401k user license agreement for web based and pc based software
TRANSCRIPT
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401k User License Agreement for Web‐Based and PC‐Based Software and Services
Pension Systems Corp (hereinafter "401K PROVIDER") and its successors agrees to license its pc‐based
version or its 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 either the pc‐
based version or the web‐based version of the Software until you have carefully read the following
terms. By ordering or using either the pc‐based version or 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").
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 in
which Licensee pays the annual license fee for the Software.
License Restrictions for PC‐Based (not Web‐Based) Software
Licensee may use the Software for Licensee's own use only, on one stand‐alone computer under
Licensee's control for the duration of the calendar year in which Licensee pays the annual license fee for
the Software. Licensee may not load the Software on a network server or make the Software available
through a network of any kind In addition to the copy of the Software stored on the hard drive of
Licensee's computer; Licensee may make one archival copy of the Software solely for backup purposes.
Making any additional copies of the Software 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
Software. Licensee is prohibited from giving copies of the Software to another person or entity. Licensee
may not print copies of any user documentation. The Software contains trade secrets, and Licensee may
not decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human‐
perceivable form. Licensee may not modify, adapt, translate, rent, sublease, assign, loan or sell the
Software or create derivative works based upon the Software or any part thereof. Licensee and
Licensees Users shall (i) not to attempt to gain access to the 401(k) Software object code, (ii) not
attempt to reverse engineer or decompile the 401(k) Software, (iii) not allow any other party to access
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or use the functionality of the Software, and (iv) not disclose the structure, functionality or capabilities
of the Software to any other parties.
License Restrictions for Web‐Based (not PC‐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.
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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 (not PC‐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
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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.
Plan Termination and Service Termination Fees for Web‐Based (not PC‐Based) System.
There is a Plan Termination Fee of $50 per participant for all Web‐Based plans. This fee is payable in
advance of termination or expiration of this Agreement by the Licensee. In addition, there is a Web
Access Extension Fee of $500 assessed for Licensee's post‐termination online access to plan sponsor
functions and reports after this Agreement has terminated. To avoid paying this Web Access Extension
Fee, Licensee agrees to fully complete all plan distributions, and print all relevant reports at least five (5)
days prior to the termination of this Agreement. The Web Access Extension Fee is payable in advance of
401K PROVIDER setting up the technical protocols and systems required to provide Licensee with five (5)
consecutive business days of post‐termination online access. If additional days of post‐termination
online access are needed after the initial five‐days herein provided, additional days may be purchased at
the rate of $100 per each additional day, payable in advance.
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 $30 per participant shall apply.
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.
Prototype Plan Documents
For the duration of this Agreement, 401K PROVIDER provides Licensee with Prototype Plan Documents
("Documents") that 401K PROVIDER acquires from third‐party sources. 401K PROVIDER does not
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warranty these 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.
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.
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.
Additional Information
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.
Non‐Deposit Investment Products
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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.
Investment Performance/Rates of Returns
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
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
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
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.
Unitized Account Management (UAM)
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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.
Warranties
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.
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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
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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.
Miscellaneous
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 allapplicable Federal laws. This Agreement is deemed entered into at Los Angeles, California, and shall beconstructed as to its fair meaning and not strictly for or against either party. Any resolution of a disputearising out of or in connection with this Agreement may only be resolved in Los Angeles, California.
Effective Term of Agreement
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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.
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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.
Notices
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.
Force Majeure
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.
Waiver
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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.