services. No oral or written information or advice given by Gusto, its agents, employees, or representatives will create a warranty or in any way increase the scope of the warranties in this Agreement.
To the extent any error results from Gusto’s reliance on information provided by or on behalf of Employer or Member, or anyone that Gusto reasonably believes to be Company or Member (each, a “Resulting Error”), then Gusto may attempt to correct the Resulting Error, but makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error and will not be liable for any failure to partially or fully correct such Resulting Error.
21. Indemnity
Employer agrees to indemnify and hold harmless Gusto and its officers, directors, employees, successors, assigns, representatives, subsidiaries, affiliates, and agents (the “Indemnified Parties”), from and against any losses, damages, expenses, claims, actions, disputes, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), without regard to merit or lack thereof arising out of or related in any way to (a) Employer’s or its Member’s access to, use of, or participation in the Platform and Services or Gusto Content; (b) Employer Data or Shared Employer Data; (c) violation or alleged violation of this Agreement or any instructions provided by Gusto with respect to Employer’s or Employer’s Member’s use of the Platform and Services; (d) Employer’s or its Member’s violation or alleged violation of any third party right; (e) Employer’s or its Member’s violation or alleged violation of any applicable law, rule, or regulation; (f) Employer’s or its Member’s gross negligence, fraudulent activity, or willful misconduct; (g) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Employer; (h) actions that Gusto or any other Indemnified Party undertakes at the request or instruction of Employer or anyone that Gusto or any other Indemnified Party reasonably believes to be Employer or acting with authority on behalf of Employer (each such action a “Requested Action”); or (i) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.
22. Limitation of Liability
To the extent permitted by applicable law, Gusto is not liable, and Employer agrees not to hold Gusto responsible for, any damages or losses resulting directly or indirectly from (a) Employer Data or Gusto’s or a third party’s reliance on certain Employer Data; (b) Resulting Errors; (c) Employer’s delay in providing, or failure to provide, Gusto with information necessary for its provision of the Services; (d) Employer’s violation of applicable law, rule, regulation or other applicable legal obligation; (e) unauthorized third-party actions taken in Employer’s Account or sharing of your Account credentials; (f) Employer’s or its Member’s negligence; (g) any Claims that could have reasonably been avoided or mitigated by Employer through reasonable efforts; (h) any Requested Actions; (j) Employer’s or Members’ failure to properly follow Gusto’s instructions with respect to the Platform, Gusto Content, or Services; or (k) Employer’s or its Member’s use or inability to use the Platform or the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, GUSTO CONTENT, THIRD PARTY CONTENT, OR THIRD-PARTY SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO EMPLOYER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS EMPLOYER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR GUSTO CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM.
23. Changes to the Agreement, Platform, or Services
Gusto may modify this Agreement at any time, in Gusto’s sole discretion, effective upon posting of an updated version of this Agreement. It is important that Employer reviews each modified version of the Agreement as Employer’s continued use of the Platform or Services after such changes are posted constitutes Employer’s agreement to be bound by the modified Agreement. If Employer does not agree to be bound by the modified Agreement, then Employer may not continue to use the Platform or Services. Because the Platform and Services evolve over time, Gusto may change or discontinue all or any part of the Platform or Services at any time and without notice, and without liability to Employer, at Gusto’s sole discretion.
24. Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 24.C BELOW.
Informal Dispute Resolution. “Dispute” includes any past, present, or future dispute, claim (including initial claims, counter-claims, third-party claims, or otherwise), or controversy relating to or arising out of this Agreement, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 24 or the Agreement. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide a neutral and cost effective means of resolving the Dispute quickly. Before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. We will also undertake reasonable efforts to contact you to resolve any Dispute informally before taking any formal action. If your Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate a formal action as described in this Section 24.
Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 24 (the “Arbitration Provision”), unless you opt out as provided in Section 24.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights (an “IP Protection Action”).
Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice as described below within thirty (30) days of the date of your electronic acceptance of these Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Employers, within thirty (30) days of Gusto’s notice of modifications to these Terms. For your convenience we have provided a form Arbitration Opt-Out Notice here. Please complete and email the completed form, including all required fields, to [email protected]. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 24.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 24 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 24.B ABOVE.
NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 24.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. A single arbitrator will be mutually selected by Gusto and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS Rules that satisfies the Arbitrator Requirements. Notwithstanding any language to the contrary in this Section 24, if a party seeks injunctive relief that would significantly impact other Employers as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 24 shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the JAMS Rules, or in accordance with countervailing law if contrary to the JAMS Rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of these Terms. With the exception of Section 24.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 24.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 24.D.
25. Force Majeure
Gusto is not liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Employer, Employer’s agents, assigns or any other third party acting on Employer’s behalf.
26. General
This Agreement (including all applicable Additional Terms, Gusto’s Privacy Policy, the Acceptable Use Policy, and any supplemental policies or terms which Gusto may present for review and acceptance at the time Employer subscribes to the applicable Service or Service Plan), constitutes the entire agreement between Gusto and Employer regarding the Platform and Services and replaces all prior agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the validity or enforceability of the remainder of the Agreement. Employer may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Employer to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns. This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (a) via email; or (b) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
27. Electronic Transmission of the Agreement
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (a) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (b) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
28. Contact Information
If Employer has any questions about this Agreement, the Platform, or the Services, Employer may contact Gusto at [email protected]. Gusto will not be able to accept Employer questions, Feedback, or complaints at Gusto’s physical locations. If Employer is a California resident, Employer may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective October 19th 2023 to February 21st 2024
DownloadTable of Contents
Last updated September 26, 2017
This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”). This Agreement contains the terms and conditions that govern the use of Gusto’s all-in-one HR platform (the “Platform”). Gusto directly, and through its website (https://gusto.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://gusto.com/product/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
This Agreement is applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.
Please review Section 25 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires User to resolve disputes with Gusto through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has read and that User understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
1. Additional Terms for Services
Gusto’s provision of any Service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Gusto may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
Service Plan | Service Terms |
Core | Payroll Service Terms and Human Resources Service Terms |
Complete | Payroll Service Terms and Human Resources Service Terms |
Concierge | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Select | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Simple | Payroll Service Terms |
Plus | Payroll Service Terms |
Plus with HR Add-Ons | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Premium | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
If User chooses to subscribe to one or more of the following add-on services, then User agrees to be bound by the Service Terms listed next to such add-on service(s), each of which is incorporated herein by reference, as applicable to User:
Add-on Service | Service Terms |
Health Insurance Benefits Service | Health Insurance Benefits Service Terms |
Tax-Advantaged Accounts Service | Tax-Advantaged Accounts Service Terms |
Workers’ Compensation Service | Workers’ Compensation Service Terms |
International Contractor Payments Service | International Contractor Payments Service Terms |
R&D Tax Credit Redemption Service | R&D Tax Credit Redemption Service Terms |
State Tax Registration Service | State Tax Registration Service Terms |
Background Checks Beta | Background Checks Beta Terms |
Gusto R&D Tax Credit Services | Gusto R&D Tax Credit Services Terms |
Human Resources Service | Human Resources Service Terms |
HR Support Center Service | HR Support Center Terms |
Gusto’s provision of any Service is contingent upon User being actively enrolled in the Payroll Service (as defined in the Payroll Service Terms).
2. Services Fees and Charges
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://gusto.com/product/pricing, and User authorizes Gusto to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar months in which User is enrolled in any Services (so, for example, if User is enrolled in a Service Plan for a given calendar month, User would be charged for such month even if User does not run payroll in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Services for a portion of such month. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Gusto may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Gusto may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Gusto for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Gusto may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Gusto reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Gusto is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
3. Switching Service Plans
Gusto currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://gusto.com/product/pricing. User may request to change User’s Service Plan via the Platform.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
4. User Accounts
To use the Platform, User must have an account with Gusto (an “Account”). User hereby authorizes Gusto to obtain and store User’s Account information as necessary to make the Platform available to User.
5. Who May Use the Platform
User may use the Platform only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
6. Privacy Policy
Please refer to Gusto’s Privacy Policy for information on how Gusto collects, uses, and discloses information from Users. User acknowledges and understands that Gusto may collect, use, and disclose User’s information pursuant to Gusto’s Privacy Policy, as it may be updated from time to time.
7. User’s Compliance with the Agreement
Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
8. User Is Responsible for Certain Information and Obligations Relating to the Services
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.
User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Gusto reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Gusto to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Gusto provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Gusto. Gusto reserves the right to prevent access to the Services if Gusto has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Gusto with the information required for Gusto to perform the Services. User may furnish such information directly to Gusto or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Gusto that for any information that User shares with Gusto, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Gusto, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Gusto, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Gusto.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Gusto (or otherwise made available to User by Gusto) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Gusto of any third-party notices that User may receive which could affect Gusto’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Gusto in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services, and, if User subscribes to the Benefits Service (as defined in the Health Insurance Benefits Service Terms), notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Gusto by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Gusto Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
9. User Verification
User gives Gusto permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Gusto may ask for User’s name, address, date of birth, social security number, and other information that will allow Gusto to identify User. Gusto may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Gusto to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Gusto may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Gusto is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
10. Third-Party Services, Websites, and Resources
Through the Platform, User will be able to elect to receive services from partners of Gusto (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Gusto is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Gusto to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Gusto in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Gusto and for Gusto to provide it to Partners, and that Gusto’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Gusto to submit User’s Shared Information to a Partner, User has waived and released any Claim against Gusto and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to third-party websites or resources. Gusto provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
11. Proprietary Rights
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Gusto provides to User via the Services shall constitute Gusto Content (as defined below) hereunder. Gusto does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Gusto a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Gusto the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and Gusto has the right to remove User Content from the Platform in accordance with Section 14.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Gusto is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Gusto’s Intellectual Property Rights
“Gusto Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Gusto, other than User Content. User Content and Gusto Content shall be collectively referred to herein as “Content.” Gusto and its licensors exclusively own all worldwide right, title, and interest in and to the Gusto Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Gusto IP”). User acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Gusto Content. This Agreement does not convey any proprietary interest in or to any Gusto IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Gusto Content (“Feedback”) is given entirely voluntarily and Gusto will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Gusto in response to any surveys Gusto conducts, through any available technology, about User’s experience.
Subject to User’s compliance with this Agreement, Gusto grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Gusto Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
12. Consent to Receive SMS/MMS Messages About User’s Account
Gusto will send SMS to end users who have opted in to receive one time PIN Code and/or messages about activity in User’s Account and service updates as well as SMS messages soliciting User’s feedback about the Services and User’s experience interacting with Gusto’s Customer Care team. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS messages, User should reply HELP for help or STOP to cancel.
13. General Prohibitions
User agrees not to take any of the following actions:
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
- Use the Services other than as authorized in this Agreement;
- Resell, sublicense, timeshare, or otherwise share the Services with any third party;
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Platform; (iii) the Services; or (iv) Gusto Content or any individual element within the Site, Platform, or Services, including Gusto’s name and any Gusto trademark, logo, or other proprietary information, in each case, without Gusto’s express prior written consent;
- Access, tamper with, or use non-public areas of the Platform, Services, Gusto’s computer systems, or the technical delivery systems of Gusto’s providers;
- Interfere or attempt to interfere with the proper working of the Platform or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services;
- Take any action that imposes or may impose (as determined by Gusto in Gusto’s sole discretion) an unreasonable or disproportionately large load on Gusto’s (or Partners’) infrastructure;
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- Harvest or “scrape” any Content from the Platform or Services (such prohibited “scraping” includes, but is not limited to, (i) the use of any automated process or software that sends more requests to Gusto’s Platform than a human could reasonably produce in the same period of time in order to extract Content from the Platform or Services, and; (ii) the sharing of User’s Account credentials with a third party service in order for such third party service to impersonate User and extract Content from the Platform or Services via automatic processes) without Gusto’s express written consent;
- Attempt to probe, scan, or test the vulnerability of any Gusto system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Gusto or any of Gusto’s providers or any other third party (including another User) to protect the Platform, Services, or Content;
- Attempt to access or search the Platform, Services, or Content or download Content from the Platform or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Gusto or other generally available third-party web browsers;
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Platform or Services;
- Use any meta tags or other hidden text or metadata utilizing a Gusto trademark, logo, URL, or product name without Gusto’s express written consent;
- Use the Platform, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform, Services, or Content to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Platform, Services, or Content;
- Modify, translate, or otherwise create derivative works of any part of the Platform, Services, or Content other than User’s own User Content;
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Services;
- Collect from or store on the Platform or Services any personally identifiable information or protected health information of other Users without their express permission;
- Impersonate or misrepresent User’s affiliation with any person or entity;
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or
- Encourage, assist, or enable any other individual to do any of the foregoing.
14. Gusto’s Rights to Monitor User Content and Conduct
Although Gusto is not obligated to monitor access to or use of User Content or to review or edit any User Content, Gusto has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. Gusto reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Gusto, at Gusto’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.
Gusto has the right to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Gusto believes could affect the Platform, Services, or Content, including violations of this Agreement. Gusto may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
15. E-Signatures
Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Gusto has no responsibility or liability with respect to such matter.
Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
16. Gusto Makes No Representations Regarding Platform Availability
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to User.
17. The Platform Can Cause Irrevocable Damage to User Content
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT GUSTO IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
18. Warranty Disclaimers
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Gusto is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Gusto via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, Gusto’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for Gusto’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Gusto reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Gusto does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Gusto will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Gusto works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
19. Indemnity
User will indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Gusto or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Gusto or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
20. Limitation of Liability
Gusto is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Gusto with information necessary for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUSTO AND USER.
21. Duty to Mitigate
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Gusto or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
22. Term; Termination; Suspension
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Gusto may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Gusto’s foregoing termination right, Gusto may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Gusto has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Gusto determines that User’s actions are likely to cause legal liability for or material negative impact to Gusto; (iii) Gusto believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Gusto has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Gusto providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Gusto strives to support a multitude of business and organization types, in certain unique situations, if Gusto cannot support the payroll-related filings for User’s business or organization type, Gusto may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Gusto will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Gusto may deny the Limited Access Rights to User, or Gusto may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
23. Changes to the Agreement, Platform, or Service
Gusto may modify the Agreement at any time, in Gusto’s sole discretion. If Gusto does so, Gusto shall let User know either by posting the modified Agreement on the Platform or Site or through other communications. It is important that User reviews the Agreement whenever Gusto modifies it because if User continues to use the Platform or Services after Gusto has notified User of the modification and the modified Agreement has been posted on the Platform or Site, User is indicating to Gusto that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Gusto may change or discontinue all or any part of the Platform, Services, or Gusto Content at any time and without notice, at Gusto’s sole discretion.
24. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
25. Arbitration
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Gusto has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Gusto, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by User and Gusto. A single arbitrator will be mutually selected by Gusto and User and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Gusto. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Gusto may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that User owes to Gusto (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Gusto in such courts.
User and Gusto agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND GUSTO ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
26. Gusto Is Not Responsible for Things Gusto Cannot Control
Gusto is not responsible or liable for any delays or failures in performance from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Gusto cannot guarantee that any User Content hosted on a third-party server will remain secure.
27. General
This Agreement, including all applicable Service Terms, constitutes the entire agreement between Gusto and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
28. Electronic Transmission
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
29. Contact Information
If User has any questions about this Agreement, the Platform, or the Services, User may contact Gusto at [email protected] or (855) 546-1818. Gusto, the provider of the Services, is located at 525 20th Street San Francisco, CA 94107. If User is a California resident, User may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective October 19th 2023 to October 19th 2023
DownloadTable of Contents
Last updated September 26, 2017
This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”). This Agreement contains the terms and conditions that govern the use of Gusto’s all-in-one HR platform (the “Platform”). Gusto directly, and through its website (https://gusto.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://gusto.com/product/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
This Agreement is applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.
Please review Section 25 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires User to resolve disputes with Gusto through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has read and that User understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
1. Additional Terms for Services
Gusto’s provision of any Service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Gusto may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
Service Plan | Service Terms |
Core | Payroll Service Terms and Human Resources Service Terms |
Complete | Payroll Service Terms and Human Resources Service Terms |
Concierge | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Select | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Simple | Payroll Service Terms |
Plus | Payroll Service Terms |
Plus with HR Add-Ons | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Premium | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
If User chooses to subscribe to one or more of the following add-on services, then User agrees to be bound by the Service Terms listed next to such add-on service(s), each of which is incorporated herein by reference, as applicable to User:
Add-on Service | Service Terms |
Health Insurance Benefits Service | Health Insurance Benefits Service Terms |
Tax-Advantaged Accounts Service | Tax-Advantaged Accounts Service Terms |
Workers’ Compensation Service | Workers’ Compensation Service Terms |
International Contractor Payments Service | International Contractor Payments Service Terms |
R&D Tax Credit Redemption Service | R&D Tax Credit Redemption Service Terms |
State Tax Registration Service | State Tax Registration Service Terms |
Background Checks Beta | Background Checks Beta Terms |
Gusto R&D Tax Credit Services | Gusto R&D Tax Credit Services Terms |
Human Resources Service | Human Resources Service Terms |
HR Support Center Service | HR Support Center Terms |
Gusto’s provision of any Service is contingent upon User being actively enrolled in the Payroll Service (as defined in the Payroll Service Terms).
2. Services Fees and Charges
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://gusto.com/product/pricing, and User authorizes Gusto to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar months in which User is enrolled in any Services (so, for example, if User is enrolled in a Service Plan for a given calendar month, User would be charged for such month even if User does not run payroll in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Services for a portion of such month. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Gusto may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Gusto may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Gusto for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Gusto may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Gusto reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Gusto is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
3. Switching Service Plans
Gusto currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://gusto.com/product/pricing. User may request to change User’s Service Plan via the Platform.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
4. User Accounts
To use the Platform, User must have an account with Gusto (an “Account”). User hereby authorizes Gusto to obtain and store User’s Account information as necessary to make the Platform available to User.
5. Who May Use the Platform
User may use the Platform only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
6. Privacy Policy
Please refer to Gusto’s Privacy Policy for information on how Gusto collects, uses, and discloses information from Users. User acknowledges and understands that Gusto may collect, use, and disclose User’s information pursuant to Gusto’s Privacy Policy, as it may be updated from time to time.
7. User’s Compliance with the Agreement
Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
8. User Is Responsible for Certain Information and Obligations Relating to the Services
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.
