(Updated 4-21-2025)
AGREEMENT: TERMS AND CONDITIONS
401(k) plan recordkeeping services provided by Pension Systems Corporation (herein identified as the "401(k) PROVIDER") and its successors agree to license an Internet-based version of its 401(k) Software and related services, any updates or modifications it provides, and associated documentation (herein collectively referred to as the "Software") to you (herein identified as the "LICENSEE") according to the below terms and conditions. For this Agreement, the terms "LICENSEE" and "Plan Sponsor" shall be interchangeable and refer to the trustee(s) and fiduciaries of the company’s 401(k) plan. LICENSEE is herein advised to order and use the Internet-based version of the Software only after a review of the following terms and conditions. With each login to the 401(k) PROVIDER website the LICENSEE is presented with the following warning: “We recommend you run 401(k) Compliance Tests at least quarterly. If your tests are failing, you need to take immediate action” Safe Harbor 401(k) plans may be exempt from some compliance tests, subject to LICENSEE’S research and decision concerning its Safe Harbor 401(k). Note that for an additional fee and agreement between LICENSEE and 401(k) PROVIDER, 401(k) PROVIDER will provide LICENSEE with the results of quarterly 401(k) compliance tests and suggestions for correcting compliance problems.
By ordering and/or using 401(k) PROVIDER Internet-based Software IRS-approved Prototype documents, and other materials, LICENSEE and its employees and representatives hereby all agree to be bound by the terms and conditions of this User License Agreement (the "Agreement"). 401(k) PROVIDER reserves the exclusive right under this Agreement to change the terms and conditions of this Agreement at any time without prior notice to the LICENSEE. 401(k) PROVIDER notifies LICENSEE in invoices: “Your payment of this invoice serves as confirmation that you agree to the terms and conditions specified in the 401(k) Easy User Agreement, available for viewing on the 401(k) Easy website. Thank you in advance for your renewal or payment, and please call (800) 660-0050 X1, or send an email to fvaguchay@401knetwork.com if you have any questions.”
By requesting, ordering, purchasing, renewing, accessing, using, continuing to use, directing 401(k) PROVIDER to perform services, accepting prototype documents, accepting software access, accepting updates, receiving recordkeeping services, or otherwise receiving the benefit of any services or materials supplied by 401(k) PROVIDER, LICENSEE agrees to be legally bound by this Agreement. Such acceptance remains effective until this Agreement is terminated in accordance with its terms.
Your ordering of, acceptance of, access to, use of, continued use of any 401(k) PROVIDER software, prototype documents, services, updates, support, renewals, website access, or related services constitutes your acceptance of this User License Agreement, including all future amendments. Payment of an invoice is evidence of acceptance but is not the exclusive method by which acceptance is established. Acceptance may also be established by prior use of the services, continued use of the services, requesting services, requesting support, accepting deliverables, accessing the website, directing 401(k) PROVIDER to perform services, or otherwise receiving the benefit of the services.
401(k) FIDUCIARY
A 401(k) fiduciary is a person (or group) under IRS and ERISA legal obligations to manage another person's assets, including cash and property, for the person's benefit. In this scenario, the LICENSEE, 401(k) Trustees, 401(k) Plan Sponsors, and company employees who provide direct hands-on management and handling of co-workers 401(k) contributions and retirement savings are all fiduciaries. Additionally, registered financial advisors who dispense investment advice to LICENSEE or its 401(k) participants, or the disposition participants’ 401(k) retirement assets are also fiduciaries under IRS and ERISA regulations.
401(k) RECORDKEEPER
The 401(k) PROVIDER is NOT a fiduciary under law, or under terms and conditions of this Agreement. The 401(k) PROVIDER never handles, manages, or at any time has constructive receipt of the money or 401(k) assets of the LICENSEE, its employees, or its 401(k) plan participants. The 401(k) PROVIDER is herein defined in this Agreement as a "401(k) recordkeeper," Recordkeepers are responsible for accurately tracking the collection, tabulation, and movement of the LICENSEE'S and its participants’ 401(k) assets, which are domiciled with either the LICENSEE or a designated custodian, selected by the LICENSEE. LICENSEE must enter into a written agreement with the custodian designated to hold the LICENSEE’S 401(k) assets. Under a contract with the custodian, LICENSEE retains total control over its 401(k) assets and its participants’ 401(k) assets. LICENSEE can instruct the custodian to liquidate and transfer 401(k) assets to a replacement custodian of the LICENSEE’S choice. 401(k) PROVIDER has no input or role, nor is a signatory of the written Agreement between the custodian and LICENSEE.
401(k) ASSET CUSTODIAN AND MASTER PLAN ACCOUNT
401(k) PROVIDER requires that LICENSEE establish its own direct agreement with a qualified 401(k) asset custodian (example; Charles Schwab Brokerage) who can provide insured custody services and meets 401(k) PROVIDER’S standards for safety of assets and ability to securely connect electronically with 401(k) PROVIDER transaction protocols. LICENSEE must agree to allow custodian to pay custodian’s and qualified third-party recordkeeping expenses from this Master Plan Account, which has an assigned account number is different from a 401(k) participants’ personal individual self-directed account.
A 401(k) Master Plan Account is bi-directional and exists between only the LICENSEE and the custodian. It is not a participant’s self-directed 401(k) retirement investment or savings account. Its function is to serve as a transaction point for bi-directional transactions of funds and 401(k) assets between LICENSEE and custodian. LICENSEE agrees to maintain a cash balance in this Master Plan Account that is positive, and always adequately sufficient to cover all 401(k) plan-related expenses and debts, and transfer funds both to and from 401(k) participants’ individual self-directed accounts. The Master Account is a transmission point for all funds that transfer into and out of the 401(k) plan, unless instructed otherwise by LICENSEE. LICENSEE, as plan fiduciary, is responsible for the financial health and safety of its employee-participants retirement assets domiciled in the custody account. Transactions and transfers into and out of this Master Plan Account include incidental custody expenses, participants’ 401(k) contributions and distributions, employer profit sharing contributions, 401(k) loans, 401k hardship withdrawals, early retirement third-party service fees and other appropriate expenses.
