Effective: August 21, 2025
Terms and Conditions of Service for RUN Powered by ADP® Online Services
These Terms and Conditions of Service ("Terms" or "Agreement") are an agreement between ADP, Inc. and You. They apply to RUN Powered by ADP® online services ("RUN") as defined below. By subscribing to and/or using RUN, 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. If You do not agree to these Terms or any posted updates, do not subscribe to or use RUN.
"You" and "Your" means You, Your company, Your employees and (subject to the terms herein) any agents You designate as “users” of RUN. Only authorized users are permitted to use or access RUN, and such use or access is prohibited by unauthorized third parties. An “Unauthorized Third Party” refers to any third party or business that seeks to access or accesses RUN using the account credentials (e.g., username and password) of an ADP client or client employee (each a “user”), regardless of the user’s purported consent, in order to access, copy or obtain information within RUN, whether such information is accessed, copied or obtained by an automated data gathering program or by other means, including data scrapers, data aggregators and any third parties seeking to monetize data obtained from ADP without ADP’s express consent.
You agree to be bound by these Terms, any applicable additional terms and any other terms and guidelines found throughout RUN. "RUN" or "Services" means the services, including Payment Services as defined herein, which let users report their employee or other data so ADP can calculate payroll and payroll taxes and file taxes ("Tax Filing Services"), and deliver checks and reports, electronically or otherwise, access and/or utilize ADP Marketplace services, HR services, Training, HR HelpDesk, HR chatbots, any third party vendors accessed through RUN, or the HR services or other human resources, training or onboarding content, features or functionality including 1-9 services("HR Services"), track employee data, access Document Vault, Time and Labor Management ("TLM") or unemployment claims services, or produce a Certificate of Insurance ("COI") based on Your current Workers' Compensation policy purchased through our affiliate, Automatic Data Processing Insurance Agency, Inc. I f You choose to subscribe to and/or use any HR Services, calculator tools, pre-employment or employment background checks ("Background Check Services"), Document Vault, Health Care Tax Credit Assist, unemployment claims, employment and income verification services, tax registration services or TLM services ("Additional Business"), or if You purchase, migrate from, upgrade, downgrade or remove any additional business, features or functionality, these services will be included in "RUN" and the "Services" hereunder and these Terms will control and be applicable to Additional Business, migrations, upgrades, features, services, downgrades or removals.
The Services, including but not limited to Background Checks, Tax Filing, Pay Card (as defined herein) and, Risk and Safety Services and Full Service Direct Deposit (FSDD)/ADPCheck (ADP pays Your employees from ADP's own bank account) are available for as long as You meet any eligibility requirements, which may include, but not be limited to, credit or fraud checks or assessments of You and Your principals, including any of Your owners, identification verification of You, Your employees and any of Your owners, and other authentication procedures. You acknowledge and agree that these credit and fraud checks and authentication procedures may be performed by ADP or a third party and ADP may disclose the information provided, including any personal information, to such third parties for this purpose, and may require that You sign additional forms. You understand and acknowledge that implementation, access to and ongoing provision of the Services shall be conditioned upon You, Your employees and any owners passing, and continuing to pass, any ADP authentication, credentialing and bank account and bank verification processes and passing any additional credentialing, verification or authentication that ADP may deem necessary in connection with the Services provided, using data available to ADP. You further authorize and appoint ADP as Your agent with full authority to authenticate and verify Your bank account and balances. You understand that the provision of products and/or services may be modified as ADP may deem appropriate in ADP's reasonable discretion or in order to assist ADP or any of its partners, affiliates, or subsidiaries in complying with its legal and/or regulatory obligations. You acknowledge that ADP or its affiliates may pay compensation to a third party or broker for the referral of Your business for the Services and other products You may purchase.
You hereby absolve ADP of any errors, penalties and interest payment responsibility arising from incorrect deposits, filings or payroll liability information prior to Your start date with ADP. You will make all tax deposits for payrolls run before setup of ADP's tax filing service.
1.The Services
A. Performance Standard ADP will perform the Services in a professional manner with personnel having such skills as required by the Services to be performed.
B. Use of Services/Protection of Data You will use the Services in accordance with the instructions and reasonable policies communicated to You and only for Your internal business purposes. You may not use the Services, or any software or system used to provide them, for commercial software hosting services. You may not interfere with, tamper, manipulate or otherwise disrupt any information technology systems, networks, servers, databases and/or infrastructure (including hardware and software) (together, “IT Systems”) of RUN. You may not circumvent RUN technical controls and security measures in place to safeguard RUN IT Systems and data. You may not use RUN or the Services provided through or in connection with RUN to violate any applicable international, federal, state and local laws, statutes or regulations or conduct any other illegal activity; or to harvest, copy, modify or otherwise collect information of third parties, including e-mail addresses, without their express written consent; or to publish, sell, license, create derivative works or otherwise use any contents or information available on or through RUN, the Services provided through or in connection with RUN, or RUN’s IT Systems, directly or indirectly, for commercial or public purposes. You will not provide, directly or indirectly, any of the Services, including Payment Services as defined herein, or any part thereof, including any contents, information, tools, calculators and resources, to any party other than Yourself. Your employees will not disclose any confidential account access credentials or confidential information to Unauthorized Third Parties. Such confidential information shall also include access to and use of password protected and/or secure information that is restricted to authorized users only and user account access credentials and related user authentication information. ADP will take reasonable precautions to prevent the loss of or alteration to Your data files in its possession including employing regular back-up procedures, but ADP does not guarantee against any loss or alteration of Your data. ADP is not and will not be Your record keeper so, to the extent You believe it necessary, You will keep copies of all documents or information delivered to ADP in connection with the Services. You are responsible for maintaining and backing-up any information You are providing or using in connection with RUN.
C. Payment Services If You are receiving any of the Services that require ADP to debit funds from Your account to pay Your third-party payment obligations (e.g., Tax Filing, Garnishment Payment Service (GPS), FSDD Services, TotalPay or Payroll Card or other pay card (hereafter "Pay Card"), Pay-by-Pay, 401K and/or ADPCheck Services) ("Payment Services"), You will have sufficient, collected funds in Your account within the deadline established by ADP to satisfy all third-party payment obligations and any ADP fees for Services. Payment Services are subject to the operating rules of the National Automated Clearing House Association ("NACHA"). ADP and You agree to comply with the NACHA rules applicable to it with respect to the Payment Services. You agree that You will not cause ADP to initiate payments on behalf of any non-Affiliate of Yours under this Agreement unless such non-Affiliate is identified in the client account agreement. ADP may commingle Your impounded funds with other clients', ADP's or ADP-administered funds of a similar type. ALL AMOUNTS EARNED ON SUCH FUNDS WHILE HELD BY ADP WILL BELONG TO ADP. You acknowledge and agree that ADP will, with respect to the provision of the Pay Card services, provide You with Pay Card marketing materials that You can make available to Your employees, and implementation of Pay Card as a direct deposit option for Your employees. You also acknowledge and agree that the FSDD provisions of this Agreement will apply to Pay Cards. Finally, You agree that in providing GPS Services and any garnishment related assistance, ADP will act solely in the capacity of a third party service provider of payment processing and may from time to time provide You data entry assistance, worksheets, and/or best practice recommendations concerning wage garnishment orders, however, You shall remain solely responsible for Your compliance obligations with Your wage garnishment orders. ADP Services are not a substitute for the advice of an attorney. You agree ADP is not a law firm, does not provide legal advice or representation and that no attorney-client relationship exists or will be formed between ADP and You.
D. Accuracy of Your Information, Review of Data All Services provided to You will be based on information provided to ADP by You and/or Your employees (including proof of federal, state and local tax identification numbers and payroll history). You agree to provide accurate, complete and timely information and documentation needed by ADP to perform the Services. The person agreeing to these Terms, any other person designated in writing by that person, and/or any other person added in RUN by an authorized user are Your authorized payroll contacts from whom ADP will take all instructions. ADP will not be liable for following such instructions. You agree to have someone other than Your designated payroll contacts promptly and thoroughly review Your disbursement reports to help You spot and correct errors and inconsistencies and help prevent fraud, and promptly notify ADP of any errors. You agree to promptly review all disbursement records, certificates (including any COIs generated by You) and other reports You receive from ADP or that You produce or generate, or which are generated, in connection with RUN, for validity and accuracy. You will promptly deliver to ADP any information regarding Your payroll, employees and any other information or materials of Yours, regardless of form (e.g., images, graphics, text, custom reports, etc.), to be included in the Services, including any Personal Data, as that term is defined in Section 10B and/or, the attached Data Privacy Appendix, whether included by ADP as part of its setup or other Services or by You or any of Your employees ("Your Client Content"). You are responsible for selecting and/or inputting any personal data elements that are optional. The collection and processing of such data elements will be performed under Your responsibility. You shall only provide ADP with Client Content that is required to perform the Services. You may, during the implementation process or as part of the ongoing Services, elect to configure RUN or the Services to process additional data elements beyond those data elements that are required by ADP to perform the Services.You shall remain solely responsible for such configurations, including the processing of Client Content or data pursuant to applicable law.
Your Client Content will be in an electronic file format specified by and accessible to ADP. Upon completion of any setup or other Services or any request for custom reports, You will review Your Client Content provided to ADP as included in the Services. By commencing "live" processing or using the Services, You confirm that Your Client Content is accurate and complete. ADP will have no liability to You for any errors or inaccuracies in Your Client Content included in the Services that was provided by You, or should have been reviewed and approved by You and You agree to indemnify and hold ADP harmless for any damages resulting from Your or Your employees' failure to provide accurate information. ADP may also perform other services related to RUN that You may request (e.g., training, custom reports, Background Check Services, TLM services, HR Services, Health Care Tax Credit Assist, unemployment claims processing,Risk and Safety Processing, employment and income verification, etc.), and such services will be covered by this Agreement at ADP's then current fees, if applicable. Certain of the Services to be provided by ADP may be provided by subsidiaries or affiliates of ADP, Inc. or by ADP's subcontractors, and ADP will be responsible for the performance of those subsidiaries, affiliates and subcontractors.
E. Responsibility for Compliance with Laws The Services are designed to help You comply with applicable laws and governmental regulations. Nevertheless, You (and not ADP) will be responsible (i) for Your compliance with all laws and governmental regulations affecting Your business generally, including any rules and regulations applicable to ADP regarding trade sanctions, export controls or trade with prohibited parties and (ii) for any use You make of the Services to help You comply with any applicable laws and governmental regulations. You acknowledge and agree that ADP is not responsible for advising You of Your obligations under any laws or regulations that apply to Your business. You will not rely on use of the Services to comply with any laws and governmental regulations. Many federal, state and local laws, rules and regulations,impose additional requirements, such as employers must obtain consent from their employees, in connection with direct deposit and/or the use of electronic statements. These and other laws and governmental regulations vary and it is Your responsibility to ensure You are compliant with these laws, including regarding electronic statements and obtaining any consents, and for Print On Demand capabilities, providing on-line access at Your work site, and direct deposit, as well as for complying with any other applicable federal, state, local or other laws and governmental regulations affecting Your business. You are exclusively responsible for making physical copies of online statements, including wage statements, Forms W-2, Forms 1099, or Forms 1095-C, available to Payees to the extent required by applicable law. You represent that You verified the identity of each of Your employees to whom You will make payments using ADP Products or Services through appropriate documentation provided by such employee (e.g., I-9 documentation). You also acknowledge that (1)You alone are responsible for the designation of an individual or vendor as a "contractor" and ADP will have no liability for Your designation(s) and,(2) when using the Services for independent contractor services, references to "employees" are intended to descibe 1099 workers engaged as independent contractors, references to "employment" are intended to describe your independent contractor relatioship with 1099 workers, and references to "payroll" are intended to describe payment to 1099 workers engaged as independent contractors. No state or federal agency monitors or assumes any responsibility for the financial solvency of third-party tax filers.
Important Tax Information (IRS Disclosure): Notwithstanding Your engagement of ADP to provide ADP Tax Services, You are responsible for the timely filing of payroll tax returns and the timely payment of payroll taxes for Your employees. The Internal Revenue Service recommends that employers enroll in the U.S. Treasury Department's Electronic Federal Tax Payment System (EFTPS) to monitor their accounts and ensure that timely tax payments are being made for them. Online enrollment in EFTPS is available at www.eftps.gov ; an enrollment form may also be obtained by calling (800) 555-4477. State tax authorities generally offer similar means to verify tax payments. You may contact appropriate state offices directly for details.
F . FSDD/ADPCheck/Pay Card For FSDD and Pay Card Services, before the first credit to the account of any employee or other individual (a "Payee"), You will get a signed and valid payee authorization from the Payee (a "Payee Authorization") which will be in a form acceptable to ADP and comply with NACHA rules and applicable law and shall authorize the initiation of credits to the Payee's account and debits of such account to recover funds credited to the account in error. You will retain a copy of each Payee Authorization during the period the Payee Authorization is in effect and for two years after and will provide a copy to ADP upon request. You agree not to distribute any ADPChecks to Payees in any manner that would allow Payees to access the associate funds before pay date and You acknowledge that doing so may result in additional fees being charged to You. You also agree to cooperate with ADP to recover funds credited to any Payee's account in error. If You want to stop payment on any ADPCheck, You will provide ADP with a written stop payment request in the form provided by ADP. ADP will, within 24 hours of receipt of the request, place a stop payment order with ADP's bank. You will not request ADP stop payment on any ADPCheck which represents funds to which a Payee is rightly entitled. You agree to indemnify, defend and hold harmless ADP and its affiliates and their successors and assigns from and against any liability whatsoever from stopping payment on any ADPCheck requested by You and from and against all actions, suits, losses, claims, damages, charges and expenses including attorney's or other fees, in any claims or suits arising because of a request to stop payment, including claims made by a "holder in due course" of such check. If You subscribe to the use of any Pay Card Services, You also agree to the Pay Card Services terms attached to these Terms as Exhibit A, which are incorporated into these terms as if fully set forth. By agreeing to or signing these Terms You acknowledge receipt of the Pay Card terms in Exhibit A and agree to perform all obligations set forth in Exhibit A.
