Master Services Agreement

Master Services Agreement
Cash Balance Actuaries
A Strongpoint Partner


This Master Services Agreement (“MSA” or the “Agreement”) is entered into between CASH BALANCE ACTUARIES (“Cash Balance Actuaries,” “us,” or “we”), an affiliate of SCP Retirement Services, LLC (“Strongpoint”) and CLIENT (“Client,” or “you”).  Each of Client and Cash Balance Actuaries may independently be referred to as a “Party,” or collectively as the “Parties.”  This MSA applies with respect to such Services (defined below) as you may request from time to time, subject to your agreement to accept applicable fees and charges.
 

1. ENGAGEMENT

We are being retained by the Client to perform the services outlined in this MSA and the written service schedules to this MSA (“Service Schedule”) describing your requested Services, which are made applicable to this MSA through your submission of a completed and executed service order form, (“Service Order”) your payment of an invoice, or your request to perform a service.
This MSA is effective upon your first Service Order submission, request for a service, or the submission of your first payment for services provided under this MSA (“Effective Date”) and continues until terminated by either Party.  By submitting a Service Order or request for service, you agree that you have read and understood and agree to be bound by the MSA. The individual submitting the Service Order represents that he or she has the authority to enter into this MSA on the Client’s behalf. If services by the Cash Balance Actuaries begin prior to the submission of a Service Order or initial payment, this MSA is effective upon your receipt of such services of the Cash Balance Actuaries.
THIS MSA CONTAINS AN ARBITRATION CLAUSE AND A CLASS ACTION AND JURY TRIAL WAIVER. You acknowledge that you have read and understood these provisions and agree to be bound by them.
 

2. GENERAL

We offer a variety of employer retirement plan recordkeeping and administration services (collectively referred to as “Services”). Services we provide to your retirement plan(s), if any, are referred to as “Plan Services.”  To the extent you are engaging us to provide Plan Services, you represent that you are acting in the capacity of a responsible plan fiduciary duly authorized under the terms of the applicable plan to engage us to provide the Plan Services.  Services we provide to you as an employer, unrelated to any retirement plan, are referred to as “Employer Services.”  We provide Services using a commercially reasonable level of skill and care, and such additional heightened standards of care, if any, that may be specifically referenced by the written schedules (“Service Schedules”). All Services provided are governed by this MSA and the applicable Service Schedule.



 

3. SERVICES

The specific Services that we are being retained to perform are outlined in the Service Schedule(s) made applicable to the MSA through your submission of a Service Order. We will not perform any services not designated on an applicable Service Schedule or those specifically exempted in Section V of this Agreement. On occasion you may request that Cash Balance Actuaries perform a special service not covered by this Agreement. Such service, and the fees related to that service, will be subject of a separate Service Order to this Agreement.  You agree that the Services may be performed by our agents, subcontractors, and delegates, including our affiliates, and we shall remain responsible for such agent, subcontractor, or delegate’s performance of the Services to the same extent as if such Service had been performed by us directly; provided, however, we shall not bear responsibility or liability for any products or services for which we act as reseller, including Swipeclock time tracking Employer Services. 

1. Service Orders

A Service Order is prepared by Cash Balance Actuaries and agreed upon by your acceptance.  You may request or discontinue an available Service by contacting us directly.  Our ability to provide the Services you elect is subject to your provision of such additional information as we may reasonably require.
Attached to this MSA are Service Schedules describing the service offerings of Cash Balance Actuaries. This MSA hereby expressly incorporates each Service Schedule applicable to any Service you request through your submission of a Service Order, and you acknowledge and agree that your submission of a Service Order constitutes your agreement to, and consent to be, bound by the terms of the applicable Service Schedule. If for any reason this MSA has terms that are inconsistent with those contained in a Service Schedule, the terms of the applicable Service Schedule will control with respect to the relevant Service. You agree that the Cash Balance Actuaries may act as an agent on behalf of a related Strongpoint organization and enter into this MSA on such related organization’s behalf. Alternatively, there may be occasions where you will engage directly with a related organization for certain services, for which you will submit a Service Order directly for that related organization and a separate MSA will apply.