Under exceedingly rare and infrequent occasions, the 401(k) PROVIDER can instruct the custodian to transfer funds from the LICENSEE'S Master Plan Account to the 401(k) PROVIDER when the LICENSEE has refused to pay 401(k) PROVIDER’S invoice for 401(k) recordkeeping services provided to the LICENSEE. In exceedingly rare circumstances where the LICENSEE refuses to pay for a 401(k) PROVIDER outstanding invoice, the 401(k) PROVIDER may request the custodian transfer enough funds to 401(k) PROVIDER to satisfy the outstanding and past-due invoices for 401(k) recordkeeping expenses.
The funds are transferred only from the LICENSEE’S Master Plan Account and will never be removed or transferred from individual 401(k) plan participants 401(k) assets or retirement savings. 401(k) PROVIDER maintains an ironclad guaranteed policy since its inception in 2008, that no 401(k) fees will ever be deducted or skimmed from any LICENSEE’S 401(k) participants’ custodied accounts or retirement assets for any reason. The LICENSEE shall bear all costs and expenses related to the 401(k) plan. Participants in the 401(k) plan are not obligated to subsidize these costs or expenses with any fees or charges.
Since its inception in 2008, 401(k) PROVIDER has never touched so much as a penny of 401(k) assets belonging to participants’ 401(k) assets or retirement savings. In addition, the 401(k) PROVIDER maintains a permanent, ironclad guarantee to never charge, deduct, or "skim" any 401(k) fees from LICENSEE or its participants 401(k) assets or plan.
The 401(k) PROVIDER’S default custodian is Charles Schwab. Still, LICENSEE can select a different custodian to hold its 401(k) assets so long as the 401(k) PROVIDER'S software connects and integrates with the LICENSEE custodian's systems. 401(k) PROVIDER recordkeeping services include but are not limited to uploading, tabulating, processing, and tracking 401(k) contributions, deposits, withdrawals, 401(k) distributions, 401(k) loans, 401(k) hardship withdrawals, compliance test corrections, and other IRS and ERISA-approved transactions.
NO CONSTRUCTIVE RECEIPT OF 401(k) ASSETS
Apart from exceedingly rare and appropriate reasons, at no point in the end-to-end 401(k) assets process between LICENSEE and custodian does the 401(k) PROVIDER take a constructive receipt or manage LICENSEE’S 401(k) assets or those of its 401(k) participants. The 401(k) recordkeeper’s role and job description very akin to a tax form preparer. The tax form preparer accepts numbers and information from its clients and uses these numbers and information in preparing the clients’ tax forms. The tax form preparer never received or handles its client's money or managed its client's assets or tax payments. The tax form preparer is not responsible for questioning the numbers or other information submitted by its clients. The tax form preparer is not responsible for examining the information provided by the client because the preparer is not an accountant, CPA, or person designated to provide legal or financial advice or interpretations to the client. If the tax preparation service PROVIDER is not qualified to give a client tax advice, the client needs to consult with a tax specialist, accountant, lawyer, or CPA.
401(k) PROVIDER performs the same work that a tax form preparer and is expected to perform. Specifically, process the numbers and information submitted by the LICENSEE and not question or examine the information or numbers LICENSEE provides. The 401(k) PROVIDER is not responsible for questioning or reporting potential problems beyond the scope of its services and responsibilities.
THE "RUN-IT-YOURSELF" 401(k)
401(k) PROVIDER offers a "run-it-yourself" 401(k) plan, priced much less than a “full-service 401(k) plan provided" or an accountant, law firm, or CPA. The 401(k) PROVIDER services are designed and priced for small businesses interested in offering a self-directed 401(k) to its employees and willing to do some of the work themselves to save on the cost of the 401(k). One example of this “run-it-yourself” process that relies upon the LICENSEE to do the actual work of a 401(k) is in 401(k) compliance testing. The LICENSEE does 401(k) compliance testing at the click of a button from the 401(k) PROVIDER’S website. The test results are solely based upon data and information supplied and input previously to the 401(k) PROVIDER, who stores all LICENSEE’S data in a secure database. The 401(k) PROVIDER's role is not to monitor the LICENSEE’S compliance test results or proactively recommend solutions to 401(k) compliance testing problems. Compliance testing is the job of a traditional "full service" 401(k) PROVIDER, who charges significantly more for its services than does the 401(k) PROVIDER.
401(k) PROVIDER WHO TEMPORARILY DISABLES THE LICENSEE’S 401K EASY WEBSITE DOES NOT INTERFERE IN ANY WAY WITH THE CUSTODIAN’S 401(k) PARTICIPANTS’ WEBSITES. 401(k) PARTICPANTS CAN LOG-IN TO THE CUSTODIAN’S WEBSITE, PARTICIPANTS CAN USE THE CUSTODIAN’S WEBSITE, 24/7 FOR VIEWING AND VERIFYING THEIR ACCOUNT BALANCE, INVESTMENT CHOICES, OR MAKING SELF-DIRECTED CHANGES OF THEIR INVESTMENTS IN THEIR PERSONAL 401(k) ACCOUNTS HELD AND MAINTAINED BY THE LICENSEE’S CUSTODIAN.THE LICENSEE’S WEBSITE AND THE CUSTODIAN’S WEBSITE ARE TWO SEPARATE AND UN-CONNECTED WEBSITES. THE CUSTODIAN’S WEBSITE IS NOT UNDER THE MANAGEMENT OR CONTROL OF THE 401(k) PROVIDER.