G. Background Check Services will be provided by ADP Screening and Selection Services, Inc. ("SASS"), an affiliate of ADP. You will be required to pass the SASS credentialing process. If You do not pass this process, ADP may require additional information or deny access to the Background Check Services. You will sign and deliver to ADP any documents and forms ADP deems necessary to provide You with the Background Check Services under any requirements of governmental data sources and consumer reporting agencies for which ADP is a reseller, or under applicable laws and regulations. Subscription-based programs are not available to organizations providing staffing-related services, property management companies or resellers (i.e., companies who do background checks for other companies) and are only available for Your own employment screening. ADP will abide by all of the provisions of the Fair Credit Reporting Act, as amended ("FCRA"), as applicable to the obligations of ADP acting as a consumer reporting agency in providing Background Check Services. ADP will follow reasonable quality assurance procedures with respect to preparing any reports including consumer reports and/or investigative consumer reports (hereafter each individually referred to as "Report" and collectively as "Reports"). However, because the information contained in Reports is provided by third parties, ADP is not responsible for any errors or omissions in such third-party information. You understand that the Background Check Services made available to You through a subscription-based program will have applicable limits, as indicated on Your Sales Order or similar document, and that there are additional fees when ordering a New York Consolidated Criminal History Report and/or when a search requires a New York county criminal history search. To the extent that You order Background Check Services which exceed or differ from the number and type included in Your Services, You will be charged by SASS for the amounts due for the excess number or different services. You agree to pay ADP for Background Check Services You order that are not included in Your Services, as well as for applicable fees when ordering a New York Consolidated Criminal History Report and/or when a search requires a New York county criminal history search. ADP may pass on any new or increased fees assessed on a particular product by any governmental source or third-party source or vendor at any time, upon thirty (30) days' notice to You.
You understand that from time to time ADP may provide information regarding laws and regulations applicable to users of Reports, including, but not limited to, information pertaining to a user’s legal obligations and responsibilities under FCRA and other applicable laws and regulations. Any information provided by ADP, including, but not limited to, information available for reference on “The Guide” at www.adpselect.com , is provided for educational purposes only and is not legal advice. You understand and agree that You should review all applicable laws and regulations and consult with experienced counsel for legal advice. You understand that the Guide may be amended from time to time by ADP and You will have access to such amendments online. You acknowledge that You have Internet access so You can access the Guide as made available by ADP.
You are solely responsible for ensuring Your own compliance with applicable laws and regulations in requesting, using, and maintaining Reports, and for maintaining Reports sufficient to comply with Your document retention policies.
You acknowledge that so long as You have access to Background Check Services, You will have access to all Reports ordered through the SASS background site for at least one year (unless we tell You of a shorter period). ADP will not deliver copies of Reports to You once such Reports are no longer available within the SASS background screening site or after termination of the Background Check Services or this Agreement, except as required by law. ADP will make available additional accounts to You upon Your written request. You will provide any information ADP requires for establishing additional accounts. You will ensure that the additional accounts established at Your request by ADP are for employment purposes only, and only in accordance with applicable law. You will ensure that the additional accounts and all information received from ADP is used in strict compliance with the applicable provisions of all federal, state and local laws and international law and all regulations promulgated under any of them, including, but not limited to, the FCRA, the Americans with Disabilities Act (ADA 1990), all equal employment opportunity laws and regulations, to the extent applicable, the Drivers Privacy Protection Act and Federal Equal Credit Opportunity Act, and any federal, state or country specific data privacy law. In the event and to the extent of any conflict between the terms and conditions of this Section and applicable law, the provision(s) of applicable law will govern.
H. TLM Products.
a) You will provide and install all power, wiring and cabling needed for the installation of any data or time capture hardware or software (the "Timeclock Equipment"). You will pay an installation and set-up fee for each unit of Timeclock Equipment if the equipment is installed on Your premises by ADP.
b) You will not make any alterations or attach any device not provided by ADP to the Timeclock Equipment. ADP will continue to own the Timeclock Equipment unless You chose the purchase option and paid ADP the full purchase price. Unless You bought and paid for the Timeclock Equipment, it will remain a separate item of personal property though attached to other Timeclock Equipment or real property and You will not remove the Timeclock Equipment from the original installation site without ADP's prior consent.
c) Upon termination or cancellation of this Agreement, TLM and/or Payroll Services, You will, at Your expense, return the Timeclock Equipment to ADP according to ADP's instructions. The Timeclock Equipment will be returned in as good condition as received by You, except for normal wear and tear. If the Timeclock Equipment is not returned within 30 days of termination, You agree to purchase it at ADP's retail price at the time of termination. If payment for the Timeclock Equipment is not received within 30 days of any demand for the return of the Equipment, ADP will be able to use any lawful remedy to enforce its rights including, debiting the account You use for ADP Services and/or sending the account to a collection agency for settlement. The terms of this Section c. will not apply if prior to the time of termination or cancellation You had already purchased and paid for the Timeclock Equipment in full.
d) ADP warrants to You that the Timeclock Equipment will be free from defects in material and workmanship at the date Timeclock Equipment is shipped and for 90 days after. ADP's sole obligation in case of any breach of any warranty contained in these Terms will be to repair or replace, at ADP's option, any defective items. This is the extent of ADP's liability for all claims related to Timeclock Equipment including contract and negligence claims, and will be Your sole remedy.
e) Maintenance services for the Timeclock Equipment (set forth below in Section f) apply automatically to Timeclock Equipment under the subscription option and any maintenance charges are already included in the monthly time and labor management subscription fees. The costs for maintenance services for Timeclock Equipment under the purchase option are not included in the purchase price and a separate annual maintenance fee will apply. Under the purchase option, You can terminate Your receipt of maintenance services by giving ADP written notice at least 30 days before the end of the then current annual coverage period. ADP is not required to return any maintenance fees relating to a current or prior coverage period. (NOTE: If You select the purchase option but opt not to receive (or terminate) maintenance services by executing a waiver of maintenance services, any such services provided by ADP at Your request will be subject to ADP's then current charges for such services.) No Timeclock Equipment maintenance is done at Your site. You will be responsible for all delivery/shipping costs and all risk of loss during shipment/delivery of Timeclock Equipment relating to maintenance services.
f) ADP will maintain the Timeclock Equipment to be free from defects in material and workmanship as follows: Any parts found to be defective (except as specifically excluded below) will be replaced or repaired, at ADP's or its designee's option, without charge for parts or labor, if the Timeclock Equipment was properly installed and maintained by You and if it has been used in accordance with any documentation or terms provided by ADP or its designee and has not been subject to abuse or tampering. The foregoing repairs and replacements may be made only by ADP or its designee, and will be made only after ADP or its designee is notified of a problem, receives delivery from You of the Timeclock Equipment at issue and determines that it results from defective materials or workmanship. Notwithstanding the foregoing, ADP may deliver a temporary replacement item for You to use while ADP determines the cause of the issue with the Timeclock Equipment in question. Repairs and replacements required as a result of any of the following will not be included in the maintenance services and will be charged at ADP's then current rates: a) Damage, defects or malfunctions resulting from misuse, accident, neglect, tampering, unusual physical or electrical stress, or causes other than normal or intended use; b) Your failure to provide and maintain a suitable installation environment; c) Any changes made to or any devices not provided by ADP attached to the Timeclock Equipment; and d) Malfunctions resulting from use of badges or supplies not approved by ADP.
g) In order to keep the products current, ADP may perform maintenance fixes and other upgrades to the TLM products You are receiving. ADP will perform these upgrades on Your behalf for all hosted products. For non-hosted products, You will need to install the upgrade provided by ADP pursuant to the written notice provided to You.
h) The TLM Products are hosted by ADP in the United States. The TLM Products are intended for use by United States employees and to permit the transmission of data within the United States only. You are responsible for complying with all applicable data protection laws and represent that You obtained any employee consents necessary (or otherwise have complied with applicable law) to transmit the information to ADP in the United States or otherwise make the ADP TLM Products available to Your employees outside the United States. The TLM Products may not be used or accessed in any way that violates any applicable international, federal, state or local laws and/or regulations.
i) a. Biometric Services are defined as services provided by ADP to You via the use of timeclocks and software in connection with ADP's provision of TLM Services, to the extent such timeclocks or software collect, store or use Biometric Data ("Biometric Services"). Biometric Data includes information collected by timeclocks and software obtained by scanning a part of the employee's person including without limitation: a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry ("Biometric Identifiers"), or any information, regardless of how it is captured, converted, stored, or shared, based on an individual's biometric identifier used to identify an individual ("Biometric Information") (collectively referred to as "Biometric Data").
b. Biometric Services are optional. In certain jurisdictions, there are laws and regulations that govern the collection, use, and retention of biometric information, which may apply to Your use of Biometric Services. To the extent You elect to use Biometric Services, You agree to comply with all such applicable laws and regulations in accordance with this Agreement. In the event You are unwilling to comply with laws and regulations applicable to Biometric Services, You will be able to continue to use the Services without Biometric Services. The following terms and conditions apply to Biometric Services to the extent Biometric
Services are part of the scope of Services: (i) Before any of Your or any of Your employees or independent contractors who use Biometric Services to record their attendance, hours worked or other work-related data ("Biometric User") is permitted to use any Biometric Services in a jurisdiction where laws and regulations govern such use, You will comply with the following requirements, in addition to any other requirements imposed by applicable law (to the extent there is a conflict between the requirements below and the requirements of applicable law, You will comply with applicable law): (a)You will implement, distribute and make available to the public, a written policy establishing Your policy with respect to the use of Biometric Data. Such policy will include: (1) a retention schedule and guidelines for permanently destroying Biometric Data; (2) a commitment to destroy Biometric Data when the initial purpose for collecting or obtaining such Biometric Data has been satisfied or within 3 years of the individual's last interaction with You, whichever occurs first; and (3) any additional requirements as required by applicable law. (b) You will provide notice to and procure and retain appropriate consents or releases from Biometric Users in the manner and to extent the same are required by applicable law, including: (1) notifying Biometric Users in writing that You, Your vendors, and/or the licensor of Your time and attendance software are collecting, capturing, or otherwise obtaining Biometric Users' Biometric Data, and that You are providing such Biometric Data to Your vendors and the licensor of Your time and attendance software; such notice will specify the purpose and length of time for which Biometric User's Biometric Data is being collected, stored, and used; (2) obtaining a written release or consent from Biometric Users (or their legally authorized representative) authorizing You, Your vendors, and licensor of Your time and attendance software to collect, store, and use the individual's Biometric Data for the specific purpose disclosed by You, and authorizing You to provide such Biometric Data to Your vendors and the licensor of Your time and attendance software; and (3) if requested by ADP, providing to ADP copies of the required consents or releases collected and retained by You, and/or certifying to ADP that such consents or releases have been obtained.
c. You will work with ADP to ensure that Biometric Data is retained and purged in accordance with applicable law. To the extent necessary for the purging or deletion of such Biometric Data, You agree to provide timely notification to ADP of the termination of the employment, or the satisfaction of the purpose for which Biometric Data was collected with respect to any given Biometric User. ADP is not responsible for Your failure to provide timely notification of the termination of the employment, or the satisfaction of the purpose for which Biometric Data was collected with respect to any given Biometric User.
d. You agree that You shall use a reasonable standard of care consistent with applicable law to store, transmit and protect from disclosure any Biometric Data. Such storage, transmission, and protection from disclosure shall be performed in a manner that is the same as or more protective than the manner in which You store, transmit and protect from disclosure other confidential and sensitive information, including personal information that can be used to uniquely identify an individual or an individual's account or property, such as genetic markers, genetic testing information, account numbers, PINs, driver's license numbers and social security numbers.
e. Notwithstanding anything to the contrary in the Agreement, You agree that ADP and any licensor of any applicable Biometric Services (and their respective successors and assigns) are third party beneficiaries of this Agreement solely as it relates to Biometric Services.
f. If ADP determines that You have failed to comply with any applicable laws and regulations applicable to the Biometric Services, ADP may, in its sole discretion and upon notice to You, immediately suspend or terminate the Biometric Services.
g. You will defend ADP against any third party claims (including claims made by or on behalf of Biometric Users) and will indemnify and hold ADP harmless from resulting damage awards or settlement amounts in any cause of action to the extent such cause of action is based on any performance or breach of Your obligations in connection with the Biometric Services, including any failure by You to obtain consent from Biometric Users in connection with the use of the Biometric Services. The foregoing obligations shall not be subject to any limit on liability set forth in this Agreement.
I. HR Services
a) If You request and are permitted access to HR Services, You agree to use such Services for research and reference purposes only and only for the benefit of Your employer. By submitting any content to ADP through any HR Services, including message boards, forums,chat rooms and chatbots, You grant ADP a royalty-free, perpetual, irrevocable, world-wide license to use, reproduce, modify, adapt, translate, create derivative works from, distribute, publish and display all such content (in whole or in part) and to incorporate such content in other works in any form, media or technology, whether currently existing or hereafter developed. By submitting any content to ADP, You represent and warrant to ADP that You have the unfettered right to give such a license to ADP. You agree that You will not submit any content that (a) infringes on the intellectual property rights of any other person or entity, unless You have the permission of the person or entity to submit the content and grant the license provided herein, (b) violates the privacy or publicity rights of any other person or entity, unless You have the permission of such person or entity to submit the content and thereby grant the license provided herein, or is in any other way illegal (c) is offensive, obscene, defamatory, threatening or abusive, (d) advertises any other site or business or (e) contains computer programming routines or code designed to interfere in any way with the full, proper and timely operation of RUN or any HR Services or any computer system.
b) Materials accessible from or added to any HR Services or web sites by You or third parties, such as comments posted in discussion groups, URL's, documents, or forms, are strictly the responsibility of the party who added such materials or made them accessible. While ADP reserves the right to monitor third-party discussions or content and to remove materials that ADP believes are inappropriate, ADP neither endorses nor undertakes to control, monitor, edit or assume responsibility for any material contained in or linked to any HR Services or web sites, including any URL's added, linked or included by You.Any relationship between You and any third party relating to HR Services shall be governed by any applicable agreement or terms of service between You and such third party and you assume all responsibility and risk arising from Your use of and/or reliance upon information, guidance or advice received from such third party, whether orally or in writing.
c) When You subscribe to any HR Services You can make one attributed copy of a document available through the HR Service for use within Your organization. You may not make multiple copies of documents without expressed written consent. Except for individual copies and direct use by You, You may not copy, modify, distribute, display, transmit, use or prepare derivative works based on the HR Services or any of their contents, or remove or alter any copyright, trademark or other proprietary notice from any part of the HR Services or any of the contents except where expressly instructed to do so.
d) Pursuant to the Digital Millennium Copyright Act, ADP has registered an agent with the U.S. Copyright Office. Notices of claimed copyright infringement on any web site should be directed to: Automatic Data Processing, Inc., 1 ADP Boulevard, Roseland, NJ 07068, Attn: Legal Department, Intellectual Property Counsel.
e) Although ADP makes every reasonable effort to ensure that the information, tools and data provided through the HR Services, which include the HR HelpDesk and HR Chatbots, are useful, accurate, and current, ADP cannot guarantee that the information, tools and data provided will be error-free. By using the HR Services You assume all responsibility for and risk arising from Your use of and reliance upon the contents of the HR Services. You agree to defend, indemnify and hold harmless ADP and its affiliates and their successors or assigns from and against any liability whatsoever arising from or relating in any way to Your use of any HR Services.
f) (i) RUN I-9 Services. RUN will make available administration services to facilitate the electronic completion of the employment eligibility verification Form I-9 (“Form-I-9”) issued by the U.S. Department of Homeland Security (“DHS”) using the I-9 System, as that term is defined below. You authorize ADP and, if applicable, its subcontractors through which the RUN I-9 Services may be performed (“I-9 Agents”) to receive and utilize (i) I-9 User Content that is provided to the I-9 System or directly to an I-9 Agent and (ii) any reports or other information generated by ADP, the I-9 Agent or I-9 System to You relating to the RUN I-9 Services. “I-9 System” means the I-9 Agent's web-based system and platforms for performing the I-9 Services. “I-9 User Content” means all documents, information and materials provided by Your I-9 Users and You in connection with the completion of Form I-9s, including Personal Data and documents that meet the federal requirements for verifying an employee's identity and eligibility to work in the U.S. (e.g., (i) a passport, (ii) a U.S. issued driver's license or picture identification card issued by a state or U.S. federal agency and social security card, or (iii) a U.S. issued driver's license and birth certificate).