User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Gusto reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Gusto to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Gusto provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Gusto. Gusto reserves the right to prevent access to the Services if Gusto has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Gusto with the information required for Gusto to perform the Services. User may furnish such information directly to Gusto or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Gusto that for any information that User shares with Gusto, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Gusto, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Gusto, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Gusto.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Gusto (or otherwise made available to User by Gusto) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Gusto of any third-party notices that User may receive which could affect Gusto’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Gusto in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services, and, if User subscribes to the Benefits Service (as defined in the Health Insurance Benefits Service Terms), notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Gusto by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Gusto Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
9. User Verification
User gives Gusto permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Gusto may ask for User’s name, address, date of birth, social security number, and other information that will allow Gusto to identify User. Gusto may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Gusto to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Gusto may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Gusto is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
10. Third-Party Services, Websites, and Resources
Through the Platform, User will be able to elect to receive services from partners of Gusto (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Gusto is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Gusto to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Gusto in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Gusto and for Gusto to provide it to Partners, and that Gusto’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Gusto to submit User’s Shared Information to a Partner, User has waived and released any Claim against Gusto and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to third-party websites or resources. Gusto provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
11. Proprietary Rights
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Gusto provides to User via the Services shall constitute Gusto Content (as defined below) hereunder. Gusto does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Gusto a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Gusto the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and Gusto has the right to remove User Content from the Platform in accordance with Section 14.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Gusto is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Gusto’s Intellectual Property Rights
“Gusto Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Gusto, other than User Content. User Content and Gusto Content shall be collectively referred to herein as “Content.” Gusto and its licensors exclusively own all worldwide right, title, and interest in and to the Gusto Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Gusto IP”). User acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Gusto Content. This Agreement does not convey any proprietary interest in or to any Gusto IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Gusto Content (“Feedback”) is given entirely voluntarily and Gusto will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Gusto in response to any surveys Gusto conducts, through any available technology, about User’s experience.
Subject to User’s compliance with this Agreement, Gusto grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Gusto Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
12. Consent to Receive SMS/MMS Messages About User’s Account
Gusto will send SMS to end users who have opted in to receive one time PIN Code and/or messages about activity in User’s Account and service updates as well as SMS messages soliciting User’s feedback about the Services and User’s experience interacting with Gusto’s Customer Care team. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS messages, User should reply HELP for help or STOP to cancel.
13. General Prohibitions
User agrees not to take any of the following actions:
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
- Use the Services other than as authorized in this Agreement;
- Resell, sublicense, timeshare, or otherwise share the Services with any third party;
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Platform; (iii) the Services; or (iv) Gusto Content or any individual element within the Site, Platform, or Services, including Gusto’s name and any Gusto trademark, logo, or other proprietary information, in each case, without Gusto’s express prior written consent;
- Access, tamper with, or use non-public areas of the Platform, Services, Gusto’s computer systems, or the technical delivery systems of Gusto’s providers;
- Interfere or attempt to interfere with the proper working of the Platform or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services;
- Take any action that imposes or may impose (as determined by Gusto in Gusto’s sole discretion) an unreasonable or disproportionately large load on Gusto’s (or Partners’) infrastructure;
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- Harvest or “scrape” any Content from the Platform or Services (such prohibited “scraping” includes, but is not limited to, (i) the use of any automated process or software that sends more requests to Gusto’s Platform than a human could reasonably produce in the same period of time in order to extract Content from the Platform or Services, and; (ii) the sharing of User’s Account credentials with a third party service in order for such third party service to impersonate User and extract Content from the Platform or Services via automatic processes) without Gusto’s express written consent;
- Attempt to probe, scan, or test the vulnerability of any Gusto system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Gusto or any of Gusto’s providers or any other third party (including another User) to protect the Platform, Services, or Content;
- Attempt to access or search the Platform, Services, or Content or download Content from the Platform or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Gusto or other generally available third-party web browsers;
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Platform or Services;
- Use any meta tags or other hidden text or metadata utilizing a Gusto trademark, logo, URL, or product name without Gusto’s express written consent;
- Use the Platform, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform, Services, or Content to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Platform, Services, or Content;
- Modify, translate, or otherwise create derivative works of any part of the Platform, Services, or Content other than User’s own User Content;
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Services;
- Collect from or store on the Platform or Services any personally identifiable information or protected health information of other Users without their express permission;
- Impersonate or misrepresent User’s affiliation with any person or entity;
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or
- Encourage, assist, or enable any other individual to do any of the foregoing.
14. Gusto’s Rights to Monitor User Content and Conduct
Although Gusto is not obligated to monitor access to or use of User Content or to review or edit any User Content, Gusto has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. Gusto reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Gusto, at Gusto’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.
Gusto has the right to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Gusto believes could affect the Platform, Services, or Content, including violations of this Agreement. Gusto may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
15. E-Signatures
Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Gusto has no responsibility or liability with respect to such matter.
Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
16. Gusto Makes No Representations Regarding Platform Availability
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to User.
17. The Platform Can Cause Irrevocable Damage to User Content
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT GUSTO IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
18. Warranty Disclaimers
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Gusto is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Gusto via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, Gusto’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for Gusto’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Gusto reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Gusto does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Gusto will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Gusto works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
19. Indemnity
User will indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Gusto or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Gusto or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
20. Limitation of Liability
Gusto is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Gusto with information necessary for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUSTO AND USER.
21. Duty to Mitigate
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Gusto or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
22. Term; Termination; Suspension
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Gusto may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Gusto’s foregoing termination right, Gusto may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Gusto has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Gusto determines that User’s actions are likely to cause legal liability for or material negative impact to Gusto; (iii) Gusto believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Gusto has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Gusto providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Gusto strives to support a multitude of business and organization types, in certain unique situations, if Gusto cannot support the payroll-related filings for User’s business or organization type, Gusto may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Gusto will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Gusto may deny the Limited Access Rights to User, or Gusto may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
23. Changes to the Agreement, Platform, or Service
Gusto may modify the Agreement at any time, in Gusto’s sole discretion. If Gusto does so, Gusto shall let User know either by posting the modified Agreement on the Platform or Site or through other communications. It is important that User reviews the Agreement whenever Gusto modifies it because if User continues to use the Platform or Services after Gusto has notified User of the modification and the modified Agreement has been posted on the Platform or Site, User is indicating to Gusto that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Gusto may change or discontinue all or any part of the Platform, Services, or Gusto Content at any time and without notice, at Gusto’s sole discretion.
24. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
25. Arbitration
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Gusto has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Gusto, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by User and Gusto. A single arbitrator will be mutually selected by Gusto and User and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Gusto. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Gusto may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that User owes to Gusto (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Gusto in such courts.
User and Gusto agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND GUSTO ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
26. Gusto Is Not Responsible for Things Gusto Cannot Control
Gusto is not responsible or liable for any delays or failures in performance from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Gusto cannot guarantee that any User Content hosted on a third-party server will remain secure.
27. General
This Agreement, including all applicable Service Terms, constitutes the entire agreement between Gusto and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
28. Electronic Transmission
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
29. Contact Information
If User has any questions about this Agreement, the Platform, or the Services, User may contact Gusto at [email protected] or (855) 546-1818. Gusto, the provider of the Services, is located at 525 20th Street San Francisco, CA 94107. If User is a California resident, User may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective October 19th 2023 to October 19th 2023
DownloadTable of Contents
Last updated September 26, 2017
This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”). This Agreement contains the terms and conditions that govern the use of Gusto’s all-in-one HR platform (the “Platform”). Gusto directly, and through its website (https://gusto.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://gusto.com/product/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
This Agreement is applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.
Please review Section 25 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires User to resolve disputes with Gusto through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has read and that User understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
1. Additional Terms for Services
Gusto’s provision of any Service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Gusto may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
Service Plan | Service Terms |
Core | Payroll Service Terms and Human Resources Service Terms |
Complete | Payroll Service Terms and Human Resources Service Terms |
Concierge | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Select | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Simple | Payroll Service Terms |
Plus | Payroll Service Terms |
Plus with HR Add-Ons | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Premium | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
If User chooses to subscribe to one or more of the following add-on services, then User agrees to be bound by the Service Terms listed next to such add-on service(s), each of which is incorporated herein by reference, as applicable to User:
Add-on Service | Service Terms |
Health Insurance Benefits Service | Health Insurance Benefits Service Terms |
Tax-Advantaged Accounts Service | Tax-Advantaged Accounts Service Terms |
Workers’ Compensation Service | Workers’ Compensation Service Terms |
International Contractor Payments Service | International Contractor Payments Service Terms |
R&D Tax Credit Redemption Service | R&D Tax Credit Redemption Service Terms |
State Tax Registration Service | State Tax Registration Service Terms |
Background Checks Beta | Background Checks Beta Terms |
Gusto R&D Tax Credit Services | Gusto R&D Tax Credit Services Terms |
Human Resources Service | Human Resources Service Terms |
HR Support Center Service | HR Support Center Terms |
Gusto’s provision of any Service is contingent upon User being actively enrolled in the Payroll Service (as defined in the Payroll Service Terms).
2. Services Fees and Charges
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://gusto.com/product/pricing, and User authorizes Gusto to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar months in which User is enrolled in any Services (so, for example, if User is enrolled in a Service Plan for a given calendar month, User would be charged for such month even if User does not run payroll in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Services for a portion of such month. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Gusto may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Gusto may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Gusto for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Gusto may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Gusto reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Gusto is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
3. Switching Service Plans
Gusto currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://gusto.com/product/pricing. User may request to change User’s Service Plan via the Platform.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
4. User Accounts
To use the Platform, User must have an account with Gusto (an “Account”). User hereby authorizes Gusto to obtain and store User’s Account information as necessary to make the Platform available to User.
5. Who May Use the Platform
User may use the Platform only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
6. Privacy Policy
Please refer to Gusto’s Privacy Policy for information on how Gusto collects, uses, and discloses information from Users. User acknowledges and understands that Gusto may collect, use, and disclose User’s information pursuant to Gusto’s Privacy Policy, as it may be updated from time to time.
7. User’s Compliance with the Agreement
Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
8. User Is Responsible for Certain Information and Obligations Relating to the Services
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.
User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Gusto reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Gusto to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Gusto provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Gusto. Gusto reserves the right to prevent access to the Services if Gusto has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Gusto with the information required for Gusto to perform the Services. User may furnish such information directly to Gusto or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Gusto that for any information that User shares with Gusto, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Gusto, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Gusto, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Gusto.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Gusto (or otherwise made available to User by Gusto) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Gusto of any third-party notices that User may receive which could affect Gusto’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Gusto in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services, and, if User subscribes to the Benefits Service (as defined in the Health Insurance Benefits Service Terms), notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Gusto by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Gusto Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
9. User Verification
User gives Gusto permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Gusto may ask for User’s name, address, date of birth, social security number, and other information that will allow Gusto to identify User. Gusto may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Gusto to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Gusto may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Gusto is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
10. Third-Party Services, Websites, and Resources
Through the Platform, User will be able to elect to receive services from partners of Gusto (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Gusto is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Gusto to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Gusto in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Gusto and for Gusto to provide it to Partners, and that Gusto’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Gusto to submit User’s Shared Information to a Partner, User has waived and released any Claim against Gusto and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to third-party websites or resources. Gusto provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
11. Proprietary Rights
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Gusto provides to User via the Services shall constitute Gusto Content (as defined below) hereunder. Gusto does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Gusto a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Gusto the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and Gusto has the right to remove User Content from the Platform in accordance with Section 14.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Gusto is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Gusto’s Intellectual Property Rights
“Gusto Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Gusto, other than User Content. User Content and Gusto Content shall be collectively referred to herein as “Content.” Gusto and its licensors exclusively own all worldwide right, title, and interest in and to the Gusto Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Gusto IP”). User acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Gusto Content. This Agreement does not convey any proprietary interest in or to any Gusto IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Gusto Content (“Feedback”) is given entirely voluntarily and Gusto will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Gusto in response to any surveys Gusto conducts, through any available technology, about User’s experience.
Subject to User’s compliance with this Agreement, Gusto grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Gusto Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
12. Consent to Receive SMS/MMS Messages About User’s Account
Gusto will send SMS to end users who have opted in to receive one time PIN Code and/or messages about activity in User’s Account and service updates as well as SMS messages soliciting User’s feedback about the Services and User’s experience interacting with Gusto’s Customer Care team. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS messages, User should reply HELP for help or STOP to cancel.
13. General Prohibitions
User agrees not to take any of the following actions:
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
- Use the Services other than as authorized in this Agreement;
- Resell, sublicense, timeshare, or otherwise share the Services with any third party;
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Platform; (iii) the Services; or (iv) Gusto Content or any individual element within the Site, Platform, or Services, including Gusto’s name and any Gusto trademark, logo, or other proprietary information, in each case, without Gusto’s express prior written consent;
- Access, tamper with, or use non-public areas of the Platform, Services, Gusto’s computer systems, or the technical delivery systems of Gusto’s providers;
- Interfere or attempt to interfere with the proper working of the Platform or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services;
- Take any action that imposes or may impose (as determined by Gusto in Gusto’s sole discretion) an unreasonable or disproportionately large load on Gusto’s (or Partners’) infrastructure;
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- Harvest or “scrape” any Content from the Platform or Services (such prohibited “scraping” includes, but is not limited to, (i) the use of any automated process or software that sends more requests to Gusto’s Platform than a human could reasonably produce in the same period of time in order to extract Content from the Platform or Services, and; (ii) the sharing of User’s Account credentials with a third party service in order for such third party service to impersonate User and extract Content from the Platform or Services via automatic processes) without Gusto’s express written consent;
- Attempt to probe, scan, or test the vulnerability of any Gusto system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Gusto or any of Gusto’s providers or any other third party (including another User) to protect the Platform, Services, or Content;
- Attempt to access or search the Platform, Services, or Content or download Content from the Platform or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Gusto or other generally available third-party web browsers;
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Platform or Services;
- Use any meta tags or other hidden text or metadata utilizing a Gusto trademark, logo, URL, or product name without Gusto’s express written consent;
- Use the Platform, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform, Services, or Content to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Platform, Services, or Content;
- Modify, translate, or otherwise create derivative works of any part of the Platform, Services, or Content other than User’s own User Content;
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Services;
- Collect from or store on the Platform or Services any personally identifiable information or protected health information of other Users without their express permission;
- Impersonate or misrepresent User’s affiliation with any person or entity;
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or
- Encourage, assist, or enable any other individual to do any of the foregoing.
14. Gusto’s Rights to Monitor User Content and Conduct
Although Gusto is not obligated to monitor access to or use of User Content or to review or edit any User Content, Gusto has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. Gusto reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Gusto, at Gusto’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.
Gusto has the right to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Gusto believes could affect the Platform, Services, or Content, including violations of this Agreement. Gusto may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
15. E-Signatures
Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Gusto has no responsibility or liability with respect to such matter.
Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
16. Gusto Makes No Representations Regarding Platform Availability
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to User.
17. The Platform Can Cause Irrevocable Damage to User Content
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT GUSTO IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
18. Warranty Disclaimers
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Gusto is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Gusto via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, Gusto’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for Gusto’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Gusto reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Gusto does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Gusto will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Gusto works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
19. Indemnity
User will indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Gusto or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Gusto or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
20. Limitation of Liability
Gusto is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Gusto with information necessary for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUSTO AND USER.
21. Duty to Mitigate
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Gusto or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
22. Term; Termination; Suspension
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Gusto may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Gusto’s foregoing termination right, Gusto may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Gusto has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Gusto determines that User’s actions are likely to cause legal liability for or material negative impact to Gusto; (iii) Gusto believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Gusto has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Gusto providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Gusto strives to support a multitude of business and organization types, in certain unique situations, if Gusto cannot support the payroll-related filings for User’s business or organization type, Gusto may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Gusto will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Gusto may deny the Limited Access Rights to User, or Gusto may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
23. Changes to the Agreement, Platform, or Service
Gusto may modify the Agreement at any time, in Gusto’s sole discretion. If Gusto does so, Gusto shall let User know either by posting the modified Agreement on the Platform or Site or through other communications. It is important that User reviews the Agreement whenever Gusto modifies it because if User continues to use the Platform or Services after Gusto has notified User of the modification and the modified Agreement has been posted on the Platform or Site, User is indicating to Gusto that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Gusto may change or discontinue all or any part of the Platform, Services, or Gusto Content at any time and without notice, at Gusto’s sole discretion.
24. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
25. Arbitration
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Gusto has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Gusto, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by User and Gusto. A single arbitrator will be mutually selected by Gusto and User and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Gusto. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Gusto may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that User owes to Gusto (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Gusto in such courts.
User and Gusto agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND GUSTO ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
26. Gusto Is Not Responsible for Things Gusto Cannot Control
Gusto is not responsible or liable for any delays or failures in performance from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Gusto cannot guarantee that any User Content hosted on a third-party server will remain secure.
27. General
This Agreement, including all applicable Service Terms, constitutes the entire agreement between Gusto and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
28. Electronic Transmission
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
29. Contact Information
If User has any questions about this Agreement, the Platform, or the Services, User may contact Gusto at [email protected] or (855) 546-1818. Gusto, the provider of the Services, is located at 525 20th Street San Francisco, CA 94107. If User is a California resident, User may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective October 19th 2023 to October 19th 2023
DownloadTable of Contents
	
