401k User License Agreement For Web-Based Services (06/01/2017)
401k Network (hereinafter "401K PROVIDER") and its successors agrees to license a web-based version of its 401k software and related services, any updates or modifications it provides, and associated documentation (herein collectively referred to as the "Software") to you (hereinafter "Licensee") pursuant to the below terms and conditions. Do not order or use the web-based version of the Software until you have carefully read the following terms. By ordering or using the web-based version of the Software, you agree to be bound by the terms and conditions of this end user license agreement (the "Agreement").
Calendar Year License
401K PROVIDER hereby grants to Licensee a non-exclusive, non-transferable license to access, load and execute the Software on a computer under Licensee's control for the duration of the calendar year, ending December 31st, in which Licensee pays the annual license fee for the Software.
License Restrictions for Web-Based Software
401K PROVIDER will only permit Licensee Users to access the Web-Based 401(k) Websites who has been identified by Licensee as authorized to access the sites or have been given passwords or other access information by Licensee. Licensee assumes all risks and liabilities for providing its third-party service vendors, including but not limited to accountants, financial advisors, payroll service providers, and others, with access to its 401(k) Website. Licensee assumes all risks and liabilities of providing third-party vendors with its login information and passwords to its 401(k) Website. Licensee Users shall (i) not attempt to gain access to the Software object code, (ii) not attempt to reverse engineer or decompile the Software, (iii) not allow any other party to access or use the functionality of the 401(k) Websites, and (iv) not disclose the structure, functionality or capabilities of the Software or 401(k) Websites to any other parties. 401K PROVIDER shall (i) maintain the computers on which the Web-Based Software is loaded and all copies of the Software in secure and locked locations, (ii) only load the Software onto the hard disks and memory of computers which are protected from access by passwords, (iii) allow access to any copies of, or computers on which, the Software is stored only by persons who are, through their employment or other agreements with 401K PROVIDER, legally obligated to comply with the nondisclosure, access and use conditions of this Agreement, (iv) maintain a list of all employee and contractor personnel with access to the Software and equipment, and (v) require all such employee and contractor personnel to sign a statement that he/she understands the nondisclosure, access and use requirements relating to the Software. Licensee shall not: (i) reverse engineer, decompile, disassemble, re-engineer, or otherwise translate any portion of the Software, (ii) rent, lease, sub-license, time share, lend or transfer the Software to a third party, (iii) allow direct access to the Software by anyone other than employees and contractors whose duties require such access, (iv) develop, or have developed on its behalf, software that is similar in functionality or features to the Software, (v) develop, market or sell any competitive or derivative product for Licensee's own use or use by others (vi) distribute externally or to third parties, except Users, any communication that describes or compares the features, functions or performance characteristics of the Software, or (vii) allow any third party contractors to do any of (i) through (vi). Licensee shall not remove or alter any copyright notices or restrictive or ownership legends appearing on or in the Software. Licensee shall take all reasonable steps, both during and after the Term of this Agreement, to insure that no unauthorized person accesses or uses the Software or 401(k) Websites.
License Restrictions for "Full-Service" Plans
Licensee who elects use 401K PROVIDER'S "full-service" offerings and other products and services specifically described in promotional information as "full-service") agrees to the License Restrictions for Web-Based Software described above. For "full-service" plans. 401K PROVIDER will provide assistance in the preparation of reporting forms due to government agencies within the time (but only within the time) for which 401K PROVIDER is retained by Licensee. 401K PROVIDER is not required to assist in the preparation of such forms if they pertain to a calendar year/Plan Year that has ended prior to the effective date of this Agreement or if the forms' final dead-line/due dates are subsequent to termination of this Agreement. Upon termination of this Agreement all bookkeeping data processing and government form preparation services shall immediately cease.
401K PROVIDER does not perform or provide the Licensee with Certified Plan Audits. Mutual fund companies and/or the Licensee's plan asset custodian shall provide Licensee with mutual fund statements that contain plan share prices, balances, dividends, short-term and long-term capital gains and losses and other detailed information deemed pertinent by the investment fund companies. 401K PROVIDER shall provide Licensee with a year-end summary of the plan's mutual fund holdings. If Licensee requires more specific mutual fund information, it is Licensee's responsibility to extract the information from the account statements supplied by the fund companies and/or asset custodian.
