ADP PARTNER AGREEMENT

BROKER REFERRAL PROGRAM ONLINE TERMS OF USE

 

These Terms and Conditions of Use (these “Terms” or this “Agreement”) are an agreement between ADP, Inc. and its affiliates and/or subsidiaries (“ADP”) and You and apply to the ADP Broker Referral Program (the “Program”) described in these Terms. By enrolling in and/or using the Program, You acknowledge that You have read, understand and expressly agree to be bound by these Terms, including any modifications or updates from time to time, as they relate to the Program. If You do not agree to these Terms, do not enroll in or use the Program. “You” and “Your” means You, Your company, Your employees, Your subsidiaries, Your affiliates and Your agents whom You have enrolled as “users” of the Program, all of which agree to be bound by these Terms, any applicable additional terms, policies and any other terms and guidelines found throughout the Program.

ADP reserves the right, in its sole discretion, to modify these Terms without further notice and at any time. Your continued use of the Program after any such change constitutes Your acceptance of the revised Terms of Use. Any changes to these Terms will be effective immediately upon the posting of the revised Terms of Use on the Program. Please note that Your use of certain content and features of the Program may be subject to additional terms. By using such content and features, You also agree to be bound by such additional terms.

The Program consists of the ability to access the web site currently located at adpreferralrewards.com, hosted by ADP or its third-party Vendor (“Referral Site”) and make and/or track referrals to ADP pursuant to these Terms for the referral of prospective clients for certain ADP payroll and payroll related tax filing data processing services. You will not be fully enrolled in the Program until You submit all required referrals and a fully completed and signed W9 form, and ADP acknowledges your agreement to these Terms by sending you an electronic acknowledgment by e-mail confirming Your enrollment and assigning You a Partner Identification Code (“PIC”) for tracking and payment.

This Agreement is between ADP, on behalf of the Major Accounts division serving clients with 50 to 999 employees (“MAS”), and the Small Business Services line of business serving clients with no more than 49 employees (“SBS”), with its principal office located at One ADP Boulevard, Roseland, New Jersey 07068 and You. This Agreement consists of these Terms and all Exhibits appended hereto as may be updated from time to time. In the event of conflict among terms, the order of priority shall be the general terms and conditions of this Agreement, then the Exhibits.

 

ADP is willing to perform certain of its employer services, including payroll and payroll-related tax filing data processing services, human resource services, time and labor management services and certain benefits administration services, as more particularly identified on Exhibit A hereto (the “Services”), for those current and prospective customers or clients of Yours that desire to receive any or all of such Services and that satisfy ADP’s requirements and agree to ADP’s standard terms for the applicable Services.

 

To facilitate the sale of Services to Prospects, ADP and You will engage in certain activities, as more particularly set forth herein.

1. DEFINITIONS. As used in this Agreement and in addition to any other terms defined herein, the following defined terms will have the following meanings:
   a) “Referred Client” means Prospects that become clients of the Services as a result of a referral by You.
   b) "Confidential Information" means all financial, business and other information, in whatever form or medium, including, without limitation, any trade secrets, processes, financial data, technical data and documentation, strategic planning, product/service specifications, prototypes, computer programs, databases, drawings, models, marketing data, and client information that is furnished or disclosed by one party to the other party pursuant to the terms of this Agreement.
   c) “Net Recurring Revenue ” means all actual recurring processing fees (including recurring “per employee” fees but excluding any promotional services such as free processing) charged to Referred Clients for the Services and billed to such Referred Clients by ADP for the periods set forth on Exhibit B, excluding, without limitation: (i) pre-production fees, training fees, and consulting, professional or similar hourly fees; (ii) fees derived from client conversion, official bank checks, Forms W-2, tax or special one-time reports, optional, “a la carte”, or custom services, reports, features or functions, or the provision by ADP of checks, forms or other supplies; (iii) any sales, service, use, excise, and similar taxes; (iv) implementation fees, set-up fees, custom programming fees, configuration fees, integration fees, and other similar one-time or non-recurring fees; (v) telecommunication charges, postage, shipping, delivery and handling fees, and any third party pass through expenses (including without limitation, governmental application and voucher charges reimbursed to ADP by or on behalf of a Referred Client); (vi) interest received by ADP, and deductions for credits, refunds, or write-offs; (vii) any fees or expenses received from a third party in connection with or related to the ADP Services other than those received from or on behalf of a Referred Client; (viii) fees for hardware or other equipment provided in connection with the ADP Services (except as otherwise set forth in Exhibit B); (ix) any fees or expenses for products or services other than ADP Services; (x) any fees or expenses ADP is required or otherwise agrees to pay to its third party subcontractors and/or vendors who are providing all or any portion of the applicable ADP Services; (xi) any portion of fees representing, or reimbursing ADP for, the amount of employee wages paid in ADP’s employee leasing/professional employer organization business; and (xii) ADP products or services not in existence on the date hereof.
   d) “Prospect” means such current and prospective customers or clients of Yours.

