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PrimePay Partner Terms

These PrimePay Partner Terms and Conditions (the “Terms”) detail the terms and conditions governing the Program which is managed within PrimePay’s Portal (as defined below). These Terms are entered into by and between the company or individual listed in the registration form on the Portal where these terms are incorporated (“Partner”) and PrimePay, LLC, a Delaware limited liability company located at 1487 Dunwoody Drive, West Chester PA 19380 (“PrimePay”). PrimePay and Partner may collectively be referred to as the Parties. These Terms are effective upon Partner’s acceptance (the “Effective Date”). 

Section 1: Definitions 

  1. “ARR” is the recurring annual subscription fees charged by PrimePay for the eligible Products selected by Clients during the first twelve (12) month term in which a Client is enrolled in such Products. ARR does not include fees charged for Services or any other non-recurring products and services. ARR does include fees charged for BCS.
  2. “BCS” refers to PrimePay’s benefits administration and compliance services provided on a recurring fee subscription basis, including flexible benefit and COBRA administration, ACA reporting, NDT and ERISA.
  3. “Client” shall mean a Customer introduced by Partner to PrimePay within the Program, or a Customer to whom Partner provides the Platform under these Terms.
  4. “Closed Deal” means a Client has executed a Subscription Agreement and unconditionally paid its first month of fees due to PrimePay in full.
  5. “Commission” shall mean a payment or other benefit earned by Partner and paid by PrimePay on a Closed Deal, in an amount determined by the Revenue Share Terms listed in Schedule 
  6. “Customers” shall mean employer organizations who sign up to use the Platform. 
  7. “Documentation” shall mean the applicable terms and conditions governing Customers’ use of the Platform, user guides, knowledge bases, support materials, or other documentation provided by PrimePay which describes the Platform. 
  8. “Group” shall have the same meaning as Tier, these terms are used interchang
  9. “NDA” shall mean the mutual confidentiality agreement found on the Portal, which shall be incorporated herein by reference.
  10. “PII” shall mean personally identifiable information belonging to a Client or its employees.
  11. “Platform” shall mean PrimePay’s Products and Services.
  12. “Portal” shall mean a website hosted by PrimePay where Partner can access Program information, including details regarding Partner’s requirements and benefits, enabling the Partner to provide opportunities, and track earned Commissions.
  13. “Products” shall mean technology products licensed by PrimePay on a recurring subscription basis.
  14. “Program” shall mean the PrimePay Partner Program managed in the Portal ad governed by these Terms. 
  15. “Referral” shall mean Partner’s introduction to PrimePay to provide the Platform directly to a Client under a Subscription Agreement between PrimePay and Client.
  16. “Representative” shall mean agents of Partner who are authorized to participate in the Program and access the Portal on Partner’s behalf. 
  17. “Schedule” shall mean an appendix attached or incorporated hereto which forms a part of these Terms.
  18. “Services” shall mean one-time or managed services for implementation, data importation, migration, customization, or other work projects captured in a Statement of Work (“SOW”).
  19. “SOW” shall mean a separate Statement of Work governing PrimePay’s performance of Services. 
  20. “Subscription Agreement” shall mean an agreement executed by Client to use the Platform in a form approved by PrimePay.
  21. “Tier” shall mean the level of participation for Partner and the corresponding Program eligibility and benefits as listed in Schedule A. Tier and Group shall have the same meaning under these Terms.
  22. “User” shall mean any employee or individual authorized by the Partner to access either the Portal or Platform. 

Section 2: The Program and Portal 

  1. PrimePay shall provide Partner access to the Portal, subject to the following conditions:
  2. PrimePay does not warrant the Portal will always operate error free, and Partner understands the Portal may be unavailable during times of maintenance, which may be performed at any time at PrimePay’s sole discretion and without notice. 
  3. Partner agrees that access to the Portal is contingent upon Partner’s acceptance of these Terms. PrimePay may update or amend these Terms, the Portal, or the Portal, at any time. Partner shall accept the modified terms via a pop-up window within the Portal and any such acceptance shall be binding as of the effective date for the modified terms. Additionally, Partner’s continued participation in the Program and/or use of the Portal shall serve as assent to the modification to the Terms, Portal, or Program. 