401K PROVIDER reserves the right to charge Licensee for time spent in consultation, discussion, question answering or records review with Licensee's accountants, consultants, attorneys or other professional service providers or with government officials in matters pertaining to the Licensee's plan. Licensee shall furnish to 401K PROVIDER, on a timely basis, any and all information and data that 401K PROVIDER may request in order to perform its services hereunder, including but not limited to: employee census data, trust investment data, plan amendments and communications with any government agencies concerning the plan. 401K PROVIDER shall rely solely upon information so submitted. 401K PROVIDER shall not be responsible for any penalties or liabilities resultant from failure of Licensee to submit accurate information on a timely basis.
401K PROVIDER will act in all matters only upon the express direction of the Plan Administrator or the Trustees of the plan and will at no time exercise any discretion or independent authority with regard to the performance of the administrative services described herein, no such independent authority or discretionary rights having been granted to 401K PROVIDER by Licensee, the Plan Administrator or the Trustees of the plan under this or any other agreement. 401K PROVIDER shall act in a ministerial capacity only.
Fees for Services and Products
All fees quoted, published online, or listed in printed documents are subject to change without notice. Annual fees published online are applicable to the first year of service only, and subject to change in subsequent years. The current fee for liquidating an individual participant custodian account is $40, and the one-time 401k loan origination fee is currently $125.
Plan Termination and Service Termination Fees for Web-Based System.
There is a Plan Termination Fee of $75 per eligible participant for all Web-Based plans. An eligible participant is any employee who was included in any compliance test calculations during the year, or covered by any safe-harbor provisions during the year. An employee specifically does not need to have joined the 401k, or placed assets in the 401k, to be regarded as an eligible participant. The Plan Termination Fee covers costs associated with the eventual removal of the User's plan and data from 401K PROVIDER’S online 401k platform, and archiving the data for three (3) consecutive calendar years. The fee provides the User with two consecutive business days of online access beginning January 1 of the year following the calendar year of termination, plus two consecutive days of IRS-mandated prototype plan coverage in the year following the calendar year of termination. During this two-day period the plan sponsor can process compliance tests and print reports, and participants can print statements and monitor the disposition of their 401k assets. The two days of continual prototype plan documents coverage assists the User in following IRS and DOL regulations, which require all qualified pension plans to have continual coverage by IRS-approved plan documents that are current with ERISA regulations.
This two-day online access and prototype plan protection included in the Plan Termination Fee can be further extended at the rate of $500 per each additional day. If the User needs to rely upon the customized prototype plan documents for an extended period of time, 401k PROVIDER offers a "documents only" service, described at www.401kprototype.com.
It is not necessary for participants' 401k investment accounts to be liquidated upon termination of PROVIDER'S services. The Licensee may retain the investment accounts at the custodian and/or transfer them "in-kind" to another service provider and/or custodian. If the Licensee request that participants' 401k investment accounts be liquidated by 401k PROVIDER, an additional participant account liquidation fee of $75 per participant account shall apply.
Some plan terminations are more complex than others, and in some cases the third-party administrator assuming administration and recordkeeping responsibilities will request custom calculations, records and summaries that are not included in the Plan Termination Fees. Development of custom files and reports requires specialized programing, data mapping, and labor. PROVIDER will evaluate all such file requests on a case-by-case basis, and provide Licensee with a quote payable prior to delivery of completed custom files.
Upon termination or expiration of this Agreement (and the five day extension included in the Plan Termination Fee) Licensee may no longer rely upon or use 401K PROVIDER copyrighted and/or 401K PROVIDER-supplied Prototype Plan Documents. Upon termination or expiration of this Agreement Licensee's right to use 401K PROVIDER-supplied customized and standardized Documents is revoked.
Prototype Plan Documents
For the duration of this Agreement, 401K PROVIDER provides Licensee with copyrighted Prototype Plan Documents ("Documents") that 401K PROVIDER acquires from third-party sources and then customized for each Licensee. 401k PROVIDER claims U.S. Copyright status and protection for any customized version(s) of these Documents prepared by 401k PROVIDER for use by Licensee. Licensee agrees to only use and rely upon these customized and copyrighted Documents for the duration of its Agreement with 401k PROVIDER. Upon termination or expiration of this Agreement, Licensee may no longer rely upon or use 401K PROVIDER copyrighted and/or 401K PROVIDER-supplied Prototype Plan Documents. Upon termination or expiration of this Agreement Licensee's right to use 401K PROVIDER-supplied customized and standardized Documents is revoked. Licensee can continue using the customized Documents after expiration of this Agreement if Licensee enters into a new agreement with 401k PROVIDER under terms of service "401k Easy Docs" described in website https://www.401kprototype.com.