2) REFERRAL FEES.

1. 1. Subject to Section 2 b) and 2 d) below, ADP shall pay You the applicable referral fee listed on Exhibit B (a “Referral Fee”) for each Referred Client that (i) begins processing a “live” billable payroll with ADP or (ii) for which ADP otherwise commences actual delivery of Services to Referred Client. The Services eligible for Referral Fees are listed on Exhibit A. For purposes of payment of Referral Fees, the “quarterly value of Net Recurring Revenue” shall be measured on a quarterly basis beginning with the first calendar quarter following the date ADP produces the first “live” billable payroll for a Referred Client or otherwise commences actual delivery of Services to the Referred Client.
2. 2. You shall not be entitled to a Referral Fee for: (i) any customers, members or franchisees of Yours that are currently receiving or being implemented to receive the Services as of the date of this Agreement, (ii) any customers, members or franchisees of Yours that are independently sold by ADP to receive the Services, (iii) any Prospects for which an ADP sales representative has an open sales opportunity for in its sales database at the time the lead is submitted, (iv) any referrals that do not lead to a closed sale of Services within six (6) months of the date the referral is made to ADP by You; (v) any Prospects that were provided to ADP by another ADP business partner prior to the date such Prospect was submitted to ADP by You, and (vi) any ADP services that are not listed on Exhibit A.
3. 3. Payments due to You in accordance with the terms of this Agreement shall be made quarterly in arrears within 45 days after each calendar quarter unless this Agreement is terminated pursuant to the terms and conditions set forth herein. You shall provide ADP with a fully completed and signed Form W-9 prior to receipt of any Referral Fee payments.
4. 4. In order to be eligible to receive Referral Fees under this Agreement, You must refer a minimum of three (3) Prospects to ADP that actually begin processing a live billable payroll with ADP, or for which ADP otherwise commences actual delivery of other Services, during each year of this Agreement. If You fail to refer a minimum of three (3) Prospects that begin processing in any year of this Agreement, ADP may terminate this Agreement upon notice to You, provided ADP shall continue to pay Referral Fees after such termination for any Referred Client eligible for Referral Fee payments pursuant to this Section 2 as of the termination date of this Agreement.
5.  

 

3. CONFIDENTIALITY.

1. All Confidential Information shall be kept in strict confidence by the party to whom it is furnished, and such party shall not disclose any of such Confidential Information to any third party without the prior written consent of the other party. Each party will treat Confidential Information provided to it by the other with the same degree of care that it provides for its own confidential information, which will be no less than reasonable care and discretion. Except as required by law, for a period of three years from the Effective Date, the receiving party will treat as confidential and will not use other than for the purposes set forth herein, disclose or otherwise make available any Confidential Information of the disclosing party to any person other than employees, representatives and consultants of the receiving party and its affiliates who have a business need to know. The receiving party will instruct its employees, representatives and consultants (and those of its affiliates) who have access to the Confidential Information to keep the same confidential by using the same care and discretion that the receiving party uses with respect to its own confidential information, which will be no less than reasonable care and discretion. The prohibitions of the preceding sentence do not apply to information that is publicly known, has been provided to the receiving party by another party not bound by a confidentiality agreement, or to the extent that such disclosure is at the request of auditors, any regulatory authority responsible for the regulation of either party or pursuant to the subpoena power or order of any court, tribunal, regulatory authority or other body so empowered, provided that such disclosure is limited to the purpose for which it is intended and reasonable measures are taken to ensure that the confidential nature of the documents or information will be maintained. This Section 3 shall survive termination of this Agreement.
2. ADP and You agree that once a Prospect becomes a Referred Client, the treatment of any information provided by such Referred Client that is identical to information provided by You shall cease to be governed by this Agreement (and shall instead be governed by the applicable ADP service agreement with such Referred Client).
3. You acknowledge and agree that Your use of the Program shall be subject to the terms of any Privacy Policies found on or in the Program.