Section 3: Obligations 

A. Partner’s Obligations 

  1. To be eligible for the Program, Partner shall enroll Representatives via the Portal.
  2. Partner acknowledges and agrees that PrimePay shall pay Commissions directly to Partner and Partner is solely responsible for managing its Representatives and commission disbursement. PrimePay has no obligation to Representatives directly by virtue of these Terms.
  3. Partner must, at all times, maintain responsibility and security for all User credentials and make reasonable efforts to prevent unlawful access to or use of the Platform or Portal. Partner shall notify PrimePay immediately if Partner learns its User credentials are compromised.
  4. In the case of a Wholesale Client, Partner shall not provide access to the Platform or perform services, unless Partner has entered into a Software End User License Agreement (the “EULA”) with such Client (attached as Schedule C).

B. PrimePay’s Obligations

  1. PrimePay shall deliver the Platform and Products as provided for in the Documentation, provided that PrimePay may modify the features, functionality, or pricing for the Platform at any time, without notice.
  2. Partner acknowledges and accepts that PrimePay is under no obligation to make the Platform available to all of Partner’s customers and that PrimePay may, in its sole discretion, decline to accept any of Partner’s business clients based on PrimePay’s current client-vetting process established to comply with applicable law and PrimePay’s business directives. Such discretion shall apply to all Client’s utilizing the Platform as of the Effective Date, as well as any future clients of Partner to whom Partner wishes to offer the Platform.

Section 4: Commission Eligibility and Payment 

  1. Commission Eligibility. Partner shall be eligible for Commissions based on their assigned Group:
  2. Revenue Share. Partner shall be eligible for Commissions on Referrals which satisfy the conditions in Schedule 1. 
  3. Non-cash Incentives. Where confirmed in writing by Partner, PrimePay shall withhold Commissions to Partner and instead provide in-kind benefits to Partner’s Clients, in the form of discounts, support plans, or other non-cash value. While the value of these Non-Cash Incentives may not be identical to what the Partner’s Commission would be, the Parties agree that Non-Cash Incentives constitute valuable consideration and, where elected by Partner to be provided by PrimePay to Client, shall relieve PrimePay of its financial responsibility to pay Commissions.
  4. Termination of Closed Deals. Partner shall not be eligible for Commissions on a Closed Deal where Client terminates prior to the expiration of Client’s subscription term without full and prompt payment of the applicable Early Termination Fee, as described in the Subscription Agreement. Any commissions paid in advance to Partner for a Closed Deal that ceases bearing ARR prior to the expiration of the term shall be subject to reconciliation and claw-back. 
  5. No Other Payments. Except as expressly provided in this Section 4, neither Party shall be entitled to any other fees, reimbursement, payments, or other benefits under these Terms. 
  6. Payment Terms. PrimePay shall pay Commissions quarterly in arrears. PrimePay shall have the right, during each quarterly period, to review and reconcile Commission payments based on Partner’s eligibility. 