2. Changes to Services and/or Terms

We may update or modify the terms of this MSA, any Service Schedule or Service Order or otherwise applicable to our provision of Services (including any underlying components or features), including fees, upon at least 60 days prior notice to you, delivered electronically in the manner described in Section XIV.C. By continuing to use a Service following notice by us of any updated terms, and after such terms become effective, you shall be deemed to have furnished your actual consent to the updated terms. At any time prior to the specified effective date for such change, you may indicate your refusal to consent to the proposed change in terms by contacting us in the manner specified in the notice of changed terms. If you indicate such refusal, the Parties agree to discuss resolution of the issue in good faith. Notwithstanding the foregoing, if you indicate such refusal, either Party may terminate this MSA or the provision of any Service upon sixty (60) days’ written notice to the other Party, it being understood that the Parties may, if appropriate, continue to negotiate the proposed change during such sixty (60) day period.
Additionally, this Agreement supersedes any prior agreement with the Cash Balance Actuaries after proper notice is provided under such prior agreement. The continuation of receipt of Services after proper notice regarding this Agreement constitutes acceptance of its terms and conditions.
 

4. WHAT YOU AGREE TO DO

 

1. Compliance with Laws

You will agree to, and shall, comply with applicable laws and regulations in connection with your use of the Services, including all applicable privacy laws as well as those laws and regulations applicable to your business, your employment of individuals, and/or your transactions with Cash Balance Actuaries (e.g., applicable employment or tax related laws), and/or the administration of employer-sponsored retirement plans, including the Employee Retirement Income Security Act of 1974, as amended (“ERISA”).

2. Establishing a Client Account

 

1. 1. Your Account. You must log into your account on our website (“Client Account”) in order to access the Services. By logging in to your Client Account, you agree to submit accurate and complete registration information to us and to keep such information up to date. You will take reasonable steps to prevent unauthorized use of and to keep your password(s), including those of your designated representative(s), secure and confidential. We encourage you to use “strong” passwords with your account (for example, passwords that use a combination of upper and lowercase letters, numbers and symbols, with a minimum of eight characters). We will not be liable for any losses caused by any unauthorized use of your Client Account. You must notify us immediately of any breach of security or unauthorized use of your Client Account. 

 

1. 2. Equipment and Software.  You are responsible for procuring all equipment and software necessary to use the Services, including for example, computer(s), internet access, and a suitable mobile device for accessing the Client Account. You are responsible for any fees, including internet or mobile fees, that you may incur when accessing or using the Services.

 

1. 3. Designated Representative. You may identify a designated representative to act on your behalf under this MSA and to access the Client Account.  You are solely responsible for: (i) the selection of your designated representative(s); (ii) providing us with the information of the designated representative (and updating us if such information changes); (iii) managing access to your Client Account; and (iv) ensuring that your designated representative(s) access to and use of the Services complies with this MSA and applicable law.

 

3. Obligation to Provide Timely Information

You shall provide us with requested information on a timely basis in accordance with our directions, and you will be responsible for ensuring that the provided information is accurate and complete. We will rely exclusively on information provided by you or your advisors, whether oral or in writing, and will have no responsibility to independently verify the accuracy of that information. You acknowledge that inaccurate information and/or late information could result in penalties and, in connection with Plan Services, possibly plan disqualification. We assume no responsibility for, and shall not have any liability for, any consequences that result from our inability to complete our work in the ordinary course of its business due to a failure by you or your designees to provide timely information to us. Additionally, we will not be liable for any errors or omissions made as a result of incomplete or incorrect information that you furnish to us.
 

5. SERVICES WE DO NOT PERFORM

 

1. No Investment or Legal Advice

Except as may be expressly provided in an applicable Service Schedule, any information, material, or content you may receive through or in connection with the Services is for informational purposes only and shall not be construed as nor shall it constitute the provision by us of financial, tax, legal, regulatory, or investment advice. We recommend that you review with your legal counsel all legal plan documents we prepare in connection with Plan Services.

2. Fiduciary Services

Except as may be expressly provided in an applicable Service Schedule, you are responsible for all discretionary decisions relating to the plan and Cash Balance Actuaries and its employees are NOT fiduciaries of the plan and trust, nor are any of them the administrator of the plan as defined in section 3(16) of ERISA.
 