The 401(k) Plan PROVIDER is expressly forbidden to render investment advice to any 401(k)-plan participant and not provide legal or accounting or consulting services to the LICENSEE, unless under special arrangement. 401(k) PROVIDER is a 401(k) recordkeeper, and its sole responsibility is to track 401(k) asset transactions into and out of custodial accounts and into and out of the LICENSEE. The website 401(k) PROVIDER website provided to plan participants informs them of their 401(k)- contribution history, apply for 401(k) loans, hardship withdrawals, etc. Participants do not manage their 401(k) assets from the 401(k) PROVIDER website. All participant self-directed investing can only be performed from the custodian's separate website under the custodian’s security rules and login procedures. Suppose 401(k) PROVIDER temporarily suspends online access to its website because of a past-due invoice. In that case, this does not prevent the 401(k) participants from accessing their actual self-directed 401(K) accounts, investments, or retirement assets held at the custodian.
The LICENSEE uses its website to upload new payroll information or initiate other administrative functions once the past-due invoices are paid in full. This restriction on the LICENSEE is temporary and defined elsewhere in this Agreement.
Calendar Year License
401(k) PROVIDER 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 calendar year ending December 31st, in which LICENSEE pays the annual license fee for 401(k) PROVIDER’S services and Software. Unanticipated events caused by third-party financial intermediaries, such as the 401(k) asset custodians or self-directed brokerages, can force the shortening of the duration of this License. 401(k) PROVIDER is not obligated to modify or pro-rate its fees when third-party intermediaries cause a shortened license.
Annual Renewal Fee Distinguished from Plan Termination Fee
The Annual Renewal Fee compensates 401(k) PROVIDER for services during the upcoming license period. The Plan Termination Fee compensates 401(k) PROVIDER for off-boarding services, database closure, archival, transition support, document tracking obligations, administrative processing, and regulatory compliance following termination. Payment of one fee does not eliminate the obligation to pay the other when applicable.
License Restrictions for Internet-Based Software
LICENSEE Users can only access the specified 401(k) Websites authorized by LICENSEE or provided with access credentials. 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 401(k) PROVIDER’S Website. LICENSEE assumes all risks and liabilities of providing third-party vendors with its login information and passwords to the Website. LICENSEE Users are required to: 401(k) PROVIDER shall (i) maintain the computers on which the Internet-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 401(k) 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 they understand 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, timeshare, 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 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 ensure that no unauthorized person accesses or uses the Software or 401(k) Websites.
LICENSEE must (i) refrain from attempting to access the Software's object code, (ii) do not attempt to reverse engineer or decompile the Software, (iii) prevent any other party from accessing or using the Website's functionality, (iv) ensure that the structure, functionality, and capabilities of the Software or 401(k) Website are not disclosed to any other parties.
LICENSEE who elects to use 401(k) PROVIDER'S "full-service" offerings and other products and services specifically described in promotional information as "full-service") agrees to the License Restrictions for Internet-based Software described above. For "full-service" plans. During the period in which the LICENSEE employs 401(k) PROVIDER, 401(k) PROVIDER will assist in preparing the necessary reporting forms required by government agencies. 401(k) PROVIDER is not required to assist in preparing such forms if they pertain to a calendar year/Plan Year that has ended before the effective date of this Agreement or if the forms' final deadline/due dates are after termination of this Agreement. Upon termination of this Agreement, all bookkeeping data processing and government form preparation services shall immediately cease.
Certified Plan Audits
The 401(k) PROVIDER does not provide Certified Plan Audits. The LICENSEE'S 401(k) plan asset custodian shall give LICENSEE statements containing detailed information deemed necessary and pertinent regarding the plan’s assets. If LICENSEE requires more specific information, it is LICENSEE'S responsibility to extract the data needed from the account statements supplied by the asset custodian or brokerage.
Consultations Charges
401(k) 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 about the LICENSEE'S plan. LICENSEE must give 401(k) PROVIDER employee data, trust investments, plan changes, IRS filings, and government communications about the plan. The 401(k) PROVIDER will rely solely on the information submitted. 401(k) PROVIDER is not liable for any penalties or liabilities arising from inaccurate information submitted by LICENSEE in an untimely manner.
The 401(k) PROVIDER will follow the Plan Administrator's or Trustees' instructions to provide administrative services without discretion. 401(k) PROVIDER is not granted any independent authority or discretionary rights by LICENSEE, the Plan Administrator, or the plan's Trustees under this or any other Agreement. The 401(k) PROVIDER shall serve solely in a ministerial role and as the record keeper for the 401(k) plan.
Third-Party Asset Custody Relationships
LICENSEE is the trustee of all 401(k) plan assets held by the custodian(s) designated by the LICENSEE. The LICENSEE's custodian(s) must regularly provide accounting statements to the LICENSEE. The LICENSEE must review custodial statements and compare them with 401(k) PROVIDER reports. If the 401(k) PROVIDER makes an error, the Licensee must promptly notify them, and they will correct it.
The 401(k) PROVIDER is not required to reconcile or compare its reports with those of the licensee's custodian. The LICENSEE is required to routinely review statements for any discrepancies issued by the custodian(s) or 401(k) PROVIDER.
401(k) PROVIDER does not support or participate in "in-kind" trust-to-trust transactions, including asset transfers via the ACAT or similar "in-kind" third-party asset transfer services.