Last updated September 26, 2017
This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”). This Agreement contains the terms and conditions that govern the use of Gusto’s all-in-one HR platform (the “Platform”). Gusto directly, and through its website (https://gusto.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://gusto.com/product/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
This Agreement is applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.
Please review Section 25 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires User to resolve disputes with Gusto through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has read and that User understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
	
1. Additional Terms for Services
Gusto’s provision of any Service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Gusto may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
	
Service Plan | 				Service Terms | 			
Core | 				Payroll Service Terms and Human Resources Service Terms | 			
Complete | 				Payroll Service Terms and Human Resources Service Terms | 			
Concierge | 				Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms | 			
Select | 				Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms | 			
Simple | 				Payroll Service Terms | 			
Plus | 				Payroll Service Terms | 			
Plus with HR Add-Ons | 				Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms | 			
Premium | 				Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms | 			
If User chooses to subscribe to one or more of the following add-on services, then User agrees to be bound by the Service Terms listed next to such add-on service(s), each of which is incorporated herein by reference, as applicable to User:
	
Add-on Service | 				Service Terms | 			
Health Insurance Benefits Service | 				Health Insurance Benefits Service Terms | 			
Tax-Advantaged Accounts Service | 				Tax-Advantaged Accounts Service Terms | 			
Workers’ Compensation Service | 				Workers’ Compensation Service Terms | 			
International Contractor Payments Service | 				International Contractor Payments Service Terms | 			
R&D Tax Credit Redemption Service | 				R&D Tax Credit Redemption Service Terms | 			
State Tax Registration Service | 				State Tax Registration Service Terms | 			
Background Checks Beta | 				Background Checks Beta Terms | 			
Gusto R&D Tax Credit Services | 				Gusto R&D Tax Credit Services Terms | 			
Human Resources Service | 				Human Resources Service Terms | 			
HR Support Center Service | 				HR Support Center Terms | 			
Gusto’s provision of any Service is contingent upon User being actively enrolled in the Payroll Service (as defined in the Payroll Service Terms).
	
2. Services Fees and Charges
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://gusto.com/product/pricing, and User authorizes Gusto to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar months in which User is enrolled in any Services (so, for example, if User is enrolled in a Service Plan for a given calendar month, User would be charged for such month even if User does not run payroll in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Services for a portion of such month. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Gusto may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Gusto may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Gusto for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Gusto may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Gusto reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Gusto is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
	
3. Switching Service Plans
Gusto currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://gusto.com/product/pricing. User may request to change User’s Service Plan via the Platform.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
	
4. User Accounts
To use the Platform, User must have an account with Gusto (an “Account”). User hereby authorizes Gusto to obtain and store User’s Account information as necessary to make the Platform available to User.
	
5. Who May Use the Platform
User may use the Platform only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
	
6. Privacy Policy
	
Please refer to Gusto’s Privacy Policy for information on how Gusto collects, uses, and discloses information from Users. User acknowledges and understands that Gusto may collect, use, and disclose User’s information pursuant to Gusto’s Privacy Policy, as it may be updated from time to time.
	
7. User’s Compliance with the Agreement
Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
8. User Is Responsible for Certain Information and Obligations Relating to the Services
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.
User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Gusto reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Gusto to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Gusto provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Gusto. Gusto reserves the right to prevent access to the Services if Gusto has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Gusto with the information required for Gusto to perform the Services. User may furnish such information directly to Gusto or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Gusto that for any information that User shares with Gusto, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Gusto, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Gusto, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Gusto.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Gusto (or otherwise made available to User by Gusto) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Gusto of any third-party notices that User may receive which could affect Gusto’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Gusto in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services, and, if User subscribes to the Benefits Service (as defined in the Health Insurance Benefits Service Terms), notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Gusto by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Gusto Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
	
9. User Verification
User gives Gusto permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Gusto may ask for User’s name, address, date of birth, social security number, and other information that will allow Gusto to identify User. Gusto may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Gusto to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Gusto may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Gusto is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
	
10. Third-Party Services, Websites, and Resources
Through the Platform, User will be able to elect to receive services from partners of Gusto (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Gusto is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Gusto to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Gusto in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Gusto and for Gusto to provide it to Partners, and that Gusto’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Gusto to submit User’s Shared Information to a Partner, User has waived and released any Claim against Gusto and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to third-party websites or resources. Gusto provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
	
11. Proprietary Rights
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Gusto provides to User via the Services shall constitute Gusto Content (as defined below) hereunder. Gusto does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Gusto a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Gusto the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and Gusto has the right to remove User Content from the Platform in accordance with Section 14.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Gusto is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Gusto’s Intellectual Property Rights
“Gusto Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Gusto, other than User Content. User Content and Gusto Content shall be collectively referred to herein as “Content.” Gusto and its licensors exclusively own all worldwide right, title, and interest in and to the Gusto Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Gusto IP”). User acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Gusto Content. This Agreement does not convey any proprietary interest in or to any Gusto IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Gusto Content (“Feedback”) is given entirely voluntarily and Gusto will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Gusto in response to any surveys Gusto conducts, through any available technology, about User’s experience.
Subject to User’s compliance with this Agreement, Gusto grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Gusto Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
	
12. Consent to Receive SMS/MMS Messages About User’s Account
Gusto will send SMS to end users who have opted in to receive one time PIN Code and/or messages about activity in User’s Account and service updates as well as SMS messages soliciting User’s feedback about the Services and User’s experience interacting with Gusto’s Customer Care team. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS messages, User should reply HELP for help or STOP to cancel.
	
13. General Prohibitions
User agrees not to take any of the following actions:
- 	
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device; 	
- Use the Services other than as authorized in this Agreement; 	
- Resell, sublicense, timeshare, or otherwise share the Services with any third party; 	
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Platform; (iii) the Services; or (iv) Gusto Content or any individual element within the Site, Platform, or Services, including Gusto’s name and any Gusto trademark, logo, or other proprietary information, in each case, without Gusto’s express prior written consent; 	
- Access, tamper with, or use non-public areas of the Platform, Services, Gusto’s computer systems, or the technical delivery systems of Gusto’s providers; 	
- Interfere or attempt to interfere with the proper working of the Platform or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services; 	
- Take any action that imposes or may impose (as determined by Gusto in Gusto’s sole discretion) an unreasonable or disproportionately large load on Gusto’s (or Partners’) infrastructure; 	
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; 	
- Harvest or “scrape” any Content from the Platform or Services (such prohibited “scraping” includes, but is not limited to, (i) the use of any automated process or software that sends more requests to Gusto’s Platform than a human could reasonably produce in the same period of time in order to extract Content from the Platform or Services, and; (ii) the sharing of User’s Account credentials with a third party service in order for such third party service to impersonate User and extract Content from the Platform or Services via automatic processes) without Gusto’s express written consent; 	
- Attempt to probe, scan, or test the vulnerability of any Gusto system or network or breach any security or authentication measures; 	
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Gusto or any of Gusto’s providers or any other third party (including another User) to protect the Platform, Services, or Content; 	
- Attempt to access or search the Platform, Services, or Content or download Content from the Platform or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Gusto or other generally available third-party web browsers; 	
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; 	
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Platform or Services; 	
- Use any meta tags or other hidden text or metadata utilizing a Gusto trademark, logo, URL, or product name without Gusto’s express written consent; 	
- Use the Platform, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement; 	
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform, Services, or Content to send altered, deceptive, or false source-identifying information; 	
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Platform, Services, or Content; 	
- Modify, translate, or otherwise create derivative works of any part of the Platform, Services, or Content other than User’s own User Content; 	
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Services; 	
- Collect from or store on the Platform or Services any personally identifiable information or protected health information of other Users without their express permission; 	
- Impersonate or misrepresent User’s affiliation with any person or entity; 	
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities; 	
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or 	
- Encourage, assist, or enable any other individual to do any of the foregoing.
	
14. Gusto’s Rights to Monitor User Content and Conduct
Although Gusto is not obligated to monitor access to or use of User Content or to review or edit any User Content, Gusto has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. Gusto reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Gusto, at Gusto’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.
Gusto has the right to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Gusto believes could affect the Platform, Services, or Content, including violations of this Agreement. Gusto may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
	
15. E-Signatures
Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Gusto has no responsibility or liability with respect to such matter.
Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
	
16. Gusto Makes No Representations Regarding Platform Availability
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to User.
	
17. The Platform Can Cause Irrevocable Damage to User Content
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT GUSTO IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
	
18. Warranty Disclaimers
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Gusto is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Gusto via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, Gusto’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for Gusto’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Gusto reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Gusto does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Gusto will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Gusto works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
	
19. Indemnity
User will indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Gusto or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Gusto or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
	
20. Limitation of Liability
Gusto is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Gusto with information necessary for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUSTO AND USER.
	
21. Duty to Mitigate
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Gusto or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
	
22. Term; Termination; Suspension
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Gusto may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Gusto’s foregoing termination right, Gusto may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Gusto has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Gusto determines that User’s actions are likely to cause legal liability for or material negative impact to Gusto; (iii) Gusto believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Gusto has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Gusto providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Gusto strives to support a multitude of business and organization types, in certain unique situations, if Gusto cannot support the payroll-related filings for User’s business or organization type, Gusto may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Gusto will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Gusto may deny the Limited Access Rights to User, or Gusto may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
23. Changes to the Agreement, Platform, or Service
Gusto may modify the Agreement at any time, in Gusto’s sole discretion. If Gusto does so, Gusto shall let User know either by posting the modified Agreement on the Platform or Site or through other communications. It is important that User reviews the Agreement whenever Gusto modifies it because if User continues to use the Platform or Services after Gusto has notified User of the modification and the modified Agreement has been posted on the Platform or Site, User is indicating to Gusto that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Gusto may change or discontinue all or any part of the Platform, Services, or Gusto Content at any time and without notice, at Gusto’s sole discretion.
	
24. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
	
25. Arbitration
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Gusto has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Gusto, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by User and Gusto. A single arbitrator will be mutually selected by Gusto and User and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Gusto. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Gusto may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that User owes to Gusto (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Gusto in such courts.
User and Gusto agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND GUSTO ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
	
26. Gusto Is Not Responsible for Things Gusto Cannot Control
Gusto is not responsible or liable for any delays or failures in performance from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Gusto cannot guarantee that any User Content hosted on a third-party server will remain secure.
	
27. General
This Agreement, including all applicable Service Terms, constitutes the entire agreement between Gusto and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
	
28. Electronic Transmission
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
	
29. Contact Information
If User has any questions about this Agreement, the Platform, or the Services, User may contact Gusto at [email protected] or (855) 546-1818. Gusto, the provider of the Services, is located at 525 20th Street San Francisco, CA 94107. If User is a California resident, User may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
	