6. CONSENTS AND AUTHORIZATIONS

 

1. Authorization of Recurring ACH Debit

You authorize us and our payment processors, as applicable, to (i) store your designated bank or credit card account information and your other payment related information (“Payment Information”), and (ii) use any Payment Information you provide to us at any time to automatically debit all applicable fees from your designated account, via ACH debit transaction, on the date such fees are due under this MSA and applicable Service Schedules. You certify you are an authorized user of the designated account or that you have permission to designate the account for payment. You agree to follow National Automated Clearing House Association (“NACHA”) rules applicable to ACH transactions. You agree that you will not dispute scheduled transactions with your bank so long as the transactions correspond to this MSA (as updated from time to time in accordance with this MSA), an applicable Service Schedule or any other agreement for the Services. You understand that because these are electronic transactions, funds may be withdrawn from your account immediately. If an ACH debit transaction is rejected for any reason, you understand we may continue to re-process the ACH debit transaction (for the amount due and applicable fees as explained in this Section) after the first ACH attempt. Further, you understand that we may also impose a fee for each declined transaction, as permitted by applicable law, and that fees for declined transactions may be in the amount of $30.00 or higher per declined transaction.

2. Revocation of ACH Debit

Your authorization of our automatic use of ACH debit for payment of fees on their respective due dates will remain in full force and effect until you send us written notice revoking the authorization at least 30 days prior to the next payment due date. Your revocation of ACH Debit authorization does not relieve you of your payment obligations under this MSA, Service Schedules or other applicable agreements. If you revoke authorization of our automatic use of ACH debit for payment of fees, then we reserve the right to immediately discontinue the provision of all Services.

3. Electronic Communications’ Consent

For contractual purposes and without affecting your statutory rights, you consent to receive all communications, notices and disclosures from us electronically; this includes tax document notices, payroll documents, and employee benefits notices (e.g., summary plan descriptions, other ERISA notices, enrollment information, and plan amendments). You also agree that all communications we provide to you electronically satisfy any legal requirement that the communications would satisfy if they had been provided in a written hard copy, including, for example, agreements, notices or disclosures. You also authorize us to receive such communications electronically on your behalf. You may withdraw your consent to electronic communications at any time by notifying us. If you do withdraw such consent, you acknowledge that we will not be able to provide the Services to you, that your Client Account will be deactivated and that we will suspend the provision of Services.
 

7. PRIVACY AND DATA SECURITY

A.    If we hold or use your Confidential Information (defined below) that can be linked to specific individuals (“Personal Data”), we will comply with applicable laws governing the handling of such Personal Data. We will maintain commercially reasonable administrative, physical, organizational, and technical safeguards designed to prevent unauthorized use, access, processing, destruction, loss, alteration, or disclosure of Personal Data, data maintained in your Client Account, and Service records.
B.    We will notify you within the time period(s)  required by applicable law, of any Cybersecurity Incident we discover reasonably believed to impact Personal Data. We will cooperate with you in conducting an investigation of a Cybersecurity Incident and provide you a detailed description of the Cybersecurity Incident, the type of data that was the subject of the Cybersecurity Incident, the identity of each affected person, and any other information you reasonably request as soon as such information can be collected or otherwise becomes available.  “Cybersecurity Incident” means any event in which your Personal Data is or is suspected to have been lost, stolen, improperly altered, improperly destroyed, used for a purpose not permitted, or accessed by any person other than authorized personnel.
C. The following provisions apply only if you are subject to California law. To the extent that Cash Balance Actuaries processes any Personal Data that is subject to the California Consumer Privacy Act (“CCPA”), Cash Balance Actuaries agrees to the following:
               a. All Personal Data disclosed by Client to Cash Balance Actuaries, or that Cash Balance Actuaries receives or processes on Client’s behalf, is disclosed or received only for limited and specified purposes specified in this Agreement or the applicable Service Schedule and Service Order, including for one or more business or commercial purposes as those terms are defined under the CCPA.
               b. Cash Balance Actuaries shall not sell, share, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate Personal Data received from, or on behalf of, Client to any third party for monetary or other valuable consideration.
               c. Cash Balance Actuaries shall not retain, use, or disclose Personal Data received from, or on behalf of, Client: (i) for any purposes (including, but not limited to, any commercial purpose) other than for a business purpose as specified in the Agreement, or as otherwise permitted by the CCPA; or (ii) outside of the direct business relationship between Client and Cash Balance Actuaries.
               d. Cash Balance Actuaries will, in a manner consistent with the nature and functionality of the services provided in the Agreement and Cash Balance Actuaries’s role as a processor, provide mechanisms or reasonable support to Client to enable Client to respond to data subject requests to exercise their rights under applicable data protection and privacy laws (“Data Subject Requests”). If Cash Balance Actuaries receives a Data Subject Request or other complaint directly from a data subject regarding the processing of Client Private Information, Cash Balance Actuaries will promptly forward such request or complaint to Client and not respond to the request itself, unless authorized to do so by Client or required by applicable data protection and privacy laws.
               e. Cash Balance Actuaries may not combine Client Private Information that it receives from, or on behalf of, Client with personal data subject to the CCPA that Cash Balance Actuaries receives from, or on behalf of, another person, or collects from its own interaction with an individual, unless the combining of such data with Personal Data (i) would be consistent with an individual's expectations, or (ii) is permitted by regulations issued by the California Privacy Protection Agency. For purposes of this Agreement, "combine" means to aggregate Personal Data about an individual into a single profile.
               f. If Client provides Cash Balance Actuaries with deidentified Personal Data, or if Cash Balance Actuaries deidentifies Personal Data previously provided by Client, Cash Balance Actuaries agrees to take reasonable measures to ensure that the deidentified Personal Data cannot be associated with a consumer or household, and not attempt to reidentify the deidentified Personal Data.
               g. If Cash Balance Actuaries determines it can no longer meet its obligations under the CCPA, it shall promptly notify Client of this fact.
               h. Client may, upon reasonable notice to Cash Balance Actuaries, take reasonable and appropriate steps to stop and remediate Cash Balance Actuaries’s unauthorized processing of Personal Data, provided that Cash Balance Actuaries may terminate the applicable Service or this MSA.
               i. Cash Balance Actuaries certifies it understands the obligations and restrictions above and will comply with them.
 