Fees for Services and Products
All fees quoted, published online, or listed in printed documents are subject to change without notice. Annual fees listed online apply only to the first year and may change later. Contact 401(k) PROVIDER for current pricing of specific services.
Eligible Employee and Eligible Participant Defined
An eligible participant is an employee whom ERISA requires to be included in any compliance test calculations or covered by any safe-harbor provisions during the plan year. The 401(k) PROVIDER herein advises the LICENSEE to run online 401(k) compliance tests, available at the 401(k) Plan Sponsor Gateway, at least once quarterly. LICENSEE is advised to actively monitor its plan’s adherence to both IRS and ERISA rules and guidelines throughout the plan year. The LICENSEE is responsible for adhering to and following the rules and procedures specified in the IRS-approved prototype plan documents. The LICENSEE is herein advised by 401(k) PROVIDER to address and correct all errors resulting in failed 401(k) compliance test results. The 401(k) plan compliance tests rely upon data supplied by the LICENSEE, which is solely responsible for providing 401(k) PROVIDER with accurate and complete data, including but not limited to employee and employer contribution information, employee W-2 wage information, employees’ status as either a highly-compensated employee (HCE) or a non-highly compensated employees (NHC), employees demographic information including date of birth, marital status, named beneficiaries, and all information 401(k) compliance tests rely upon. For purposes of adhering to ERISA guidelines and 401(k) compliance testing, employees do not explicitly need to have joined the 401(k) or placed assets in the 401(k) to be regarded as eligible employees or participants. Upon request, LICENSEE shall supply the 401(k) PROVIDER with the most recent IRS Form 941 filed with the federal government to reconcile the number of LICENSEE'S eligible employees with 401(k) PROVIDER invoicing and ERISA-required 401(k) compliance testing.
The 401(k) PROVIDER is a 401(k) recordkeeper and has no responsibility for running, monitoring, or reporting to LICENSEE any compliance testing results or problems. 401(k) compliance testing is under the complete control and responsibility of the LICENSEE. The 401(k) PROVIDER advises the LICENSEE to correct all compliance testing problems or deficits before filing the LICENSEE’S annual IRS Form 5500-SF, which requests compliance testing information and test results. The LICENSEE is alerted to the need to run its 401(k) compliance tests at least once quarterly, and fix errors quickly each time the LICENSEE logs-in to the 401(k) PROVIDER website to upload 401(k)contribution data or perform other “run-it-yourself” tasks.
IRS Form 941 (Employer's Quarterly Federal Tax Return)
LICENSEE must provide 401(k) PROVIDER with their latest IRS Form 941 for verification of database information upon request. Additionally, data from IRS Form 941 may be utilized by the 401(k) PROVIDER to inform the licensee of the requirement to file IRS Form 8955-SSA (Annual Registration Statement Identifying Separated Participants with Deferred Vested Benefits). Form 89055-SSA alerts the IRS and Social Security Administration of any 401(k) participants who have terminated employment and abandoned their vested benefits in the LICENSEE'S plan.
Plan Termination Fee
There is a combination Plan Termination Fee equal to twice (2X) the most recent annual service fee or twice (2X) the most recent renewal fee. LICENSEE’s notice of plan termination of 401(k) PROVIDER services can be verbal or written. The Plan Termination Fee covers the costs of removing the User’s 401(k) plan from the 401(k) PROVIDER’S platform and archiving the data for three years. Plan Termination Fee is due and payable upon receipt. LICENSEE might need to make payments via bank wire transfer as required by the 401(k) PROVIDER. The 401(k) PROVIDER may deduct the termination and liquidation fees from the licensee’s 401(k) plan assets if payment is delayed or refused. 401(k) PROVIDER may temporarily suspend services, including online access, until all fees are fully paid.
Plan Termination and Automatic Fee Trigger
This Agreement remains in effect until properly terminated in accordance with this Agreement. Failure to renew annual services does not terminate this Agreement. If LICENSEE elects not to renew, discontinues services, transfers the plan to another provider, ceases communications regarding renewal, or otherwise ends its business relationship with 401(k) PROVIDER, such action constitutes termination of the Agreement and automatically triggers the Plan Termination Fee.
The Plan Termination Fee is earned upon termination of the business relationship and is not contingent upon renewal of annual services, execution of a new agreement, payment of a renewal invoice, or continued access to the Software.
Definition of Termination
“Termination” includes, without limitation, any of the following:
Once any of the foregoing occurs, the Plan Termination Fee immediately becomes due.
Survival of Plan Termination Fee Obligation
The obligation to pay the Plan Termination Fee survives expiration, suspension, cancellation, or termination of this Agreement and remains fully enforceable until paid.
Reasonable Estimate; Not a Penalty
The parties acknowledge that the Plan Termination Fee represents a reasonable estimate of the administrative, legal, technical, archival, regulatory, document tracking, data preservation, transition, and customer support costs incurred upon termination, and is not intended as a penalty.
Mass Submitter Obligations Supporting the Plan Termination Fee
Because 401(k) PROVIDER is an IRS-approved Mass Submitter, termination requires substantial administrative work beyond simply disabling Software access, including document tracking, archival, prototype disposition records, transition assistance, compliance verification, and fulfillment of Mass Submitter obligations. The Plan Termination Fee compensates 401(k) PROVIDER for these post-termination obligations regardless of whether LICENSEE renews annual services.
Anti-Avoidance Clause
LICENSEE may not avoid the Plan Termination Fee by declining to pay a renewal invoice, allowing the Agreement to lapse, discontinuing communications, replacing prototype documents, changing recordkeepers or TPAs, or otherwise ceasing to use the services without completing the termination procedures required by this Agreement.