	
Effective October 19th 2023 to October 19th 2023
DownloadTable of Contents
Last updated September 26, 2017
This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”). This Agreement contains the terms and conditions that govern the use of Gusto’s all-in-one HR platform (the “Platform”). Gusto directly, and through its website (https://gusto.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://gusto.com/product/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
This Agreement is applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.
Please review Section 25 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires User to resolve disputes with Gusto through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has read and that User understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
1. Additional Terms for Services
Gusto’s provision of any Service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Gusto may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
Service Plan | Service Terms |
Core | Payroll Service Terms and Human Resources Service Terms |
Complete | Payroll Service Terms and Human Resources Service Terms |
Concierge | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Select | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Simple | Payroll Service Terms |
Plus | Payroll Service Terms |
Plus with HR Add-Ons | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Premium | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
If User chooses to subscribe to one or more of the following add-on services, then User agrees to be bound by the Service Terms listed next to such add-on service(s), each of which is incorporated herein by reference, as applicable to User:
Add-on Service | Service Terms |
Health Insurance Benefits Service | Health Insurance Benefits Service Terms |
Tax-Advantaged Accounts Service | Tax-Advantaged Accounts Service Terms |
Workers’ Compensation Service | Workers’ Compensation Service Terms |
International Contractor Payments Service | International Contractor Payments Service Terms |
R&D Tax Credit Redemption Service | R&D Tax Credit Redemption Service Terms |
State Tax Registration Service | State Tax Registration Service Terms |
Background Checks Beta | Background Checks Beta Terms |
Gusto R&D Tax Credit Services | Gusto R&D Tax Credit Services Terms |
Human Resources Service | Human Resources Service Terms |
HR Support Center Service | HR Support Center Terms |
Gusto’s provision of any Service is contingent upon User being actively enrolled in the Payroll Service (as defined in the Payroll Service Terms).
2. Services Fees and Charges
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://gusto.com/product/pricing, and User authorizes Gusto to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar months in which User is enrolled in any Services (so, for example, if User is enrolled in a Service Plan for a given calendar month, User would be charged for such month even if User does not run payroll in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Services for a portion of such month. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Gusto may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Gusto may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Gusto for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Gusto may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Gusto reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Gusto is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
3. Switching Service Plans
Gusto currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://gusto.com/product/pricing. User may request to change User’s Service Plan via the Platform.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
4. User Accounts
To use the Platform, User must have an account with Gusto (an “Account”). User hereby authorizes Gusto to obtain and store User’s Account information as necessary to make the Platform available to User.
5. Who May Use the Platform
User may use the Platform only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
6. Privacy Policy
Please refer to Gusto’s Privacy Policy for information on how Gusto collects, uses, and discloses information from Users. User acknowledges and understands that Gusto may collect, use, and disclose User’s information pursuant to Gusto’s Privacy Policy, as it may be updated from time to time.
7. User’s Compliance with the Agreement
Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
8. User Is Responsible for Certain Information and Obligations Relating to the Services
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.
User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Gusto reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Gusto to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Gusto provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Gusto. Gusto reserves the right to prevent access to the Services if Gusto has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Gusto with the information required for Gusto to perform the Services. User may furnish such information directly to Gusto or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Gusto that for any information that User shares with Gusto, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Gusto, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Gusto, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Gusto.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Gusto (or otherwise made available to User by Gusto) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Gusto of any third-party notices that User may receive which could affect Gusto’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Gusto in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services, and, if User subscribes to the Benefits Service (as defined in the Health Insurance Benefits Service Terms), notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Gusto by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Gusto Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
9. User Verification
User gives Gusto permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Gusto may ask for User’s name, address, date of birth, social security number, and other information that will allow Gusto to identify User. Gusto may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Gusto to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Gusto may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Gusto is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
10. Third-Party Services, Websites, and Resources
Through the Platform, User will be able to elect to receive services from partners of Gusto (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Gusto is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Gusto to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Gusto in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Gusto and for Gusto to provide it to Partners, and that Gusto’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Gusto to submit User’s Shared Information to a Partner, User has waived and released any Claim against Gusto and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to third-party websites or resources. Gusto provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
11. Proprietary Rights
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Gusto provides to User via the Services shall constitute Gusto Content (as defined below) hereunder. Gusto does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Gusto a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Gusto the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and Gusto has the right to remove User Content from the Platform in accordance with Section 14.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Gusto is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Gusto’s Intellectual Property Rights
“Gusto Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Gusto, other than User Content. User Content and Gusto Content shall be collectively referred to herein as “Content.” Gusto and its licensors exclusively own all worldwide right, title, and interest in and to the Gusto Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Gusto IP”). User acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Gusto Content. This Agreement does not convey any proprietary interest in or to any Gusto IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Gusto Content (“Feedback”) is given entirely voluntarily and Gusto will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Gusto in response to any surveys Gusto conducts, through any available technology, about User’s experience.
Subject to User’s compliance with this Agreement, Gusto grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Gusto Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
12. Consent to Receive SMS/MMS Messages About User’s Account
Gusto will send SMS to end users who have opted in to receive one time PIN Code and/or messages about activity in User’s Account and service updates as well as SMS messages soliciting User’s feedback about the Services and User’s experience interacting with Gusto’s Customer Care team. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS messages, User should reply HELP for help or STOP to cancel.
13. General Prohibitions
User agrees not to take any of the following actions:
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
- Use the Services other than as authorized in this Agreement;
- Resell, sublicense, timeshare, or otherwise share the Services with any third party;
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Platform; (iii) the Services; or (iv) Gusto Content or any individual element within the Site, Platform, or Services, including Gusto’s name and any Gusto trademark, logo, or other proprietary information, in each case, without Gusto’s express prior written consent;
- Access, tamper with, or use non-public areas of the Platform, Services, Gusto’s computer systems, or the technical delivery systems of Gusto’s providers;
- Interfere or attempt to interfere with the proper working of the Platform or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services;
- Take any action that imposes or may impose (as determined by Gusto in Gusto’s sole discretion) an unreasonable or disproportionately large load on Gusto’s (or Partners’) infrastructure;
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- Harvest or “scrape” any Content from the Platform or Services (such prohibited “scraping” includes, but is not limited to, (i) the use of any automated process or software that sends more requests to Gusto’s Platform than a human could reasonably produce in the same period of time in order to extract Content from the Platform or Services, and; (ii) the sharing of User’s Account credentials with a third party service in order for such third party service to impersonate User and extract Content from the Platform or Services via automatic processes) without Gusto’s express written consent;
- Attempt to probe, scan, or test the vulnerability of any Gusto system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Gusto or any of Gusto’s providers or any other third party (including another User) to protect the Platform, Services, or Content;
- Attempt to access or search the Platform, Services, or Content or download Content from the Platform or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Gusto or other generally available third-party web browsers;
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Platform or Services;
- Use any meta tags or other hidden text or metadata utilizing a Gusto trademark, logo, URL, or product name without Gusto’s express written consent;
- Use the Platform, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform, Services, or Content to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Platform, Services, or Content;
- Modify, translate, or otherwise create derivative works of any part of the Platform, Services, or Content other than User’s own User Content;
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Services;
- Collect from or store on the Platform or Services any personally identifiable information or protected health information of other Users without their express permission;
- Impersonate or misrepresent User’s affiliation with any person or entity;
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or
- Encourage, assist, or enable any other individual to do any of the foregoing.
14. Gusto’s Rights to Monitor User Content and Conduct
Although Gusto is not obligated to monitor access to or use of User Content or to review or edit any User Content, Gusto has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. Gusto reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Gusto, at Gusto’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.
Gusto has the right to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Gusto believes could affect the Platform, Services, or Content, including violations of this Agreement. Gusto may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
15. E-Signatures
Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Gusto has no responsibility or liability with respect to such matter.
Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
16. Gusto Makes No Representations Regarding Platform Availability
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to User.
17. The Platform Can Cause Irrevocable Damage to User Content
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT GUSTO IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
18. Warranty Disclaimers
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Gusto is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Gusto via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, Gusto’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for Gusto’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Gusto reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Gusto does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Gusto will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Gusto works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
19. Indemnity
User will indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Gusto or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Gusto or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
20. Limitation of Liability
Gusto is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Gusto with information necessary for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUSTO AND USER.
21. Duty to Mitigate
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Gusto or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
22. Term; Termination; Suspension
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Gusto may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Gusto’s foregoing termination right, Gusto may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Gusto has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Gusto determines that User’s actions are likely to cause legal liability for or material negative impact to Gusto; (iii) Gusto believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Gusto has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Gusto providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Gusto strives to support a multitude of business and organization types, in certain unique situations, if Gusto cannot support the payroll-related filings for User’s business or organization type, Gusto may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Gusto will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Gusto may deny the Limited Access Rights to User, or Gusto may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
23. Changes to the Agreement, Platform, or Service
Gusto may modify the Agreement at any time, in Gusto’s sole discretion. If Gusto does so, Gusto shall let User know either by posting the modified Agreement on the Platform or Site or through other communications. It is important that User reviews the Agreement whenever Gusto modifies it because if User continues to use the Platform or Services after Gusto has notified User of the modification and the modified Agreement has been posted on the Platform or Site, User is indicating to Gusto that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Gusto may change or discontinue all or any part of the Platform, Services, or Gusto Content at any time and without notice, at Gusto’s sole discretion.
24. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
25. Arbitration
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Gusto has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Gusto, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by User and Gusto. A single arbitrator will be mutually selected by Gusto and User and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Gusto. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Gusto may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that User owes to Gusto (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Gusto in such courts.
User and Gusto agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND GUSTO ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
26. Gusto Is Not Responsible for Things Gusto Cannot Control
Gusto is not responsible or liable for any delays or failures in performance from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Gusto cannot guarantee that any User Content hosted on a third-party server will remain secure.
27. General
This Agreement, including all applicable Service Terms, constitutes the entire agreement between Gusto and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
28. Electronic Transmission
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
29. Contact Information
If User has any questions about this Agreement, the Platform, or the Services, User may contact Gusto at [email protected] or (855) 546-1818. Gusto, the provider of the Services, is located at 525 20th Street San Francisco, CA 94107. If User is a California resident, User may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective September 29th 2023 to October 19th 2023
DownloadTable of Contents
Terms of Service Agreement
Last updated September 26, 2017
This Terms of Service Agreement (this “Agreement”) is made and entered into by and between you, as a User (as defined below), and Gusto, Inc. and its subsidiaries and affiliates (collectively, “Gusto”). This Agreement contains the terms and conditions that govern the use of Gusto’s all-in-one HR platform (the “Platform”). Gusto directly, and through its website (https://gusto.com) and the associated domains thereof (the “Site”), offers customers the products and services listed at https://gusto.com/product/pricing (as such list may be updated, modified, or otherwise changed from time to time, collectively, the “Services”).
This Agreement is applicable to all persons who use or access the Platform and/or the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services (collectively, “Users” and each, a “User”). If User is agreeing to these terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to this Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” also refers to that business or individual. By clicking the applicable button to indicate User’s acceptance of this Agreement, or by accessing or using the Platform, User agrees, effective as of the date of such action, to be bound by the Agreement.
Please review Section 25 of this Agreement carefully, as it contains an arbitration provision and class action waiver which requires User to resolve disputes with Gusto through final, binding arbitration on an individual basis. By entering into this Agreement, User is acknowledging that User has read and that User understands the terms of this Agreement and that User agrees to be bound by the arbitration provision and class action waiver.
1. Additional Terms for Services
Gusto’s provision of any Service is subject to the terms of this Agreement and any supplemental terms referenced herein or which Gusto may present User with for review and acceptance at the time User subscribes to such Service (each, “Service Terms”), and any Service Terms shall be incorporated into and form a part of this Agreement. If the terms hereof conflict with any Service Terms, the Service Terms will govern with respect to the matters contemplated thereby.
Service Plan | Service Terms |
Core | Payroll Service Terms and Human Resources Service Terms |
Complete | Payroll Service Terms and Human Resources Service Terms |
Concierge | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Select | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Simple | Payroll Service Terms |
Plus | Payroll Service Terms |
Plus with HR Add-Ons | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
Premium | Payroll Service Terms, Human Resources Service Terms, and HR Support Center Terms |
If User chooses to subscribe to one or more of the following add-on services, then User agrees to be bound by the Service Terms listed next to such add-on service(s), each of which is incorporated herein by reference, as applicable to User:
Add-on Service | Service Terms |
Health Insurance Benefits Service | Health Insurance Benefits Service Terms |
Tax-Advantaged Accounts Service | Tax-Advantaged Accounts Service Terms |
Workers’ Compensation Service | Workers’ Compensation Service Terms |
International Contractor Payments Service | International Contractor Payments Service Terms |
R&D Tax Credit Redemption Service | R&D Tax Credit Redemption Service Terms |
State Tax Registration Service | State Tax Registration Service Terms |
Background Checks Beta | Background Checks Beta Terms |
Gusto R&D Tax Credit Services | Gusto R&D Tax Credit Services Terms |
Human Resources Service | Human Resources Service Terms |
HR Support Center Service | HR Support Center Terms |
Gusto’s provision of any Service is contingent upon User being actively enrolled in the Payroll Service (as defined in the Payroll Service Terms).
2. Services Fees and Charges
User agrees to pay the fees for the Services in accordance with the applicable fee schedules listed at https://gusto.com/product/pricing, and User authorizes Gusto to debit User’s designated bank account, as specified by User through the Platform (the “Bank Account”), for all fees as they become payable. Unless otherwise stated in the applicable Service Terms, fees for the Services are typically based on the calendar months in which User is enrolled in any Services (so, for example, if User is enrolled in a Service Plan for a given calendar month, User would be charged for such month even if User does not run payroll in such month), and such fees are applied in full for a given calendar month, regardless of whether User is only enrolled in the Services for a portion of such month. Except for certain fees for particular add-on services that User has opted into, fees for the Services will be billed to User and debited from User’s Bank Account on a monthly calendar basis, in arrears. Notwithstanding the foregoing, Gusto may invoice User for any applicable, outstanding fees, and User shall pay such invoice within fifteen (15) days of receipt thereof via money transfer, ACH, check, or any other payment method Gusto may deem acceptable in its sole discretion. All fees are non-refundable. User agrees to reimburse Gusto for any sales, use, and similar taxes arising from the provision of the Services that any federal, state, or local governments may impose. Gusto may charge additional fees for exceptions processing, setup, and other special services (including optional add-on services).
Gusto reserves the right to change the fees for its Services from time to time. User will be notified of any change to existing fees at least thirty (30) days before the fee change goes into effect. If a fee increase or change to this Agreement is not acceptable to User, User may cancel the Services as provided herein prior to the time when such fee increase or change to this Agreement takes effect. User’s continued use of the Services beyond the cancellation window constitutes User’s agreement to those changes. If Gusto is unable to collect fees due because of insufficient funds in User’s Bank Account or for any other reason, User must pay the amount due immediately upon demand, plus any applicable exceptions processing fees, bank fees, or charges for return items, plus interest at the lesser of 18% per annum or the maximum rate permitted by law, plus attorneys’ fees and other costs of collection as permitted by law.
3. Switching Service Plans
Gusto currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://gusto.com/product/pricing. User may request to change User’s Service Plan via the Platform.
If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.
If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
4. User Accounts
To use the Platform, User must have an account with Gusto (an “Account”). User hereby authorizes Gusto to obtain and store User’s Account information as necessary to make the Platform available to User.
5. Who May Use the Platform
User may use the Platform only if User is thirteen (13) years of age or older and is not barred from using the Services under applicable law.
6. Privacy Policy
Please refer to Gusto’s Privacy Policy for information on how Gusto collects, uses, and discloses information from Users. User acknowledges and understands that Gusto may collect, use, and disclose User’s information pursuant to Gusto’s Privacy Policy, as it may be updated from time to time.
7. User’s Compliance with the Agreement
Use of the Platform and the Services are each conditioned upon User’s full compliance with this Agreement and all applicable laws, rules, and regulations.
8. User Is Responsible for Certain Information and Obligations Relating to the Services
User will designate and authorize either itself and/or one or more individuals with authority to (i) act on User’s behalf, (ii) provide information on User’s behalf, and (iii) bind User and/or User’s business with respect to the Services (each such individual, an “Account Administrator”). An Account Administrator is authorized by User to access the Services by entering a confidential user ID and password. Such Account login information will entitle the Account Administrator, depending on their designation and the permissions given by User, to have the authority to input information and access, review, modify, and/or provide approvals on User’s behalf.