8. CONFIDENTIALITY

“Confidential Information” includes information of a Party that should reasonably be understood to be confidential given the circumstances surrounding its disclosure, but does not include any information that (i) is or becomes generally available to the public through no fault of the receiving Party; (ii) is in the possession of or was known to the receiving Party without restriction prior to entering into this MSA; (iii) is disclosed to the receiving Party on a non-confidential basis by a third party who is entitled to make the disclosure; (iv) is or was independently developed by the receiving Party without reference to or use of any Confidential Information disclosed under this MSA; or (v) is approved for disclosure by the disclosing Party.  Each Party will use reasonable care to protect any Confidential Information of the other Party. Each Party will use Confidential Information only to perform its obligations or exercise its rights under this MSA and applicable Service Schedules. Neither Party will disclose any Confidential Information of the other Party to any third party, except to its affiliates, employees, or contractors who need-to-know, without the other Party’s prior written consent.
Neither Party will be restricted from disclosing the other’s Confidential Information where the Party is required to make the disclosure to a government entity or where the disclosure is ordered by a court of competent jurisdiction; in such case, the Party required to make the disclosure will provide the other Party prior notice of the disclosure if it is reasonably feasible and legally permissible, and failure to provide such notice will not prohibit the Party required to make the disclosure from making the disclosure. Notwithstanding the foregoing, we may use your Confidential Information in a compilation of statistical data in which such information is not identifiable, and all rights to such statistical data shall be solely and exclusively ours. We shall have the sole right to use, sell and distribute any such statistical data.
The Cash Balance Actuaries may, from time to time, subcontract with affiliates or third-party providers to assist in the services provided under this MSA. Under such circumstances, we may share Confidential Information with these third-party providers.  The Cash Balance Actuaries will use reasonable efforts to ensure that each of the sub-contracting affiliates or third parties have appropriate procedures in place to prevent the unauthorized release of Confidential Information to others.
 

9. FEES

 

1. Pricing

Our fees and compensation we will receive for the Services can be found on the Fee Schedule (“Fee Schedule”).  To the extent we provide Plan Services in connection with a plan governed by ERISA, you represent that you have received the Fee Schedule in advance of execution of a Service Order providing for the provision of Plan Services and determined our compensation to be reasonable.  You may direct the payment of fees from such plan (including our fees or fees that we will process as a Cash Balance Actuaries to such plan) provided that (i) you are responsible for determining whether fees you direct to be paid from the plan are permissible plan expenses under ERISA; and (ii) to the extent you direct the payment of fees from such plan, such direction shall be deemed a representation that such payment constitutes a legitimate plan expense under ERISA.  To the extent we only provide Employer Services, the Fee Schedule will be available upon request. We may change our fees for Services pursuant to the procedure set forth in Section III.B. above.  In addition, you are responsible for payment of any out-of-pocket expenses we may incur in performing Services, including, but not limited to, messenger service fees, overnight delivery fees, and travel expenses.