(ii) Your Responsibilities. You agree to provide ADP access to such information as needed on the I-9 System. You acknowledge that the accuracy and completeness of the information in and generated by the I-9 System is fully dependent upon the accuracy and completeness of I-9 User Content. You shall assist and fully cooperate with ADP and any I-9 Agent to implement the RUN I-9 Services and correct any errors or inaccuracies in I-9 User Content. You further agree to (a) maintain I-9 User Content in an accurate, complete, and current manner, and (b) provide ADP or I-9 Agent with the necessary I-9 User Content. You will ensure that Your newly hired employees that utilize the RUN I-9 Services (“I-9 Users”) provide You with all required consents, including under applicable privacy laws, to (i) allow ADP and I-9 Agents to receive and process I-9 User Content, and (ii) contact I-9 Users by any requested method of communication, including but not limited to emails. You acknowledge and agree that any users You designate as having the ability to add an employee within RUN will have access to the I-9 functionality in RUN, provided as a convenience. You represent and will ensure that any users who (1) view and access I-9 User Content and (2) who complete Section 2, are authorized to do so in accordance with applicable law.
You are solely responsible for complying with all federal, state and local laws and regulations, including the Immigration Reform and Control Act of 1986, applicable to and guidance (formal or informal) associated with employment eligibility verification processes and Form I-9s, including the completion, storage, and processing of Form I-9s. You will be solely responsible for any fines and penalties arising from any alleged noncompliance with such laws and regulations by You, Your agents, subcontractors, or third party product or service providers. ADP and I-9 Agents shall not have any responsibility in relation to audits, errors or omissions on Form I-9s. Nothing contained herein shall be deemed to impose upon ADP any obligation to any I-9 User or any person who is participating in or with respect to whom RUN I-9 Services are performed.
(iii) Use of I-9 Services. You shall do the following with respect to RUN I-9 Services:
a) Review and comply with the guidelines that may be issued by ADP from time to time concerning the RUN I-9 Services.
b) Review the U.S. Citizenship and Immigration Services (“USCIS”) Form I-9, including instructions in the form and the guidelines in the current USCIS Handbook for Employers and Instructions for Completing Form I-9 (M-274) (the “I-9 Handbook”), each of which is available on the USCIS website, currently located at at http://www.uscis.gov/i-9central. . You certify that You and all users authorized to complete the USCIS Form I-9 on Your behalf have reviewed the current USCIS Form I-9 and the I-9 Handbook and that You agree to comply with the applicable policies and procedures set forth therein, and any future new or amended policies or procedures, as required by law. You will ensure availability of the most recent version of the USCIS Form I-9 and the I-9 Handbook to all users authorized to complete the USCIS Form I-9 on Your behalf.
c) It is Your responsibility to review reports available to You and resolve (or cause the applicable I-9 User to take action to resolve) missing or incomplete Form I-9s. This includes communicating with the I-9 User in question and the submission or resubmission of the missing or incomplete Form I-9.
(iv) Form I-9 Retention. During the term of the Agreement, and subject to Your obligation to enter I-9 User employee data into the I-9 System, electronic copies of Form I-9s will be stored in the I-9 System for at least a minimum of three years from the I-9 User hire date (first date of employment) or until one year after the I-9 User employee ceases to be employed by You (or the applicable Affiliate), whichever is later (or as otherwise required by changes to federal regulations that come into effect hereafter). Upon termination or expiration of the RUN I-9 Services, Your access to the I-9 System will expire on the effective date of the termination, and You will be responsible for downloading all relevant data, including Form I-9s, audit trails and supporting documentation, prior to the expiration of such access. ADP shall have no obligation to retain any Form I-9s further and may destroy Form I-9s in its possession after such period.
(v) Additional Termination Provisions for RUN I-9 Services. ADP reserves the right to modify the RUN I-9 Services from time to time due to changes in applicable law or application of existing law.
J. Employment Verification Services and Authorization as Agent; Employee Authorized Disclosure.
a) To the extent You have not opted out of receipt of employment and income verification request management services (Employment Verification Services), the terms in this section will govern Your use of the Employment Verification Services and Employee Authorized Disclosure. ADP currently provides the Employment Verification Services through its subcontractors, The Work Number®, an Equifax Workforce Solutions service, though ADP reserves the right to provide them through another entity (each, a "Verification Agent"). Notwithstanding anything to the contrary in these Terms, You authorize ADP and its Verification Agents to disclose, on Your behalf, employment information (including place of employment and employment status), job and income information (including total wages per year to date and previous year income) and Personal Information of You and Your current and former employees and independent contractors (collectively, "Verification Data"), to commercial, private, non-profit and governmental entities and their agents (collectively, "Verifiers"), who wish to obtain or verify any of Your or Your curent and former employees', and if included in Your payroll data, current and former independent contractors’ Verification Data. Verification Data will be disclosed to Verifiers who certify they are entitled to receive such data (as described below) pursuant to the FCRA, and, in the case of income information requests, who additionally certify they have a record of the individual's consent to such disclosure or who utilize a salary key. In accordance with FCRA, Verification Data may be provided to Verifiers where (i) the individual has applied for a benefit (such as credit, other employment or social services assistance); (ii) the individual has obtained a benefit and the Verifier is seeking to (a) determine whether the individual is qualified to continue to receive the benefit; and/or (b) collect a debt or enforce other obligations undertaken by the individual in connection with the benefit; or (iii) the Verifier is otherwise entitled under FCRA to obtain the Verification Data. In certifying they have a record of the individual's consent, Verifiers generally rely on the employee's signature on the original application as authorization for the Verifier to access the individual's income data at the time of the application and throughout the life of the obligation. You understand that Verifiers are charged for commercial verifications processed through ADP or its Verification Agents.
b) Data Quality. If requested by ADP, You agree to work with ADP during implementation to produce a test file and validate the Verification Data using validation reports made available by ADP or its Verification Agents. ADP will update its system with the applicable Verification Data available in RUN or through the Services.
c) Notice to Furnishers of Information: Obligations of Furnishers of Information ("Notice to Furnishers"). You certify that You have read the Notice to Furnishers provided to You at the following URL: https://www.consumerfinance.gov/rules-policy/regulations/1022/m/#ImageM2. . You understand Your obligations as a data furnisher set forth in such notice and under FCRA which include duties regarding data accuracy and investigation of disputes, and certify You will comply with all such obligations. You further understand that if You do not comply with such obligations, ADP may correct incorrect Verification Data on Your behalf or terminate the Employment Verification Services upon 90 days prior written notice to You.
d) Archival Copies. Notwithstanding anything to the contrary in these Terms, You agree that, after the termination of these Terms, ADP and its Verification Agents may maintain archival copies of the Verification Data as needed to show the discharge and fulfillment of obligations to Your current and former employees and independent contractors, and the confidentiality provisions in these Terms will continue to apply during the time that ADP and its Verification Agents maintain any such archival copies.
e) Additional Termination Provisions for Employment Verification Services. ADP may, in its sole discretion, terminate the Employment Verification Services at any time upon 90 days prior written notice to You should a Verification Agent notify ADP that it is no longer willing to provide the Employment Verification Services and ADP, after taking commercially reasonable steps, cannot engage a successor Verification Agent.
f) Employee Authorized Disclosures. ADP may use or disclose Personal Data of a Client's current or former employee or independent contractor where such individual requests or consents to such use or disclosure (e.g., to verify the individual's identity in connection with a bank account application).
g) Continuation of Employment Verification Services and Employee Authorized Disclosures. You understand and agree that Verification Data and/or Personal Information provided by You or Your vendors in connection with the Services may be used, subject to the terms and conditions of this section J, to provide Employment Verification Services and, at the individual's request, Employee Authorized Disclosures after this Agreement expires or is terminated. The terms and conditions of this section J., and the related defined terms, security, data use, confidentiality, intellectual property, indemnity, limitations of liability and miscellaneous terms and conditions of this Agreement shall continue to apply to such Employment Verification Services and Employee Authorized Disclosures following such expiration or termination.
K. Tax Registration Services. ADP shall provide tax registration services as further described in this Section (the “Tax Registration Services”) in accordance with and subject to the terms of this Agreement. The Tax Registration Services provided hereunder relate solely to ADP obtaining jurisdiction account numbers for employment tax as requested by You. In receiving the Tax Registration Services hereunder, You acknowledge the following:
a) You understand that ADP will not perform Tax Registration Services in connection with the following events: (i) mergers and acquisitions; (ii) name, address or entity (corporate form) changes; (iii) applications to a state’s Secretary of State; and (iv) closing of accounts with a state taxing agency.
b) As a third-party service provider, ADP’s Tax Registration Services hereunder are consultative in nature. ADP is not representing You in any dealings before any tax agencies. ADP’s provision of the Tax Registration Services should not be construed as legal, tax, or accounting advice. You should consult Your legal, tax, or accounting advisors for such advice.
c) All submissions to the taxing jurisdiction will be (i) reviewed by You prior to submission, when provided and (ii) signed by You where necessary or You will instruct ADP to affix electronically Your signature provided by You. By signing the documents or requesting that ADP affix Your electronic signature, You are confirming that (i) You have reviewed the documents and/or data being submitted to the taxing jurisdiction and (ii) the information contained therein is complete and accurate.
d) By utilizing the Tax Registration Services, You authorize ADP to act on Your behalf in obtaining jurisdiction employment tax account numbers including, but not limited to, affixing the electronic signature provided by You to registration forms and other documentation, submitting forms to tax agencies and directly communicating with such agencies as necessary.
e) You understand that ADP’s Tax Registration Services are based solely on the information provided by You and/or otherwise available to ADP in connection with the Services about Your business established within a particular jurisdiction and other written correspondence that is in reply to ADP’s questions regarding the registration process or otherwise provided by You. You authorize ADP to rely upon such information in providing the Tax Registration Services. ADP is not responsible for Tax Registration Services provided hereunder based on any inaccurate information supplied by You or Your failure to provide ADP with information relating to the registration process.
f) You understand that, for reasons beyond ADP’s reasonable control, ADP may not be successful in securing an employment tax account number for You in any particular jurisdiction.
g) ADP is not responsible for any penalties or interest incurred by You as a result of ADP’s failure to timely receive Your identification numbers.
2.Document Vault/Document Storage
If You request and are permitted access to Document Vault or the document storage feature available through RUN, including any HR services,You agree to assume all risk and liability for all documents, information, data, links and content (collectively "Content") that You insert, upload and/or store. You understand all Content may be protected by intellectual property and You must have the rights to all Content that You upload and store. By affording You access to Document Vault or other storage, ADP is offering You a service that allows You to upload and store Your Content. By uploading Content into Document Vault or other storage, You agree and acknowledge that You are solely responsible for all Content uploaded and stored by You and that ADP has no responsibility or obligation to monitor or notify You of any non-compliance related to Your use of Document Vault or such other storage. ADP is not responsible for the accuracy, completeness, appropriateness, or legality of the Content that You upload and store. ADP is not and will not be Your record keeper. Document Vault, or other storage feature, is a self-service feature and You acknowledge that while ADP may access Your Content, You are solely responsible for complying with all applicable laws regarding employment, training, document acknowledgments, audits, recordkeeping, record storage and record retention with respect to Your Content. ADP will not be responsible for any lost, damaged or irrecoverable content. By using Document Vault or storing any documents or data, You retain full ownership of all Content that You store. You agree that You will not use Document Vault or other data storage feature to: (1) upload, store, transmit or otherwise make available any Content that spreads messages of terror or depicts torture or death or illegal acts; (2) harm minors in any way; (3) upload, store, transmit, or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; or (4) upload and store any content related to sex, violence, or any other illegal content. Uploading and storing such information will be considered a violation of these Terms and will be cause for immediate termination as set forth in Section 12. If You or ADP terminate this Agreement, Your access to RUN will terminate but You will have the ability to retrieve and download Content stored in Document Vault or other storage feature for a limited amount of time.
3. Background Check Services Fair Credit Reporting Obligations
A.
If You request and are approved to receive Background
Check Services which include receiving a "Report" or Reports from ADP,
You acknowledge it is provided by ADP solely at Your request and instruction and
that ADP is not acting as Your agent and not making any hiring decisions
for or on your behalf. You also understand and agree that You shall do (and shall
cause Your Affiliates receiving the ADP Background Check Services to do) the following:
1. Review the Notice to
Users of Consumer Reports: Obligations of Users under the Fair Credit Reporting Act ("Notice to Users"), available at
https://files.consumerfinance.gov/f/201504_cfpb_summary_your-rights-under-fcra.pdf
and perform the legal obligations set forth in the Notice to Users.
2. Request, use, and maintain Reports in a manner consistent with applicable
laws and regulations, as well as Your own hiring and document retention
policies.
3. Use the information provided by ADP for one-time use, for the
permissible purpose(s) designated in this paragraph (the “Permissible
Purpose(s)”) only, and only in accordance with applicable laws and regulations.
The Permissible Purpose(s) is: Employment Purposes.
4. Before requesting any Report from ADP, make a clear and conspicuous disclosure
to the individual who is the subject of the Report (the "Consumer") that a
Report may be obtained for employment purposes, making such disclosure in writing
and in a document consisting solely of the disclosure.
5. If a Report constitutes an “investigative consumer report,” as defined by
the federal Fair Credit Reporting Act (“FCRA”), make a clear and accurate
disclosure to the Consumer, as required by 15 U.S.C. § 1681d(a)(1),
including a copy of the Consumer Financial Protection Bureau's (“CFPB”)
Summary of Your Rights Under the FCRA, as applicable. Further, upon
written request by the Consumer within a reasonable period of time
after receipt of the disclosure required by 15 U.S.C. § 1681d(a)(1),
timely make a complete and accurate written disclosure to the Consumer
of the nature and scope of any investigation requested.