User is solely responsible for all actions taken under any Account that User has access to. Any actions taken under Accounts that User has access to will be deemed authorized by User, regardless of User’s knowledge of such actions (the “Authorized Actions”). Authorized Actions include but are not limited to (i) actions taken by User, an Account Administrator, or an authorized representative of User (an “Authorized Representative”), and (ii) actions that User, an Account Administrator, or an Authorized Representative (or anyone that Gusto reasonably believes to be User, an Account Administrator, or an Authorized Representative) directs or instructs Gusto to take on its behalf.
In addition, User is solely responsible for (i) following instructions that Gusto provides to User with respect to the Services, whether such instructions are provided via the Platform, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Platform, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by User.
User will, and will cause authorized users of User’s Account, including but not limited to Account Administrators and Authorized Representatives, to take reasonable steps to adequately secure, and keep confidential, any User Account passwords or credentials, and any information accessible via the User Account. If User believes or suspects that User’s Account or passwords or credentials for User’s Account have been disclosed to, accessed by, or compromised by unauthorized persons, User must immediately notify Gusto. Gusto reserves the right to prevent access to the Services if Gusto has reason to believe that User’s Account or passwords or credentials for User’s Account have been compromised.
User is responsible for timely providing Gusto with the information required for Gusto to perform the Services. User may furnish such information directly to Gusto or via an Account Administrator or Authorized Representative, such as User’s accountant. Furthermore, User represents and warrants to Gusto that for any information that User shares with Gusto, whether directly, via its Account Administrator, or via its Authorized Representative, User will have the authority to share such information. User is responsible for the accuracy and completeness of information provided to Gusto, and User will ensure that any such information, whether provided by User, an Account Administrator, or Authorized Representative, is accurate and complete. Moreover, User is required to maintain the accuracy and completeness of such information on an ongoing basis and will promptly notify Gusto, whether directly or through an Account Administrator or Authorized Representative, of any changes to the information provided to Gusto.
In addition, User, whether directly or through its Account Administrators or Authorized Representatives, is responsible for reviewing any reports, filings, information, documents or materials (collectively, the “Materials”) posted to the Platform by Gusto (or otherwise made available to User by Gusto) for User’s review, and User or its Account Administrators or Authorized Representatives must notify Gusto of any inaccuracies in the Materials as soon as possible, or within the time period specified in communications received from Gusto.
User, whether directly or through its Account Administrators or Authorized Representatives, is also obligated to promptly notify Gusto of any third-party notices that User may receive which could affect Gusto’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against User or Gusto in connection with the Services, such as notices from the Internal Revenue Service or other government agencies regarding penalties or errors relating to the Services, and, if User subscribes to the Benefits Service (as defined in the Health Insurance Benefits Service Terms), notices from insurance carriers regarding eligibility, enrollment, payment, or any other communications affecting the contract of services with that insurance carrier.
User agrees that, to the fullest extent permitted by law, the provision of Account login credentials (e.g., username and password) or identity verification credentials to Gusto by User, an Account Administrator, or an Authorized Representative, together with any actions authorized by such foregoing parties via the Platform (e.g., clicking the “Submit Payroll” or other buttons) or otherwise (e.g., verbally telling a Gusto Customer Care representative to take an action), will have the same effect as such parties providing a written signature authorizing electronic payments, filings, or any other actions in connection with the Services.
9. User Verification
User gives Gusto permission to obtain, verify, and record information that identifies the individual who creates an Account, is the intended user of an Account, or accesses the Services. Gusto may ask for User’s name, address, date of birth, social security number, and other information that will allow Gusto to identify User. Gusto may also ask to see User’s driver’s license or other identifying documents. User consents to and authorizes Gusto to obtain credit reports about User’s business, and to report adverse credit information about User’s business to others, including but not limited to the Internal Revenue Service and any applicable state taxing authorities. Gusto may, at its discretion, decline to offer the Services for any reason, including in the event that the Services enrollment process is not satisfactorily completed, Gusto is unable to verify satisfactory credit of User’s business, and/or for other lawful business reasons.
10. Third-Party Services, Websites, and Resources
Through the Platform, User will be able to elect to receive services from partners of Gusto (each such service, a “Third-Party Service,” and each such partner, a “Partner”). User is solely responsible for, and assumes all risk arising from, User’s election to receive and User’s receipt of any Third-Party Service. Gusto is not responsible for Third-Party Services or any material, information, or results made available through Third-Party Services. The applicable Partners may require User to agree to terms and conditions or agreements with respect to their provision of the Third-Party Services to User. If User elects to receive a Third-Party Service, User authorizes Gusto to submit to the applicable Partner any and all documents and information about User, User’s business and User’s business’ employees that are necessary for such Partner to provide the Third-Party Service to User, including, without limitation, User’s payroll information, bank account information, User’s employees’ bank account information, and any additional information, such as the personal information of User’s employees, requested by such Partner that User has provided to Gusto in connection with this Agreement and User’s receipt of the Services (collectively, the “Shared Information”). User is responsible for the accuracy of all Shared Information. User represents and warrants that User has all the rights in and to any Shared Information necessary to provide Shared Information to Gusto and for Gusto to provide it to Partners, and that Gusto’s use or disclosure of Shared Information as contemplated hereunder will not violate any rights of privacy or other proprietary rights, or any applicable local, state, or federal laws, regulations, orders, or rules. User agrees that by electing to receive a Third-Party Service, and by consenting and authorizing Gusto to submit User’s Shared Information to a Partner, User has waived and released any Claim against Gusto and its directors, officers, and employees arising out of a Partner’s use of User’s Shared Information, even if that use is not authorized by the applicable agreement between User and the Partner.
The Platform and the Services may contain links to third-party websites or resources. Gusto provides these links only as a convenience and is not responsible for the content, products, or services on or available from those websites or resources, or links displayed on such websites. User acknowledges its sole responsibility for, and assumes all risk arising from, User’s use of any third-party websites or resources.
11. Proprietary Rights
User Content and Licenses Granted
“User Content” means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are uploaded to, posted to, stored on, or created using the Platform by Users. For the avoidance of doubt, any templates, documents, or materials that Gusto provides to User via the Services shall constitute Gusto Content (as defined below) hereunder. Gusto does not claim any ownership rights in any User Content and nothing in this Agreement will be deemed to restrict any rights that User may have to use and exploit User Content. However, by making any User Content available through the Services, User hereby grants to Gusto a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform, and distribute User Content in connection with operating and providing the Platform and the Services. User is solely responsible for all User Content. User represents and warrants that User owns all User Content or User has all rights that are necessary to grant Gusto the license rights in User Content under this Agreement. User Content is subject to the provisions of Section 13, and Gusto has the right to remove User Content from the Platform in accordance with Section 14.
User may generally remove User Content from the Platform, provided that certain types of User Content may not be removed from the Platform, as further specified in particular Service Terms. Moreover, in certain instances, some User Content may not be completely removed and copies of User Content may continue to exist on the Platform. Gusto is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any User Content.
Gusto’s Intellectual Property Rights
“Gusto Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and documents, information, or other materials that are posted, generated, provided, or otherwise made available through the Services by Gusto, other than User Content. User Content and Gusto Content shall be collectively referred to herein as “Content.” Gusto and its licensors exclusively own all worldwide right, title, and interest in and to the Gusto Content, and also in and to the Platform and the Services, including in each case all associated intellectual property rights (“Gusto IP”). User acknowledges that the Platform, Services, and Gusto Content are protected by copyright, trademark, and other laws of the United States and foreign countries. User agrees not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Platform, Services, or Gusto Content. This Agreement does not convey any proprietary interest in or to any Gusto IP or rights of entitlement to the use thereof except as expressly set forth herein. Any feedback, comments, and suggestions User may provide for improvements to the Platform, Services, or Gusto Content (“Feedback”) is given entirely voluntarily and Gusto will be free to use, disclose, reproduce, license, or otherwise distribute and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Feedback includes, without limitation, feedback User provides to Gusto in response to any surveys Gusto conducts, through any available technology, about User’s experience.
Subject to User’s compliance with this Agreement, Gusto grants User a limited, non-exclusive, non-transferable, non-sublicensable license to access, view, and download Gusto Content solely in connection with User’s permitted use of the Platform for User’s own behalf.
12. Consent to Receive SMS/MMS Messages About User’s Account
Gusto will send SMS to end users who have opted in to receive one time PIN Code and/or messages about activity in User’s Account and service updates as well as SMS messages soliciting User’s feedback about the Services and User’s experience interacting with Gusto’s Customer Care team. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send User autodialed marketing SMS or MMS messages unless User expressly agrees in writing to receive such messages. If User would like to opt out of receiving SMS messages, User should reply HELP for help or STOP to cancel.
13. General Prohibitions
User agrees not to take any of the following actions:
- Post, upload, publish, submit, share, distribute, or transmit any User Content that: (i) User lacks the authority to post, upload, publish, submit, share, distribute, or transmit; (ii) infringes, misappropriates, or violates a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (iii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iv) is fraudulent, false, misleading, or deceptive; (v) is defamatory, indecent, obscene, pornographic, vulgar, or offensive; (vi) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (viii) promotes illegal or harmful activities or substances; or (ix) contains software viruses, worms, defects, Trojans, adware, spyware, malware, or other similar computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware device;
- Use the Services other than as authorized in this Agreement;
- Resell, sublicense, timeshare, or otherwise share the Services with any third party;
- Display, mirror, or frame (i) the Site, or the layout or design of any page on the Site or form contained on a page; (ii) the Platform; (iii) the Services; or (iv) Gusto Content or any individual element within the Site, Platform, or Services, including Gusto’s name and any Gusto trademark, logo, or other proprietary information, in each case, without Gusto’s express prior written consent;
- Access, tamper with, or use non-public areas of the Platform, Services, Gusto’s computer systems, or the technical delivery systems of Gusto’s providers;
- Interfere or attempt to interfere with the proper working of the Platform or the Services (including but not limited to any application, function, or use of the Services) or any activities conducted on the Services;
- Take any action that imposes or may impose (as determined by Gusto in Gusto’s sole discretion) an unreasonable or disproportionately large load on Gusto’s (or Partners’) infrastructure;
- Use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site;
- Harvest or “scrape” any Content from the Platform or Services (such prohibited “scraping” includes, but is not limited to, (i) the use of any automated process or software that sends more requests to Gusto’s Platform than a human could reasonably produce in the same period of time in order to extract Content from the Platform or Services, and; (ii) the sharing of User’s Account credentials with a third party service in order for such third party service to impersonate User and extract Content from the Platform or Services via automatic processes) without Gusto’s express written consent;
- Attempt to probe, scan, or test the vulnerability of any Gusto system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Gusto or any of Gusto’s providers or any other third party (including another User) to protect the Platform, Services, or Content;
- Attempt to access or search the Platform, Services, or Content or download Content from the Platform or Services through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, data mining tools, or the like), other than the software and/or search agents provided by Gusto or other generally available third-party web browsers;
- Access the Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation through the Platform or Services;
- Use any meta tags or other hidden text or metadata utilizing a Gusto trademark, logo, URL, or product name without Gusto’s express written consent;
- Use the Platform, Services, or Content, or any portion thereof, (i) for any purpose other than User’s internal business purposes, or (ii) for the benefit of any third party or in any manner not permitted by this Agreement;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Platform, Services, or Content to send altered, deceptive, or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code, or underlying ideas, or algorithms of any of the software used to provide the Platform, Services, or Content;
- Modify, translate, or otherwise create derivative works of any part of the Platform, Services, or Content other than User’s own User Content;
- Interfere with, or attempt to interfere with, the access of any User, host, or network, or use any device, software, or routine that is intended to damage, surreptitiously intercept, or expropriate any system, data, or communication, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Platform or Services;
- Collect from or store on the Platform or Services any personally identifiable information or protected health information of other Users without their express permission;
- Impersonate or misrepresent User’s affiliation with any person or entity;
- Engage in any fraudulent, deceptive, or illegal practices or activities, or use the Services to directly or indirectly support any such practices or activities;
- Violate any applicable law, rule, or regulation, or the National Automated Clearing House Association Operating Rules, as they may be amended from time to time (as amended, the “NACHA Rules”); or
- Encourage, assist, or enable any other individual to do any of the foregoing.
14. Gusto’s Rights to Monitor User Content and Conduct
Although Gusto is not obligated to monitor access to or use of User Content or to review or edit any User Content, Gusto has the right to do so for the purposes of operating the Platform and Services, ensuring compliance with this Agreement, and complying with applicable law or other legal requirements. Gusto reserves the right, but is not obligated, to remove or disable access to any User Content, at any time and without notice, for any reason, including, but not limited to, if Gusto, at Gusto’s sole discretion, considers any User Content to be objectionable or in violation of this Agreement.
Gusto has the right to monitor access to and use of the Platform, Services, and Content and to investigate conduct that Gusto believes could affect the Platform, Services, or Content, including violations of this Agreement. Gusto may also consult and cooperate with law enforcement authorities and administrative agencies to prosecute Users who violate the law.
15. E-Signatures
Gusto provides an electronic signature service (the “E-Sign Service”) which allows parties to sign documents electronically. Each time that User uses the E-Sign Service, User is expressly (i) affirming that User is able to access and view the document (the “Document”) User is electronically signing via the E-Sign Service; (ii) consenting to conduct business electronically with respect to the transaction contemplated by the Document; and (iii) agreeing to the use of electronic signatures for the Document.
While many Users prefer the convenience of electronic signatures, using the E-Sign Service to electronically sign Documents is optional, and User can choose to manually sign Documents if User prefers. If User would like to manually sign a Document, User should (i) inform the party that sent User the Document of User’s decision to manually sign such Document; (ii) make sure that User does not electronically sign the Document via the E-Sign Service; and (iii) obtain a physical copy of the Document for User to sign. Obtaining a physical, non-electronic copy of the Document is User’s sole responsibility, and Gusto has no responsibility or liability with respect to such matter.
Gusto has no responsibility or liability with respect to the content, validity, or enforceability of any Document, nor is it responsible or liable for any matters or disputes arising from the Documents.
Gusto makes no representations or warranties regarding the validity or enforceability of electronic documents or electronic signatures. UNDER APPLICABLE U.S. STATE AND FEDERAL LAWS, ELECTRONIC SIGNATURES ARE NOT ENFORCEABLE ON SOME DOCUMENTS. IT IS USER’S RESPONSIBILITY TO CONSULT WITH AN ATTORNEY TO DETERMINE WHETHER A DOCUMENT WILL BE ENFORCEABLE IF IT IS ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE.
16. Gusto Makes No Representations Regarding Platform Availability
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the Platform may be inaccessible and unavailable, with or without notice to User.
17. The Platform Can Cause Irrevocable Damage to User Content
The Platform’s performance of actions initiated by User may irrevocably modify and/or delete User Content. USER ACKNOWLEDGES AND AGREES THAT GUSTO IS NOT RESPONSIBLE FOR THE LOSS OR MODIFICATION OF ANY USER CONTENT AND THAT USER’S USE OF THE PLATFORM IS AT USER’S OWN RISK.
18. Warranty Disclaimers
User’s use of the Platform, Services, and Content is entirely at User’s own risk. Gusto is not in the business of providing legal, regulatory, tax, financial, accounting, employment, or other professional services or advice. Any information provided by Gusto via the Platform or otherwise is meant for informational purposes only and should not be interpreted as professional advice. User should consult a professional that is trained or licensed in the relevant area if User needs such assistance. Notwithstanding the foregoing, Gusto’s licensed health insurance brokers may provide professional advice regarding health insurance to Users that subscribe for Gusto’s health insurance brokerage services. In addition, certain Partners have licensed professionals who may provide professional advice.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF USER CONTENT AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO USER CONTENT. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET USER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION. IN ADDITION, GUSTO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR MAKING SURE THAT DOCUMENTS WHICH ARE ELECTRONICALLY SIGNED VIA THE E-SIGN SERVICE ARE VALID AND ENFORCEABLE UNDER ANY APPLICABLE U.S. LOCAL, STATE, OR FEDERAL LAWS, OR THE LAWS OF ANY OTHER JURISDICTION.
If any error results, whether directly or indirectly, from Gusto’s reliance on information (or modifications to information) provided by User, an employee or independent contractor of User, an Account Administrator, an Authorized Representative, or anyone that Gusto reasonably believes to be User, an employee or independent contractor of User, an Account Administrator, or an Authorized Representative of User (each such error, a “Resulting Error”), then Gusto will attempt to correct the Resulting Error, but Gusto makes no warranties or guarantees that it will be able to partially or fully correct the Resulting Error.
Gusto does not warrant, endorse, guarantee, or assume responsibility for any product or service, including without limitation Third-Party Services, advertised or offered by a third party through the Platform or any hyperlinked website or service, and Gusto will not be a party to or in any way be responsible for monitoring any transaction between User and third-party providers of products or services.
Gusto works with third-party service providers to provide the Services, and unless otherwise stated in an agreement between User and any such third-party service provider, the third-party service providers (i) make no warranty as to the accuracy or completeness of information provided to User, and (ii) disclaim express warranties or implied warranties imposed by law with respect to the services they provide, whether directly or indirectly, to User.
19. Indemnity
User will indemnify and hold harmless Gusto and its officers, directors, employees, and agents (the “Indemnified Parties”), from and against any claims, disputes, demands, liabilities, damages, losses, costs, judgements, penalties, fines, and expenses (including, without limitation, reasonable legal and accounting fees) (collectively, the “Claims”), arising out of or in any way connected with (i) User’s access to or use of the Platform, Services, or Content; (ii) User Content; (iii) User’s violation or alleged violation of this Agreement; (iv) User’s violation or alleged violation of any third party right, including without limitation any right of privacy or publicity, or any right provided by any labor or employment law, rule, or regulation, or any intellectual property right; (v) User’s violation or alleged violation of any applicable law, rule, or regulation, including but not limited to wage and hour laws; (vi) User’s violation of the NACHA Rules; (vii) User’s gross negligence, fraudulent activity, or willful misconduct; (viii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by User, an employee or independent contractor of User, User’s Account Administrator, or User’s Authorized Representative in providing the Services, or otherwise in connection with this Agreement; (ix) actions or activities that Gusto or any other Indemnified Party undertakes in connection with the Services or this Agreement at the direct request or instruction of anyone that Gusto or any other Indemnified Party reasonably believes to be User, an Account Administrator, or an Authorized Representative (each such action or activity, a “Requested Action”); (x) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions; or (xi) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
20. Limitation of Liability
Gusto is not responsible or liable for (i) User Content or anyone’s reliance on User Content; (ii) Resulting Errors or any consequences or Claims directly or indirectly arising from Resulting Errors; (iii) any consequences or Claims directly or indirectly resulting from User’s delay in providing, or User’s failure to provide, Gusto with information necessary for its provision of Services; (iv) User’s violation of the NACHA Rules; (v) unauthorized third-party actions taken in User’s Account and any transactions, consequences, or Claims arising therefrom; (vi) User’s negligence or any negligence of User’s Account Administrator or Authorized Representative; (vii) any Claims, or portions of any Claims, that could have reasonably been avoided or mitigated by User through reasonable efforts; (viii) any circumstances or Claims arising out of or related to a Partner’s use of User’s Shared Information; (ix) any Requested Actions, or any consequences or Claims directly or indirectly resulting therefrom; or (x) User’s failure, or the failure of any Account Administrators or Authorized Representatives, to properly follow Gusto’s instructions with respect to the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR CONTENT EXCEED THE AMOUNTS USER HAS PAID TO GUSTO FOR USE OF THE PLATFORM, SERVICES, OR CONTENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GUSTO AND USER.
21. Duty to Mitigate