2. Late Payment

Late payments will accrue interest of 1.5% per month or the greatest amount allowed by state law, whichever is lower. We may suspend or terminate this MSA, a Service Schedule, or access to and use of the Services for failure to pay fees as they come due. Additionally, if fees are not paid when due, you will pay us costs of collection, including reasonable attorneys’ fees and expenses actually incurred.

3. Taxes

All payments required by this MSA exclude sales, value-added, use, or other taxes and obligations, all of which you will be responsible for and will pay in full, except for taxes based on our net income. If we have the legal obligation to pay or collect taxes for which you are responsible under this Section, you authorize us to automatically debit the applicable taxes, from the designated account, via ACH debit transaction on the due date, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
 

10. Term, Automatic Renewal, & Termination

 

1. Term of the MSA

The MSA term starts on the Effective Date and continues until terminated in accordance with the terms of this MSA.

2. Termination

 

1. 1. For Material Breach. Either Party will have the right to terminate this MSA, including applicable Service Schedules, if the other Party materially breaches the terms of this MSA and fails to cure such breach within 30 days after receipt of written notice by the other Party that it is in breach. This 30-day cure period will not apply in the case of your failure to pay our fees as they become due.  A termination for material breach shall be effective immediately upon the delivery by the non-breaching Party of notice of termination to the breaching Party.

 

1. 2. For Convenience. Either Party will have the right to terminate this MSA, including applicable Service Schedules, upon 60 days advance written notice to the other Party.

 

1. 3. Effect of Termination. Upon the effective date of termination of this MSA for any reason: (i) your right to access or use the Services will terminate immediately; (ii) we will cease providing the Services and we will deactivate or delete your Client Account, and all associated materials, subject to our obligation to work with you to export Client records under Section X.B.d. (Transfer of Records); (iii) any and all of your payment obligations under this MSA will become due immediately; and (iv) within 30 days from the effective date of this MSA’s termination, if a Party provides written notice to the other requesting return of such Party’s Confidential Information, the receiving Party will destroy (evidenced by a certificate of destruction) or return the tangible embodiments of the requesting Party’s Confidential Information in its possession and shall not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. All Service Schedules, to the extent not earlier terminated, will terminate coincident upon termination of this MSA.

 

1. 4. Transfer of Records. We will, upon your written instruction and receipt of payment for the costs of doing so, return to you, destroy, or transfer to a successor Cash Balance Actuaries you designate, at your expense, all reasonable and relevant information and records that we maintain as a result of this Agreement.

 

1. 5. Survival. All provisions of this MSA which by their nature should survive termination of this MSA will so survive, including, without limitation, Sections XI, XII, and XIII.

 

11. INDEMNIFICATION

 

1. By You.

You will, at your own expense, defend, indemnify and hold the Cash Balance Actuaries, its affiliates, related companies, and each of its officers, directors, employees, agents, representatives, partners, and licensors harmless against all claims, demands, actions, liabilities, damages, losses, costs and expenses (including court costs, and attorneys’ fees) arising out of a third party claim against Cash Balance Actuaries to the extent it arises out of: (i) your unauthorized use of or access to the Services; (ii) your violation of any applicable law, rule or regulation; (iii) any material inaccuracies or omissions in the information you furnished to us to facilitate our provision of Services; (vi) your gross negligence or willful misconduct; or (iv) any breach by you of, or other failure to perform your obligations under, this MSA and any applicable Service Schedules. You will have no obligation with respect to any claim for which we are required to indemnify you.

2. By Us.

We will, at our own expense, defend, indemnify and hold you, your affiliates, related companies, and each of their officers, directors, employees, agents, representatives, partners and licensors (collectively, the “Client Parties”) harmless against all losses, costs and expenses arising out of a third party claim against a Client Party to the extent such claims arise directly from our intentional misconduct or gross negligence in delivering the Services, or breach of any fiduciary standard of care set forth in an applicable Service Schedule. We will have no obligation with respect to any claim for which you are required to indemnify us.
You also agree to pay our normal hourly rates and copying costs if Cash Balance Actuaries is called to testify or give documentation in regard to any lawsuit or governmental investigation or process in relation our services to you in which you and we are not adverse litigants, whether or not we are named as a party, and whether or not we are still engaged to perform services for you.