When a plan is terminated, participants' 401(k) investment accounts do not need to be liquidated (converted to cash) upon the termination of 401(k) PROVIDER'S services. The LICENSEE may, in some cases, be able to retain participant investment accounts at the current plan asset custodian, subject to the custodian's requirements if the LICENSEE requests that participants' 401(K) investment accounts be retained at the custodian and not liquidated. The 401(k) PROVIDER will issue an invoice for asset account liquidations based on the LICENSEE'S needs and circumstances. Liquidations are excluded from the Termination Fee. The LICENSEE may direct the 401(k) PROVIDER to liquidate the plan’s 401(k) assets and forward the proceeds to the LICENSEE or a newly assigned TPA or Custodian.
Depending upon the Licensee's needs and instructions, there will be an additional charge for liquidating and transferring plan assets. In no cases will 401(k) PROVIDER support any "in-kind" asset transactions, including ACAT transactions.
Asset Custody
LICENSEE agrees to use the plan asset custody services of qualified self-directed brokerages eligible to interface with PROVIDER'S data processing systems. LICENSEE agrees not to modify its Agreement with the asset custodian to allow any asset-based fees to be deducted from plan assets without the prior written consent of 401(k) PROVIDER. LICENSEE agrees not to modify its Agreement with the asset custodian to allow for any plan assets to be managed by any third-party financial advisor or other entity or third party who is not an employee of LICENSEE without the prior written consent of 401(k) PROVIDER.
If the LICENSEE'S plan asset custodian makes a change that requires 401(k) PROVIDER to enter into a new Agreement with the current asset custodian or a replacement custodian, 401(k) PROVIDER reserves the right to refuse to enter into a new Agreement with the current asset custodian or replacement asset custodian. Suppose the 401(k) PROVIDER refuses to enter into a new Agreement with the current or replacement custodian. In that case, the 401(k) PROVIDER shall offer LICENSEE an alternative 401(k) plan asset custody arrangement like the current 401(k) plan asset custody arrangement. LICENSEE may accept the new 401(k) plan asset custody arrangement offered by 401(k)PROVIDER or terminate the User Agreement under the terms and conditions of the User Agreement, including payment of all Plan Termination Fees.
Complex Plan Terminations
Some plan terminations are more complex than others. Sometimes, the third-party administrator assuming administration and recordkeeping responsibilities will request custom calculations, records, and summaries not included in the Plan Termination Fees. Developing custom files and reports requires specialized programming, data mapping, and labor. 401(k) PROVIDER will evaluate all such file requests on a case-by-case basis and provide LICENSEE with a quote for supplemental services payable before delivering completed custom files.
Reliance Upon Prototype Plan Documents
Upon the termination or expiration of this Agreement, the LICENSEE shall cease to rely upon or use the 401(k) PROVIDER'S copyrighted and 401(k) PROVIDER-supplied Prototype Plan Documents. Upon termination or expiration of this Agreement, LICENSEE'S right to use 401(k) PROVIDER-supplied customized and standardized Documents is revoked. LICENSEE may continue to use its customized IRS-approved prototype plan documents under a subscription service, described on the Website https://www.401kprototype.com .
Extended Service Fee After Termination
There is an Extended Service Fee After Termination with 401(k) PROVIDER online services after the expiration of the User Agreement. The Extended Service Fee provides the LICENSEE with five (5) consecutive business days of online access for $1,000, payable in advance by bank wire transfer only.
401(k) PROVIDER will supply bank wire transfer information and instructions to the LICENSEE. During the Extended Service Fee, the LICENSEE agrees to the terms and conditions of the User Agreement in force at the time. During these five days, the Plan Sponsor can process compliance tests and print reports, and participants can print statements and monitor the disposition of their 401(k) assets.
After the initial Extended Service Fee has elapsed, the LICENSEE can continue to extend online access for an additional $200 per day, payable in advance by bank wire transfer only, and agrees to the terms and conditions of the User Agreement. During these initial five Extended Services days, the Plan Sponsor can process compliance tests and print reports, and participants can print statements and monitor the disposition of their 401(k) assets.
Reprocessing Charge for Supplemental Recordkeeping or Supplemental Services
Unanticipated events caused by third-party intermediaries and service PROVIDERs such as investment custodians, mutual fund companies, and brokerages, or actions by the LICENSEE may require 401(k) PROVIDER to make database edits, rollbacks, calculations, and reprocessing of the LICENSEE'S 401(k) core database are subject to a Reprocessing Charge. Reprocessing Charges are estimated and invoiced in advance. Any overage in LICENSEE payment for Reprocessing Charge shall be refunded to LICENSEE. Corrections and reprocessing by 401(k) PROVIDER are often time-sensitive and must be addressed quickly to prevent problems from escalating. Examples of events that can result in Reprocessing Charges include but are not limited to reprocessing LICENSEE'S previously submitted payroll or distribution information and intermediaries' actions, including fund mergers, fund names and cusip changes, reclassification of fund shares, stock-splits, reverse stock splits, and other actions and/or transactions that require 401(k) PROVIDER to make critical and detailed changes to the LICENSEE'S 401(k) plan database. The standard Reprocessing Charge is invoiced at $200 per hour, with a 1-hour minimum charge.
Forced Asset Liquidations
Some third-party actions require 401(k) PROVIDER to liquidate some LICENSEE investments that, in 401(k) PROVIDER'S sole estimation, could, if not addressed promptly, result in severe accounting and/or recordkeeping problems for the LICENSEE, its plan participants, and its plan database. When possible and deemed necessary, 401(k) PROVIDER will liquidate problematic investments to mitigate escalating problems for the LICENSEE. The liquidation proceeds will be transferred to LICENSEE'S custodial master plan account. LICENSEE shall fully indemnify and hold harmless 401(k) PLAN PROVIDER for taking liquidation actions to benefit LICENSEE and its plan's participants and database. Unless detailed or defined, other actions taken by 401(k) PROVIDER herein may be charged as Supplemental Services. Examples would include the costs associated with temporarily blocking access to 401(k) online services and/or restoring 401(k) online services.