If User becomes aware of, or reasonably should have been aware of, any facts, issues, information, or circumstances which are reasonably likely, whether alone or in combination with any other facts, issues, information, or circumstances, to lead to a Claim against Gusto or User in connection with this Agreement, User must use reasonable efforts to mitigate any loss that may give rise to such a Claim.
22. Term; Termination; Suspension
The Services and this Agreement will continue until they are terminated by either party. User may terminate the Services and this Agreement through User’s Account. Gusto may terminate the Services and this Agreement by giving User at least thirty (30) days’ prior written notice. In addition to Gusto’s foregoing termination right, Gusto may immediately suspend or restrict User’s Account; suspend or restrict User’s access to the Platform or any Services; block User’s ability to use any particular feature of a Service; or immediately terminate the Services and this Agreement, in each case with or without notice to User, in the event that: (i) Gusto has any reason to suspect or believe that User may be in violation of this Agreement; (ii) Gusto determines that User’s actions are likely to cause legal liability for or material negative impact to Gusto; (iii) Gusto believes that User has misrepresented any data or information or that User has engaged in fraudulent or deceptive practices or illegal activities; (iv) Gusto has determined that User is behind in payment of fees for the Services and User has not cured such non-payment within five (5) days of Gusto providing User with notice of the non-payment; or (v) User files a petition under the U.S. Bankruptcy Code or a similar state or federal law, or a petition under the U.S. Bankruptcy Code or a similar state or federal law is filed against User. Furthermore, while Gusto strives to support a multitude of business and organization types, in certain unique situations, if Gusto cannot support the payroll-related filings for User’s business or organization type, Gusto may immediately terminate the Services and this Agreement upon written notice to User.
The termination of any of the Services or this Agreement will not affect User’s or Gusto’s rights with respect to transactions which occurred before termination. Gusto will have no liability for any costs, losses, damages, penalties, fines, expenses, or liabilities arising out of or related to Gusto’s termination of this Agreement. Sections 2 (to the extent that there are any unpaid fees for services rendered as of the time of termination of this Agreement), 4, 5, 6, 11, 13, 14, and 16 through 28 of this Agreement, and any sections of the Service Terms which by their nature should survive, will survive and remain in effect even if this Agreement is terminated, cancelled, or rescinded.
Upon termination of any of the Service(s) and/or termination of this Agreement, User’s right to access and use such terminated Services(s) will automatically terminate; provided, however, that Gusto will generally continue to provide User with the ability to access User’s Account in a limited capacity with respect to such terminated Service(s) to view and download information that was available in User’s Account at the time of termination of such Service(s) (the “Limited Access Rights”). While User has Limited Access Rights, User must use reasonable efforts to adequately secure, and keep confidential, any passwords or credentials for User’s Account, and any information accessible via User’s Account. Gusto may deny the Limited Access Rights to User, or Gusto may revoke the Limited Access Rights at any time, in its sole discretion, if it has any reason to believe that User may have at any time breached Section 13 of this Agreement.
23. Changes to the Agreement, Platform, or Service
Gusto may modify the Agreement at any time, in Gusto’s sole discretion. If Gusto does so, Gusto shall let User know either by posting the modified Agreement on the Platform or Site or through other communications. It is important that User reviews the Agreement whenever Gusto modifies it because if User continues to use the Platform or Services after Gusto has notified User of the modification and the modified Agreement has been posted on the Platform or Site, User is indicating to Gusto that User agrees to be bound by the modified Agreement. If User does not agree to be bound by the modified Agreement, then User may not continue to use the Platform or Services. Because the Platform and Services are evolving over time, Gusto may change or discontinue all or any part of the Platform, Services, or Gusto Content at any time and without notice, at Gusto’s sole discretion.
24. Governing Law
This Agreement shall be interpreted and construed in accordance with the laws of the State of California, without regard to the conflicts of laws principles thereof.
25. Arbitration
Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, if either User or Gusto has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, or the Services, including any claim regarding the applicability, interpretation, scope, or validity of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between User and Gusto, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules and Mediation Procedures of the AAA (the “AAA Rules”), including any expedited procedures. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in San Francisco, California or any other location that is mutually agreed upon by User and Gusto. A single arbitrator will be mutually selected by Gusto and User and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and User cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon User and Gusto. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Gusto may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of San Francisco, California, for any monetary amounts that User owes to Gusto (each, an “Action”). User hereby waives any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Gusto in such courts.
User and Gusto agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. USER FURTHER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT USER AND GUSTO ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT USER IS WAIVING ITS RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
26. Gusto Is Not Responsible for Things Gusto Cannot Control
Gusto is not responsible or liable for any delays or failures in performance from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of User.
Without limiting the generality of the foregoing or Section 18, the Platform and the Services rely on third-party technology and services, such as application programming interfaces, for Third-Party Services and web hosting services. Any change to the products or services offered by any of these third-party providers may materially and adversely affect, or entirely disable, User’s use of or access to the Platform and the Services. Likewise, Gusto cannot guarantee that any User Content hosted on a third-party server will remain secure.
27. General
This Agreement, including all applicable Service Terms, constitutes the entire agreement between Gusto and User regarding the Platform, Services, and Content and replaces all prior understandings, communications, and agreements, oral or written, regarding this subject matter. This Agreement may be modified only by a written amendment signed by the parties or as otherwise provided in Section 23. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. User may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by User to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
28. Electronic Transmission
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof, delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either (i) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement or (ii) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means; and each party forever waives any related defense.
29. Contact Information
If User has any questions about this Agreement, the Platform, or the Services, User may contact Gusto at [email protected] or (855) 546-1818. Gusto, the provider of the Services, is located at 525 20th Street San Francisco, CA 94107. If User is a California resident, User may report complaints regarding the Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Members Terms of Service
Effective March 24th 2024
DownloadTable of Contents
Last updated February 21, 2024
These Members Terms of Service (“Members Terms” or “Terms”) form part of the binding contract between you as an independent contractor, employee, or other member of a business organization with an existing Gusto account (“you”, “your”, or “Member”) and Gusto, Inc. and its subsidiaries and affiliates (“Gusto”, “us”, “we” or “our”). For purposes of these Members Terms, we refer to independent contractors as “Contractor” and employees “Employees”. Collectively, Contractors and Employees are referred to as “Members”. The company with an existing Gusto account that invited you to join Gusto is referred to as “Employer.”
These Members Terms contain the terms and conditions that govern your use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program.
By clicking the applicable button to indicate acceptance of these Members Terms, or by accessing or using the Platform, including any Services, you agree to be bound by and comply with these Terms, and any Additional Terms (defined below) specific to Services that Member accesses or uses, and our Acceptable Use Policy, which is hereby incorporated into this Agreement (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Contractor (e.g. in your capacity as an employee or agent of Contractor) then you represent that you have the authority to bind Contractor to this Agreement and that Contractor accepts this Agreement.
ARBITRATION NOTICE: SECTION 16 OF THESE TERMS CONTAINS PROVISIONS THAT REQUIRE YOU AND GUSTO TO RESOLVE MOST DISPUTES THROUGH FINAL, BINDING ARBITRATION. IN SUCH CASES, YOU UNDERSTAND THAT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF YOUR CLAIMS.
1. Member Account
Employer has agreed to the Gusto Employer Terms of Service and created an Employer Account in order to (a) enable you to access the Platform and Services and (b) authorize you to create an account with Gusto (“Member Account”). The Member Account is affiliated with the Employer that invited you, and we are providing you with access to the Member Account at the direction of Employer.
To be eligible to create a Member Account, you must have (a) home and work addresses in the United States, (b) a bank account in the United States if receiving payment through direct deposit, (c) a social security number. If you are using the Member Account to enable Employer to process payments to you via the Platform, you represent and warrant that you are eligible to create a Member Account and have provided all requisite consents or authorizations to Employer to enable Employer to do so.
You must enter a unique username and password in order to access the Member Account, and must keep the username and password confidential. You accept all risks of unauthorized use of the Member Account if security and confidentiality of the Member Account credentials are not maintained. If you believe that the Member Account credentials have been accessed or compromised by an unauthorized third party, you should contact us immediately. Gusto reserves the right to prevent access to the Member Account if we have reason to believe that the Member Account or credentials have been compromised.
2. Services Available to Members
Your Member Account may enable you to access and receive Employer-Provided Services and/or Member Services, each as defined and further described below. Contractors may not be eligible for some or all Employer-Provided Services or Member Services. Certain Third-Party Services (as defined below), Employer-Provided Services, and Member Services are or may be subject to additional terms (“Additional Terms”).
A. Employer-Provided Services and Employer Data
Employer-Provided Services are the Services that are only made available to you as a result of your relationship with Employer, and Employer must sign up for or opt-into Employer-Provided Services in order for you to access them using your Member Account. Employer-Provided Services include (a) the ability to access and provide information and tasks associated with Employer’s business (e.g. entering your time off, drafting a performance review) and (b) accessing or enrolling in certain Services that Employer makes available to you as a member of Employer’s business organization (e.g. health benefits). If you have questions about using any Employer-Provided Services you should direct them to Employer. Employer may revoke or modify your access to Employer-Provided Services at any time, subject to any applicable Additional Terms.
Personal information and documentation that you upload to your Member Account for use in Employer-Provided Services is referred to as Employer Data. Gusto processes and retains Employer Data at the direction of Employer and in accordance with applicable law and legal obligations. You understand and acknowledge that Employer Data will be visible to other Members, Employer, and Employer’s authorized Employer Account representative(s) (“Administrator(s)”) depending on Employer’s choices. Employer may also elect to enable Third-Party Services (as defined below) which will result in Employer Data being shared with a third-party and subject to that third-party’s privacy policy. You understand and agree that Employer’s choices may result in the access, use, deletion, disclosure or modification of certain Employer Data.
You understand and agree that Employer is solely responsible for (i) notifying or informing you of any relevant policies, practices, settings, or choices Employer may elect or apply that may impact Gusto’s processing of Employer Data; (ii) obtaining your permission and/or consent as may be legally required in order to lawfully use Employer Data you input in order to operate your access to Employer-Provided Services via the Platform; (iii) ensuring that any transfer and/or processing of Employer Data pursuant to this Agreement is lawful, and; (iv) responding to and resolving any dispute that may arise between you and Employer relating to or based on Employer Data, the Platform, or Services, or Employer’s failure to fulfill any of these responsibilities.
Employer is your first point of contact for questions, concerns, or issues concerning the use of or access to Employer-Provided Services, other than questions about your access to the Platform or your Member Account. However, Gusto reserves the right to intervene directly and take what we determine to be appropriate action in the event that Employer is unable to resolve your issue, or we believe there is a risk of harm to Gusto, Member(s), third parties, or the Services. Gusto may monitor use of the Platform and Services for compliance with this Agreement, but is not obligated to do so. You agree to cooperate with Gusto in the event of any such direct intervention.
B. Member Services and Member Data
Separate from and in addition to Employer-Provided Services, and subject to any applicable Additional Terms and eligibility criteria, your Member Account may enable you to access certain Third-Party Services (as defined in Section 3 below) and/or Services available to you directly (each, a “Member Service” and collectively “Member Services”). Contractors may not be eligible for some or all Member Services. We are providing eligible Members with access to Member Services subject to such Members’ compliance with this Agreement, regardless of such Members’ relationship with Employer. In other words, eligible Members’ use of and access to Member Services will continue after dismissal from Employer’s business and cannot be revoked or modified by Employer. Notwithstanding the foregoing, we reserve the right to suspend or revoke your access to any or all of any or all of the Member Services if we have reason to believe that Employer or you have violated this Agreement, any agreement with us including agreements regarding Member Services, or applicable law.
Member Services include, among other things, an ability to access certain limited functions within your Member Account after termination of your relationship with an Employer. Personal information and documents that you input to the Platform for the use of Member Services is referred to herein as “Member Data.” Member Data will be processed and retained by Gusto in accordance with our legal obligations and our Privacy Policy as it may be updated from time to time. The Privacy Policy is incorporated into this Agreement with full force and effect.
You are solely responsible for following instructions that we provide you with respect to the Platform and Member Services, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Member Services. Gusto’s performance of Member Services will rely on information you provide to Gusto. Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. You accept sole responsibility for any liability arising from your failure to correct or update such information.
3. Third-Party Services
You may be able to elect to receive services from our third party partners (each a “Third-Party Service”), whether directly via a Member Service or via an Employer-Provided Service. Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. You are solely responsible for, and assume all risk from, your choice to receive, use or access any Third-Party Service. If you choose to and authorize Gusto to share Member Data with a Third-Party Service (“Shared Member Data”) then you (a) represent you have all legal rights to do so, (b) assume all risks related to such Shared Member Data, (c) acknowledge you are solely responsible for the accuracy of such Shared Member Data, and (d) agree that you are solely responsible for the lawfulness of sharing such Shared Member Data with the applicable Third-Party Service. You waive and release any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Member Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto does not operate or control such websites or resources and is not responsible for the content, products, or services, or links available or displayed on those websites or resources. You are solely responsible for, and assume all risk arising from, your use of any Third-Party Service, third-party websites or resources.
4. Direct Deposit
The terms in this Section only apply to Employees that elect to receive wages via direct deposit through the Platform.
You may elect to instruct Employer, via the Platform, to deposit your paycheck into a bank account in your name. You may also designate amounts of your choosing from your paycheck to be deposited into multiple bank accounts in your name. If you have designated a specific amount of your paycheck to be transferred to a bank account, you can change or cancel this election at any time via the Platform. Any changes will be applied to the first paycheck that is deposited at least four (4) business days after you submit the change.
If you are using the Platform to receive wages via direct deposit, you must use the designated sections of the Platform to submit or change instructions regarding the direct depositing of your paycheck. If you attempt to submit or change instructions by any means other than through the designated sections of the Platform, Gusto will have absolute discretion to determine whether to follow such instruction, and will have no liability to you for either following, or not following, such instructions.
5. Contractor Payments
If you are a Contractor receiving payments from Employer via the Platform, the following terms in this Section 5 apply to you (“Contractor Payment Terms”).
You represent and warrant that you meet the following eligibility criteria:
Your bank account is located in the United States; and
You have completed Form W-9.
You further agree to comply with all applicable laws and regulations. You understand and agree that Employer is solely responsible for your work authorization and/or employment classification and you release Gusto from any liability arising therefrom.
6. Beta Features
We may provide you with access to beta, pilot, trial, pre-release features or products (collectively “Beta Features”) via the Platform, either directly or through Employer. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature you agree to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
7. Privacy Policy
Gusto may collect, use, and disclose your information pursuant to our Privacy Policy, which is incorporated into this Agreement by reference and may be updated from time to time.
8. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services, and all content included therein (excluding Member Data, Employer Data and Third Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Member in this Agreement are reserved by us or our licensors. This Agreement does not grant Member any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Gusto Content not specifically set forth herein.
You acknowledge that the Platform, Services, and Gusto Content is protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, and Gusto Content.
If you send us any feedback or suggestions (“Feedback”), that Feedback is given entirely voluntarily and you grant Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about your experience with the Platform or Services.
Gusto grants Member a limited, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Gusto Content, Platform, and Services solely as necessary to use the Services and in accordance with this Agreement and all applicable Additional Terms.
9. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages to Members: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about user account activity, (4) service alerts and (5) soliciting feedback about your customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s number. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Gusto and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
10. No Professional or Legal Advice; No Guaranteed Outcomes
Your use of the Platform and Services is entirely at your own risk. Except as and unless otherwise stated in applicable Additional Terms, you acknowledge that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. You are solely responsible for ensuring your compliance with applicable laws and regulations, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our Employer Care team regarding your use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
11. Termination
Termination by Gusto: We may immediately terminate this Agreement and the Member Account without notice or liability to you. We are not responsible or liable for any losses, damages, penalties, or expenses related to our termination of this Agreement
Termination by Member: If you wish to terminate this Agreement or the Member Account please contact Employer Support.
Effect of Termination: Upon termination of this Agreement, your access to the Member Account and certain Services will immediately cease. Termination of this Agreement will not affect any of our rights or your obligations arising under this Agreement prior to such termination.
Any sections or subsections of these Members Terms or any applicable Additional Terms which by their nature should survive, will survive termination of these Members Terms including but not limited to Sections 11, 12, 13, 14, and 16.
12. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA, MEMBER DATA, OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH EMPLOYER DATA, MEMBER DATA, AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET MEMBER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect your use of or access to the Platform and Services.
Any error that results from Gusto’s reliance on information provided by or on behalf of Employer or Member is a “Resulting Error”. Gusto makes no warranties or guarantees that it will be able to partially or fully correct Resulting Errors.
No oral or written information or advice given by Gusto, its agents, or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
13. Indemnity
To the extent permitted by applicable law, Member agrees to indemnify and hold harmless Gusto and its officers, directors, employees, successors, assigns, representatives, subsidiaries, affiliates, and agents (the “Indemnified Parties”), from and against any losses, damages, expenses, claims, actions, disputes, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), without regard to merit or lack thereof arising out of or related in any way to (i) your access to or use of the Platform, Services, or Gusto Content; (ii) Member Data; (iii) Member’s violation or alleged violation of this Agreements or any instructions provided by Gusto with respect to use of the Platform or Services; (iv) Member's violation or alleged violation of any third party right; (v) Member's violation or alleged violation of any applicable law, rule, or regulation; (vi) Member's gross negligence, fraudulent activity, or willful misconduct; (vii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Member; (viii) actions or activities that Gusto or any other Indemnified Party undertakes at the request or instruction of Member or anyone that Gusto or any other Indemnified Party reasonably believes to be acting with authority on behalf of Member (each such action or activity, a “Requested Action”); or (ix) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.
14. Limitation of Liability
To the extent permitted by applicable law, Gusto is not liable, and Member agrees not to hold Gusto responsible for, any damages or losses resulting directly or indirectly from (i) Member Data or Gusto’s or a third party’s reliance on certain Member Data; (ii) Resulting Errors; (iii) Member’s delay in providing, or failure to provide, Gusto with information necessary for its provision of the Services; (iv) Member’s violation of applicable law, rule, regulation or other applicable legal obligation; (v) unauthorized third-party actions taken in Member's Account or sharing of your Member Account credentials; (vi) Member's negligence; (vii) Employer’s negligence; (viii) any Claims that could have reasonably been avoided or mitigated by Member through reasonable efforts; (ix) a Third-Party Service’s use of Employer Data or Member Data any Requested Actions; (xi) Member's failure, or the failure of Employer, to properly follow Gusto’s instructions with respect to the Services; or (xii) Member’s use or inability to use the Platform or the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, GUSTO CONTENT, THIRD PARTY CONTENT, OR THIRD-PARTY SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR GUSTO CONTENT EXCEED $500 US DOLLARS.