3. Procedures and Settlements.

The Parties agree that these indemnification obligations are subject to the indemnified Party providing the indemnifying Party with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim, provided that the indemnified Party has the right participate in its own defense and may select, at its own cost, counsel of its own choosing; and (iii) available information and assistance, at the indemnifying Party’s expense, to settle and/or defend any such claim; provided, however, that the failure to give such notice shall not relieve the indemnifying Party unless the indemnifying Party was actually prejudiced by such failure. The indemnifying Party may not, without the prior written consent of the indemnified Party (which shall not be unreasonably withheld, conditioned, or delayed), settle any claim subject to indemnification that provides for any admission of the indemnified Party’s guilt or binds the indemnified Party to any ongoing obligation other than the payment of money for which the indemnifying Party is obligated to pay.
 

12. LIABILITY LIMITATION

 

1. Disclaimer of Certain Damages.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, CASH BALANCE ACTUARIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATING TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY.

2. Liability Limitation.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF CASH BALANCE ACTUARIES TO YOU REGARDING THIS MSA (INCLUDING APPLICABLE SERVICE SCHEDULES) OR THE SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT YOU PAID TO US, IF ANY, FOR THE SERVICES OVER THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

3. Cybersecurity.

Notwithstanding anything else in this Agreement or otherwise, Cash Balance Actuaries shall not be liable or obligated with respect to the cost of procurement of substitute services, technology, or rights or for the interruption of use or loss or corruption of data. Cash Balance Actuaries maintains cyber-security insurance to help protect both you and Cash Balance Actuaries in the event of unauthorized disclosure despite our best efforts. However, Cash Balance Actuaries’s liability and cost to you (or anyone claiming through you or in your name) in connection with the breach of cyber-security shall be limited to the amount payable by such insurance in relation to your claim.

4. Basis of Bargain.

THE LIMITATIONS OF LIABILITY ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU.

5. Statute of Limitations.

No lawsuit or other action may be brought by either party hereto, or on any claim or controversy based upon or arising in any way out of this Agreement, after two years from the date on which the we engaged in the conduct (or omitted to engage in the conduct) that caused the purported damage to the Client, regardless of the nature of the claim or form of action, whether in contract, tort (including negligence) or otherwise; provided, however, the foregoing limitation shall not apply to the collection of any amounts due under this Agreement or to claims for which ERISA provides a longer statute of limitations.
 

13. ARBITRATION AND DISPUTE RESOLUTION.

PLEASE READ THE FOLLOWING ARBITRATION CLAUSE CAREFULLY AS IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

1. Mandatory Arbitration.

You agree that any dispute or claim arising out of or relating in any way to this MSA, the Services or to any aspect of your relationship with us will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent: CT Corporation System, 208 South LaSalle Street, Suite 814, Chicago, IL 60604.
The arbitration will be conducted by a single neutral arbitrator appointed pursuant to the rules and procedures of JAMS (an established alternative dispute resolution provider). Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, will be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. If JAMS is not available to arbitrate, the Parties will select an alternative arbitral forum. The arbitration will be conducted in Chicago, Illinois. The arbitration will decide the rights and liabilities, if any, of you and us. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

2. Waiver of Jury Trial.

THE PARTIES MUTUALLY AGREE TO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. The Parties are instead electing that all claims and disputes be resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must apply this MSA as a court would. However, there is no judge or jury in arbitration, and a court’s ability to review an arbitration award is very limited.

3. Waiver of Class or Other Non-Individualized Relief.

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION CLAUSE MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. CLAIMS OF MORE THAN ONE CLIENT CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT. If a decision is issued stating that applicable law precludes enforcement of any of this Section’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into state courts located in Cook County, Illinois or the federal courts of the United States in the Northern District of Illinois. All other claims will be arbitrated.

D.   Severability of Arbitration.
Except as provided in Section XIII.C. (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Section XIII are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of this Section will continue in full force and effect.
 