6. Obtain written authorization from the Consumer for each Report prior
to requesting any Report and retain such written authorization.
7. Ensure full compliance with the FCRA and other applicable laws and regulations.
8. If You form an intent to take an adverse action, based in whole or in part on
any information contained in a Report obtained from ADP, provide (prior to taking
the intended adverse action) proper additional notices to the Consumer, a copy of
the Report obtained, and a Summary of Rights, as required by the FCRA or any other
applicable law or regulation. After providing the additional pre-adverse action notice, You
must provide the Consumer a reasonable opportunity to dispute information contained
in a Report prior to Your making a final adverse hiring decision or taking any other adverse
action based on any information contained in a Report. If You then decide to make a final adverse
action, based in whole or in part on any information contained in a Report
obtained from ADP, You must provide such additional
notices required under the FCRA and any other applicable law or regulation, which
notice shall include, at a minimum: (1) the name, address and telephone number of ADP;
(2) a statement that ADP did not make the adverse decision and is not able to explain why the
decision was made; (3) a statement setting forth the Consumer's right to obtain a free
disclosure of the Report from ADP if the Consumer makes the request within 60 days; and (4)
a statement setting forth the Consumer's right to dispute directly with ADP the accuracy or
completeness of any information in the Report.
9. Take all measures to ensure that Reports will be requested, accessed,
and/or viewed only by Your designated representatives, with the understanding
that You may disclose information within any Report to the Consumer, in accordance
with applicable laws and regulations.
10. Be responsible for the final verification of the Consumer’s identity and
for the security and dissemination of the customer number provided to You.
11. Ensure that designated representative(s) do not attempt to obtain any Report
on themselves or on any other person, except in the exercise of their official
duties.
12. Not resell any Report or any of the information contained in a Report.
13. Notify ADP in writing within 10 days of any changes to Your company name,
federal tax identification number, address, telephone number, contact person,
sale or closure of business, merger, change in ownership of 50% or more of
Your stock or assets, or any change in the nature of Your business that would
in any way affect Your right to request and receive Reports.
B. You certify and covenant to each of the following each time You order a
Report with respect to a Consumer in the United States:
1. You certify that You will use the Reports and information contained therein
only for the following specific Permissible Purpose(s): Employment Purposes.
Relatedly, You certify that You will not use the Report or information therein
for any other purpose.
2. You certify that You have read the Notice to Users and that You have
read and understand Your obligations under the FCRA, as well as the possible
penalties for requesting Reports under false pretenses or without a permissible purpose.
3. You agree not to place an order for or otherwise request a Report for employment
purposes unless (1) You have provided to the Consumer a clear and conspicuous
disclosure in writing, in a document consisting solely of the disclosure, that a
consumer report may be obtained for employment purposes and (2) You have authorized
in writing the procurement of the Report. You, therefore, certify that, prior to
placing any order for a Report for an employment purpose, You will provide the
required disclosures to the Consumer and receive the required authorizations from
the Consumer in accordance with the FCRA, including, but not limited to, in compliance
with 15 U.S.C. § 1681b(b)(2).
4. You certify that You will comply with the pre-adverse and adverse action
notice requirements contained in 15 U.S.C. §§ 1681b(b)(3) and 1681m, if You
are considering taking an adverse action against a Consumer.
5. You certify that You will not use information from any Report in violation of
any applicable laws or regulations, including, but not limited to, any applicable
federal or state equal employment opportunity law or regulation.
6. You agree that the action of placing an order for or otherwise requesting
a Report constitutes an affirmative certification to ADP as to the Consumer in
question, and that by placing an order for or otherwise requesting a Report,
You are certifying as to the Consumer in question that: (1) You have provided
the Consumer a clear and conspicuous disclosure in writing, in a document
consisting solely of the disclosure, that a consumer report may be obtained for
employment purposes; (2) that the Consumer has authorized in writing the procurement
of the Report; (3) if applicable, You will comply with 15 U.S.C. § 1681b(b)(3)
(Your pre-adverse action obligations); and (4) no information in the Report will be
used in violation of any applicable laws or regulations, including, but not limited
to, any applicable federal or state equal employment opportunity law or regulation.
7. You agree not to place an order for or otherwise request a Report that
constitutes an “investigative consumer report,” as defined by the FCRA, unless You
have provided a clear and accurate disclosure to the Consumer, as required by 15
U.S.C. § 1681d(a)(1), including a copy of the CFPB’s Summary of Your Rights under
the FCRA, as applicable. You, therefore, certify that prior to placing any order
for a Report that constitutes an “investigative consumer report,” as defined by the
FCRA, You will provide the required disclosures to the Consumer and receive the
required authorizations from the Consumer in accordance with the FCRA, including,
but not limited to, in compliance with 15 U.S.C. § 1681d(a).
8. You certify that for any Report constituting an “investigative consumer report,”
as defined by the FCRA, You will provide additional disclosures as required by
15 U.S.C. § 1681d(b). Specifically, You certify that You will comply with 15 U.S.C. § 1681d(b)
by timely making a complete and accurate written disclosure to the Consumer of the
nature and scope of any investigation it requests, upon request made by the Consumer
within a reasonable period of time after receipt of the disclosure required
by 15 U.S.C. § 1681d(a)(1).
9. You agree that by placing an order for or otherwise requesting a Report that
constitutes an “investigative consumer report,” as defined by the FCRA, the
action of placing the order or otherwise requesting such a Report constitutes
an affirmative certification as to the Consumer in question, and that You are,
therefore, certifying as to the Consumer in question, that: (1) You have provided
to the Consumer the written disclosures for investigative consumer reports, as
required by 15 U.S.C. §1681d(a)(1), including a copy of the Consumer Financial
Protection Bureau’s (“CFPB”) Summary of Your Rights under the FCRA, as applicable;
and (2) if applicable, You will comply with the additional disclosure requirements
imposed by 15 U.S.C. § 1681d(b).
10. To the extent You purchase employment reference verification services in
connection with the ADP Background Check Services, You certify that You have read
and agree to comply with the terms of use issued by ADP’s vendor, TALX Corporation,
set forth at
www.adpselect.com\lgldocs\EmploymentInformationTerms.pdf
, as the same may be amended from time to time upon notice to You.
C. 1. You also agree to take all measures
to ensure that Reports will be requested, accessed and/or viewed only by Your designated
representatives and only for employment purposes, provided, however, that You may
disclose information within any Report obtained from ADP hereunder to an applicant
or employee in accordance with applicable law.
2. You understand and agree that You (and not ADP) are solely responsible for
ensuring compliance will all laws applicable to users of Reports, including,
but not limited to, the disclosure and authorization requirements imposed by
15 U.S.C. § 1681b(b)(2), the disclosure requirements imposed by 15 U.S.C. § 1681d(a)-(b),
the pre-adverse action notice obligations imposed by 15 U.S.C. § 1681b(b)(3), and
the adverse action notice obligations imposed by 15 U.S.C. § 1681m.
3.Within 10 days following ADP’s request, You shall make available for review
such records as ADP deems necessary to determine that You are in
compliance with applicable laws and regulations relating
to the ADP Background Check Services (“Compliance Review”), which records may
include, among other things, Consumer and vendor authorizations/consents, but
shall not include Your financial records. Your cooperation with this Compliance
Review is essential to the continued provision of the ADP Background Check
Services. If either (i) You fail to cooperate with ADP in the
conduct of a Compliance Review or (ii) as a part of a Compliance Review, ADP
determines that You have failed to comply with any laws or regulations applicable
to the ADP Background Check Services, ADP may, in its sole
discretion and upon notice to You, immediately suspend or terminate the ADP
Background Check Services.
4. Either party may terminate the ADP Background Check Services at any time
upon 30 days’ prior written notice to the other party. Further, if ADP
determines that You have failed to comply with any provision of
these Terms, ADP may, at its sole discretion and upon notice to Client,
immediately suspend or terminate the ADP Background Check Services.
5. You understand that notwithstanding any sample forms provided by ADP, in
whatever format, for the Background Check Services, You are responsible for the
content of such forms.
4.Fees; Taxes; Payments
A. Fees/Taxes You agree to pay ADP for the Services at the rates specified
on the Sales Order, digital purchase page or receipt, or similar document, whether produced on-line, sent to You via
email, posted in the RUN platform, or otherwise provided to You by ADP. You will pay ADP for any Services, employees or additional services added
by You in the future, and will be responsible for any banking related fees assessed by
ADP with respect to such things as wires, insufficient funds, etc., and any applicable fees for additional Tax Filing Services
such as amendments, late originals, eFile rejections, etc.,
at ADP's then prevailing prices and fees including for the additional services or employees or any
services You purchase through the ADP Marketplace.
ADP
does not impose a charge for accessing its mobile application, but third party providers
may charge fees to You to access data. You are solely responsible for any third
party fees or charges associated with accessing any mobile application. You will
also be obligated to pay any maintenance fees or charges assessed for any 30-day
period during which You have not processed payroll (excluding digital purchasers of
online payroll subscriptions for which maintenance fees shall not be applicable).
If You are a new ADP client
processing on RUN, after the initial six months of service, ADP may increase base processing fees and charges
for the Services at any time upon at least 30 days prior notice to You. ADP (and/or ADP's
partners, affiliates, or subsidiaries on behalf of ADP) will notify You of all applicable
Services fees payable by You by way of invoice or other method. If You previously
processed payroll with ADP on another payroll platform, ADP may increase prices
for the Services at any time upon at least 30 days prior notice to You but otherwise
reserves the right to increase pricing from time to time for any additional per use
features and services, including but not limited to those listed on Your sales order,
available through the RUN platform, or sent to You by email or otherwise, and Your
continued use of RUN or the Services constitutes Your acceptance of such fees. If You
previously processed payroll with ADP on another payroll platform, ADP may increase prices
for the Services at any time upon at least 30 days prior notice to You. ADP
(and/or ADP’s partners, affiliates, or subsidiaries on behalf of ADP) will notify You of all
applicable Services fees payable by You by way of invoice or other method. If You fail
to pay any amount due under this Agreement, whether by acceleration or otherwise, You, on written
demand, agree to pay interest at the rate of 1.5% per month (or the maximum allowed
by law if less) on such past due amount from the due date until the payment
date. You also agree to reimburse ADP for any expenses incurred, including interest
and reasonable attorney fees, in collecting amounts due ADP hereunder and
understand and agree that ADP may send Your account to a third party to assist with collection efforts and may share
Your Confidential Information to do so. If payment for the Services, or for any payroll or tax liability due from
You is not received within 30 days of any invoice or demand, You expressly agree ADP will be able to use any lawful remedy to enforce its rights including,
debiting the account You use for ADP Services and/or sending the account to a collection agency for settlement. There will
be added to all payments hereunder amounts equal to any applicable taxes levied
or based on this Agreement, excluding taxes based on ADP's net income.
In the event that, due to changes in legal requirements, product modifications or
enhancements or new product offerings in connection with any Background Check, ADP
provides additional services not otherwise included in the selected Background Check
Services,
as may be modified, enhanced
or changed by ADP from time to time,
such additional services will be
provided subject to an additional charge. In addition, if any change in the implementation
of the Background Check Services occurs that requires ADP to devote resources, spend
time or other costs not contemplated by this Agreement, You agree to pay
such additional costs as required by ADP.
If You receive Background Check Services,
a
service fee will apply when ordering the New York Consolidated Criminal
History Report. You agree that Your start date may change depending on when You start
processing payroll but these Terms still apply.
B. Payments
ADP accepts direct debit of funds ("DDF") as payment for the Services. ADP will not
accept cash, checks, C.O.D. orders and wire transfers for the Services. ADP does
not accept credit cards except in limited circumstances for specific services. Your
bank account will be debited, or Your credit card charged, as applicable. ADP may
obtain pre-approval from the credit card company for an amount up to the amount
of the order. Billing to Your credit card occurs once You click the Purchase Now
button. For those specific services for which ADP accepts credit cards, the following
are accepted: Visa, MasterCard, and American Express. PLEASE NOTE: ADP is unable
to accept credit cards issued by banks outside of the United States. Debit cards
and check cards have daily spending limits that may prevent the processing of Your
order. If a purchase is declined online due to credit card issues, please
ensure all data is correct and resubmit. If the transaction is not accepted You
will be unable to use that card for Your purchase and should use another credit
card.
C.
You understand, acknowledge and agree that You, and not ADP, are responsible for the payment of any local, state,
Federal or other taxes due and in no event will ADP be liable to pay any taxes due from You or Your employees,
notwithstanding ADP's Tax Filing Services.
5.
License to use the Services
A. RUN,
the Services, any content, materials, tools, calculators, text or images and related
software and systems are the licensed and/or owned property of and embody the proprietary
trade secret technology of ADP and/or its licensors and are protected by copyright
laws and international copyright treaties, as well as other intellectual property
laws. The fees You pay ADP for RUN include a license fee that entitles You to use
the related software and systems to access data processing services. The right to
use RUN and access the data processing services provided by RUN is granted only
to subscribers/licensees of ADP's RUN and their employees, for the sole purpose
of using RUN, and this license terminates when You stop receiving RUN.
ADP grants You a non-exclusive, non-transferable license to use RUN to access
data processing services, and any related documentation supplied to You by ADP.
Access to RUN and related systems and software are licensed not sold. You may not
modify, create derivative works from, reverse engineer, decompile or disassemble
or otherwise try to discover any trade secret contained in RUN or in any software
or system used to provide RUN, except and only to the extent
that applicable law expressly permits, despite this limitation. You may not transfer,
sell, rent, lease, lend or use RUN, the Services or any software or system used
to provide them, to any third person or for commercial software hosting or other
service bureau services. You may not download all or any part of ADP's proprietary
software. You receive no rights to RUN software or systems or intellectual property
of ADP or its licensors, except as expressly stated herein. ADP may terminate or
suspend Your access to RUN or any related Services (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 Services in an inappropriate manner.
RUN
and related software and systems are intended to permit the transmission of data
from within the United States and may not be used or accessed from outside the United
States or in any way that violates any applicable international, federal, state
or local laws and/or regulations.
B. Teledata Clients:
If You are a Teledata client, You are not permitted to access or use the ADP proprietary
software except to view Your company data, print standard reports and modify employee
data. You cannot use the ADP proprietary software to run payroll. As a Teledata
client You have chosen to transmit Your payroll, tax and related information to
ADP either by fax or over the telephone to an ADP representative. Therefore, the
license and software use rights granted under these Terms to use RUN do not
apply to You except as noted above.
C.
Mobile Devices
.
