401k Administrative Services Agreement
1. Plan Administrative Services.
You, the 'Customer', hereby agree to purchase from 401kAdministrators.com technical and administrative support services as set forth below in connection with a new or existing 401k plan.
2. 401kAdministrators.com's obligations: 401kAdministrators.com shall conduct the initial plan review, coordinate the plan provisions, furnish IRS-approved 401k plan and profit sharing documents under a revocable license, prepare and provide a summary plan description and plan highlights, provide record-keeping services, loan administration, including preparation of loan promissory notes, and administration of distributions, including calculation of benefits and vesting as approved by the Plan Administrator. 401kAdministrators.com shall also assist in compliance with IRS regulations, eligibility, contributions, and benefits, conduct top-heavy, coverage, and ADP/ACP nondiscrimination testing, if necessary, and prepare signature ready IRS Form 1099-R and Form 5500-SF. Nothing in this agreement will be deemed to make 401kAdministrators.com a fiduciary or party or legal counsel to the Plan, the Customer, Trustees or Participants. 401kAdministrators.com is not a Plan Administrator as defined in ERISA Section 3(16)(A) of Title I, or Legal Counsel, Trustee, Sponsor, or Investment Advisor. 401kAdministrators.com shall have no discretion or authority over plan assets and shall have no obligation to allocate or diversify investments. 401kAdministrators.com is not responsible for the terms of the plan, its continued qualification or any tax liability, which may be imposed on the Plan, Plan Sponsor, Plan Administrator, participant or beneficiary. The Customer understands and agrees that certain laws and governmental regulations apply to the Plan if it is to obtain and maintain qualified status under Section 401(a) of the Internal Revenue Code ('IRC') and that it is Customer's responsibility to comply with applicable laws and regulations and for any taxes and/or penalties levied due to such failure. 401kAdministrators.com customer information including personal contact information and server data is treated with strict confidentiality and will not be shared with anyone. 401kAdministrators.com collects cookies on our website to capture information about page visits. This information is anonymous and we use this information only internally to improve the content we provide to our visitors. Information from the cookies is used to gauge page popularity, analyze traffic patterns on our site and guide development of other improvements to our site. If you choose to communicate to us and provide personally identifiable information about yourself, we will use this information only to respond to your inquiry. We will not sell, rent or otherwise disclose that information to third parties.
3. Customer's obligations:
Customer shall serve as the Plan Administrator, Plan Fiduciary, Trustee, Plan Sponsor, and Investment Advisor or retain others to perform such services. Customer shall report to 401kAdministrators.com certain requested and required information such as each employees annual earnings, the number and age of employees hired, if any, and their aggregate annual hours worked, all contributions to and redemptions from the 401k plan, and the existence of any controlled or affiliated companies created, or acquired by Customer, and for each employee: their name, individual social security number, date of hire, date of birth, percentage of ownership in the company, whether they are an officer of the company/corporation or not and what office they hold, whether they are participating in the 401k plan or not, the amount or percentage they have elected to defer into the plan, last year's total annual compensation and this year's projected and actual total annual compensation. Customer shall enter all contribution and census data into http://mrs401k.com within 30 days after the close of each calendar year quarter and shall provide all other information requested by 401kAdministrators.com within 15 days of request. Customer shall name 401kAdministrators.com as an 'interested party' at the brokerage house or custodian of assets so that 401kAdministrators.com receives copies of quarterly account statements. Customer hereby agrees to defend, indemnify and hold 401kAdministrators.com harmless from any and all liability and claims, including, but not limited to damages, court costs, legal fees, and costs of investigation.
4. Term and Termination. This agreement shall remain in force until terminated, and either the Customer or 401kAdministrators.com may terminate this agreement without a termination charge at any time. The sole and exclusive method of terminating 401kAdministrators.com services is online by logging in to Mrs401k.com and going to Plan Admin >> Termination and following the instructions there. There is no termination fee, but Customer expressly agrees to pay all administrative fees, including minimum fees, if any, from the date of registration to the date of termination. If Customer has a positive fee account balance or payment is overdue, a restriction on Customer's ability to access the full Mrs401k.com site will be imposed. The access restriction must be lifted by the Customer by paying all outstanding fees in order to gain access to the termination page in Mrs401k.com. In other words, administrative fee accounts must be brought current in order to terminate 401kAdministrators.com's services. Annual fees are pro-rated quarterly, so Customer will be obligated to pay the minimum fee for the entire quarter in which they terminate 401kAdministrators.com services regardless of the date during the quarter in which they terminate 401kAdministrators.com's services. Upon termination of this agreement, Customer shall also either terminate the plan or appoint a successor Third-Party Administrative Service Provider to provide an amended and restated 401k plan document. Upon termination of this agreement, the revocable license granted to Customer by 401kAdministrators.com to use the 401k plan document furnished by 401kAdministrators.com shall expire immediately and no further revisions, modifications or amendments shall be provided by 401kAdministrators.com.