15. Changes to the Agreement, Platform, or Services
We may modify this Agreement at any time, in our sole discretion, effective upon posting of an updated version of this Agreement. Such amendments or changes will be effective upon the effective date and posting of the updated version of this Agreement. You will be notified of any change in the manner provided by applicable law prior to the effective date of the change. You should review each modified version of this Agreement as your continued use of the Platform or Services after such changes are posted constitutes your agreement to be bound by the modified Agreement. If you do not agree to be bound by the modified Agreement, then you may terminate your Member Account as provided in this Agreement. Because the Platform and Services evolve over time, we may change or discontinue all or any part of the Platform or Services at any time and without notice at our sole discretion.
16. Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 16.D BELOW.
Informal Dispute Resolution. As used in this Section 16, “Dispute” includes any past, present, or future dispute, claim, or controversy relating to or arising out of this Agreement, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 16 or the Agreement. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. Similarly, Gusto will undertake reasonable efforts to contact you to resolve any Dispute we may have informally before taking any formal action. If a Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate an arbitration proceeding for Disputes as described below.
Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 16 (the “Arbitration Provision”), unless you opt out as provided in Section 16.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Disputes include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise.
Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to [email protected], within thirty (30) days of the date of your electronic acceptance of these Members Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Members, within thirty (30) days of Gusto’s notice of modifications to these Members Terms. Such Arbitration Opt-Out Notice must clearly state that you are rejecting arbitration; identify these Terms to which it applies by the effective date of the Terms; and provide your name and address. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 16.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 16 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 16.B ABOVE.
NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 16.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. A single arbitrator will be mutually selected by Gusto and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS rules that satisfies the Arbitrator Requirements. Notwithstanding any language to the contrary in this Section 16.G, if a party seeks injunctive relief that would significantly impact other Members as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 16.G shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the JAMS Rules, or in accordance with countervailing law if contrary to the JAMS Rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 16.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 16.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 16.D.
17. Governing Law
This Agreement is governed by, and all Disputes shall be resolved in accordance with, the Federal Arbitration Act, as set forth above, and the laws of the State of California without regard to the conflicts of laws provisions thereof.
18. Force Majeure
Gusto is not liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Employer or Member.
19. General
Entire Agreement. This Agreement constitutes the entire agreement between Gusto and Member regarding the Platform and Services and replaces all prior agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the validity or enforceability of the remainder of the Agreement, except as provided in Section 16.K.
Assignment. Member may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Member to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Notices. Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given.
Waiver and Remedies. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
20. Contact Information
If Member has any questions about this Agreement or the Member Services, Member may contact Gusto at [email protected]. Gusto will not be able to accept Member questions, Feedback, or complaints at Gusto’s physical locations. If Member is a California resident, Member may report complaints regarding the Member Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective March 24th 2024 to March 24th 2024
DownloadSummary of changes
Table of Contents
Last updated February 21, 2024
These Members Terms of Service (“Members Terms” or “Terms”) form part of the binding contract between you as an independent contractor, employee, or other member of a business organization with an existing Gusto account (“you”, “your”, or “Member”) and Gusto, Inc. and its subsidiaries and affiliates (“Gusto”, “us”, “we” or “our”). For purposes of these Members Terms, we refer to independent contractors as “Contractor” and employees “Employees”. Collectively, Contractors and Employees are referred to as “Members”. The company with an existing Gusto account that invited you to join Gusto is referred to as “Employer.”
These Members Terms contain the terms and conditions that govern your use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program.
By clicking the applicable button to indicate acceptance of these Members Terms, or by accessing or using the Platform, including any Services, you agree to be bound by and comply with these Terms, and any Additional Terms (defined below) specific to Services that Member accesses or uses, and our Acceptable Use Policy, which is hereby incorporated into this Agreement (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Contractor (e.g. in your capacity as an employee or agent of Contractor) then you represent that you have the authority to bind Contractor to this Agreement and that Contractor accepts this Agreement.
ARBITRATION NOTICE: SECTION 16 OF THESE TERMS CONTAINS PROVISIONS THAT REQUIRE YOU AND GUSTO TO RESOLVE MOST DISPUTES THROUGH FINAL, BINDING ARBITRATION. IN SUCH CASES, YOU UNDERSTAND THAT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF YOUR CLAIMS.
1. Member Account
Employer has agreed to the Gusto Employer Terms of Service and created an Employer Account in order to (a) enable you to access the Platform and Services and (b) authorize you to create an account with Gusto (“Member Account”). The Member Account is affiliated with the Employer that invited you, and we are providing you with access to the Member Account at the direction of Employer.
To be eligible to create a Member Account, you must have (a) home and work addresses in the United States, (b) a bank account in the United States if receiving payment through direct deposit, (c) a social security number. If you are using the Member Account to enable Employer to process payments to you via the Platform, you represent and warrant that you are eligible to create a Member Account and have provided all requisite consents or authorizations to Employer to enable Employer to do so.
You must enter a unique username and password in order to access the Member Account, and must keep the username and password confidential. You accept all risks of unauthorized use of the Member Account if security and confidentiality of the Member Account credentials are not maintained. If you believe that the Member Account credentials have been accessed or compromised by an unauthorized third party, you should contact us immediately. Gusto reserves the right to prevent access to the Member Account if we have reason to believe that the Member Account or credentials have been compromised.
2. Services Available to Members
Your Member Account may enable you to access and receive Employer-Provided Services and/or Member Services, each as defined and further described below. Contractors may not be eligible for some or all Employer-Provided Services or Member Services. Certain Third-Party Services (as defined below), Employer-Provided Services, and Member Services are or may be subject to additional terms (“Additional Terms”).
A. Employer-Provided Services and Employer Data
Employer-Provided Services are the Services that are only made available to you as a result of your relationship with Employer, and Employer must sign up for or opt-into Employer-Provided Services in order for you to access them using your Member Account. Employer-Provided Services include (a) the ability to access and provide information and tasks associated with Employer’s business (e.g. entering your time off, drafting a performance review) and (b) accessing or enrolling in certain Services that Employer makes available to you as a member of Employer’s business organization (e.g. health benefits). If you have questions about using any Employer-Provided Services you should direct them to Employer. Employer may revoke or modify your access to Employer-Provided Services at any time, subject to any applicable Additional Terms.
Personal information and documentation that you upload to your Member Account for use in Employer-Provided Services is referred to as Employer Data. Gusto processes and retains Employer Data at the direction of Employer and in accordance with applicable law and legal obligations. You understand and acknowledge that Employer Data will be visible to other Members, Employer, and Employer’s authorized Employer Account representative(s) (“Administrator(s)”) depending on Employer’s choices. Employer may also elect to enable Third-Party Services (as defined below) which will result in Employer Data being shared with a third-party and subject to that third-party’s privacy policy. You understand and agree that Employer’s choices may result in the access, use, deletion, disclosure or modification of certain Employer Data.
You understand and agree that Employer is solely responsible for (i) notifying or informing you of any relevant policies, practices, settings, or choices Employer may elect or apply that may impact Gusto’s processing of Employer Data; (ii) obtaining your permission and/or consent as may be legally required in order to lawfully use Employer Data you input in order to operate your access to Employer-Provided Services via the Platform; (iii) ensuring that any transfer and/or processing of Employer Data pursuant to this Agreement is lawful, and; (iv) responding to and resolving any dispute that may arise between you and Employer relating to or based on Employer Data, the Platform, or Services, or Employer’s failure to fulfill any of these responsibilities.
Employer is your first point of contact for questions, concerns, or issues concerning the use of or access to Employer-Provided Services, other than questions about your access to the Platform or your Member Account. However, Gusto reserves the right to intervene directly and take what we determine to be appropriate action in the event that Employer is unable to resolve your issue, or we believe there is a risk of harm to Gusto, Member(s), third parties, or the Services. Gusto may monitor use of the Platform and Services for compliance with this Agreement, but is not obligated to do so. You agree to cooperate with Gusto in the event of any such direct intervention.
B. Member Services and Member Data
Separate from and in addition to Employer-Provided Services, and subject to any applicable Additional Terms and eligibility criteria, your Member Account may enable you to access certain Third-Party Services (as defined in Section 3 below) and/or Services available to you directly (each, a “Member Service” and collectively “Member Services”). Contractors may not be eligible for some or all Member Services. We are providing eligible Members with access to Member Services subject to such Members’ compliance with this Agreement, regardless of such Members’ relationship with Employer. In other words, eligible Members’ use of and access to Member Services will continue after dismissal from Employer’s business and cannot be revoked or modified by Employer. Notwithstanding the foregoing, we reserve the right to suspend or revoke your access to any or all of any or all of the Member Services if we have reason to believe that Employer or you have violated this Agreement, any agreement with us including agreements regarding Member Services, or applicable law.
Member Services include, among other things, an ability to access certain limited functions within your Member Account after termination of your relationship with an Employer. Personal information and documents that you input to the Platform for the use of Member Services is referred to herein as “Member Data.” Member Data will be processed and retained by Gusto in accordance with our legal obligations and our Privacy Policy as it may be updated from time to time. The Privacy Policy is incorporated into this Agreement with full force and effect.
You are solely responsible for following instructions that we provide you with respect to the Platform and Member Services, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Member Services. Gusto’s performance of Member Services will rely on information you provide to Gusto. Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. You accept sole responsibility for any liability arising from your failure to correct or update such information.
3. Third-Party Services
You may be able to elect to receive services from our third party partners (each a “Third-Party Service”), whether directly via a Member Service or via an Employer-Provided Service. Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. You are solely responsible for, and assume all risk from, your choice to receive, use or access any Third-Party Service. If you choose to and authorize Gusto to share Member Data with a Third-Party Service (“Shared Member Data”) then you (a) represent you have all legal rights to do so, (b) assume all risks related to such Shared Member Data, (c) acknowledge you are solely responsible for the accuracy of such Shared Member Data, and (d) agree that you are solely responsible for the lawfulness of sharing such Shared Member Data with the applicable Third-Party Service. You waive and release any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Member Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto does not operate or control such websites or resources and is not responsible for the content, products, or services, or links available or displayed on those websites or resources. You are solely responsible for, and assume all risk arising from, your use of any Third-Party Service, third-party websites or resources.
4. Direct Deposit
The terms in this Section only apply to Employees that elect to receive wages via direct deposit through the Platform.
You may elect to instruct Employer, via the Platform, to deposit your paycheck into a bank account in your name. You may also designate amounts of your choosing from your paycheck to be deposited into multiple bank accounts in your name. If you have designated a specific amount of your paycheck to be transferred to a bank account, you can change or cancel this election at any time via the Platform. Any changes will be applied to the first paycheck that is deposited at least four (4) business days after you submit the change.
If you are using the Platform to receive wages via direct deposit, you must use the designated sections of the Platform to submit or change instructions regarding the direct depositing of your paycheck. If you attempt to submit or change instructions by any means other than through the designated sections of the Platform, Gusto will have absolute discretion to determine whether to follow such instruction, and will have no liability to you for either following, or not following, such instructions.
5. Contractor Payments
If you are a Contractor receiving payments from Employer via the Platform, the following terms in this Section 5 apply to you (“Contractor Payment Terms”).
You represent and warrant that you meet the following eligibility criteria:
Your bank account is located in the United States; and
You have completed Form W-9.
You further agree to comply with all applicable laws and regulations. You understand and agree that Employer is solely responsible for your work authorization and/or employment classification and you release Gusto from any liability arising therefrom.
6. Beta Features
We may provide you with access to beta, pilot, trial, pre-release features or products (collectively “Beta Features”) via the Platform, either directly or through Employer. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature you agree to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
7. Privacy Policy
Gusto may collect, use, and disclose your information pursuant to our Privacy Policy, which is incorporated into this Agreement by reference and may be updated from time to time.
8. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services, and all content included therein (excluding Member Data, Employer Data and Third Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Member in this Agreement are reserved by us or our licensors. This Agreement does not grant Member any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Gusto Content not specifically set forth herein.
You acknowledge that the Platform, Services, and Gusto Content is protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, and Gusto Content.
If you send us any feedback or suggestions (“Feedback”), that Feedback is given entirely voluntarily and you grant Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about your experience with the Platform or Services.
Gusto grants Member a limited, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Gusto Content, Platform, and Services solely as necessary to use the Services and in accordance with this Agreement and all applicable Additional Terms.
9. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages to Members: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about user account activity, (4) service alerts and (5) soliciting feedback about your customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s number. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Gusto and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
10. No Professional or Legal Advice; No Guaranteed Outcomes
Your use of the Platform and Services is entirely at your own risk. Except as and unless otherwise stated in applicable Additional Terms, you acknowledge that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. You are solely responsible for ensuring your compliance with applicable laws and regulations, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our Employer Care team regarding your use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
11. Termination
Termination by Gusto: We may immediately terminate this Agreement and the Member Account without notice or liability to you. We are not responsible or liable for any losses, damages, penalties, or expenses related to our termination of this Agreement
Termination by Member: If you wish to terminate this Agreement or the Member Account please contact Employer Support.
Effect of Termination: Upon termination of this Agreement, your access to the Member Account and certain Services will immediately cease. Termination of this Agreement will not affect any of our rights or your obligations arising under this Agreement prior to such termination.
Any sections or subsections of these Members Terms or any applicable Additional Terms which by their nature should survive, will survive termination of these Members Terms including but not limited to Sections 11, 12, 13, 14, and 16.
12. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA, MEMBER DATA, OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH EMPLOYER DATA, MEMBER DATA, AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET MEMBER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect your use of or access to the Platform and Services.
Any error that results from Gusto’s reliance on information provided by or on behalf of Employer or Member is a “Resulting Error”. Gusto makes no warranties or guarantees that it will be able to partially or fully correct Resulting Errors.
No oral or written information or advice given by Gusto, its agents, or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
13. Indemnity
To the extent permitted by applicable law, Member agrees to indemnify and hold harmless Gusto and its officers, directors, employees, successors, assigns, representatives, subsidiaries, affiliates, and agents (the “Indemnified Parties”), from and against any losses, damages, expenses, claims, actions, disputes, suits, proceedings, and demands (including, without limitation, reasonable legal and accounting fees) (“Claims”), without regard to merit or lack thereof arising out of or related in any way to (i) your access to or use of the Platform, Services, or Gusto Content; (ii) Member Data; (iii) Member’s violation or alleged violation of this Agreements or any instructions provided by Gusto with respect to use of the Platform or Services; (iv) Member's violation or alleged violation of any third party right; (v) Member's violation or alleged violation of any applicable law, rule, or regulation; (vi) Member's gross negligence, fraudulent activity, or willful misconduct; (vii) Gusto’s or any other Indemnified Party’s use of or reliance on information or data furnished by or on behalf of Member; (viii) actions or activities that Gusto or any other Indemnified Party undertakes at the request or instruction of Member or anyone that Gusto or any other Indemnified Party reasonably believes to be acting with authority on behalf of Member (each such action or activity, a “Requested Action”); or (ix) Gusto’s or any other Indemnified Party’s use of or reliance on information or data resulting from such Requested Actions.
14. Limitation of Liability
To the extent permitted by applicable law, Gusto is not liable, and Member agrees not to hold Gusto responsible for, any damages or losses resulting directly or indirectly from (i) Member Data or Gusto’s or a third party’s reliance on certain Member Data; (ii) Resulting Errors; (iii) Member’s delay in providing, or failure to provide, Gusto with information necessary for its provision of the Services; (iv) Member’s violation of applicable law, rule, regulation or other applicable legal obligation; (v) unauthorized third-party actions taken in Member's Account or sharing of your Member Account credentials; (vi) Member's negligence; (vii) Employer’s negligence; (viii) any Claims that could have reasonably been avoided or mitigated by Member through reasonable efforts; (ix) a Third-Party Service’s use of Employer Data or Member Data any Requested Actions; (xi) Member's failure, or the failure of Employer, to properly follow Gusto’s instructions with respect to the Services; or (xii) Member’s use or inability to use the Platform or the Services.
NEITHER GUSTO NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, GUSTO CONTENT, THIRD PARTY CONTENT, OR THIRD-PARTY SERVICES, WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUSTO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO USER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GUSTO’S TOTAL LIABILITY FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM, SERVICES, OR GUSTO CONTENT EXCEED $500 US DOLLARS.
15. Changes to the Agreement, Platform, or Services
We may modify this Agreement at any time, in our sole discretion, effective upon posting of an updated version of this Agreement. Such amendments or changes will be effective upon the effective date and posting of the updated version of this Agreement. You will be notified of any change in the manner provided by applicable law prior to the effective date of the change. You should review each modified version of this Agreement as your continued use of the Platform or Services after such changes are posted constitutes your agreement to be bound by the modified Agreement. If you do not agree to be bound by the modified Agreement, then you may terminate your Member Account as provided in this Agreement. Because the Platform and Services evolve over time, we may change or discontinue all or any part of the Platform or Services at any time and without notice at our sole discretion.
16. Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS AND INCLUDES, AMONG OTHER THINGS, A CLASS ACTION WAIVER. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN SECTION 16.D BELOW.
Informal Dispute Resolution. As used in this Section 16, “Dispute” includes any past, present, or future dispute, claim, or controversy relating to or arising out of this Agreement, the Platform or Services, whether in law, equity, or otherwise, including the validity or enforceability of this Section 16 or the Agreement. If a Dispute arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any Dispute in arbitration or, for an excluded matter, in court, you will try to resolve the specific issue underlying the Dispute informally by contacting our customer service team. Similarly, Gusto will undertake reasonable efforts to contact you to resolve any Dispute we may have informally before taking any formal action. If a Dispute is not resolved within sixty (60) days after you contact our customer service team, you or Gusto may initiate an arbitration proceeding for Disputes as described below.
Election to Arbitrate. You and Gusto agree that the sole and exclusive forum for resolution of a Dispute will be final and binding arbitration pursuant to this Section 16 (the “Arbitration Provision”), unless you opt out as provided in Section 16.C below or your Dispute is subject to an explicit exception to this Arbitration Provision. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable. Notwithstanding the foregoing, both you and Gusto retain the right: (1) to bring an individual action in small claims court (a “Small Claims Action”); or (2) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Disputes include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise.