 

4) TERMINATION.

1. This Agreement shall continue until the first anniversary after the date You accept these Terms and thereafter shall continue automatically for additional successive terms of one (1) year unless and until terminated by either party upon not less than 60 days' prior written notice to the other during any renewal term.

 

2. Notwithstanding the foregoing, (i) either party can terminate this Agreement at any time upon 30 days written notice in the event of a material breach of this Agreement by the other party which remains uncured at the end of such thirty day period (or if such breach is incapable of cure, such termination can be effective upon receipt of such notice or at the time indicated therein); (ii) either party can terminate this Agreement immediately upon notice to the other party if the notifying party has a reasonable basis to believe that the other party has acted or is acting in any manner that has a reasonable likelihood of negatively impacting the reputation or business of the notifying party; (iii) ADP may terminate this Agreement upon notice to You in accordance with Section 2. d) above, and (iv) ADP may discontinue this Broker Referral Program at any time upon notice to You.
3. During the term of this Agreement and, if ADP and You do not enter into another similar agreement, then for the one (1) year period following such expiration or termination of this Agreement, You agree not to actively solicit any Referred Clients for which You are receiving or have received a Referral Fee, for a product or a service that directly competes with such Service(s). Notwithstanding the foregoing, You may refer a Referred Client to another provider of products or services competing with the Services if the Referred Client is not satisfied with such Services provided the following conditions are met: (i) You must use commercially reasonable efforts to notify appropriate ADP sales representative of Referred Client's dissatisfaction; and (ii) ADP has a minimum of thirty (30) days to engage Referred Client and resolve the issues giving rise to such dissatisfaction before You can refer Referred Client to another provider of products or services that competes with the Services.

 

5. LIMITATION OF LIABILITY.
   1. Each party’s maximum aggregate potential liability to the other party under this Agreement shall be limited to $25,000 (Twenty-Five Thousand Dollars), provided, however, that in the case of ADP, such liability limitation amount is separate and apart from ADP’s obligations to pay fees to the You pursuant to Section 2.
   2. NEITHER PARTY SHALL BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING LOST PROFITS) THAT THE OTHER PARTY MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. MISCELLANEOUS.
   1. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to its subject matter and all prior writings, discussions, agreements and understandings of any kind and every nature are superseded hereby.
   2. Assignment. This Agreement shall not be assigned by You without the prior written consent of ADP, and any attempt by You to assign any of Your rights, duties or obligations which arise under this Agreement without such consent shall be void.
   3. Notices. All notices, made under or in connection with this Agreement shall be in writing and shall be deemed to have been given 3 days after mailed in any general or branch United States Post Office, enclosed in a registered or certified post-paid envelope, addressed to the address set forth by You when You register for the Program, and if to ADP to the attention of Division Vice-President, SBS Broker Channel, ADP, Inc., Florham Park, NJ 07932, with a copy to Automatic Data Processing, Inc., One ADP Boulevard, Roseland, New Jersey 07068, Attention: General Counsel (or to such different address(es) as a Party may notify the other from time to time, which change shall be effective only upon receipt).
   4. Relationship of the Parties. You and ADP agree that each is acting independently of the other; that they are not joint ventures, and that neither is an agent of the other.
   5. Third-Party Beneficiaries. Nothing contained in this Agreement is intended to create third-party beneficiaries of or under this Agreement.
   6. Waiver. The failure of either party at any time to enforce any right or remedy available to it under this Agreement or otherwise with respect to any breach of failure by the other party shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by the other party.
   7. Severability. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of You and ADP shall be construed and enforced accordingly.
   8. Governing Law. This Agreement is governed by the laws of the State of New Jersey without giving effect to its conflict of law provisions.
   9. Non-Solicitation. During the term of this Agreement and for the twelve (12) months thereafter, neither You nor ADP, shall knowingly solicit or hire for employment or as a consultant, any employee or former employee of the other party who has been actively involved in the subject matter of this Agreement. This section shall not restrict the right of either party to hire an employee or contractor of the other party who independently responds to indirect solicitations (such as general newspaper advertisements, employment agency referrals and internet postings) not specifically targeting such individual.