14. GENERAL PROVISIONS

 

1. Assignment.

This MSA, and your rights and obligations under this MSA, may not be assigned or otherwise transferred by you without our prior written consent. We may assign this MSA as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of our assets related to this MSA or for commercial purposes. Any attempted assignment or transfer by you without required consent will be null and void.

2. Force Majeure.

Except for payment obligations, neither Party will be responsible for any claims, losses, damages, liabilities, costs, and other expenses of any kind due to factors that are out of its control, including technology issues, acts of God, pandemic, or any other force majeure, and including, but not limited to, a loss or corruption of data due to weather.

3.  Notice.

We will provide any notices required by or permitted under this MSA to you via the email address you have provided to us, , and such notices will be effective as of the date sent. You may give us any notice required by or permitted under this MSA logging into the Client Account and submitting the applicable notice (or request) and such notices will be effective as of the date submitted by you and confirmed by us.

4. Waiver; Severability.

Any waiver or failure to enforce any provision of this MSA or any Service Schedule on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any part of this MSA or Service Schedule is held invalid or unenforceable, that part will be modified to reflect the original intention of the Parties, and the other parts will remain in full force and effect.

 

5. Entire Agreement.

This MSA, including all applicable Service Orders and Service Schedules, forms a single integrated agreement between you and us. This MSA expressly overrides and supersedes all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral with respect to your access or use of the Services.

 

6. Headings.

Section titles in this MSA are for convenience only and shall not affect in any way the meaning or interpretation of this MSA.

XVI.       ACCEPTANCE
Your submission of a completed Service Order to the Cash Balance Actuaries constitutes your acceptance of this MSA and the terms of the applicable Services Schedule(s) below.  Acceptance of this MSA is considered a modification of any prior agreement with Cash Balance Actuaries.  

Third Party Administration Services Schedule

This Services Schedule generally describes  the Third Party Administration Services that we offer. We may make various ancillary or additional services available from time to time that are not specifically listed.  You may elect from among the TPA Services that we offer; the specific services that you select and the cost of those services will be reflected on your Service Order. All Third Party Administration (other than those designated as 3(16) Services under a separate Services Schedule) are ministerial in nature; none of these Services are provided in a fiduciary capacity.  All of the terms of the MSA are incorporated into this Services Schedule. All fees for services selected are reflected on the Service Order.

We are being retained by the Client, acting in its capacity as a responsible plan fiduciary on behalf of the “Plan” (as reflected on the corresponding Service Order) to perform the Plan Services you select, from among our various service offerings, and as outlined in this Services Schedule. You represent that you are a fiduciary with authority to contract with us on behalf of the Plan. In addition, by agreeing to the terms of this MSA, you are agreeing to be liable for payment of our fees that are not permitted to be paid by the Plan pursuant to ERISA as well as the balance of our fees in the event of nonpayment by the Plan.

A.           Services We Provide

1. 1. 1. 1. 1. 1. 1. Plan Document Services:

If you elect to receive the Plan Services described in this Section A.1. (“Plan Document Services”), the following terms apply:
 

1. We will prepare a plan and trust document that has been pre-approved to comply with applicable provisions of the Internal Revenue Code (“Code”) for your review and signature. In addition, to the extent required for the Plan, we will prepare a Summary Plan Description (“SPD”) for distribution to your employees. We will be available to reasonably consult with you regarding the terms of the plan documents and optional features.  You agree to familiarize yourself with the terms of these documents.

 

2. We will prepare required plan amendments in order to comply with applicable provisions of the Internal Revenue Code (“Code”) and periodic restatements for your review and signature. To the extent that we, as sponsor of the pre-approved Plan document you have adopted, are permitted to adopt certain standardized changes on your behalf, we will do so; in all other cases, your assistance will be required to complete the adoption of amendments and restatements. In addition, we will prepare any Summary of Material Modifications (“SMM”) required for the Plan for distribution to your employees.

 

3. Upon your request to terminate the Plan, we will (i) prepare the documents needed to terminate the Plan; (ii) prepare and file the IRS forms for obtaining a favorable determination letter; and (iii) prepare a final form 5500 Return/Report.