Opt-Out of Arbitration Provision. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to [email protected], within thirty (30) days of the date of your electronic acceptance of these Members Terms (such notice, an “Arbitration Opt-Out Notice”) or, for current Members, within thirty (30) days of Gusto’s notice of modifications to these Members Terms. Such Arbitration Opt-Out Notice must clearly state that you are rejecting arbitration; identify these Terms to which it applies by the effective date of the Terms; and provide your name and address. If you don’t provide Gusto with a completed Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth in Section 16.B above. Your opt-out will be effective only for Disputes that arise after acceptance of the Terms, or the effective date of the updated Terms for which you have submitted an Arbitration Opt-Out Notice (whichever is later).
Judicial Forum for Disputes. In the event that (i) you or we bring a Small Claims Action, or IP Protection Action; (ii) you timely provide Gusto with an Arbitration Opt-out Notice; or (iii) this Section 16 is found not to apply, the exclusive jurisdiction and venue of any Dispute will be the state and federal courts located in the County of San Francisco, CA and you and Gusto waive any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
WAIVER OF RIGHT TO LITIGATE. YOU UNDERSTAND THAT YOU WILL NOT HAVE A RIGHT TO LITIGATE DISPUTES THROUGH A COURT BEFORE A JUDGE UNLESS YOU TIMELY PROVIDE GUSTO WITH AN ARBITRATION OPT-OUT NOTICE. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE DISPUTES IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 16.B ABOVE.
NO CLASS ACTIONS. You and Gusto agree that the arbitration of any Dispute shall only proceed on an individual basis. Neither you nor Gusto may bring a Dispute as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a Dispute against Gusto will be deemed a Collective Arbitration if (i) two (2) or more similar Disputes for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR GUSTO SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. ANY CHALLENGE TO THE VALIDITY OF THIS SECTION 16.F SHALL BE DETERMINED EXCLUSIVELY BY THE ARBITRATOR.
Arbitration Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. A single arbitrator will be mutually selected by Gusto and Member and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the JAM’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the JAM’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If Gusto and Member cannot mutually agree upon an arbitrator within ten (10) days of the opposing party’s receipt of the Demand for Arbitration from the Claimant, then JAMS shall appoint a single arbitrator in accordance with JAMS rules that satisfies the Arbitrator Requirements. Notwithstanding any language to the contrary in this Section 16.G, if a party seeks injunctive relief that would significantly impact other Members as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall meet the Arbitrator Requirements. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section 16.G shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
Arbitration Location. Unless the arbitrator determines that an in-person hearing is necessary or you and Gusto otherwise agree, the arbitration may be conducted via videoconference, telephonically or via other remote electronic means. If your Dispute does not exceed $10,000 not inclusive of attorneys’ fees and interest, then the arbitration will be conducted solely on the basis of the documents that you and Gusto submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your Dispute exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitration Fees. If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the JAMS Rules, or in accordance with countervailing law if contrary to the JAMS Rules.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
Survival and Severability of Arbitration Provision. This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 16.F, if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 16.F to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Dispute must be litigated in court pursuant to Section 16.D.
17. Governing Law
This Agreement is governed by, and all Disputes shall be resolved in accordance with, the Federal Arbitration Act, as set forth above, and the laws of the State of California without regard to the conflicts of laws provisions thereof.
18. Force Majeure
Gusto is not liable for any delay or failure in performance of its obligations from any cause beyond Gusto’s control, including, but not limited to, acts of God, changes to laws or regulations, embargoes, wars, terrorist acts, failures by a third-party technology service provider, riots, fires, earthquakes, floods, pandemics, power outages, strikes, weather conditions, acts of hackers, acts of internet service providers, acts of any other third party, or acts or omissions of Employer or Member.
19. General
Entire Agreement. This Agreement constitutes the entire agreement between Gusto and Member regarding the Platform and Services and replaces all prior agreements, oral or written, regarding this subject matter. If any part of this Agreement is deemed to be unenforceable or invalid, that section will be removed without affecting the validity or enforceability of the remainder of the Agreement, except as provided in Section 16.K.
Assignment. Member may not assign this Agreement, by operation of law or otherwise, without Gusto’s prior written consent. Any attempt by Member to assign or transfer this Agreement, without such consent, will be null. Gusto may freely assign or transfer this Agreement without restriction. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
Notices. Any notices or other communications provided by Gusto under this Agreement, including those regarding modifications to this Agreement, will be given: (i) via email; or (ii) by posting to the Platform. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is given. For notices made by posting to the Platform, the date of such posting will be deemed the date that notice is given.
Waiver and Remedies. Gusto’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Gusto. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
20. Contact Information
If Member has any questions about this Agreement or the Member Services, Member may contact Gusto at [email protected]. Gusto will not be able to accept Member questions, Feedback, or complaints at Gusto’s physical locations. If Member is a California resident, Member may report complaints regarding the Member Services by contacting the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs at:
Department of Consumer Affairs
Consumer Information Division
1625 North Market Blvd., Suite N 112
Sacramento, CA 95834
Phone Number: (800) 952-5210
Effective February 21st 2024 to March 24th 2024
DownloadTable of Contents
Please note: These updated terms will take effect on March 22, 2024. Your continued use of our products and services after March 22, 2024 will constitute your acceptance of these updates. To review the outgoing terms, please click here.
Last updated February 21, 2024
These Members Terms of Service (“Members Terms” or “Terms”) form part of the binding contract between you as an independent contractor, employee, or other member of a business organization with an existing Gusto account (“you”, “your”, or “Member”) and Gusto, Inc. and its subsidiaries and affiliates (“Gusto”, “us”, “we” or “our”). For purposes of these Members Terms, we refer to independent contractors as “Contractor” and employees “Employees”. Collectively, Contractors and Employees are referred to as “Members”. The company with an existing Gusto account that invited you to join Gusto is referred to as “Employer.”
These Members Terms contain the terms and conditions that govern your use of Gusto’s people platform, including our applications, websites, software, and support services (the “Platform”) through which we offer products and services (“Services”) to end users directly or through a third party program.
By clicking the applicable button to indicate acceptance of these Members Terms, or by accessing or using the Platform, including any Services, you agree to be bound by and comply with these Terms, and any Additional Terms (defined below) specific to Services that Member accesses or uses, and our Acceptable Use Policy, which is hereby incorporated into this Agreement (collectively, this “Agreement”). If you are accepting this Agreement on behalf of Contractor (e.g. in your capacity as an employee or agent of Contractor) then you represent that you have the authority to bind Contractor to this Agreement and that Contractor accepts this Agreement.
ARBITRATION NOTICE: SECTION 16 OF THESE TERMS CONTAINS PROVISIONS THAT REQUIRE YOU AND GUSTO TO RESOLVE MOST DISPUTES THROUGH FINAL, BINDING ARBITRATION. IN SUCH CASES, YOU UNDERSTAND THAT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST GUSTO ON AN INDIVIDUAL BASIS, AND (2) YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR SEEK RELIEF IN A COURT OF LAW AND HAVE A JURY TRIAL OF YOUR CLAIMS.
1. Member Account
Employer has agreed to the Gusto Employer Terms of Service and created an Employer Account in order to (a) enable you to access the Platform and Services and (b) authorize you to create an account with Gusto (“Member Account”). The Member Account is affiliated with the Employer that invited you, and we are providing you with access to the Member Account at the direction of Employer.
To be eligible to create a Member Account, you must have (a) home and work addresses in the United States, (b) a bank account in the United States if receiving payment through direct deposit, (c) a social security number. If you are using the Member Account to enable Employer to process payments to you via the Platform, you represent and warrant that you are eligible to create a Member Account and have provided all requisite consents or authorizations to Employer to enable Employer to do so.
You must enter a unique username and password in order to access the Member Account, and must keep the username and password confidential. You accept all risks of unauthorized use of the Member Account if security and confidentiality of the Member Account credentials are not maintained. If you believe that the Member Account credentials have been accessed or compromised by an unauthorized third party, you should contact us immediately. Gusto reserves the right to prevent access to the Member Account if we have reason to believe that the Member Account or credentials have been compromised.
2. Services Available to Members
Your Member Account may enable you to access and receive Employer-Provided Services and/or Member Services, each as defined and further described below. Contractors may not be eligible for some or all Employer-Provided Services or Member Services. Certain Third-Party Services (as defined below), Employer-Provided Services, and Member Services are or may be subject to additional terms (“Additional Terms”).
A. Employer-Provided Services and Employer Data
Employer-Provided Services are the Services that are only made available to you as a result of your relationship with Employer, and Employer must sign up for or opt-into Employer-Provided Services in order for you to access them using your Member Account. Employer-Provided Services include (a) the ability to access and provide information and tasks associated with Employer’s business (e.g. entering your time off, drafting a performance review) and (b) accessing or enrolling in certain Services that Employer makes available to you as a member of Employer’s business organization (e.g. health benefits). If you have questions about using any Employer-Provided Services you should direct them to Employer. Employer may revoke or modify your access to Employer-Provided Services at any time, subject to any applicable Additional Terms.
Personal information and documentation that you upload to your Member Account for use in Employer-Provided Services is referred to as Employer Data. Gusto processes and retains Employer Data at the direction of Employer and in accordance with applicable law and legal obligations. You understand and acknowledge that Employer Data will be visible to other Members, Employer, and Employer’s authorized Employer Account representative(s) (“Administrator(s)”) depending on Employer’s choices. Employer may also elect to enable Third-Party Services (as defined below) which will result in Employer Data being shared with a third-party and subject to that third-party’s privacy policy. You understand and agree that Employer’s choices may result in the access, use, deletion, disclosure or modification of certain Employer Data.
You understand and agree that Employer is solely responsible for (i) notifying or informing you of any relevant policies, practices, settings, or choices Employer may elect or apply that may impact Gusto’s processing of Employer Data; (ii) obtaining your permission and/or consent as may be legally required in order to lawfully use Employer Data you input in order to operate your access to Employer-Provided Services via the Platform; (iii) ensuring that any transfer and/or processing of Employer Data pursuant to this Agreement is lawful, and; (iv) responding to and resolving any dispute that may arise between you and Employer relating to or based on Employer Data, the Platform, or Services, or Employer’s failure to fulfill any of these responsibilities.
Employer is your first point of contact for questions, concerns, or issues concerning the use of or access to Employer-Provided Services, other than questions about your access to the Platform or your Member Account. However, Gusto reserves the right to intervene directly and take what we determine to be appropriate action in the event that Employer is unable to resolve your issue, or we believe there is a risk of harm to Gusto, Member(s), third parties, or the Services. Gusto may monitor use of the Platform and Services for compliance with this Agreement, but is not obligated to do so. You agree to cooperate with Gusto in the event of any such direct intervention.
B. Member Services and Member Data
Separate from and in addition to Employer-Provided Services, and subject to any applicable Additional Terms and eligibility criteria, your Member Account may enable you to access certain Third-Party Services (as defined in Section 3 below) and/or Services available to you directly (each, a “Member Service” and collectively “Member Services”). Contractors may not be eligible for some or all Member Services. We are providing eligible Members with access to Member Services subject to such Members’ compliance with this Agreement, regardless of such Members’ relationship with Employer. In other words, eligible Members’ use of and access to Member Services will continue after dismissal from Employer’s business and cannot be revoked or modified by Employer. Notwithstanding the foregoing, we reserve the right to suspend or revoke your access to any or all of any or all of the Member Services if we have reason to believe that Employer or you have violated this Agreement, any agreement with us including agreements regarding Member Services, or applicable law.
Member Services include, among other things, an ability to access certain limited functions within your Member Account after termination of your relationship with an Employer. Personal information and documents that you input to the Platform for the use of Member Services is referred to herein as “Member Data.” Member Data will be processed and retained by Gusto in accordance with our legal obligations and our Privacy Policy as it may be updated from time to time. The Privacy Policy is incorporated into this Agreement with full force and effect.
You are solely responsible for following instructions that we provide you with respect to the Platform and Member Services, and for timely providing Gusto with accurate and complete information required for Gusto to perform the Member Services. Gusto’s performance of Member Services will rely on information you provide to Gusto. Gusto is entitled to rely on all such information and is not required to independently verify or correct any such information. You accept sole responsibility for any liability arising from your failure to correct or update such information.
3. Third-Party Services
You may be able to elect to receive services from our third party partners (each a “Third-Party Service”), whether directly via a Member Service or via an Employer-Provided Service. Gusto is not responsible for and does not own any such Third-Party Services or any material, information, or results that may be made available through any Third-Party Services. You are solely responsible for, and assume all risk from, your choice to receive, use or access any Third-Party Service. If you choose to and authorize Gusto to share Member Data with a Third-Party Service (“Shared Member Data”) then you (a) represent you have all legal rights to do so, (b) assume all risks related to such Shared Member Data, (c) acknowledge you are solely responsible for the accuracy of such Shared Member Data, and (d) agree that you are solely responsible for the lawfulness of sharing such Shared Member Data with the applicable Third-Party Service. You waive and release any Claim against Gusto and its directors, officers, and employees arising out of a Third-Party Service’s use of Shared Member Data.
The Platform and Services may also contain links to third-party websites or resources. We provide these links only as a convenience and Gusto does not operate or control such websites or resources and is not responsible for the content, products, or services, or links available or displayed on those websites or resources. You are solely responsible for, and assume all risk arising from, your use of any Third-Party Service, third-party websites or resources.
4. Direct Deposit
The terms in this Section only apply to Employees that elect to receive wages via direct deposit through the Platform.
You may elect to instruct Employer, via the Platform, to deposit your paycheck into a bank account in your name. You may also designate amounts of your choosing from your paycheck to be deposited into multiple bank accounts in your name. If you have designated a specific amount of your paycheck to be transferred to a bank account, you can change or cancel this election at any time via the Platform. Any changes will be applied to the first paycheck that is deposited at least four (4) business days after you submit the change.
If you are using the Platform to receive wages via direct deposit, you must use the designated sections of the Platform to submit or change instructions regarding the direct depositing of your paycheck. If you attempt to submit or change instructions by any means other than through the designated sections of the Platform, Gusto will have absolute discretion to determine whether to follow such instruction, and will have no liability to you for either following, or not following, such instructions.
5. Contractor Payments
If you are a Contractor receiving payments from Employer via the Platform, the following terms in this Section 5 apply to you (“Contractor Payment Terms”).
You represent and warrant that you meet the following eligibility criteria:
Your bank account is located in the United States; and
You have completed Form W-9.
You further agree to comply with all applicable laws and regulations. You understand and agree that Employer is solely responsible for your work authorization and/or employment classification and you release Gusto from any liability arising therefrom.
6. Beta Features
We may provide you with access to beta, pilot, trial, pre-release features or products (collectively “Beta Features”) via the Platform, either directly or through Employer. Beta Features are provided as-is. We reserve the right to modify, change, or discontinue Beta Features at any time with or without notice. By accessing or using a Beta Feature you agree to any Additional Terms that may apply to such Beta Feature, and to follow any and all additional rules or restrictions that we may place on the use of such Beta Feature.
7. Privacy Policy
Gusto may collect, use, and disclose your information pursuant to our Privacy Policy, which is incorporated into this Agreement by reference and may be updated from time to time.
8. Gusto’s Proprietary Rights
Gusto and our licensors are the exclusive owners of:
The Platform, Services, and all content included therein (excluding Member Data, Employer Data and Third Party Services) (“Gusto Content”);
Any and all modifications, enhancements, upgrades and updates to the Platform, Services, and Gusto Content; and
All copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights to the Platform, Services, and Gusto Content (registered or unregistered).
All rights not expressly granted to Member in this Agreement are reserved by us or our licensors. This Agreement does not grant Member any right to copy, transmit, transfer, modify or create derivative works of the Platform, Services, or Gusto Content, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Platform, Services, or Gusto Content, or any other right in or to the Gusto Content not specifically set forth herein.
You acknowledge that the Platform, Services, and Gusto Content is protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated into the Platform, Services, and Gusto Content.
If you send us any feedback or suggestions (“Feedback”), that Feedback is given entirely voluntarily and you grant Gusto an unlimited, irrevocable, perpetual, sublicensable, transferrable, royalty-free license to use any such Feedback as we see fit in our sole discretion without obligation, compensation or restriction of any kind. Such Feedback may include, but is not limited to, responses to any surveys Gusto conducts about your experience with the Platform or Services.
Gusto grants Member a limited, non-exclusive, non-transferable, non-sublicensable license to access, use, and view the Gusto Content, Platform, and Services solely as necessary to use the Services and in accordance with this Agreement and all applicable Additional Terms.
9. Consent to Receive SMS/MMS Messages
Gusto will send the following types of SMS messages to Members: (1) one-time pin or verification codes, (2) links to access or download services, (3) notifying about user account activity, (4) service alerts and (5) soliciting feedback about your customer service experience. Message frequency may vary. Standard message and data rates may apply. Note that Gusto will not send you autodialed marketing SMS or MMS messages unless you expressly agree in writing to receive such messages. If you would like to opt out of receiving SMS messages, reply HELP for help or STOP to cancel. For more information, please see our Privacy Policy.
You certify, warrant and represent that the telephone number you have provided to us is your contact number and not someone else’s number. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us. You agree to promptly alert us whenever you stop using a telephone number. Gusto and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means. We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
10. No Professional or Legal Advice; No Guaranteed Outcomes
Your use of the Platform and Services is entirely at your own risk. Except as and unless otherwise stated in applicable Additional Terms, you acknowledge that the Platform, Services, and Gusto Content are meant for informational purposes only and are not intended to provide and should not be construed as providing any legal, regulatory, tax, financial, accounting, employment, or other professional advice. You are solely responsible for ensuring your compliance with applicable laws and regulations, and nothing in the Gusto Content, Platform, or Services (including, without limitation, any communications from our Employer Care team regarding your use of the Platform, or Services) should be construed as, or used as a substitute for, the advice of competent legal or applicable professional counsel. Gusto does not guarantee or warrant any results or outcome with respect to the Platform, Services or Gusto Content.
11. Termination
Termination by Gusto: We may immediately terminate this Agreement and the Member Account without notice or liability to you. We are not responsible or liable for any losses, damages, penalties, or expenses related to our termination of this Agreement
Termination by Member: If you wish to terminate this Agreement or the Member Account please contact Employer Support.
Effect of Termination: Upon termination of this Agreement, your access to the Member Account and certain Services will immediately cease. Termination of this Agreement will not affect any of our rights or your obligations arising under this Agreement prior to such termination.
Any sections or subsections of these Members Terms or any applicable Additional Terms which by their nature should survive, will survive termination of these Members Terms including but not limited to Sections 11, 12, 13, 14, and 16.
12. Warranty Disclaimers
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE PLATFORM, SERVICES, AND GUSTO CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND MADE BY GUSTO. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GUSTO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, AND NON-INFRINGEMENT. FURTHERMORE, GUSTO MAKES NO WARRANTIES REGARDING THE ACCURACY, RELIABILITY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR QUALITY OF ANY INFORMATION OR GUSTO CONTENT IN OR LINKED TO THE SERVICES. GUSTO CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF EMPLOYER DATA, MEMBER DATA, OR ANY INFORMATION INPUT INTO THE PLATFORM OR SERVICES BY MEMBER AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SUCH EMPLOYER DATA, MEMBER DATA, AND INFORMATION. GUSTO DOES NOT WARRANT THAT THE PLATFORM, SERVICES, OR GUSTO CONTENT WILL (I) MEET MEMBER’S EXPECTATIONS OR REQUIREMENTS; (II) BE COMPLETELY SECURE OR FREE FROM ERRORS, BUGS, VIRUSES, OR OTHER HARMFUL COMPONENTS; OR (III) BE FREE FROM INTERRUPTION, THEFT, OR DESTRUCTION.
Gusto makes no representations or warranties about the Platform’s uptime, availability, or permissibility in any particular geographical location. From time to time, Gusto may conduct scheduled or emergency system maintenance, during which time the Platform may be inaccessible and unavailable, with or without notice. The Platform and Services rely on third-party technology and services (e.g. web hosting services). Any change to the services offered by these third-party providers may entirely disable, reduce, or adversely affect your use of o