 

7. ADDITIONAL ONLINE TERMS.

1. Ownership/License.

You acknowledge that all rights, title and interest in or to any copyright, trademark, service mark, trade secret, and other proprietary right relating to the Program and the related logos, names, etc. are reserved. The Program, and related software and systems, is the licensed and/or owned property, and embodies the proprietary trade secret technology of ADP and/or its licensors and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws. ADP grants You a non-exclusive, non-transferable license to use the Program to access Your account. ADP may terminate or suspend Your access to the Program (in whole or in part) at any time, with or without notice, if ADP has reason to believe that You have violated these Terms or are otherwise using the Program in an inappropriate manner. The right to use the Program is granted only to authorized partners and their authorized employees for the sole purpose of utilizing the Program and this limited license terminates when You or ADP terminates the Program and/or these Terms.

You agree that You will not (i) use ADP's name, or the name of any affiliate or subsidiary of ADP, or any partner, or employee of ADP, or any trade name, trademark, trade device, logo, service mark, domain name, symbol or any abbreviation, contraction or simulation thereof owned by ADP or its affiliates or subsidiaries (collectively, the "ADP Marks"), (ii) use the ADP Marks in any manner that might express or imply ADP’s affiliation, sponsorship, endorsement, or approval of You or Your services, or (iii) represent, directly or indirectly, that any product or any services provided by You has been approved or endorsed by ADP (unless specifically so approved or endorsed pursuant to a separate agreement). ADP may make available to You certain standard ADP advertising and/or promotional literature and marketing materials promoting the ADP services that You will be permitted to distribute to prospective ADP clients.

You agree to indemnify, defend, and hold harmless ADP from and against any and all claims, damages, costs, and expenses (including reasonable attorneys' fees) and pay the amount of any adverse final judgment (or settlement to which both parties consent) arising out of or related to any use by You of the Program or the ADP Marks.

These Terms and/or Your use of the Program do not grant to You any right or license in, or to, any copyrights in any materials and/or documentation of ADP or to any rights of copyright in or to ADP’s other services or web sites.

2. Use of Program/Compliance with Laws.

You will use the Program as described in these Terms and in accordance with the instructions and reasonable policies established by ADP or its agents from time to time and communicated to You and/or as posted on any applicable Program web sites. By enrolling in the Program, You are agreeing to any online terms or service agreements and any fees set forth on any Program web sites. You may not use the Program for any other purpose or interfere with or disrupt Program servers, databases or any network connected to them, or use the Program to violate any law, statute or regulation; or conduct any other illegal activity, or to harvest or otherwise collect information submitted by third parties, including e-mail addresses, without the express consent of such third parties. ADP does not guarantee against any loss or alteration to Your data. You confirm that all information provided by You is accurate and complete and ADP shall have no liability for any errors or inaccuracies in the Program based upon information provided by You or the person accepting these Terms on Your behalf. You will be responsible for Your compliance with all laws and governmental regulations affecting Your business including rules and regulations applicable to ADP regarding trade sanctions, export controls, or trade with prohibited parties. In addition, ADP may immediately suspend or terminate this Agreement in its entirety, entirety, including Your participation in the Program, if doing business with You causes or will cause ADP or its Affiliates to be in violation of any sanction laws applicable to ADP or its Affiliates. You agree to pay any applicable taxes levied or based on any payments received by You under the Program and to comply with any professional rules regarding use of the Program. You understand that if You are an individual, You are not eligible to enroll in the Program which is available solely for U.S. companies and sole proprietors.

 

The execution, delivery and performance by You of this Agreement will not (i) violate any statute, ordinance, rule, regulation, order, judgment or decree of any court or of any governmental or regulatory body, agency or authority applicable to You, (ii) require any filing with, or require You to obtain any permit, consent or approval of, or require You to give any notice to, any governmental or regulatory body, agency or authority or any other person or entity, except for a filing, consent, approval or notice which would not prevent Your ability to perform Your obligations hereunder and would not result in any liability to ADP, or (iii) result in a violation or breach by You under any of the terms of any agreement (including Your agreement with Your clients), license or other instrument or obligation to which You are a party, or by which You or any of Your properties or assets may be bound.