401k PROVIDER is a registered and IRS-approved Mass submitter of customized 401k Prototype Plan Documents (“Prototype Standardized Profit Sharing Plan with CODA” IRS Determination Letter Serial Number K202645a). To comply with IRS rules and regulations for Mass Submitters, 401k PROVIDER is required to track the distribution, usage and disposition of all its customized Documents. This requirement places an obligation upon 401k PROVIDER to make reasonable efforts to track the possible usage of customized Documents by former Licensees, after terminating 401K PROVIDER services. Licensee agrees to cooperate with 401k PROVIDER in its obligation under IRS regulations by providing the following information to 401k PLAN PROVIDER within one (1) year of termination of 401k PROVIDER services.
--If Licensee officially terminates its 401k plan by filing Form 5500-SF with the IRS during the calendar year following terminating 401K PROVIDER services, Licensee agrees to provide a copy of this filing to 401K PLAN PROVIDER.
----If Licensee transfers the servicing of its 401k to a pension consultant, record-keeper or other third-part administrator during the calendar year following terminating 401K PROVIDER services, Licensee agrees to provide 401K PLAN PROVIDER with a copy of the IRS Determination Letter of the prototype plan documents used to replace 401K PROVIDER documents.
401k PROVIDER reserves the right to notify the IRS or other third parties, including publically available online information and business review services, should the Licensee fail to pay past-due invoices, or provide the information necessary for 401k PROVIDER to fulfill its legal obligations as an IRS Mass Submitter.
401K PROVIDER does not warranty its customized Documents, or their adaptation to Licensee's needs or requirements. 401K PROVIDER assumes no liability for the accuracy, completeness or applicability of these Documents, or their use, by Licensee. Licensee's use of the Documents is solely at the discretion of the Licensee, and at Licensee's own risk. Licensee can, at its discretion, utilize prototype plan documents acquired from sources other than 401K PROVIDER. Licensee is under no obligation to use 401K PROVIDER-supplied Documents. 401K PROVIDER, as policy, automatically adopts government-mandated amendments to the Documents. At its sole discretion 401K PROVIDER, may assist with a review Employer's existing Plan documents and consult Employer on the feasibility of restatement and administration of the Plan. 401K PROVIDER will prepare the documentation needed to establish or re-state the Plan and Trust Agreement for review by Employer's professional advisors, and update documents as required by regulation. 401K PROVIDER will prepare and update the Summary Plan Description as required by regulation.
Patents, Trademarks and Copyrights
The Software includes technology protected by US Patent Number 6041313, plus additional US Patents Pending. 401K PROVIDER claims copyright and trademark protection for all Software and copyright for all Publications and Videos. Should this Agreement be terminated for any reason, the right of Licensee to use 401K PROVIDER-supplied Software, Publications and Support shall be revoked. Unauthorized use of Software and/or Publications constitutes copyright infringement, subjecting violator(s) to both civil and criminal penalties under federal law.
All investments offered to in the plan shall be selected by Licensee, with no input of advice rendered by 401K PROVIDER. 401K PROVIDER shall make no investment recommendations to Licensee, plan participants, and other persons associated with the Licensee's plan.
Mutual funds and securities products are not bank deposits and are not insured or guaranteed by the FDIC, the Federal Reserve Board, or any other government agency. Mutual funds and securities products are subject to investment risks, including possible loss of the principal invested.
Investments returns do not do not necessarily reflect sales charges or loads, and assume the reinvestment of dividends and capital gains. Investment return and principal value will fluctuate so that an investor's shares, when redeemed, may be worth more or less than their original cost. Fund performance information is not indicative of future results. Read the prospectus before investing in mutual funds.
Calculators and Financial Planning Tools are provided for informational and illustrative purposes only and are not intended to provide specific legal, accounting, financial or tax advice for any person and should not be relied upon in that manner. Also, results are not meant to be indicative of the future return or amount received investment. Results obtained through the use of the Financial Planning Tools are not intended to be investment advice, and the Provider, the Licensee and Plan Administrator do not present such information as fiduciaries.
Loan Modeling Tools may be used to determine the loan repayment associated with a loan request and after such request, the Loan is subject to the Terms and Conditions of the Loan Agreement, Note and Pledge. Additionally, the results of the loan modeling tool are subject to change and may not be relied upon in all cases to be in final form.
Investment information provided by 401K PROVIDER websites or other 401K PROVIDER-sponsored sources is not an offer to sell or a solicitation of an offer to buy any security, nor shall any such security be offered or sold to any person, in any jurisdiction in which such offer, solicitation, purchase or sale may not lawfully be made.