Black-Out Dates
If the User requests specific "black-out dates," the 401(k) PROVIDER will make a best-effort attempt to fulfill the LICENSEE'S request but cannot commit to or guarantee specific dates(s) on the part of either the 401(k) PROVIDER or the custodian(s) holding the LICENSEE'S 401(k) plan assets.
Supplemental Due Diligence Audit & Accounting Reports
401(k) PROVIDER offers a Due Diligence Audit & Accounting Package (DDR) for LICENSEEs needing detailed information beyond standard online reports. The DDR Pac is a set of specially developed and formatted reports that provide the LICENSEE with a broad overview of plan transactions and asset holdings on both the 'participant level' and the 'plan level.'
Failure to Pay 401(k) PROVIDER Invoices
All invoices for 401(k) PROVIDER services are due and payable when received by LICENSEE unless otherwise specified. 401(k) PROVIDER reserves the right to demand payment of outstanding invoices only by bank wire transfers. 401(k) PROVIDER shall supply bank wire transfer information and instructions to the LICENSEE otherwise specified in the invoice. 401(k) PROVIDER reserves the right to temporarily suspend or withhold services, including access to its online services until outstanding invoices are paid in full. If online service is suspended for nonpayment of the unpaid invoice(s), a service restoration fee may be charged. Besides all outstanding invoices, this service restoration charge must be paid in full via bank wire transfer. Bank wire transfer information and instructions shall be provided to LICENSEE by 401(k) PROVIDER.
Prototype Plan Documents
For the duration of this Agreement, 401(k) PROVIDER provides LICENSEE with copyrighted and IRS-approved Prototype Plan Documents ("Documents") that 401(k) PROVIDER acquires from third-party sources and is then customized for each LICENSEE'S needs and objectives. 401(k) PROVIDER claims US Copyright status and protection for any customized version(s) of these Documents prepared by 401(k) PROVIDER for the benefit and use of LICENSEE. LICENSEE agrees only to use and rely upon these customized and copyrighted Documents for the duration of its Agreement with 401(k) PROVIDER unless given a written waiver by 401(k) PROVIDER. Upon termination or expiration of this Agreement,
LICENSEE may no longer rely upon or use 401(k) PROVIDER copyrighted and/or 401(k) PROVIDER supplied Prototype Plan Documents. LICENSEE'S right to use Prototype and customized Documents is revoked upon termination or expiration of this Agreement.
LICENSEE can continue using the customized Documents after this Agreement expires if LICENSEE enters into a new Agreement with 401(k) PROVIDER under the terms of service "401(k) Easy Docs" described on the Website https://www.401(k)prototype.com.
401(k) PROVIDER is a registered and IRS-approved Mass Submitter of customized 401(k) 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, 401(k) PROVIDER must track the distribution, usage, and disposition of all its customized Documents. This requirement places an obligation upon the 401(k) PROVIDER to make reasonable efforts to track the possible use of customized documents by the former LICENSEE after terminating the 401(k) PROVIDER's services.
LICENSEE agrees to cooperate with 401(k) PROVIDER in its obligation under IRS regulations by providing the following information to 401(k) PLAN PROVIDER within one (1) year of termination of 401(k) PROVIDER services.
The LICENSEE formally terminates its 401(k) plan by submitting Form 5500-SF to the IRS in the calendar year subsequent to the cessation of services provided by the 401(k) PROVIDER. LICENSEE agrees to provide a copy of this filing 401(k) PLAN PROVIDER.
Suppose LICENSEE transfers its 401(k) servicing to another pension consultant, recordkeeper, or third-party administrator during the calendar year following terminating 401(k) PROVIDER services. In that case, LICENSEE agrees to provide 401(k) PLAN PROVIDER with a copy of the IRS Determination Letter of the prototype plan documents used to replace 401(k) PROVIDER documents.
401(k) PROVIDER reserves the right to notify the IRS or other third parties, including publicly available online information and business review services, should the LICENSEE fail to pay past-due invoices or provide the information necessary for 401(k) PROVIDER to fulfill its legal obligations as an IRS Mass Submitter.
401(k) PROVIDER does not warrant its customized Documents or their adaptation to LICENSEE'S needs or requirements. 401(k) PROVIDER assumes no liability for these documents' accuracy, completeness, applicability, or use by LICENSEE. LICENSEE'S use of the Documents is solely at the LICENSEE's discretion and LICENSEE'S own risk. At its discretion, LICENSEE can utilize prototype plan documents acquired from sources other than 401(k) PROVIDER.
LICENSEE is under no obligation to use 401(k) PROVIDER-supplied Documents. 401(k) PROVIDER, as policy, automatically adopts government-mandated amendments to the Documents. At its sole discretion, 401(k) PROVIDER may assist with reviewing Employer's existing Plan documents and consult Employer on the feasibility of restatement and administration of the LICENSEE'S plan. 401(k) PROVIDER will prepare the documentation needed to establish or re-state the Plan and Trust Agreement for review by the Employer's professional advisors and update documents as required by regulation. 401(k) PROVIDER will prepare and update the Summary Plan Description as federal and state statutes require.