5. Fees. For Company 401k Plans: 401kAdministrators.com shall receive an annual fee equal to $1,000 plus one-quarter of one percent (1/4th of one percent or 25 basis points) of the total plan assets. For Solo 401k Plans: 401kAdministrators.com shall receive an annual fee equal to 1/4th of one percent of your total account value annually (25 basis points) (with a minimum fee of $25 per quarter, per participant regardless of account size). 401kAdministrators.com does not set or get any commissions, fees or revenue sharing of any sort from the asset custodian(s) of the 401k plan. Any and all fees incurred with the asset custodian, including but not limited to transaction fees, account maintenance fees, custodial account fees, expense ratios and commissions are the sole responsibility of the customer. 401kAdministrators.com does not have any authority or control over the assets in the plan and may not withdraw any plan assets to pay our fees or for any other reason. 401kAdministrators.com annual fee is electronically and automatically billed to the Customer outside of the plan. 401kAdministrators.com annual fee is pro-rated by quarter, assessed quarterly in arrears and subject to change by 401kAdministrators.com upon written notice to the Customer at least 3 months in advance. Customer must select a method of payment for the administrative services. You may pay by automatic bank transfer or by debit or credit card. All plans incur a billing fee of 2.39% plus 30 cents per transaction, except for those electing bank draft payments. Bank draft payments have no additional billing fees but incur a $10 service charge for bank returns. There are no refunds of any fees of any sort at any time for any reason.
6. Notices: Any notice required by this agreement or given in connection with it to the Customer by 401kAdministrators.com may be in writing and may be given to the Customer by email to the customer's email address on record. Any notice required by this agreement or given in connection with it to 401kAdministrators.com by the customer may be in writing and may be given to 401kAdminstrators.com by email at info@401kBrokers.com, or by mail or delivery service to 401kBrokers.com, 1205 Prospect St. Suite 400, La Jolla, CA 92037, (858) 605-9312; fax: (858) 605-9315.
7. Miscellaneous Provisions: This Agreement shall be governed and construed in accordance with the laws of the United States and the State of California and Customer consents to the exclusive jurisdiction of the state courts and U.S. federal courts located there for any dispute arising out of this Agreement. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included. This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. Except as provided in paragraph 5, this agreement may only be modified by a written agreement signed by both parties. 401kAdministrators.com may assign this Agreement or any interest herein without Customer's consent. Either party's failure to insist in any one or more instances upon strict performance by the other party of any of the terms of this Agreement shall not be construed as a waiver of any continuing or subsequent failure to perform or delay in performance of any term hereof. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
8. IRS Circular 230 Disclosure: Any tax discussion contained in this communication was not intended or written to be used, and cannot be used by the recipient or any other person, for the purpose of avoiding any Internal Revenue Code penalties that may be imposed on such person. Any tax discussion contained in the communication was written to support the promotion or marketing of the transactions or matter discussed herein. Any taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor. This information is provided as general guidance. It is not intended to be legal or tax advice. Employers should contact their legal and/or tax advisors regarding the facts and circumstances around their own retirement plan and the applicability of the issues discussed in the communication.
9. Terms of Website Service: The following “Terms of Service” govern your use of the Mrs401k.com website (“Service”) made available by 401kAdministrators.com (“401kAdministrators.com”):
(1) You are granted a non-exclusive, non-transferable, limited license to access and use the Service.
(2) 401kAdministrators.com does not review or pre-screen the contents of electronic data uploaded or posted to the Service (“Content”) by Authorized Users (as defined below), and 401kAdministrators.com claims no intellectual property rights with respect to the Content.
(3) You agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service, 401kAdministrators.com, or any other software or service provided by 401kAdministrators.com.
(4) You agree not to use the Service in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, obscene, defamatory, pornographic or in violation of these Terms of Service.
(5) You agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service, including, but not limited to the HTML, Cascading Style Sheets (“CSS”) or any visual design elements without the express written permission from 401kAdministrators.com.
(6) You agree not to use the Service to upload, post, host, or transmit unsolicited bulk e-mail “Spam”, viruses, self-replicating computer programs “Worms”, short message service “SMS” messages or any code of a destructive or malicious nature.