At 401K PROVIDER'S discretion, the Licensee may add a unitized pooled investment to the Licensee's plan. Licensee shall maintain a written agreement with the UAM provider(s) and other third-parties associated with the management of pooled investment(s). Licensee agrees to reimburse 401K PROVIDER for expenses incurred to correct or re-process records or reports because of errors caused by the UMA provider or other third-parties involved in the management of the UMA.
For the duration of the current license term, 401K PROVIDER warrants to Licensee only that the Software shall perform consistent with the published specifications. 401K PROVIDER'S sole obligation and liability under this warranty shall be to correct any defects in the Software, in a reasonable time, to perform in accordance with the published specifications therefore. Any modifications, maintenance or other changes to the Software by the Licensee or its agents and employees shall void this warranty but not the exclusions and waivers of warranties contained herein. 401K PROVIDER does not warrant that the Software will meet Licensee's requirements or that its use will be uninterrupted or error-free. In the event that 401K PROVIDER fails to remedy defects in the Software, Licensee's sole remedy shall be to receive a refund of the current year's license fees for the Software (not including any plan customization fee paid by Licensee). 401K PROVIDER warrants to Licensee that during the Term of this Agreement 401K PROVIDER will use diligent efforts to provide availability to licensed users of its Web-Based Software. Licensee of Web-Based Software understands that website availability may be adversely affected by various conditions including, but not limited to, electrical interference, weather, acts of God or governmental authority, failure of equipment, and User error and the failure of other equipment, such as switches, routers and telecommunications devices not owned or controlled by 401K PROVIDER. Licensee of Web-Based Software understands that periodic website service interruptions may be necessary to perform maintenance on third party networks and facilities, and that, therefore, 401K PROVIDER cannot guarantee the availability of the Web-Based Software at all times and under all circumstances.
Disclaimer of Warranties
Except for the foregoing limited warranty, the Software is provided "AS IS." The entire risk as to the quality and performance of the Software is with Licensee. 401K PROVIDER, to the maximum extent permitted by applicable law, disclaims all other representations and warranties, express or implied, regarding the Software, including its fitness for a particular purpose, quality, accuracy, merchantability and non-infringement. 401K PROVIDER does not represent or warrant that the Software is free from bugs, errors or other program limitations.
401K PROVIDER has no control over Licensee's use of the Software, and 401K PROVIDER does not and cannot warrant the performance or results that may be obtained by its use. 401K PROVIDER does not represent, warrant, or guarantee the accuracy and timeliness of the data or information contained in the Software and shall have no liability of any kind whatsoever to Licensee, or to any other party, on account of any inaccuracies in or unseemliness of the data or information. Nor does 401K PROVIDER have any obligations to Licensee to correct such data or information or any errors contained in the Software. Various information in the Software constantly changes, and the information may not be current or accurate. The Software should not be used without confirming research from other sources, obtaining up-to-date information, and separate analysis by the Licensee of his or her own particular investment or tax situation or record keeping application. The Software does not recommend or endorse any specific investment or any particular mutual fund, nor does the Software offer specific tax, legal or investment advice or strategies. 401K PROVIDER is not a financial advisor and should not be considered as such. Licensee is strongly advised to consult with a professional tax and/or investment advisor before establishing or investing on behalf of a 401(k) or any other retirement savings plan.
Neither this nor any other agreement shall relieve Licensee or other designated fiduciaries or other responsible persons providing services to the plan of any of the responsibilities or liabilities specified in E.R.I.S.A. or the Internal Revenue Code of 1954, as amended from time to time. 401K PROVIDER shall not, at any time, under this Agreement or otherwise, act in any capacity that is or may be construed to be that of a fiduciary or investment counselor to Licensee's plan. Nothing contained herein shall be construed so as to render 401K PROVIDER the Plan Administrator or Trustee.
Some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to Licensee. In that event, any implied warranties are limited in duration to ten (10) days from the date of purchase of the Software. However, some states do not allow a limitation on how long an implied warranty lasts, so the above limitation may not apply to Licensee.
Limitation of Liability & Damages
IN NO EVENT SHALL 401K PROVIDER, ITS SUPPLIERS OR ITS DISTRIBUTORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOST PROFITS OR COST OF COVER ARISING FROM THE USE OF THE SOFTWARE OR ANY DEFECT IN THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF 401K PROVIDER, ITS SUPPLIERS OR ITS DISTRIBUTORS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. IN PARTICULAR BUT WITHOUT LIMITATION, 401K PROVIDER, ITS SUPPLIERS AND ITS DISTRIBUTORS SHALL HAVE NO LIABILITY FOR THE LOSS OF ANY INFORMATION STORED IN OR USED WITH THE SOFTWARE.
