Pension Systems Corporation (hereinafter "401K DOCUMENTS PROVIDER") and its successors agrees to license its 401k documents and related services, any updates or modifications it provides, and associated documentation (herein collectively referred to as the "Documents") to you (hereinafter "Licensee") pursuant to the below terms and conditions. Do not order or use the Documents until you have carefully read the following terms. By ordering or using the Documents, you agree to be bound by the terms and conditions of this end user license agreement (the "Agreement").
401K DOCUMENTS PROVIDER hereby grants to Licensee a non-exclusive, non-transferable license to use, access, load and execute the Documents under Licensee's control for the duration of the calendar year in which Licensee pays the annual license fee for the Documents.
Licensee may use the Documents for Licensee's own use only for the duration of the calendar year in which Licensee pays the annual license fee for the Documents. Licensee may not load the Documents on a network server or make the Documents available through a network of any kind. In addition to the copy of the Documents stored on the hard drive of Licensee's computer; Licensee may make one archival copy of the Documents solely for backup purposes. Making any additional copies of the Documents by any means, including electronic transmission, or allowing any other person to make a copy is prohibited. No identifying marks, copyright, patent or patent pending notices or proprietary rights notices may be altered or deleted from any copies of the Documents. Licensee is prohibited from giving copies of the Documents to another person or entity.
401K DOCUMENTS 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 DOCUMENTS PROVIDER, on a timely basis, any and all information and data that 401K DOCUMENTS 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 DOCUMENTS PROVIDER shall rely solely upon information so submitted. 401K DOCUMENTS PROVIDER shall not be responsible for any penalties or liabilities resultant from failure of Licensee to submit accurate information on a timely basis.
401K DOCUMENTS 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 DOCUMENTS PROVIDER by Licensee, the Plan Administrator or the Trustees of the plan under this or any other agreement. 401K DOCUMENTS PROVIDER shall act in a ministerial capacity only.
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.
For the duration of this Agreement, 401K DOCUMENTS PROVIDER provides Licensee with Prototype Plan Documents ("Documents") that 401K DOCUMENTS PROVIDER acquires from third-party sources. 401K DOCUMENTS PROVIDER does not warranty these Documents, or their adaptation to Licensee's needs or requirements. 401K DOCUMENTS 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. 401K DOCUMENTS PROVIDER, as policy, automatically adopts government-mandated amendments to the Documents. At its sole discretion 401K DOCUMENTS 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 DOCUMENTS 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 DOCUMENTS PROVIDER will prepare and update the Summary Plan Description as required by regulation.
Upon termination or expiration of this Agreement, Licensee may no longer rely upon or use 401K DOCUMENTS PROVIDER copyrighted and/or 401K DOCUMENTS PROVIDER-supplied Prototype Plan Documents. Upon termination or expiration of this Agreement Licensee's right to use 401K DOCUMENTS PROVIDER-supplied customized and standardized Documents is revoked.
401K DOCUMENTS PROVIDER claims copyright and trademark protection for all Documents and copyright for all Publications and Videos. Should this Agreement be terminated for any reason, the right of Licensee to use 401K DOCUMENTS PROVIDER-supplied Documents, Publications and Support shall be revoked. Unauthorized use of Documents and/or Publications constitutes copyright infringement, subjecting violator(s) to both civil and criminal penalties under federal law.
For the duration of the current license term, 401K DOCUMENTS PROVIDER warrants to Licensee only that the Documents shall perform consistent with the published specifications. 401K DOCUMENTS PROVIDER'S sole obligation and liability under this warranty shall be to correct any defects in the Documents, in a reasonable time, to perform in accordance with the published specifications therefore. Any modifications, maintenance or other changes to the Documents by the Licensee or its agents and employees shall void this warranty but not the exclusions and waivers of warranties contained herein. 401K DOCUMENTS PROVIDER does not warrant that the Documents will meet Licensee's requirements or that its use will be uninterrupted or error-free. In the event that 401K DOCUMENTS PROVIDER fails to remedy defects in the Documents, Licensee's sole remedy shall be to receive a refund of the current year's license fees for the Documents (not including any plan customization fee paid by Licensee). 401K DOCUMENTS PROVIDER warrants to Licensee that during the Term of this Agreement 401K DOCUMENTS PROVIDER will use diligent efforts to provide availability to licensed users of its Web-Based Documents. Licensee of Web-Based Documents 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 DOCUMENTS PROVIDER. Licensee of Web-Based Documents understands that periodic website service interruptions may be necessary to perform maintenance on third party networks and facilities, and that, therefore, 401K DOCUMENTS PROVIDER cannot guarantee the availability of the Web-Based Documents at all times and under all circumstances.