If you are accessing RUN on a mobile device (a "Device") or downloading the ADP
mobile application for Services ("Licensed Application") on a Device, the following
additional terms apply.
a) Services. The
Services available through the Licensed Application are licensed, not sold, to You
for use under these Terms, subject to the ADP standard terms of service currently
governing ADP's provision of Services to You. If you are downloading the Licensed
Application onto a Device to access the Services, then the word "Site" as referenced
herein then will be deemed to mean "Licensed Application".
b)
Scope
of License. The license granted to You for the Licensed Application,
or by Your use of the Site on a Device, is a limited, non-transferable license to
use the Licensed Application or Site by means of a Device that is approved for use
for the Services, that You own or control and as permitted by the Device's usage
rules. You may not distribute or make the Services available over a network where
they could be used by multiple Devices at the same time.
c) Commercial
Items.
The Licensed Application and related documentation are "Commercial Items", as that
term is defined at 48 C.F.R. Section 2.101, consisting of "Commercial Computer Software"
and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R.
Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with
48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202-1 through 227.7202-4, as
applicable, the Commercial Computer Software and Commercial Computer Software Documentation
are being licensed to US Government end users (a) only as Commercial Items and (b)
with only those rights as are granted to all other end users pursuant to the terms
and conditions herein. Unpublished rights reserved under the copyright laws
of the United States.
d) Access
to other services from Devices.
In addition, third party services and
third party materials that may be accessed from, displayed on or linked to the Device
are not available in all languages or in all countries. ADP makes no representation
that such services and third party materials are appropriate or available for use
in any particular location. To the extent You choose to access such services or
third party materials from your Device, you do so at Your own initiative and are
responsible for compliance with any applicable laws including, but not limited to,
applicable local laws. ADP, and its licensors, reserve the right to change, suspend,
remove, or disable access to any Services at any time without notice. In no event
will ADP be liable for the removal of or disabling of access to any such Services.
ADP may also impose limits on the use of or access to certain Services, in any case
and without notice or liability.
6.
Account Security and Passwords
A. In order
to access and use RUN You will be required to provide proper credentials including
Your User Name, Password and any other authentication required by ADP ("Authentication")
to access RUN. 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 RUN. You are responsible for any use or misuse
of Your account or RUN resulting from any third party, including any individual, contractor or vendor, using any Authentication selected
by You or issued to You. ADP will have no liability for any claims or losses as a result of You
sharing or allowing access to Your Authentication. You agree to notify ADP immediately of any known or
suspected access or use by an Unauthorized Third Party, including 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 RUN known to or suspected by You.You are responsible for
maintaining the security and confidentiality of Your Authentication involved
in obtaining access to password protected or secure areas of ADP sites and
systems and shall not disclose Your Authentication or your confidential
information to Unauthorized Third Parties. In order to protect You and
your data, ADP may suspend your use of ADP, RUN or the Services, without
notice, pending an investigation, if any unauthorized disclosure or use or
breach of security is suspected.
B. You may change Your Authentication at any time
by following the instructions located under the Security section of the Company
Tab ("My Security Profile" and "Change My Password") in RUN. Data transmitted through
RUN is encrypted for the user's protection. However, the security of transmissions
over the Internet can never be guaranteed. ADP is not responsible for any interception
or interruption of any communications through RUN or related software or systems
or for changes to or losses of data.
C. In order to protect You and Your data, ADP
may suspend Your use of the Services immediately, without notice, pending an investigation,
if any breach of security is suspected. In connection with the Background Check
Services, You acknowledge that, for security reasons, Your Background Check account
may be inactivated by ADP after a prolonged period of inactivity; provided, however,
that inactivation of an account does not result in termination of this Agreement.
In the event Your Background Check account becomes inactive, You must contact ADP
to reactivate the Background Check account.
You
acknowledge that as a result of an account being deactivated, in certain circumstances,
You may be required to provide new certifications with respect to Your obligations
under this Agreement and in connection with the Background Check Services.
7.Disclaimer of Warranties
A. NEITHER
ADP NOR ITS LICENSORS OR VENDORS MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE
CONDITION, SUITABILITY, RELIABILITY, AVAILABILITY, COMPLETENESS, SECURITY, TIMELINESS,
OR ACCURACY OF
RUN OR THE SERVICES OR ANY INFORMATION,
CALCULATIONS, SOFTWARE OR OTHER MATERIALS OR RESULTS INCLUDED IN OR AVAILABLE THROUGH
RUN OR THE SERVICES,
FOR ANY PURPOSE. ALL OF THE FOREGOING ARE PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND. THE SERVICES ARE PROVIDED
AS A RESEARCH AND REFERENCE TOOL ONLY AND DO NOT, AND ARE NOT INTENDED TO, CONSITITUTE
LEGAL ADVICE. ADP DOES NOT PROVIDE LEGAL ADVICE. ADP AND ITS LICENSORS AND VENDORS HEREBY DISCLAIM ALL REPRESENTATIONS,
WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH REGARD TO
RUN OR ANY INFORMATION, CALCULATIONS, SOFTWARE OR OTHER MATERIALS OR RESULTS INCLUDED
IN OR AVAILABLE THROUGH RUN OR THE SERVICES,
INCLUDING ALL IMPLIED WARRANTIES
AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU
WILL BE RESPONSIBLE FOR (AND NEITHER ADP NOR ITS LICENSORS OR VENDORS
WILL
BE LIABLE FOR): (1)
THE CONSEQUENCES OF ANY
INSTRUCTIONS YOU MAY GIVE TO ADP; (2) YOUR FAILURE TO USE RUN IN THE MANNER PRESCRIBED
BY ADP; (3) YOUR FAILURE TO PROTECT YOUR AUTHENTICATION, INCLUDING WITH RESPECT
TO ADP’S POLICIES REGARDING PROVIDING ACCOUNT AUTHENTICATION ACCESS TO THIRD PARTIES; (4)
MAINTAINING
AND BACKING-UP ANY INFORMATION YOU ARE PROVIDING OR USING IN CONNECTION WITH THE
ADP RUN SERVICES;
AND (5) YOUR FAILURE TO SUPPLY
ACCURATE INPUT INFORMATION.
B. ADP
will not be liable for any damage or losses, including damage, loss or disclosure
of data, accounts, revenue or business, arising out of or otherwise related to (1)
use of RUN by You or by any other party to whom You have given access to Your RUN
account information or RUN; (2) errors, bugs or other defects in RUN; (3) lost company,
employee or vendor information (e.g., payroll information, social security numbers,
lost records regarding withholdings, etc.); (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 or unauthorized access to ADP's records, programs or
services; or (6) Your actions with Your employees or vendors, or the use of their
information.
C.
Third
party links, web sites, content and services.
a) ADP
prohibits unauthorized links to the Site or the Services and the framing of any
information contained on the Site or any portion of the Site or the Services. ADP
reserves the right to disable any unauthorized links or frames. ADP has no
responsibility or liability for any material on other web sites that may contain
links to the Site or the Services. The Services and any web sites may
display, include or make available, services, content, data, information, applications
,
links, terms of use or materials of or from third parties or provide links to certain third party
web sites not under the control of ADP. Third party materials and links to
other web sites are provided solely as a convenience to You. You acknowledge
and agree that ADP is not responsible for examining or evaluating the content, accuracy,
completeness, timeliness, validity, copyright compliance, legality, decency, quality
or any other aspect of such third party materials or web sites. ADP does not warrant
or endorse and does not assume and will not have any liability or responsibility
to You or any other person for any third party services, terms, third party materials or
web sites, or for any other materials, products, or services of third parties. You
also agree that any third party charges that are necessary to use the Site or the
Services, such as internet charges and service provider charges, are Your responsibility
and not that of ADP. You understand that by using any of the third party services,
You may encounter content that may be deemed offensive, indecent, or objectionable,
which content may or may not be identified as having explicit language, and that
the results of any search or entering of a particular URL may automatically and
unintentionally generate links or references to objectionable material. Nevertheless,
You agree to use such services at Your sole risk and ADP shall not have any liability
to You for content that may be found to be offensive, indecent, or objectionable.
ADP DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY PRODUCT, INFORMATION OR SERVICE
OFFERED BY A THIRD PARTY THROUGH THE SITE OR SERVICES, AND WILL NOT BE A PARTY TO
OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN ANY USER OF THE SITE OR SERVICES AND
ANY SUCH THIRD-PARTY PROVIDER.
b) Services available through or integrated with RUN. At times, ADP may make available to You through RUN or the Services,
or integrate RUN or the Services with, the services of a third party, either through a link, integration, or otherwise.
ADP reserves the right to terminate such links, services or integrations at any time for any reason. If You use any third
party services that are integrated with or linked to the Site or Services which require the transmission, use, sharing,
access or exchange of Your Client Content or any other payroll or other data or information You provide to ADP or the third
party, You are expressly agreeing to the transmission, use, sharing, access and exchange of such data between ADP and the
third party. Your use of any third party services will be governed by any terms You agree to with the third party and in the
event of any conflict between these Terms and any third party terms, these Terms will apply to the provision of the RUN
Services by ADP to You.
c) ADP Marketplace.
ADP may provide You with access to the ADP Marketplace. You acknowledge that any third party application or service
purchased by You through the ADP Marketplace is provided by a third party and not ADP and ADP makes no endorsements,
representations or warranties (including any representations or warranties regarding compliance with laws) regarding
such application or service. You will enter into a relationship directly with the third party provider of such
application or service. Any application or service purchased through the ADP Marketplace will be governed
exclusively by the terms and conditions agreed to by You and the third party provider and not by this Agreement.
ADP will not provide any advice, service or support with respect to any third party application or service purchased
on the ADP Marketplace.
d) Feedback.
You acknowledge and agree that You or Your employees may be asked or have the opportunity
to provide suggestions, comments, submissions, content or other feedback
regarding RUN, directly to an ADP representative, on an ADP web or social media
site or the Services ("Feedback") either within RUN, directly to an ADP
representative, on an ADP web or social media site or through surveys or links to
or from third party sites that may collect such information from You on behalf of ADP. You
agree that all Feedback will automatically become the property of ADP,
without any compensation to You or any obligation for ADP to review the Feedback,
is and will be given entirely voluntarily and any Feedback,
even if designated or deemed as confidential by You, will not create any confidentiality
obligation for ADP. Furthermore, You hereby acknowledge and understand that, with
respect to any Feedback, ADP is and will be free to use, disclose, reproduce, license
or otherwise distribute or redistribute, and exploit in any way the Feedback provided to it as it sees fit,
entirely without obligation or restriction of any kind on account of intellectual
property rights or otherwise. You represent and warrant that You own and have the right
to provide such Feedback and will indemnify and hold ADP harmless from and against any
claims resulting from a breach of this representation and warranty.
8.Intellectual Property
A.
Ownership of Proprietary Rights
All
computer
programs (other than pre-packaged third-party software), tutorials and related documentation
made available, directly or indirectly, by ADP to You as part of the Services
are the exclusive property of ADP or the third parties from whom ADP has
secured the rights to such Services. All rights, title and interest in or to any
copyright, trademark, service mark, trade secret, and other proprietary right relating
to the Services and the related logos, names, etc. are reserved. The use of any
software included in, or supplied by ADP for use with, the Services will be governed
by the license terms of this Agreement and any additional license (whether written,
shrink-wrapped or on-line) that may be delivered to You in connection with Your
use of RUN (such as any software required to view or print reports generated by
RUN). In the event of a conflict, the terms of this Agreement shall prevail.
B.
ADP Indemnity
Subject to the remainder of this Section 8B, ADP will defend
You in any suit or cause of action, and indemnify and hold You harmless against
any damages payable to any third party in any such suit or cause of action, alleging
that the Services as used in accordance with this Agreement infringe any U.S. patent,
copyright, trade secret or other proprietary right of any third party. The foregoing
obligations of ADP are subject to the following requirements: You will take all
reasonable steps to limit any potential damages which may result; You will promptly
notify ADP of any and all such suits and causes of action; ADP controls any negotiations
or defense of such suits and causes of action, and You assist as reasonably required
by ADP. The foregoing obligations of ADP do not apply to the extent that the infringing
Services or portions or components thereof or modifications thereto were not supplied
or directed by ADP, or were combined with other services, processes or materials
not supplied or directed by ADP (where the alleged infringement relates to such
combination).
C.
Use of Your Authorized Marks
In the event that ADP makes available branding
of any materials, cards and/or websites associated with the Services and You request
such branding, You grant to ADP, to the card issuers and any third party service
providers designated by ADP (collectively, "Authorized Users") the right to display
Your trademarks, trade names, service marks, logos and designs designated by You
(the "Authorized Marks"), subject to Your right to review and approve the copy prior
to the use of such Authorized Marks. This authorization will cover the term of
this Agreement and, if You are receiving Pay Card Services, any period of ongoing
use of the Cards by employees after termination of this Agreement.
9.
Your Warranties
By subscribing
to RUN, You make the following representations and warranties: (1) You have the
legal capacity and authority to (a) enter into and be bound by these Terms, (b)
to subscribe to and use RUN in accordance with these Terms
and (c) if You are acting in a corporate capacity, to bind Your company;
(2) You will not use RUN for any purpose that is unlawful, or prohibited by these
Terms (as may be modified from time to time); and (3) All information supplied by
You or by others using Your account is true and accurate, including information
submitted as part of the registration, subscription and billing process.
10.
Confidentiality/Privacy
A. Confidentiality.
All
Confidential Information disclosed hereunder will remain the exclusive and confidential
property of the disclosing party. The receiving party will not disclose the Confidential
Information of the disclosing party and will use at least the same degree of care, security,
discretion and diligence in protecting the Confidential Information of the disclosing
party as it uses with its own confidential information. The receiving
party will limit access to Confidential Information to its employees and authorized
representatives with a need to know and will instruct them to keep such information
confidential. Notwithstanding the foregoing, the receiving party may disclose Confidential
Information to the extent necessary to enforce its rights under this Agreement, including with respect to
any payments that are due and uncollected that necessitate sending Your account to a collection agent.
In addition to any other authorizations in these Terms, You consent and agree that
ADP may (i) disclose Confidential Information to the extent necessary
for ADP to perform the Services, (ii) disclose Confidential Information among ADP
affiliates, subsidiaries or companies under common control with ADP, (iii) share Your FEIN number(s)
with its trusted business partners in order to identify mutual clients, (iv) disclose
Confidential Information to a third party, including subcontractors, to the extent that disclosure of such
information is required to perform the Services, the Background Check Services or
any other Services You requested, or disclosure is required in response to a subpoena, restraining notice, summons or
other legal process, or in connection with any litigation or legal procedure, including reporting, assessing or investigating suspected fraud or criminal activity, (v) disclose Your banking and company information to the ADP banking partner
that referred You to ADP, and (vi) disclose Confidential Information in connection
with the Background Check Services as is required by ADP under any requirements
of governmental data sources and consumer reporting agencies (for which ADP is a
reseller), or under or to comply with any applicable laws, rules and/or regulations (including, without limitation,
in connection with an audit or regulatory examination by a governmental authority).