THE MAXIMUM AGGREGATE LIABILITY OF 401K PROVIDER AND ITS SUPPLIERS FOR ANY CLAIM ARISING OUT OF USE OF THE SOFTWARE OR ANY DEFECT IN THE SOFTWARE, ON ANY AND ALL THEORIES OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE BY 401K PROVIDER, SHALL IN ALL EVENTS BE LIMITED TO RETURN OF THE AMOUNTS ACTUALLY PAID AS THE CURRENT YEAR'S LICENSE FEES.
U.S. Government Restricted Rights
The Software is subject to the DOD FAR Supplement and is "commercial computer software." Use, duplication or disclosure of the Software is subject to the licensing restrictions set forth in this Agreement. The Software is subject to the Federal Acquisition Regulations as "restricted computer software" and its use, duplication and disclosure shall be subject to the restrictions in FAR 52.227-14.
Licensee acknowledges that this Agreement is a complete statement of the agreement between Licensee and 401K PROVIDER, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions, regarding the Software. This Agreement does not limit any rights or remedies that 401K PROVIDER may have under trade secret, trademark, and copyright, patent or other related intellectual property laws. Representatives of 401K PROVIDER are not authorized to make modifications to this Agreement, or to make any additional representations, commitments or warranties binding on 401K PROVIDER. Accordingly, such additional statements are not binding on 401K PROVIDER and Licensee should not rely upon such statements. The 401k PROVIDER reserves the right to change the terms, fees, and product and service offerings described in this Agreement without prior notice to User. The validity and performance of this Agreement shall be governed by California law (without reference to choice of law principles) and all applicable Federal laws. This Agreement is deemed entered into at Los Angeles, California, and shall be constructed as to its fair meaning and not strictly for or against either party. Any resolution of a dispute arising out of or in connection with this Agreement may only be resolved in Los Angeles, California.
Payment of Invoices
Invoices presented by 401k PROVIDER to a Licensee User for services, or pending services, are due and payable upon receipt. 401k PROVIDER retains the right under this Agreement to suspend services until invoices are paid in full.
Effective Term of Agreement
This Agreement shall continue in effect for a period ending on the last day of the effective calendar year this Agreement was entered into. 401k PROVIDER reserves the right to change fees, terms, conditions, and product offerings. 401K PROVIDER reserves the right to adjust fees and suspend services without breaching or terminating this Agreement if Licensee fails to pay invoiced fees in accordance with this Agreement. 401K PROVIDER may terminate this Agreement if Licensee breaches this Agreement.
Promotion & Marketing
401K PROVIDER reserves the right to use Licensee's business name, city and state in marketing literature and materials used in promoting 401K PROVIDER products and services.
Mediation & Arbitration
If a dispute (excluding copyright, patent, or trademark, or other intellectual rights infringement claims) arises from or relates to this Agreement or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation in Los Angeles, California, administered by the American Arbitration Association under its Commercial Mediation Rules before resorting to arbitration. Any unresolved controversy or claim (excluding copyright, patent, or trademark infringement claims) arising under this Agreement or its breach, including but not limited to any controversy concerning the meaning or interpretation of any provision of this Agreement or controversies arising from possible errors or omissions on the part of 401K PROVIDER or its agents or suppliers shall be decided by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Los Angeles, California. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party.
Consistent with the expedited nature of arbitration, each party will, upon the written request of the other party, promptly provide the other with copies of documents relevant to the issues raised by any claim or counterclaim on which the producing party may rely in support of or in opposition to any claim or defense. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrator(s), which determination shall be conclusive.
The arbitrator(s) shall not award consequential damages in any arbitration an award of exemplary or punitive damages. The arbitrator(s) may determine how the costs and expenses of the arbitration shall be allocated between the parties, but they shall not award attorneys' fees. The award shall be in writing, shall be signed by a majority of the arbitrators, and shall include a statement regarding the reasons for the disposition of any claim. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Any notice required or permitted to be given by either party under this Agreement shall be in writing. Notices sent by mail shall be deemed effective three business days after deposit, postage prepaid, in the mail.
Assignment and Successors
This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign any of its rights nor delegate any of its obligations under this Agreement to any third party without the express written consent of the other, provided that consent shall not be required in connection with the reorganization or merger of a party or the sale of such party's business or all or substantially all of its assets to a third party.
Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
The waiver by either party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right.
Severability and Counterparts
If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will remain in full force and effect. This Agreement may be signed in counterparts, which together constitute one instrument.