Patents, Trademarks, and Copyrights
The Software includes technology protected by 401(k) PROVIDER'S US Patent Number 6041313, plus additional US Patents Pending. 401(k) 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 401(k) PROVIDER-supplied Software, Publications, and Support shall be revoked. Unauthorized use of Software and/or Publications constitutes copyright infringement, subjecting violator(s) to civil and criminal penalties under federal law.
Additional Information
All investments offered in the plan shall be selected by LICENSEE, with no input of advice rendered by 401(k) PROVIDER. 401(k) PROVIDER shall not make investment recommendations to LICENSEE or plan participants.
Non-Deposit Investment Products
Mutual funds and securities products do not qualify as bank deposits and are neither insured nor guaranteed by the Federal Deposit Insurance Corporation (FDIC), the Federal Reserve Board, or any other governmental agencies. They are subject to investment risks, including loss of the principal invested.
Investment Performance/Rates of Returns
Investment returns 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
Calculators and Financial Planning Tools are provided for informational and illustrative purposes only. They 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 indicate the future return or amount received investment. Results obtained through the Financial Planning Tools are not intended to be investment advice, and the PROVIDER, the LICENSEE, and the Plan Administrator do not present such information as fiduciaries.
401(k) Loan Modeling
401(k) 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 loan modeling tool results are subject to change and may only be relied upon in some cases to be in final form.
Investment Information
Investment information provided by 401(k) PROVIDER websites or other 401(k) 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.
Payroll Integration
Payroll Integration is a technical procedure wherein data from the Licensee's payroll is conveyed to the 401(k) PROVIDER for processing. A subset of this data is transferred to Licensee's asset custodian by 401(k) PROVIDER for additional processing by the asset custodian. Before purchasing payroll integration services from the 401(k) PROVIDER, the Licensee is informed of potential technical issues that may prevent the 401(k) PROVIDER from providing contracted payroll integration services in the future. Suppose the 401(k) PROVIDER can no longer provide the Licensee with payroll integration services. In that case, the Licensee can terminate all 401(k) PROVIDER services under the terms and conditions of this Agreement Termination or continue to use 401(k) PROVIDER services without payroll integration at a reduced negotiated annual rate.
Unitized Account Management (UAM)
At 401(k) 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 to manage pooled investment(s). LICENSEE agrees to reimburse 401(k) PROVIDER for expenses incurred to correct or reprocess records or reports because of errors caused by the UMA PROVIDER or other third parties involved in managing the UMA.
Third-Party Communications
401(k) PROVIDER Communications with LICENSEE'S Third-Party Representatives. 401(k) PROVIDER is not obligated or required under terms and conditions of this Agreement to interact or communicate with License’s designated third-party representatives or service PROVIDERs directly or indirectly in writing, or directly or indirectly by phone, or directly or indirectly by joint conference calls that include the LICENSEE. Third-party representatives and third-party service PROVIDERs have (but are not limited to) the following: pension administrators, pension recordkeepers, investment custodians, attorneys, CPAs, accountants, financial advisors and brokers, payroll PROVIDERs, software engineers, and all other third-party service PROVIDERs the LICENSEE enlists in support of its plan. The LICENSEE and its internal administrative staff and employees are the exclusive and sole point of contact for 401(k) PROVIDER. The PROVIDER has a comprehensive Arbitration Section in this User Agreement and reserves the right to notify any court or to compel arbitration if LICENSEE or LICENSEE'S attorney threatens or initiates any court action or lawsuit against the PROVIDER while this Agreement is in effect and for up to twelve months after termination of this Agreement or LICENSEE'S use of PROVIDER'S services for any reason.
At its sole discretion, the 401(k) PROVIDER reserves the right to interface and communicate with LICENSEE'S third-party service PROVIDERs on a case-by-case basis. 401(k) PROVIDER will estimate how much time telephone discussions and written communications will require and provide such an estimate to LICENSEE. The fee for discussions and written communications with LICENSEE'S third-party representative(s) shall be $500 per hour, with a two-hour minimum fee payable before interaction(s).
Warranties
During the current license term, 401(k) PROVIDER warrants to LICENSEE that the Software will operate according to the published specifications. 401(k) PROVIDER'S sole obligation and liability under this warranty shall be to correct any defects in the Software, in a reasonable time, to perform by the published specifications. Any software code 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. 401(k) PROVIDER does not warrant that the Software will meet LICENSEE'S requirements or that its use will be uninterrupted or error-free. Suppose 401(k) PROVIDER fails to remedy defects in the Software. In that case,
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). 401(k) PROVIDER warrants to LICENSEE that during the Term of this Agreement, 401(k) PROVIDER will use diligent efforts to make its Internet-Based Software available to licensed users. LICENSEE of Internet-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 401(k) PROVIDER. LICENSEE of Internet-Based Software understands that periodic website service interruptions may be necessary to maintain third-party networks and facilities. Therefore, 401(k) PROVIDER cannot always guarantee the availability of Internet-based Software under all circumstances.
Disclaimer of Warranties
Except for the preceding limited warranty, the Software is provided "AS IS." The entire risk as to the quality and performance of the Software is with LICENSEE. 401(k) PROVIDER, to the maximum extent permitted by applicable law, denies all other representations and warranties, express or implied, regarding the Software, including its fitness for a particular purpose, quality, accuracy, merchantability, and non-infringement. 401(k) PROVIDER does not represent or warrant that the Software is free from bugs, errors, or other program limitations.
401(k) PROVIDER has no control over LICENSEE'S use of the Software, and 401(k) PROVIDER does not and cannot warrant the performance or results obtained by its use. 401(k) 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 any other party, on account of any inaccuracies in or unseemliness of the data or information.