You acknowledge and agree that ADP or its affiliates may from time to time communicate, including by email,
directly with You and/or Your current and terminated employees and/or Your current and terminated payees
in order to service or provide the Services, solicit Feedback or market its products
and services or those of its recommended vendors or partners and may use certain Confidential Information to do so.
ADP may also provide access to and the ability to view, print or download pay statements or other information
to the extent related to such employee or payee. This access will be provided as part of the Services for the term of
this Agreement and ADP may, for such period of time as determined solely by ADP, continue to provide
such access to employees following any termination or suspension of the Services
as a convenience and to the extent ADP maintains the information in accordance with
these Terms. You agree ADP may additionally disclose and/or
use Your employee information where the employee has requested and/or provided their authorization
to the disclosure and use of the information. Additionally, ADP may share Confidential Information with
its affiliate, ADP Broker Dealer, Inc. ("ADPBD") in order for ADP or ADPBD to market
or service "Rollover IRAs" for Your terminated employees. You also agree that ADP
or ADPBD may disclose such information to a terminated employee to the extent it
relates to such employee and acknowledges that ADP or ADPBD may be compensated by
a financial institution if an employee selects a Rollover IRA. Upon the request
of the disclosing party, the receiving party will return or destroy all Confidential
Information of the disclosing party that is in its possession. Notwithstanding the
foregoing, ADP can retain information for regulatory purposes or in back-up files,
provided that ADP's confidentiality obligations hereunder continue to apply. You
also agree that, in addition to the use of Your or Your employees’ Confidential Information as otherwise set forth in these Terms,
ADP may also use Your, Your employees' and participants' and other Service recipients' information
for purposes other than performance of the Services or as otherwise set forth, in an aggregated, anonymized
form, such that neither You nor such person(s) may be identified,
and You will have no ownership interest in such aggregated, anonymized data. You
authorize ADP to release employee-related, and such other data as required to
perform the Services, to third party vendors of Yours as designated by You from time to time. For
purposes of this Section, "Confidential Information" will mean: all information
of a confidential or proprietary nature provided by the disclosing party to the
receiving party for use in connection with the Services, and will include, with
respect to any Background Check Services, the Guide and any ADP operating guidelines
which may be provided with respect to the Background Check Services, but does not
include (i) information that is already known by the receiving party, (ii) information
that becomes generally available to the public other than as a result of disclosure
by the receiving party in violation of this Agreement, and (iii) information that
becomes known to the receiving party from a source other than the disclosing party
on a non-confidential basis. Confidential Information of ADP also includes all ADP
trade secrets, processes, proprietary data, information or documentation related
thereto, any pricing or service information or coummunications furnished to You by ADP. Your Confidential
Information also includes all personally identifiable payroll, employee-level and payee-level
data, as well as Your Personal Data as defined below in Section 10B and the attached Data Privacy Appendix.
B. Privacy.
ADP is Your service provider and processes data in accordance with Your instructions.
The Data Privacy Appendix attached hereto shall supplement these Terms and
outline the data protection obligations between You and ADP.
Information about You submitted through RUN or the Services is subject to ADP's privacy statement,
located at
https://privacy.adp.com/privacy.html
.
11.Limitation of Liability
This
Section 11 sets forth the full extent of ADP's liability for damages resulting from
this Agreement or the Services rendered or to be rendered hereunder, regardless
of the form in which such liability or claim for damages may be asserted, and sets
forth the full extent of Your remedies. Each of ADP and You acknowledges that the
fees for the Services to be provided hereunder reflect the allocation of risk set
forth in this Section 11.
A.
ADP Responsibility
ADP will correct any of Your reports, data or tax agency
filings, as the case may be, produced incorrectly as a result of an ADP error, at
no charge to You. Additionally, ADP will reimburse You for (i) actual damages
You incur as a direct result of the criminal or fraudulent acts or willful misconduct
of ADP or any of its employees, or the loss or misdirection of Your funds in possession or
control of ADP due to ADP's error or omission (ii) any penalty imposed against You as a result
of an error or omission made by ADP in performing the Tax Filing Services or (iii)
any interest assessed against You as a result of ADP holding Your tax funds past
the applicable due date as a result of an error or omission made by ADP in performing
the Tax Filing Services.
B.
Your Responsibility You will be responsible for (i) the consequences of any
instructions You may give to ADP, (ii) Your failure to use the Services in the manner
prescribed by ADP, and (iii) Your failure to supply accurate input information.
C.
Limit on Monetary Damages
Notwithstanding anything to the contrary contained
in this Agreement (other than as set forth in Section 11.A. regarding ADP errors and any direct damages
You incur for infringement claims as set forth in Section 8.B. above), ADP's aggregate
liability under this Agreement during any calendar year for damages (monetary or
otherwise) under any circumstances for claims of any type or character made by You
or any third party arising from or related to the Services, will be limited to the
lesser of (i) the amount of actual damages incurred by You or (ii) ADP's charges
for the affected Services; provided however, that ADP's aggregate liability hereunder
in any calendar year will not exceed the average charge for one payroll processing
paid by You to ADP for the payroll services during such calendar year. ADP will
issue You a credit(s) equal to the applicable amount and any such credit(s) will
be applied against subsequent fees owed by You.
D.
No Consequential Damages
NEITHER ADP, NOR YOU WILL BE RESPONSIBLE FOR SPECIAL,
INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER SIMILAR DAMAGES (INCLUDING LOST PROFITS
OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF INFORMATION) THAT THE OTHER PARTY
MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER
CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBLITY OF SUCH DAMAGES.
12.
Term and Termination; Your Default; Remedies Upon
Default
A. Termination BY AGREEING TO THESE TERMS YOU ARE AGREEING TO AUTOMATIC RENEWALS OF THIS AGREEMENT BASED ON YOUR PROCESSING CYCLE AND FREQUENCY.
Either party can terminate this Agreement at any time on at least
thirty (30) days prior written notice.
Either Party can also
suspend performance and/or terminate this Agreement immediately upon written notice
at any time if: (i) the other Party is in material breach of any material warranty,
term, condition or covenant of this Agreement and fails to cure that breach within
thirty (30) days after written notice thereof; (ii) the other party stops business
operations; or (iii) the other Party becomes insolvent, generally stops paying its
debts as they become due or seeks protection under any bankruptcy, receivership,
trust deed, creditors arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against the other (and not dismissed within 90 days
after commencement of one of the foregoing events). ADP may also suspend performance
and/or terminate this Agreement immediately without prior notice in the event You,
Your employee(s) or any other third party
(i) includes in any Services any Client
Content, or undertakes any action(s), which is obscene, offensive, inappropriate,
threatening, or malicious; which violates any applicable law or regulation,
including if You have violated, or conducting business with You, a payee or subsidiary of Yours,or the provision of Services to You,
is in violation of, or causes or will cause ADP or its Affiliates to be in violation of,
any sanction laws applicable to ADP or its Affiliates,
or any contract, privacy or other third party right; or which otherwise exposes ADP to
civil or criminal liability, including in response to any restraining notice or
(ii) wrongfully uses or accesses
the Services or any other systems of ADP used in the performance of its obligations
under this Agreement or (iii) are involved in any dispute regarding authority to
provide ADP with instructions under this Agreement and ADP is unable to determine the
authorized contact on the account from whom to take instructions. Additionally, Payment Services may be immediately suspended
or terminated by ADP without prior notice if (i) ADP has not received timely funds
from You as required by Section 1C or 4A above; (ii) a bank notifies ADP that it is no
longer willing to originate debits from Your account(s) and/or credits on Your behalf
for any reason, (iii) the authorization to debit Your account is terminated or ADP
reasonably believes that there is or has been fraudulent activity on the account,
(iv) ADP reasonably determines that You no longer meet ADP's credit/financial eligibility
requirements for such Services or (v) You have any material adverse change in Your
financial condition. In addition to any other termination rights in this Agreement,
if ADP determines that You have failed to comply with any provision of these Additional
Terms related to Background Check Services, ADP may, at its sole discretion and
upon notice to You, immediately terminate any Background Check Services.
B. Post-Termination If any of the Services are or may be terminated by ADP,
ADP will be entitled to allocate any funds available to ADP in such priorities
as ADP (in its sole discretion) may determine appropriate (including reimbursing ADP for
payments made by ADP hereunder on Your behalf to a third party)
and You will immediately: (i) become solely responsible for all third party payment
obligations now or hereafter due (including, for Tax Filing Services, all related
penalties and interest), (ii) reimburse ADP for all payments made by ADP hereunder
on Your behalf to any third party, and/or (iii) pay any and all fees and charges
invoiced by ADP to You relating to RUN.
If ADP elects
not to terminate any or all of the Services as permitted hereunder, ADP may require
You to pay Your outstanding and all future third-party amounts covered by the Services
and/or ADP's fees and charges for the Services to ADP by bank or certified check
or by wire transfer as a condition to receiving further Services.
13.
Funding Indemnification
You
will be liable for debits properly initiated by ADP hereunder. You unconditionally
promise to pay to ADP the amount of any unfunded payroll or tax liability (including any debit
that is returned to ADP because of insufficient or uncollected funds or for any
other reason), on demand and interest thereon at the rate set forth in Section
4A. Also, if any debit to an employee or other Payee's or Your account reversing
or correcting a previously submitted credit(s) is returned for any reason, You unconditionally
promise to pay the amount of such debit upon demand and interest thereon at the
rate set forth in Section 4A. You will be liable for, and will indemnify ADP against,
any loss, liability, claim, damage or exposure arising from or in connection with
any fraudulent or criminal acts of Your employees or payees. You agree to cooperate
with ADP and any other parties involved in processing any transactions hereunder
to recover funds credited to You or any employee as a result of an error made by
ADP or another party processing a transaction on behalf of ADP. You agree that in
the event You overfund any amount due from You, ADP may return the funds to the bank
account on file with ADP.
14.
Other Features
A.
Data Access/Accountant Connect Feature
When You authorize Your accounting professional or other
third party ("Your Representative") to access the RUN Data Access or Accountant Connect feature, You grant
Your Representative permission to view, access and/or print electronic reports and tax forms and notices,
view, print and download or provide mapping to or for Your general ledger information and run payroll, as authorized by You. The information
accessible by Your Representative is generated by RUN based on and/or including
Your Client Content. This method of access may permit Your Representative to
make changes or updates to Your Client Content, when You authorize Your Representative to process payroll using this feature.
Your Representative will have access to employee level information for all employees, and will have the ability
to grant that same access to others within their organization. You and Your Representative, including with respect to Your Client Content and running payroll.
are solely responsible for any activity conducted with the Data Access or Accountant Connect feature by
You or Your Representative, including with respect to your client content, running payroll or general ledger mapping. ADP may keep Your payroll reports and tax forms for a period of time after any
termination of Your services for a period of time designated by ADP and make these records and reports
available to You or Your Authorized Representative to view, print and/or download, as a convenience, without
obligation to do so, if Your Representative was previously authorized to access these records and reports.
B.
CPA View Feature
When You authorize Your accounting professional ("Your CPA")
to access the RUN CPA View feature, You grant Your CPA permission to view Your company
and employee information and, view and/or print Your reports, view, print and/or
update tax forms, download Your general ledger information, perform general ledger
mappings (assign general ledger accounts to payroll items), as well as to change
their login password and update their security profile. The information accessible
by Your CPA is generated by RUN based on and/or including Your Client Content. This
method of access will not permit Your CPA to make any changes or updates to Your
Client Content. Your CPA will have access to employee level information for all
employees. You and Your CPA are solely responsible for any activity conducted with
the CPA View feature by You or Your CPA.
C.
Multi-Company Access Feature
When You are processing Your payroll using RUN
for multiple entities, RUN
will provide You with the ability, through its Multi-Company Access Feature, to
access multiple companies without having to log out of one company and log back
into another company. When You utilize the Multi-Company Access feature You can
assign multi-company access administrator rights to a RUN user. By doing so You
acknowledge that such RUN user will have the authority to set up other RUN users
for the feature. The list of companies that a user can access using this feature
can be customized for each user. The user's role will be the same for all the companies
listed for the user and may be changed during the Multi-Company Access setup. You,
Your administrator and any users designated using this feature are responsible for
any activity conducted in RUN.
15.General
A. Inducement You have not been induced to enter into this Agreement by any
representation or warranty not set forth in this Agreement. This Agreement contains
the entire agreement of the parties with respect to its subject matter and supersedes
and overrides all prior agreements on the same subject matter, including any printed
terms You may have signed, and will govern all disclosures and exchanges of Confidential
Information made by the parties previously hereto. This Agreement contains the most
updated RUN terms and may be modified from time to time. In the event of a conflict
between these Terms and any other previously signed agreements, these Terms will
apply unless You have signed a Resource on Run Client Services Agreement ("Resource CSA")
in which case the Resource CSA will govern the provision of those Services to You.
B.
No Third Party Beneficiaries
ADP has no obligation to any third party (including,
without limitation, Your employees and/or any taxing authorities) by virtue of this
Agreement. Other than with respect to ADP's vendors/licensors as set forth under
sections 1(F)(xvii), 7 and 11 above, there will be no third party beneficiaries
to this Agreement.
C.
Force Majeure
Any party hereto will be excused from performance under this Agreement
for any period of time that the party is prevented from performing its obligations
hereunder as a result of an act of God, war, utility or communication failure or
other cause beyond the party's reasonable control.
D.
Non-Hire
During the term of this Agreement, You will not solicit the employment
of any ADP employee who has been involved in furnishing Services hereunder.
E.
Waiver
The failure of either party at any time to enforce any right or remedy
available to it under this Agreement with respect to any breach or failure by the
other party will not be construed to be a waiver of such right or remedy with respect
to any other breach or failure by the other party.
F.
Severability
If any of the provisions of this Agreement will be invalid or
unenforceable, such invalidity or unenforceability will not invalidate or render
unenforceable the entire Agreement, but rather the entire Agreement will be construed
as if not containing the particular invalid or unenforceable provision or provisions,
and the rights and obligations of You and ADP will be construed and enforced accordingly.
G.
Relationship of the Parties
You and ADP expressly understand and agree
that each party is an independent contractor in the performance of each and every
part of this Agreement, is solely responsible for all of its employees and agents
and its labor costs and expenses arising in connection therewith.
H.
Governing Law; Jurisdiction
This Agreement is governed by the laws of the State of New York
without giving effect to its conflict of law provisions. Any disputes
that may arise between You and ADP regarding the performance or interpretation
of this Agreement shall be subject to the exclusive jurisdiction of the state
courts of New Jersey in Essex County or the United States District Court for the District
of New Jersey. You hereby expressly submit and consent in advance to jurisdiction
in any action or proceeding commenced by either party in New Jersey state or federal
courts and waive any claim that any proceedings brought in such courts have been brought
in an inconvenient forum. THE PARTIES HEREBY IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY.