(7) The Service is protected by United States and international copyright laws and treaties, as well as other laws and treaties. Except for the non-exclusive license granted pursuant to this Agreement, you acknowledge and agree that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with 401kAdministrators.com.
(8) Authorized Users who configure the Service to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content (“Public Content”). 401kAdministrators.com reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates these Terms of Service, including, but not limited to, removal of such Public Content and/or the termination of your account.
(9) 401kAdministrators.com reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice that may be faulty, buggy or may be deemed a potential security risk. Continued use of the Service following any modification constitutes your acceptance of the modification.
(10) Scheduled Maintenance and Downtime. 401kAdministrators.com will use its commercially reasonably efforts to provide services 24 hours a day, seven days a week. Subscriber acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades ('Scheduled Downtime'); or service malfunctions, and causes beyond 401kAdministrators.com's control or which are not reasonably foreseeable by 401kAdministrators.com, including the interruption or failure of telecommunications or digital transmission links, hostile network attacks, or network congestion or other failures. 401kAdministrators.com will provide at least 48 hours advance notice to the subscriber for Scheduled Downtimes, and will use commercially reasonable efforts to minimize any other disruption, inaccessibility and/or inoperability of its web servers. 401kAdministrators.com has no responsibility for downtime resulting from a user's actions.
(11) 401kAdministrators.com stores all Content on dedicated storage devices. All Content associated with the subscription will be replicated at a regular interval to a secondary storage device, accessible only to authorized data center personal.
(12) 401kAdministrators.com has taken great care in protecting your data, however, 401kAdministrators.com does not guarantee that Subscribers data will not become corrupt or that data loss will not occur. 401kAdministrators.com shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if 401kAdministrators.com has been advised of the possibility of such damages), resulting from any use of this Service, its Software and Application Programming Interfaces (API).
Possible Network Interruptions
Many possible situations are completely beyond the control of 401kAdministrators.com, and therefore are not in the scope of this agreement. These situations include:
(a.1) Scheduled Network Maintenance and Upgrades - occasionally network Maintenance and Upgrades will be required. 401kAdministrators.com will do everything possible to minimize and avoid downtime during this maintenance. You will receive prior notification of upcoming maintenance at the email address we have on file. Scheduled Maintenance and Upgrade periods are not eligible for SLA credits.
(a.2) Hardware Maintenance and Upgrades - on rare occasions, the hardware in your Server may need Maintenance and Upgrades or replacement. 401kAdministrators.com will do everything possible to minimize any downtime in these situations per our hardware replacement SLA. Any downtime incurred as a result of this Maintenance and Upgrades will not be counted towards our network SLA.
(a.3) Software Maintenance and Upgrades - an important part of managing our service is keeping the software up to date. Occasional software updates will be required to address security or performance issues. Usually you will experience little or no downtime in these situations, but we cannot guarantee a specific amount of time in all situations.
(a.4) Malicious Attacks - if a third party not associated with 401kAdministrators.com initiates a 'Denial of Service' or other form of disabling attack against your Server or major portions of our network, 401kAdministrators.com will do everything in its power to stop the attack, but cannot guarantee a resolution time.
(13) You are only permitted to access and use the Service if you are an Authorized User. “Authorized User” means an individual subscriber or the partners, members, employees, temporary employees, and contractors of an organization with a subscription to the Service (“Subscriber”). Authorized Users are required to provide their full legal name, a valid email address, and any other information requested by 401kAdministrators.com and this Service.
(14) Each Authorized User will be provided with a unique identifier to access and use the Service (“Username”). The Username shall only be used by the Authorized User to whom it is assigned, and shall not be shared with, or used by any other person, including other Authorized Users.
(15) Each Subscriber shall designate an Authorized User as administrator for the Subscriber’s subscription (“Administrator”). Each Subscriber may have multiple Authorized Users, and the Administrator will manage the list of active Authorized Users associated with the subscription. The Administrator will deactivate an active Username if the Administrator wishes to terminate access to the Service for any particular user.
(16) Subscribers are responsible for all use of the Service by Authorized Users on the list of active Authorized Users associated with their subscription to the Service.
(17) All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.
(18) 401kAdministrators.com may offer trial or free subscriptions to the Service funded by advertisements. 401kAdministrators.com reserves the right at any time to modify or discontinue, temporarily or permanently, such subscriptions, with or without notice. Authorized Users using a free subscription shall not block the advertisements.