3. Account Security and Passwords.

In order to access and use the Program You will be required to provide proper authentication including your User Name, Password and any other authentication required by ADP or its third-party agent (“Authentication”) to access the Program. You are responsible for safeguarding the confidentiality of Your account information (including user email address(es) and your Authentication selected by You or issued to You) and agree to take any and all actions necessary to maintain the privacy of Your Authentication for the Program. You are responsible for any use or misuse of Your account or the Program resulting from any unauthorized third party or employee using any Authentication selected by You or issued to You and You agree to notify ADP immediately of any known or suspected unauthorized access to or use of Your account, Authentication of any individual user to whom You have issued Authentication or any other breach of security or misuse of the Program known to or suspected by You. You agree that ADP may immediately terminate this Agreement and Your participation in the Program, with or without notice, in the event of any suspected or actual fraudulent activity or unauthorized access.

4. Disclaimers.

NEITHER ADP NOR ITS AGENTS, LICENSORS OR VENDORS MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE CONDITION, SUITABILITY, RELIABILITY, AVAILABILITY, COMPLETENESS, SECURITY, TIMELINESS, OR ACCURACY OF THE PROGRAM OR ANY INFORMATION, CALCULATIONS, SOFTWARE OR OTHER MATERIALS OR RESULTS INCLUDED IN OR AVAILABLE THROUGH THE PROGRAM, FOR ANY PURPOSE.

ALL OF THE FOREGOING ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ADP AND ITS AGENTS, LICENSORS AND VENDORS HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH REGARD TO THE PROGRAM OR ANY INFORMATION, CALCULATIONS, SOFTWARE OR OTHER MATERIALS OR RESULTS INCLUDED IN OR AVAILABLE THROUGH THE PROGRAM, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

ADP WILL NOT BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES INCLUDING LOST PROFITS OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF INFORMATION THAT YOU MAY INCUR OR EXPERIENCE IN CONNECTION WITH THESE TERMS OR THE PROGRAM, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.

ADP will not be liable for any damage or losses arising out of or otherwise related to (1) Your use of the Program or use by anyone to whom You have given access to the Program; (2) errors, bugs or other defects in the Program; (3) lost information; (4) illegal or criminal activities; (5) mistakes, omissions, interruptions, deletion of files or e-mail, loss of or damage to data, errors, defects, viruses, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of God, communications failure, theft, destruction, unauthorized access to Program records, programs or services or any third party actions including those of any ADP Vendor; or (6) Your actions with Your employees or vendors, or the use of their information.

 

 

 

EXHIBIT A

SERVICES FOR GENERAL REFERRAL

 

MAS SERVICES FOR GENERAL REFERRAL

 

Payroll Services

ADP Workforce Now® Essential Plus Payroll
ADP Workforce Now Enhanced Payroll

 

Human Capital Management Services

ADP Workforce Now Enhanced HR
ADP Workforce Now Benefits Administration
Standard Health & Welfare Carrier Connections
ADP Workforce Now Talent Management and Activation

• Recruitment and Talent Acquisition
• Performance, Goal and Compensation Management
• Essential Learning
• Premium Learning Content
• TMBC - Standout Products

ADP DataCloud Services
• Analytics
• Benchmarking
• Pay Equity Explorer
• Predictive Analytics
HR Assist

Time and Labor Management

ADP Workforce Now Essential Time
ADP Workforce Now Enhanced Time
ADP Workforce Manager
Monthly Subscription Fee for Timeclock Subscriptions

 

ADP Comprehensive Services for General Referral

• Comprehensive HR
• Comprehensive Benefits
• Comprehensive Payroll

 

EXHIBIT A (CON’T)

SERVICES FOR GENERAL REFERRAL

 

 

SBS SERVICES FOR GENERAL REFERRAL

 

1. Payroll & Tax Filing	Description
RUN Powered by ADP® (“RUN”)	Phone-in, web-based and mobile payroll processing with real-time calculation engine
	Features available include: payroll, tax filing, electronic reports, employee access, new hire reporting, delivery, labor law poster compliance updates, GLI, garnishment payment service, SUI management, direct deposit and certain HR features (Tip of the Week, HR Newsletter; State and Federal Resources, HR Checkups and HR Dictionary)

 

 

NOTE: The foregoing list is only valid for companies with less than 50 employees unless otherwise noted and can be updated by ADP from time to time in its discretion at any time.

 

COMPLIANCE SOLUTIONS PROGRAM SERVICES FOR GENERAL REFERRAL

1. WorkMarket Services