I.
Pricing
The prices stated herein or in any sales order are not contingent or dependent on, or in any
way related to, Your purchase of other products or services from ADP not covered
hereunder, and will be honored regardless of whether or not such other products
or services are purchased.
J.
Printing These Terms and Conditions of Service
If You do not have print capability
or You otherwise desire to obtain a hard copy of these Terms, please visit RUN customer
service Web site and send an email requesting a hard copy. You may view Your Terms
on the Forms page in the Support pages within the RUN application.
EXHIBIT A
Pay Card Terms
and Conditions of Service
(i) Pay Card Services
shall refer to ADP's payment of certain of Your Payees, through a Pay Card for wages, commissions, consulting fees or similar compensation or work-related
expenses ("Permitted Payments") which are to be paid in Your normal payroll cycle.
Pay Cards are issued by a financial institution selected by ADP (the "Issuing
Bank"). The Pay Cards issued to Payees of Yours may be referred to herein collectively
as the "Cards" or each a "Card" or "Pay Card" and Payees of Yours who receive a
Card may be referred to herein collectively as "Cardholders" or each a "Cardholder".
You will assist and cooperate with ADP in the use of the Pay Card Services and will
assign a liaison person to so assist ADP. You agree that You will use the Pay Card
Services solely to direct legal Permitted Payments to Payees via the Pay Cards.
You also agree that You will not unduly influence a Payee's decision with respect
to receiving their Permitted Payments via a Pay Card. In addition, unless approved
by ADP in writing, You agree that You may not make Cards available to individuals
residing in any country other than the United States, and You represent and warrant
that any payments that You request ADP to make hereunder will not violate any laws
of the United States, including employment eligibility laws, and are for services
rendered in the employment context. You shall not mail, distribute, transport or
otherwise provide Cards to any individual outside the United States without the
express written consent of ADP.
(ii) You understand
and acknowledge that access to the ADP Pay Card Services shall be conditioned upon
You passing ADP's credentialing process prior to implementation and passing any
additional credentialing that ADP may deem necessary in connection with the ADP
Pay Card Services. You further understand that the Pay Card Services may be modified
as ADP may deem appropriate to assist ADP or the Issuing Bank in complying with
its obligations.
(iii) Cardholder
Set-Up.
You
will set-up (or cause ADP to set-up) each Payee as a Cardholder using data and/or
procedures required by Issuing Bank or ADP. You represent and warrant that You have
all necessary consents and authorizations of each Payee included in submitted set-up
data that is required under applicable law and rules, including NACHA (as defined
below), for Payee to (a) receive payments from You on its Card and (b) participate
in the ADP Pay Card Services. You agree to promptly provide documentation or records
related to the set-up of Cardholders and participation of Cardholders in the ADP
Pay Card Services to ADP and/or Issuing Bank upon request and agree that such information
may be provided to any regulatory authority having jurisdiction over the Issuing
Bank or ADP. You, and not ADP nor any of its subcontractors, is responsible for
reviewing all enrollment information supplied by such Payees and confirming that
it is accurate and complete.
Prior to set-up of any Payee on the Cardholder database and distribution of a Card
to such Payee, You will: (i) inspect identification documents that will verify such
Payee's identity and eligibility to work in the U.S. ("Identity Verification Documents")
(e.g., (1) a passport or (2) a U.S. issued driver's license or picture identification
card issued by a state or U.S. federal agency and social security card or (3) a
U.S. issued driver's license and birth certificate); and (ii) obtain from such Payee
and provide to ADP the following information, which information provided shall be
accurate and verified by You: (a) name; (b) residential street address (a Post Office
Box is unacceptable); (c) date of birth; (d) social security number for U.S. citizens
and permanent residents (or other government issued ID number acceptable to ADP
and Issuing Bank for individuals who are not U.S. citizens or permanent residents);
and (e) personal telephone number. You agree to provide such additional information
as may be required by ADP or the Issuing Bank in issuing a Card. You further agree
that ADP or Issuing Bank (directly or through a subcontractor) may request and obtain
identity information and legal documentation directly from the Payee to verify the
identity of any Payee set up on the Cardholder database or participating in the
ADP Pay Card Services and that a Payee may be denied ADP Pay Card Services for several
reasons, including Your or Payee's failure to provide accurate information or the
inability by ADP or Issuing Bank (directly or through a subcontractor) to validate
the personal information of the Payee. You also covenant to ADP and Issuing Bank
that, with respect to each Cardholder, You will: (i) make and preserve either of
the following: (a) at least one (1) copy of all Identity Verification Documents;
or (b) a description of the Identity Verification Documents that were relied on
by You noting the date the Verification Documents were reviewed, type of document
(e.g., driver's license, government issued identification, passport, alien registration
card), any identification number contained in the document, the place of issuance
(e.g., state or country) and, if any, the date of issuance and expiration date,
provided that if You utilize the Pay Card to pay independent contractors who use
form 1099, You will preserve a copy of all Identity Verification Documents as required
by (i)(a) above for those Payees. You agree to retain such documentation during
the time that such Payee is a Cardholder until the earlier of (a) five years from
termination of Your obligation to make payments to such Payee or (b) five years
from termination of such Payee's Card account; provided, however, that in the event
a longer retention period is required for the Issuing Bank or ADP to meet its legal
obligations, as a result of a change in applicable law or official interpretations
thereof, ADP shall provide notice of such longer retention period and You shall
retain such documentation for such longer retention period.
(iv) Issuance of
Pay Cards. You may be issued an inventory of instant issue Cards. If You are issued
instant issue Cards, You are responsible for distributing Cards to Your Payees from
Your inventory of Cards. Prior to providing Payee's information to ADP to issue
a permanent Card or load value on an instant issue Card, You shall provide each
Payee with the following notice required under the USA Patriot Act: "IMPORTANT INFORMATION
ABOUT PROCEDURES FOR OPENING A NEW PREPAID CARD ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, federal law requires
all financial institutions to obtain, verify, and record information that identifies
each person who opens an account. What this means for you: When you open a Prepaid
Card account, we may require your name, address, date of birth, Social Security
number, tax identification number and other information that will allow us to identify
you. We may also ask to see your driver's license or other identifying documents."
The USA Patriot Act notice may be updated from time to time by ADP or the Issuing
Bank. Prior to or in conjunction with distributing a Card to any Payee, You shall
(i) remove the account routing information from the card kit; and (ii) provide each
Payee with a copy of the Issuing Bank's Terms and Conditions and other enrollment-related
materials. You will provide Cardholders with any other information and materials
regarding the ADP Pay Card Services provided to You from time to time that is necessary
for Issuing Bank or ADP to comply with applicable laws or regulations. You will
be responsible for the safekeeping of the inventory of Cards received by You and
for any theft or misappropriation of any such Cards prior to a valid and authorized
issuance and distribution of such Card to a Payee of Yours. You shall not, under
any circumstance, disclose or make available the account routing (ABA/DDA) number
to any Payee. You shall direct Payees to the Cardholder services telephone number
to obtain account routing (ABA/DDA) number as there are additional requirements
that must be met before Payees are provided their account routing (ABA/DDA) number.
The amounts to be loaded to each Cardholder's Pay Card will be provided to ADP
by You through one of ADP's standard payroll transmission methods available to You
or another means agreed to by ADP and You. You acknowledge that Payees must accept
the Cardholder Terms and Conditions and that the Card may be cancelled by ADP or
the Issuing Bank at any time in accordance with the Cardholder Terms and Conditions.
(v) Card Status.
You are responsible for ensuring that Cardholders are paid via an alternate pay
method in such instances where a Cardholder's Card has not been activated, or has
been terminated, cancelled or is in inactive status.
(vi) Cardholder Services.
ADP will make available Cardholder services to Cardholders. You will direct Cardholders
to resolve all disputes regarding Card fees and charges and disputed charges on
a Card with, and to report any lost or stolen Cards to, Cardholder services. Contact
information for Cardholder services is in the Cardholder agreement provided with
each Card. Notwithstanding the foregoing, You will be responsible for resolving
all disputes by Cardholders regarding amounts credited or debited to the Cards at
Your request.
(vii) Cardholder
Communication and Card Features. You understand that Cardholders may receive notices,
mailings and other communications directly from ADP or the Issuing Bank. In addition,
ADP may make additional Card features available to Cardholders (e.g., secondary
cards, card portability, reward programs, etc.).
(viii) Issuing Bank.
All Cards issued to Cardholders are the property of Issuing Bank and are subject
to cancellation by the Issuing Bank at any time in accordance with Issuing Bank's
Cardholder Terms and Conditions. In the event of cancellation of a Card, such Payee
will be required to resume another means of payment made available by You.
(ix) Cardholder Information.
You understand that You are not entitled to access or review any Cardholder transaction
information. Notwithstanding the foregoing, in limited circumstances (e.g., where
necessary to investigate or prevent fraud) and consistent with the applicable Cardholder
privacy policy, ADP may provide certain Cardholder transaction information to You.
You agree to treat all Cardholder account information, including Card transaction
records, and all other information related to the Issuing Bank or ADP's provision
of ADP Pay Card Services to Cardholders, whether provided or made available to You
by ADP or Issuing Bank (or their respective agents and subcontractors), as confidential
in accordance with the terms of Section 10 of the RUN Terms and Conditions of Service.
(x) Cardholder Fees.
You acknowledge that separate fees and charges will be applied to Cardholders' Cards
as set forth on the fee schedule provided to each Payee with the card kit prior
to activation of the Card and such fees and charges are the responsibility of the
Cardholder. Such Cardholder fees and charges are subject to change in accordance
with the Cardholder Terms and Conditions applicable to the Cards. Current Card fees
and charges are available upon request by You.
(xi) Use of Your
Authorized Marks. In the event that ADP makes available branding of any materials,
Cards and/or websites associated with the ADP Pay Card Services and You request
such branding, You grant to ADP, the Issuing Bank and any third party service provider
designated by ADP (collectively, "Authorized Users") the right to display the Authorized
Marks on the materials, Cards and/or websites associated with the ADP Pay Card Services,
subject to Your right to review and approve the copy prior to the use of such Authorized
Marks. The term "Authorized Marks" shall refer to
any trademarks, trade names, service marks, logos and designs designated by You
for branding in connection with the ADP
Pay Card Services.
This authorization shall cover the term of this Agreement and any period of ongoing
use of the Cards by Payees after termination. You understand that various marks
identified with ADP, the Issuing Bank and other parties providing services with
respect to the Cards may also appear on the materials, Cards and/or websites associated
with the ADP Pay Card Services. You shall indemnify and hold harmless the Authorized
Users from any loss, damages, claims, liabilities or expenses (including reasonable
attorney's fees) that they may incur as a result of any claim that an Authorized
User's use of or reference to the Authorized Marks as permitted herein infringes
on the right of any other party.
(xii) Use of Issuing
Bank's Marks. Except for materials and collateral provided by either ADP
or the Issuing Bank, You agree that You will not use the name or marks of the Issuing
Bank in any materials You distribute or make available to Your Payees without the
Issuing Bank's prior written consent, as applicable.
(xiii) Payee Information.
Notwithstanding the provisions of Section 10 of the RUN Terms and Conditions of
Service, You agree that ADP and its subcontractors providing ADP Pay Card Services
may disclose information to a Cardholder related to Your loads to Cardholder's Card
and Card enrollment information provided by You regarding Cardholder and may otherwise
use or disclose information regarding a particular Cardholder with the consent of
that Cardholder or consistent with the Cardholder agreement and/or privacy policy
applicable to that Cardholder.
(xiv) Your Responsibility
for Compliance with Laws. Regarding the ADP Pay Card Services, the following
provision shall apply in place of Section 1.E. of the RUN Terms and Conditions of
Service with respect to laws and governmental regulations affecting the ADP Pay
Card Services. Subject to Your fulfillment of Your compliance responsibilities under
the Federal Reserve Board, Regulation E (12 CFR 1005, "Regulation E") as set forth
below, ADP shall be responsible for compliance with the other requirements of Regulation
E applicable to financial institutions with respect to payroll card accounts. Except
as stated in the previous sentence, You (and not ADP, the Issuing Bank or their
agents and subcontractors) are solely responsible for (i) compliance with all laws
and governmental regulations affecting Your business, including state labor and
payroll laws and the permissibility of the ADP Pay Card Services under such laws
and federal employment eligibility laws, and (ii) any use You may make of the ADP
Pay Card Services to assist You in complying with such laws and governmental regulations.
In addition, You shall be responsible for compliance with those requirements of
Regulation E controlled by You. Without limitation of the foregoing, You will fulfill
the following responsibilities: (i) You will distribute to Your Payees all documentation
(including, without limitation, Card fees and charges disclosure schedule and Cardholder
Terms and Conditions) that ADP makes available to You for distribution purposes,
and (ii) You will not mandate that any Payee receive wages only on the Pay Card;
in lieu of such mandate, You will provide to Payees other legally permissible options
for payment of wages. You also represent and warrant that any payments that You
request ADP to make hereunder will not violate any laws of the United States and
are for services rendered in the employment context for Payees who are legally eligible
to work in the U.S. You will not rely solely on Your use of the ADP Pay Card Services
in complying with any laws and governmental regulations.
(xv) Audits and Information
Requests. You agree that upon prior notice from ADP or Issuing Bank, ADP, Issuing
Bank and any regulatory authorities which have jurisdiction over the Issuing Bank
or ADP shall have the right to audit and inspect Your books and records related
to the ADP Pay Card Services and Your performance of Your obligations with respect
thereto, including, without limitation, the following: (i) Your records pertaining
to the set-up of Payees on the Cardholder database and participation of Cardholders
in the ADP Pay Card Services; and (ii) the Identity Verification Documents. Subject
to applicable law, You agree to provide Issuing Bank or ADP with information and
documents related to the ADP Pay Card Services in Your control or possession (x)
in connection with inquiries or requests made by regulators or other enforcement
agencies or authorities or (y) where provision of such information and documents
is otherwise necessary for Issuing Bank or ADP to demonstrate compliance with applicable
law, regulatory requirements or network rules to which Issuing Bank or ADP is subject.
(xvi) Network Rules.
ADP Pay Card Services are subject to financial industry rules and compliance standards
imposed by various card/payment networks or associations (collectively, the "Network
Rules"). You agree, to the extent You utilize ADP Pay Card Services, to comply with
Network Rules identified by the Issuing Bank from time-to-time related to such things
as Card security and fraudulent or impermissible use of Cards.