Nor does 401(k) PROVIDER have any obligations to LICENSEE to correct such data or information or any errors contained in the Software. The software data is subject to frequent updates and may occasionally be inaccurate or not current. The Software should only be used to confirm research from other sources, obtain up-to-date information, and separate analysis by the LICENSEE of their particular investment or tax situation or recordkeeping application. The Software does not endorse any investments or mutual funds, nor provide specific tax, legal, or investment advice. 401(k) 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 of any responsibilities or liabilities specified in ERISA or the Internal Revenue Code of 1954, as amended occasionally. 401(k) PROVIDER shall not, at any time, under this Agreement or otherwise, act in any capacity or may be construed to be that of a fiduciary or investment counselor to LICENSEE'S plan. Nothing contained herein shall be construed to render 401(k) 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 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 401(k) 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 THE 401(k) PROVIDER, ITS SUPPLIERS, OR ITS DISTRIBUTORS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. IN PARTICULAR BUT WITHOUT LIMITATION, 401(k) PROVIDER, ITS SUPPLIERS, AND ITS DISTRIBUTORS SHALL HAVE NO LIABILITY FOR THE LOSS OF ANY INFORMATION STORED IN OR USED WITH SOFTWARE.
THE MAXIMUM AGGREGATE LIABILITY OF 401(k) PROVIDER AND ITS SUPPLIERS FOR ANY CLAIM ARISING OUT OF THE USE OF THE SOFTWARE OR ANY DEFECT IN THE SOFTWARE, ON ANY AND ALL THEORIES OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE BY 401(k) PROVIDER, SHALL IN ALL EVENTS BE LIMITED TO RETURN OF THE AMOUNTS PAID AS THE CURRENT YEAR'S LICENSE FEES.
US 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 outlined in this Agreement. The Software is subject to the Federal Acquisition Regulations as "restricted” computer software," its use, duplication, and disclosure shall be subject to the restrictions in FAR 52.227- 14.
Miscellaneous
LICENSEE acknowledges that this Agreement is a complete statement of the Agreement between LICENSEE and 401(k) PROVIDER. There are no prior or contemporaneous understandings, promises, representations, or descriptions regarding the Software. This Agreement does not limit any rights or remedies that 401(k) PROVIDER may have under trade secret, trademark, copyright, patent, or other related intellectual property laws. Representatives of 401(k) PROVIDER are not authorized to modify this Agreement or make any additional representations, commitments, or warranties binding on 401(k) PROVIDER. Accordingly, such additional statements are not binding on 401(k) PROVIDER, and LICENSEE should not rely upon such opinions. The 401(k) PROVIDER reserves the right to change the terms, fees, and product and service offerings described in this Agreement without prior notice to the User. The validity and performance of this Agreement shall be governed by California law (without reference to choose of law principles) and all applicable Federal regulations.
This Agreement is deemed entered 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 connected with this Agreement may only be resolved in Los Angeles, California.
Payment of Invoices
Invoices presented by 401(k) PROVIDER to a LICENSEE for services or pending services are due and payable upon receipt. 401(k) PROVIDER retains the right under this Agreement to suspend services until outstanding invoices are paid in full. If services are suspended, 401(k) PROVIDER reserves the right to assess an additional Service Suspension & Restoration Charge of $500 to restore suspended services or assign other charges. This Service Suspension & Restoration Charge and any outstanding invoice charges must be paid entirely by Bank Wire Transfer before suspended services are restored.
PLAN PROVIDER may require LICENSEE to pay invoices via Bank Wire Transfer instead of using credit card payments. No paper bank or payment checks will be accepted by 401(k) PROVIDER.
Late Payment Fee
401(k) PROVIDER reserves the right to charge a Late Payment Fee to LICENSEE for any past due amounts. The Late Payment Fee is 14%, calculated daily, of LICENSEE'S outstanding balance or some other amount or percentage penalty, as determined by 401(k) PROVIDER.
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. 401(k) PROVIDER reserves the right to change fees, terms, conditions, and product offerings. 401(k) PROVIDER reserves the right to adjust fees and suspend services without breaching or terminating this Agreement if LICENSEE fails to pay invoiced fees per this Agreement. 401(k) PROVIDER may terminate this Agreement if LICENSEE breaches this Agreement.
Promotion & Marketing
401(k) PROVIDER reserves the right to use LICENSEE'S business name, city, and state in marketing literature and materials to promote 401(k) PROVIDER products and services.
Mediation & Arbitration
401(k) PROVIDER will not respond to emails from third parties, including law and accounting firms; all verbal and written communications are with and between 401(k) PROVIDER and LICENSEE only. The PROVIDER reserves the right to notify any court that this arbitration Agreement is in place and reserves the right, under Code of Civil Procedure, to file with a court to compel arbitration if LICENSEE or LICENSEE'S attorney initiates any court actions or lawsuits against PROVIDER while this Agreement is in effect, and up to twelve months following the termination of LICENSEE'S use of PROVIDER'S services this for any reason. If a dispute (excluding copyright, patent, 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 written communications or discussions, the parties agree to endeavor first to resolve 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 401(k) PROVIDER or its agents or suppliers shall be decided by binding arbitration administered by the American Arbitration Association by its Commercial Arbitration Rules. 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 individually 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), the determination of which 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 and signed by most arbitrators. It should also include a statement regarding the reasons for the disposition of any claim.
Except as 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. Both parties now agree that arbitration described in this Agreement shall be in effect for the duration of this Agreement and up to twelve months following the termination of this Agreement for any reason.
Notices
Any notice required or permitted 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 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, if 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.
Force Majeure
Neither party will be held responsible for nonperformance if it is made impossible due to strike, fire, flood, government actions, orders or restrictions, supplier failures, or any other factors beyond their control and not caused by their own negligence.
Waiver
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
Suppose a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable. In that case, 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.