(19) Authorized Users and Subscribers shall be responsible for protecting the security of Usernames and passwords, or any other codes associated to the Service known to them, and for the accuracy and adequacy of personal information provided to the Service.
(20) Subscribers will implement policies and procedures to prevent unauthorized use of Usernames, and will promptly notify 401kAdministrators.com, upon suspicion that a Username has been lost, stolen, compromised, or misused.
(21) Subscribers with paying subscriptions will provide 401kAdministrators.com with a valid credit card for payment of the quarterly subscription fees. All subscription fees are exclusive of all federal, state, provincial, municipal or other taxes.
(22) Subscribers with paying subscriptions will be charged quarterly starting on the close of the quarter in which first registered. Subscriptions canceled prior to the processing of the first invoice, will not be charged. Such Subscribers will thereafter be charged in arrears on a quarterly basis, and the charge is non-refundable.
(23) No refunds or credits will be issued for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an active subscription.
(24) There are no charges for canceling a subscription, and paying subscriptions cancelled prior to the end of the current quarter will not be charged again in the following quarter.
(25) The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades. Subscription changes, including downgrades, may result in loss of Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Service.
(26) All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Administrator, or in the form of an announcement on the Service.
(27) Subscribers with paying subscriptions may have their account access restricted for failure to pay subscription fees due. Account access will be restricted until all monies owed are paid in full. Subscribers will be notified of late payments by email. If payment in full is not received within one hundred (180) days the Subscriber's account may be deleted from the service.
(28) Subscribers are solely responsible for canceling their subscription. Subscribers may only cancel their subscription at any time by logging in to Mrs401k.com and going to Plan Admin >> Termination and following the instructions presented there. A cancellation request by email will be replied to with an instruction to go to Plan Admin >> Termination and follow the instructions presented there or it will ignored and disregarded altogether.
(29) 401kAdministrators.com in its sole discretion, has the right to suspend or discontinue providing the Service to any Subscriber without notice for non-compliance with these Terms of Service, and pursue any other remedy legally available to it.
(30) Upon cancellation access to the Service will be terminated immediately.
(31) Upon cancellation or termination of a subscription, all Content associated with such subscription will be immediately deleted from the Service.
(32) The Service is provided on an “as is”, “as available” basis and 401kAdministrators.com expressly disclaims all warranties, including the warranties of merchantability and fitness for a particular purpose.
(33) 401kAdministrators.com, its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of 401kAdministrators.com or its affiliates does not warrant that:
(a) the Service will meet any specific requirements;
(b) the Service will be uninterrupted, timely, secure, or error-free;
(c) the results that may be obtained from the use of the Service will be accurate or reliable;
(d) the quality of any products, services, information, or other material purchased or obtained through the Service will meet any expectations; and
(e) any errors in the Service will be corrected.
(34) 401kAdministrators.com, its affiliates, and any officer, director, employee, subcontractor, agent, successor, or assign of 401kAdministrators.com or its affiliates, shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if 401kAdministrators.com has been advised of the possibility of such damages), resulting from:
(a) the use or the inability to use the Service;
(b) the cost of procurement of a substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service;
(c) any unauthorized access to or alteration of Authorized User transmissions or Content;
(d) any price change, suspension or discontinuance of the Service;
(e) any loss of Content, modification to a feature or to the Service itself;
(f) any loss of Content subsequent to a cancellation or termination of a subscription to the Service;
(g) statements or conduct of any third party on the Service; or
(h) any other matter relating to the Service.
(35) Our servers, all client data and offsite backups reside at servers provided by Amazon Web Services in the United States.
(36) You acknowledge and agree that 401kAdministrators.com may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
(37) You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Content, may be transmitted unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices such as backups.
(38) The failure of 401kAdministrators.com to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
(39) The Terms of Service constitutes the entire agreement between you and 401kAdministrators.com and govern your use of the Service, superseding any prior agreements between you and 401kAdministrators.com (including, but not limited to, any prior versions of the Terms of Service).
(40) You may not assign your rights or delegate your duties under this license to access the Service without the prior written consent of 401kAdministrators.com.
(41) These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, and the federal laws of the United States of America applicable therein.
(42) Any dispute between 401kAdministrators.com and a subscriber shall be determined by arbitration conducted by the American Arbitration Association pursuant to its commercial arbitration rules. The arbitrator shall decide any dispute in accordance with California law, without the application of choice of law principles. Each party shall bear its own expenses and legal fees for the arbitration. The arbitration shall be conducted in San Diego County, California, unless both parties agree in writing to a different location. The arbitration award is enforceable as a judgment of any court having proper jurisdiction.