(xvii) Third Party
Beneficiary. Notwithstanding Section 15 of the RUN Terms and Conditions of Service,
You acknowledge and agree that Issuing Bank (and its respective successors and assigns)
is a third party beneficiary of this Agreement (as it relates to ADP Pay Card Services)
entitled to enforce each of the provisions of this Exhibit and the RUN Terms and
Conditions of Service specifically listed below against You as well as the limitation
of liability provisions of Section 11 of the RUN Terms and Conditions of Service,
including in equity and in law, as if it or they were a party hereto. The provisions
of the RUN Terms and Conditions of Service applicable to the foregoing sentence
include Sections 1C and 12A and the provisions of this Exhibit A applicable to the
foregoing sentence include Sections (ii), (iii), (iv), (viii), (ix), (xi), (xii),
(xiii), (xiv), (xv), (xvi), (xvii), (xviii), (xix), (xx) and (xxi). You acknowledge
and agree that Section (ix) (Cardholder Information) and Section (xx) of this Exhibit
A, and Section 11 (Limitations of Liability) of the RUN Terms and Conditions of
Service, and Section (xix) (Indemnification) of this Exhibit A shall survive termination
or expiration of this Agreement and the RUN Terms and Conditions of Service.
(xviii) Liability
for Interruptions and Delays. Neither ADP nor the Issuing Bank shall be liable
or deemed to be in default for any act, failure to act, negligence or bad faith
by, or the insolvency of, any clearing house, card network or card association governing
use of the Cards issued hereunder. Neither ADP nor the Issuing Bank shall be liable
for any damages to You arising from any decision to refrain from or delay originating
debit/credit entries or issuing ADPChecks or crediting amounts to any Pay Card
(a) after reasonable efforts to verify Your instruction or such debit/credit entries
by the required security procedure have failed, (b) due to Your creditworthiness,
or (c) because ADP has not received timely funds from You as required by Section
1.C. of the RUN Terms and Conditions of Service.
(xix) Client Indemnity.
You shall be liable for, and shall defend, indemnify and hold harmless, ADP, its
agents and subcontractors and the Issuing Bank, from and against any and all loss,
liability, claim, damage or exposure arising from, or in connection with, any breach
of Your compliance obligations hereunder, any fraudulent or criminal acts of Your
employees, including as a result of the theft or misappropriation of any Cards (or
any negotiable instruments that may be issued with Cards) by Your employees (e.g.,
the issuance of unauthorized Cards or fraudulent use of negotiable instruments)
or the loading of unauthorized value onto Cards. You also agree to defend, indemnify
and hold harmless Issuing Bank from and against any and all loss, liability, claim,
damage or exposure arising from, or in connection with Your negligence in connection
with Your use and/or provision of the ADP Wage Payments Card Services or otherwise
in connection with Your performance or obligations under this Agreement.
(xx) No Consequential
Damages. IN NO EVENT WILL THE ORIGINATING BANK, THE ISSUING BANK, ADP OR ANY OF
ADP'S AGENTS OR SUBCONTRACTORS BE RESPONSIBLE FOR SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES WHICH YOU MAY INCUR OR EXPERIENCE ON ACCOUNT OF ENTERING
INTO OR RELYING ON THIS AGREEMENT OR USING THE ADP PAY SERVICES, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(xxi) Termination.
You agree that the ADP Pay Card Services (or any feature thereof) in any designated
jurisdiction may be terminated on 60 days notice to You if ADP or the Issuing Bank
believes that any changes in any Network Rules or NACHA rules, or changes to, or
interpretations of, applicable law by any federal, state or local governmental authority,
or any formal or informal order, instruction or directive communicated to ADP or
the Issuing Bank by such authority make it commercially impractical to continue
to provide the ADP Pay Card Services (or any feature thereof) in such jurisdiction.
Notwithstanding anything
to the contrary herein, ADP may immediately in ADP's sole discretion suspend any
of the ADP Pay Card Services or terminate this Agreement and/or any of the ADP Pay
Card Services and declare all amounts due and to become due immediately due and
payable by You if: (i) ADP reasonably determines that You may be engaged in illegal
activity or that You may be utilizing any of the ADP Pay Card Services in an illegal
manner; (ii) the Originating Bank notifies ADP that it is no longer willing to originate
debits or credits for any reason; or (iii) with respect to the ADP Pay Card Services,
the Issuing Bank cancels the Cards issued on Your behalf or advises ADP that it
is no longer willing to service the Cards, provided that in such instance ADP shall
take commercially reasonable steps to engage a successor Issuing Bank, and provided
further that ADP shall not be liable for any delay in providing ADP Pay Card Services
during such search for a successor Issuing Bank.
If the ADP Pay Card
Services are or may be terminated by ADP pursuant to this section, You will immediately
become solely responsible for all of Your third-party payment obligations covered
by such ADP Pay Card Services then or thereafter due.
Data Privacy Appendix
This Data Privacy Appendix is a data processing agreement under Applicable Law and supplements the Agreement between ADP and Client. Capitalized terms throughout this Data Privacy Appendix not defined in the Agreement are defined in the ADP Privacy Glossary at www.adp.com/-/media/adp/privacy/pdf/glossary_en.pdf ; provided, however, that the relevant definitions (or equivalent terms) under Applicable Law will supersede both the Agreement and ADP Privacy Glossary terms in the event of a conflict.
PART I - GENERAL
1. Client Obligations. Client shall only provide ADP with Client Personal Data that: (a) is required to perform the Services; (b) has been collected in accordance with Applicable Law, including obtaining any needed consent from Client Employees, where applicable; and (c) Client has and will maintain authority to provide such data under Applicable Law.
2. ADP Obligations. Client is disclosing Client Personal Data to ADP only for the limited and specified business purposes as set forth in the Agreement, associated statements of work and/ or any subsequent amendments. ADP, as a Data Processor (or equivalent term under Applicable Law), will comply with Applicable Law for Processing Client Personal Data pursuant to the Agreement. ADP will not: (a) "sell" or "share" Client Personal Data; (b) retain, use, disclose or otherwise Process Client Personal Data outside of ADP’s direct business relationship with Client or for any commercial or other purpose other than the business purposes specified in the agreement(s) between Client and ADP, except as permitted by Applicable Law; or (c) combine Client Personal Data with personal data that ADP receives from, or on behalf of, other persons, or collects from ADP’s own interaction with a consumer, except as permitted under Applicable Law. ADP will provide the same level of privacy protection for Client Personal Data as required of Client under Applicable Law. ADP has the right to Process Client Personal Data in order to comply with ADP’s legal obligations (e.g., compliance with sanction laws) or in order to prevent, detect or investigate fraud.
ADP employees, contingent workers and Subprocessors are authorized to Process Client Personal Data to the extent necessary to provide the Services and as permitted under the Agreement and by Applicable Law.
3. Anonymization and Aggregation. In addition to any rights granted to ADP in the Agreement to use aggregated or anonymized data, ADP will not attempt to, and will not, re-identify any Client Personal Data that has been "anonymized". For the purposes of this Data Privacy Appendix and the Agreement, anonymized data (which includes de-identified data under applicable US Privacy Law(s)) means data that cannot be used to identify an individual, directly or indirectly, by any means reasonably likely to be used in accordance with Applicable Law. The process of “de-identification” under applicable US Privacy Law(s) has the same effect on Client Personal Data as anonymization. ADP will implement reasonable measures to ensure that anonymized or aggregated data has no reasonably foreseeable risk of being re-identified and associated with Client or any individual.
4. Transfers to Subprocessors. ADP may transfer Client Personal Data to ADP Subprocessors and Third Party Subprocessors located outside of the country or region where Client Personal Data was initially collected (collectively "Subprocessors"). ADP will establish appropriate safeguards with Subprocessors to ensure the adequate protection of Client Personal Data. Third Party Subprocessors are bound by written contracts with ADP that impose data protection terms that are not less protective than those imposed by this Data Privacy Appendix.
An up-to-date list of ADP Subprocessors and Third Party Subprocessors, including locations, shall be made available in the RUN platform. Such list may be updated from time to time.
5. Compliance Obligations. ADP will notify Client if ADP makes a determination that it can no longer meet its Processing obligations under Applicable Law.
Client may, upon providing written notice to ADP, take reasonable steps to stop and remediate unauthorized Processing of Client Personal Data.
6. Data Security. ADP has an established information security program containing appropriate administrative, technical and physical measures to protect Personal Data against accidental, unlawful or unauthorized destruction, alteration, unauthorized disclosure or access consistent with Applicable Laws. Such security measures are listed at Annex 2 of the ADP Privacy Code. In the event ADP suspects any unauthorized access to, or use of, the Services, ADP may suspend access to the Services to the extent ADP deems necessary to preserve the security of Client Personal Data.
7. Data Security Breach - Notification. If ADP becomes aware of a Data Security Breach of Client's Personal Data, ADP will take appropriate actions to contain, investigate and mitigate the Data Security Breach. ADP shall notify Client without undue delay after becoming aware that a Data Security Breach has occurred, unless otherwise required or instructed by law enforcement or regulatory authority. ADP will share information in its possession with Client for Client to determine any regulatory reporting obligations required by Applicable Law.
8. Data Security Breach - Other ADP Obligations. In the event that a Data Security Breach is the result of the failure of ADP to comply with the terms of this Agreement, ADP shall, to the extent legally required to notify the individuals, bear the actual, reasonable costs of notifying affected individuals. ADP and Client shall mutually agree on the content and timing of any such notifications, in good faith and as needed to meet applicable legal requirements. In addition, where notifications are legally required, ADP shall also offer and bear the cost of one year of credit monitoring to affected individuals in the applicable jurisdictions, where such monitoring is commercially available and appropriate under the circumstances. Client shall cooperate with ADP and ADP's insurance/credit monitoring provider as ADP may reasonably require.
9. Client Instructions. When receiving Client instructions regarding the Processing of Personal Data, ADP will notify Client if ADP considers such instruction to violate Applicable Law; however, ADP is not obliged to and will not perform a legal examination with respect to Client instruction.
10. Assistance. ADP will assist Client with Client's data privacy obligations where required under Applicable Law, including assisting Client in responding to and addressing Client Employee individual rights requests and complaints concerning Client Personal Data Processed by ADP in connection with the Services. ADP will also provide Client with relevant information for conducting data protection impact or risk assessments, including transfer impact assessments and any other assessments or reassesments required by Applicable Law or competent regulatory authorities. ADP reserves the right to charge for such assistance rendered. If ADP receives an individual rights request or complaint directly from Client Employee, ADP shall promptly forward the Employee request to Client.
11. Client Audit. ADP will answer questions asked by Client regarding the Processing of Client Personal Data by ADP. In the event Client reasonably considers that the answers provided by ADP justify further analysis or are necessary to demonstrate compliance with this DPA, ADP will:
(a) provide security materials known as ADP's trust package (which includes security policy and standards overview, password summary, resiliency program summary, disaster recovery program overview, data center and hosting service summary and a third party risk management executive summary) that details ADP's business processes and procedures for the Processing of Client Personal Data; and
(b) where legally required under applicable Privacy Laws, if Client reasonably considers that the documents provided by ADP justify further analysis, make the facilities ADP uses to Process Client Personal Data available for an audit by a qualified independent third-party assessor reasonably acceptable to ADP, bound by confidentiality obligations satisfactory to ADP and engaged by Client. Client will provide a copy of the audit report to ADP's Global Chief Privacy Officer which will be ADP Confidential Information. Audits shall be conducted no more than once per year during the term of the Agreement during regular business hours and will be subject to (i) a written request submitted to ADP at least 45 days in advance of the proposed audit date; (ii) a detailed written audit plan reviewed and approved in advance by ADP's security organization; and (iii) ADP's on-site security policies. Such audits will take place only in the presence of a representative of ADP's global security office, ADP's global data privacy & governance team, or such person designated by the appropriate ADP representative. The audits shall not be permitted to disrupt ADP's Processing activities or compromise the security and confidentiality of Personal Data pertaining to other ADP clients. ADP will charge Client a reasonable fee for such audit.
12. Personal Data Return and Deletion. Upon termination of the Agreement, ADP shall comply with its contractual obligations regarding the return of Client Personal Data (if Client Personal Data has not been previously returned to Client, or is not otherwise accessible to Client through the relevant product functionality or features for the Services, such as the ability to download the Client Personal Data) and shall delete Client Personal Data in accordance with ADP's then current applicable records retention schedule. ADP shall address Client's request to delete Client Personal Data before the records retention period has ended to the extent feasible and at a reasonable cost to Client. ADP may maintain Archive copies of Client Personal Data, to the extent required under Applicable Law, as authorized by Client in writing, or as needed for dispute resolution purposes.
PART II – GDPR/UK GDPR
13. Scope. This Part II applies solely with respect to Client Personal Data subject to Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data ("General Data Protection Regulations" or "GDPR") and as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 ("UK GDPR"). With respect to ADP's processing of Client Personal Data subject to GDPR and/or UK GDPR, the EU and UK Binding Corporate Rules ("BCR") for Client Data Processing Services (the "ADP Privacy Code(s)"), located at ADP Privacy ( https://www.adp.com/-/media/adp/privacy/pdf/bcrpc_en.pdf and ukbcrpc_en.pdf (adp.com)), govern(s) as applicable. ADP has obtained EU and UK authorization of its ADP Privacy Code(s).
14. International Transfers. For transfers outside of the EEA, Switzerland and United Kingdom, the ADP Privacy Code(s) serve(s) as the legal basis for the data transfer to an ADP Group Company or between ADP and an ADP Subprocessor, which Client acknowledges and accepts. ADP shall enter into appropriate contractual agreements, such as standard contractual clauses, or rely upon any other lawful transfer mechanism prior to transferring Client Personal Data to a Third Party Subprocessor or to an ADP company when the ADP Privacy Code(s) do(es) not apply.
15. Additional Subprocessor Obligations. Within 30 days of a written update (including electronic notice) by ADP to Client adding a new Subprocessor, Client may object to such new Subprocessor by providing written notice to ADP alleging objective justifiable grounds that such Subprocessor is unable to protect Client Personal Data. If the parties cannot reach a mutually acceptable solution, ADP shall, at its option, either: (a) not allow the Subprocessor to access Client Personal Data; or (b) allow Client to terminate the relevant Services in accordance with the terms of the Agreement.
16. ADP Privacy Code(s) EU and UK Authorization. ADP will make commercially reasonable efforts to maintain the EU and the UK authorization of its ADP Privacy Code(s) for the duration of the Agreement and will promptly notify Client of any subsequent material changes in the EU or UK authorization of its ADP Privacy Code(s).
PART III - Miscellaneous
17. Order of Precedence. In the event of a conflict between the Agreement, this Data Privacy Appendix, the ADP Privacy Code(s) and Applicable Law, then the conflict will be resolved by giving effect to such in the following order of precedence: (a) Applicable Law; (b) the ADP Privacy Code(s); (c) this Data Privacy Appendix; and (d) the Agreement.
18. Scope. This Data Privacy Appendix provides no additional rights to Client Employees that are not already provided under the Applicable Law to which Client Employee is subject.