Except for the foregoing limited warranty, the Documents is provided "AS IS." The entire risk as to the quality and performance of the Documents is with Licensee. 401K DOCUMENTS PROVIDER, to the maximum extent permitted by applicable law, disclaims all other representations and warranties, express or implied, regarding the Documents, including its fitness for a particular purpose, quality, accuracy, merchantability and non-infringement. 401K DOCUMENTS PROVIDER does not represent or warrant that the Documents is free from bugs, errors or other program limitations.
401K DOCUMENTS PROVIDER has no control over Licensee's use of the Documents, and 401K DOCUMENTS PROVIDER does not and cannot warrant the performance or results that may be obtained by its use. 401K DOCUMENTS PROVIDER does not represent, warrant, or guarantee the accuracy and timeliness of the data or information contained in the Documents 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 DOCUMENTS PROVIDER have any obligations to Licensee to correct such data or information or any errors contained in the Documents. Various information in the Documents constantly changes, and the information may not be current or accurate. The Documents 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 Documents does not recommend or endorse any specific investment or any particular mutual fund, nor does the Documents offer specific tax, legal or investment advice or strategies. 401K DOCUMENTS 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 DOCUMENTS 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 DOCUMENTS 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 Documents. However, some states do not allow a limitation on how long an implied warranty lasts, so the above limitation may not apply to Licensee.
IN NO EVENT SHALL 401K DOCUMENTS 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 DOCUMENTS OR ANY DEFECT IN THE DOCUMENTS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF 401K DOCUMENTS PROVIDER, ITS SUPPLIERS OR ITS DISTRIBUTORS SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE. IN PARTICULAR BUT WITHOUT LIMITATION, 401K DOCUMENTS PROVIDER, ITS SUPPLIERS AND ITS DISTRIBUTORS SHALL HAVE NO LIABILITY FOR THE LOSS OF ANY INFORMATION STORED IN OR USED WITH THE DOCUMENTS.
THE MAXIMUM AGGREGATE LIABILITY OF 401K DOCUMENTS PROVIDER AND ITS SUPPLIERS FOR ANY CLAIM ARISING OUT OF USE OF THE DOCUMENTS OR ANY DEFECT IN THE DOCUMENTS, ON ANY AND ALL THEORIES OF LIABILITY, INCLUDING WITHOUT LIMITATION NEGLIGENCE BY 401K DOCUMENTS PROVIDER, SHALL IN ALL EVENTS BE LIMITED TO RETURN OF THE AMOUNTS ACTUALLY PAID AS THE CURRENT YEAR'S LICENSE FEES.
Licensee acknowledges that this Agreement is a complete statement of the agreement between Licensee and 401K DOCUMENTS PROVIDER, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions, regarding the Documents. This Agreement does not limit any rights or remedies that 401K DOCUMENTS PROVIDER may have under trade secret, trademark, and copyright, patent or other related intellectual property laws. Representatives of 401K DOCUMENTS PROVIDER are not authorized to make modifications to this Agreement, or to make any additional representations, commitments or warranties binding on 401K DOCUMENTS PROVIDER. Accordingly, such additional statements are not binding on 401K DOCUMENTS PROVIDER and Licensee should not rely upon such statements. 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.
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 DOCUMENTS 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 DOCUMENTS PROVIDER may terminate this Agreement if Licensee breaches this Agreement.
401K DOCUMENTS PROVIDER reserves the right to use Licensee's business name, city and state in marketing literature and materials used in promoting 401K DOCUMENTS PROVIDER products and services.
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 DOCUMENTS 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.
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.
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.