Section 5: Representations, Warranties, and Disclaimers 

  1. Mutual
    1. Each Party hereby represents and warrants as follows: (i) it has full power and authority to enter into these Terms and to perform its obligations hereunder; (ii) there Terms are legal, valid, and enforceable obligations binding upon the Parties; and (iii) the execution, delivery, and performance of these Terms does not conflict with either Party’s obligations to others.
  2. Partner
    1. By accessing the Portal and introducing Clients, Partner agrees not to: violate the law; commit fraud; infringe on the intellectual property rights of another; authorize or allow multiple individuals to share User credentials; utilize APIs, third-party tools, or other integrations in any way that subverts the controls or restrictions of the Products, Platform or Portal; extract information or data from the Products or Portal, other than as expressly authorized by PrimePay in Partner servicing its Clients; license, sublicense, sell, resell, use as a service bureau, transfer, assign, distribute, or otherwise use or commercially exploit the Platform or Portal for a third-party’s benefit, other than as permitted under these Terms; provide data to PrimePay to process that Partner, as either the data controller or processor, does not have authorization to provide; disassemble, decompile, reverse engineer, copy, reproduce, modify, or create any derivative works of the Platform or Portal; authorize or allow use of the Platform or Portal outside Partner’s organization; or use the Platform or Portal for any purpose outside the scope of this Agreement or that otherwise competes with PrimePay.  
    2. Partner warrants that all information entered in the Portal is accurate to the best of Partner’s knowledge and belief.
    3. Partner warrants that it is either a controller, or processor processing authorized personal information on behalf of a Client controller, with respect to all PII entered into the Platform. Partner acknowledges that PrimePay is a processor or subprocessor, as applicable, with respect to such PI. Partner warrants that it will comply with all applicable privacy laws and PrimePay’s Privacy Policy listed on the PrimePay website.
  3. PrimePay
    1. PrimePay warrants that it will pay Partner all Commissions due and owing under these Terms.
  4. Exceptions.
    1. EXCEPT AS SET FORTH ABOVE, THE PARTIES MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, A WARRANTY OF FITINESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NONINFRINGEMENT. 

Section 6: Limitation of Liability 

  1. WITH THE EXCEPTION OF ANY VIOLATION OF THE PARTIES’ EXPRESS WARRANTIES IN SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF GOOD WILL, DAMAGE TO BUSINESS REPUTATION, LOSS OF BUSINESS INFORMATION, WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. WITH THE EXCEPTION OF ANY VIOLATION OF THE PARTIES’ EXPRESS WARRANTIES IN SECTION 5, AND SUBJECT TO THE TERMS OF SECTION 6(A) ABOVE, EACH PARTY’S TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO THE OTHER, REGARDLESS OF THE CAUSE OF ACTION AND WHETHER THE CLAIM IS IN CONTRACT OR TORT, SHALL BE LIMITED TO THE AMOUNTS DUE OR PAYABLE BETWEEN THE PARTIES IN THE SIX (6) MONTHS PRECEDING THE CLAIM.
  3. The above limitations of liability shall not apply to any liability which the parties cannot lawfully exclude pursuant to applicable law. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between PrimePay and Partner.
  4. The Parties agree this Section 6 shall survive and apply even if any limited remedy specified in these Terms is found to have failed of it’s essential purpose. 

Section 7: Indemnification 

  1. To the fullest extent permitted by law, each Party shall defend, indemnify, and hold the other and its officers, directors, agents, representatives, and employees harmless from and against any and all claims, damages, losses, costs and expenses, including but not limited to reasonable attorneys’ fees, arising out of, resulting from or occurring as a consequence of: (i) its gross negligence or willful misconduct in the performance of its obligations hereunder, (ii) the wrongful disclosure of Confidential Information (as defined in the NDA) belonging to the other; or (iii) breach of any warranty made by either Party herein.
  2. In the event of an indemnified claim hereunder, the indemnified party shall give the indemnifying party prompt notice in writing of the claim and the indemnifying party shall have sole control over its defense or settlement, except that the indemnifying party shall not settle or compromise any such matter without obtaining the indemnified party’s written consent which shall not be unreasonably withheld. The indemnified party shall have the right, at its own cost and expense, to employ separate counsel and participate in the defense of any claim or action. 

Section 8: Term and Termination 

  1. The Term shall begin on the Effective Date and run for twelve (12) consecutive months from that date (the “Initial Term”) unless terminated earlier in accordance with this Section. After the Initial Term, these Terms shall renew automatically for an additional twelve (12) months (each a “Renewal Term”) unless the Parties provide at least sixty (60) days’ notice of nonrenewal prior to the end of the current term, subject to the termination provisions below. 
  2. In the event of an uncured material breach of the Terms more than sixty (60) days after receipt of written notice, the Parties may terminate these Terms immediately. Notice to PrimePay shall be provided to notice@primepay.com or, if to Partner, the e-mail address on file. 
  3. Either Party may terminate these Terms immediately in case of bankruptcy, or if required by applicable law or regulation. 
  4. PrimePay may terminate these Terms for any reason upon thirty (30) days’ notice to Partner. 
  5. Effect of Termination.
    1. In the event of termination, the Parties shall pay any amounts due and owing as of the date of termination without undue delay. 
    2. PrimePay shall terminate Partner’s access to the Platform and/or Portal immediately upon termination. 

Section 9: Miscellaneous 

  1. Severability.  If any provision of these Terms shall be found unenforceable, the Parties agree that the offending provisions may be blue-lined by a court to allow the provision to survive in its modified form to provide the maximum amount of protection afforded by applicable law, and the legality and enforceability of the remaining provisions of these Terms will not be affected.
  2. Waiver. No failure of either Party to exercise or enforce any of its rights under these Terms will act as a waiver of those rights.
  3. Assignment. Neither Party may assign all or any portion of these Terms unless the other Party first consents in writing, which consent shall not be unreasonable withheld; except, however, either Party may assign these Terms to a surviving entity or its legal successor in interest in the event of a reorganization or sale of its business. Subject to the foregoing provision, any attempted assignment without consent shall be void. 
  4. Entire Agreement. These Terms, any applicable Schedules, and any documentation contained in the Portal set forth the entire agreement relating to the subject matter hereof and supersede all prior agreements, discussions, and understandings between the Parties, whether oral or written, relating to the subject matter hereof. These Terms supersede any prior agreements between the Parties. 
  5. Counterparts. These Terms may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 
  6. Electronic Acceptance. Each Party shall have the right to rely on facsimilies or electronic copies of executed copies of these Terms to the same and full extent as the originals. By logging into the Portal, Partner understands, represents, acknowledges and agrees to be bound by these Terms. Pursuant to PrimePay’s right to periodically amend the Terms (as set forth in Section 2), Partner’s continued use of the Portal and/or acceptance of any notifications placed therein, constitute assent to the modified terms, effective immediat 
  7. Compliance with Applicable Law. The Parties shall comply with all applicable law and regulations in the performance of its duties under these Terms and in providing the Platform for Clients, including, but not limited to all applicable privacy laws, state and federal compliance requirements, and the NACHA operating rules. Partner shall provide all applicable forms and documentation reasonably requested by PrimePay to ensure the Parties adherence to regulatory requirements and internal policies. 
  8. Legal Actions.  EXCEPT WHERE PROHIBITED BY LAW, PRIMEPAY AND PARTNER AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. NO ARBITER OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS UNDERS UNDER THESE TERMS AGAINST EITHER PARTY TO THIS AGREEMENT WITHOUT THE WRITTEN CONSENT OF BOTH PARTIES. The Parties agree that any claim arising out of these Terms (including any non-contractual disputes, acts or omissions, or claims in contract, tort, or otherwise), shall be construed under the laws of the State of Pennsylvania, regardless of conflict of law provisions. The Parties irrevocably consent to the exclusive venue of the state or federal courts of Chester County, Pennsylvania. Neither Party will bring any legal action more than two (2) years after the cause of action arose. The Parties agree that a condition precedent to instituting any legal action other than the filing of an injunction to protect a Party’s intellectual property rights, the Parties must participate in a non-binding mediation, with the Parties equally splitting the costs of that mediation.  
  9. Confidentiality. PrimePay and Partner agree to abide, at all times, to the terms of the NDA. 
  10. Data Processing and Privacy. To the extent PII is transmitted outside the Platform by Partner, any Representative, or User, Partner acknowledges that PrimePay is not responsible for the privacy, security or integrity of that data and Partner is fully responsible and liable with respect to such PII.

 

SCHEDULE A

The Revenue Share Terms listed in the Portal shall be incorporated herein by reference.