 

1. 1. 1. 2. Annual and Ongoing Administrative Services

If you elect to receive one or more of the Annual and Ongoing Administrative Services described in this Section A.2. (“Annual and Ongoing Administrative Services”), the following terms apply if and to the extent applicable:
i.     We will request information from you for purposes of maintaining the Plan’s compliance with the Code. This information request may include, but is not limited to: employee census data, trust accounting for the year and updated information about you and your businesses, and/or all controlled or affiliated service group information. You acknowledge that (i) you are responsible for providing complete and accurate data; and (ii) we are entitled to rely on the data you provide and assumes no duty or obligation to audit or otherwise verify the accuracy of that information.
ii.    To the extent the Plan is intended to be qualified under section 401 of the Code, upon receipt of complete information from you, we will  (i) verify that participants were admitted to the Plan as of the date on which they became eligible for participation in the Plan; (ii) calculate contributions and/or forfeiture allocations; and (iii) perform any required testing; including but not limited to the following:

• • coverage testing under Code section 410(b);
  • non-discrimination testing under Code section 401(a)(4);
  • for plans that have not elected a “Safe Harbor” platform, ADP and ACP testing under Code sections 401(k) and 401(m), including identifying highly compensated employees and/or necessary corrections for failed tests;
  • monitoring for maximum deferral limitations under Code section 402(g);
  • determining any participants eligible for catch-up contributions under Code section 414(v) and whether any contributions made by any participant qualify as a catch-up contribution;
  • monitoring for maximum contribution limits under Code section 415;
  • monitoring for deduction limits under Code section 404;
  • top heavy testing under Code section 416, including determination of key employees and calculation of required minimum top-heavy benefits or contribution; and
  • calculation of vesting of employer contributions.

iii.   To the extent the Plan is a defined benefit plan, and to the extent elected by you, we will:

• Collect and review data to determine and report employee eligibility, vesting and break in service status.
• Perform actuarial valuation services, including data processing to support actuarial valuation, calculation of minimum funding requirement and maximum deductible calculation, calculation of adjusted funding target attainment percentage, and prepare actuarial report and certification.
• Perform trust reconciliation.
• Review for top-heavy status under Code section 416.
• Review for Code section 401(a)(26) minimum participation.
• Monitor Code section 415 limits.
• Perform Code section 414(s) compensation ratio test, if applicable.
• Perform Code section 401(a)(4) nondiscrimination testing, if applicable to the Plan.
• Prepare annual valuation report to include financial statements (income statement, balance sheet, etc.), Plan census and contribution reports, participant benefit statements, cost calculations, maintenance, and certification of the funding standard account, and compliance testing results.
• Annually calculate and prepare PBGC premium filing forms for your signature. 

iv.    Ancillary Services. We may be able to assist with these matters on a consulting basis based on a per-service fee or at hourly rates described in the corresponding Service Order. Examples of such matters include:

• Assistance with Plan corrections, including calculations and potential options for your review and approval.
• Provide assistance by identifying and compiling materials requested by federal agencies  (e.g. plan audits/examinations by the IRS, DOL, or PBGC filing with an agency under a correction procedure, etc.).
• If applicable, provide assistance or coordinate with certified public accountant conducting annual audit of the Plan.
• Provide assistance with governmental reporting requirements that may arise based on certain reportable events and failures to make required contributions.
• Plan census clean-up.
• Consultation regarding the Plan
• Non-standard Plan valuations.
• Plan asset conversion work.
• Estimate work.

3.    Annual Report Services. 
If you have elected to receive the Plan Services described in this Section A.3 (“Annual Report Services”), the following terms apply:
i.     We will request information annually from you for purposes of the Plan’s annual report on Form 5500.
ii.    Upon receipt of such information, we will prepare the annual returns/reports and relevant attachments for your signature.  If the Plan has 100 or more participants at the beginning of the initial Plan year or 120 or more on the first day of subsequent years, (or is otherwise subject to ERISA’s requirement to have audited financial statements), you shall be responsible for retaining a certified public accountant to audit the Plan and provide the required audited financial statements to the Plan on a timely basis for filing with the Form 5500. In addition, if more than 5% of the plan assets are not qualifying assets as defined in Department of Labor (“DOL”) Regulations, the Plan will be required to be audited or to obtain an additional fiduciary bond in an amount equal to 100% of the Plan’s non-qualified assets. You shall be responsible for locating and retaining the auditor and/or obtaining the bond. You will be responsible to, on a timely basis, sign these forms and either (a) and file these forms with the appropriate government agencies or (b) authorize and direct us to submit these forms on your behalf.
iii.   We will prepare your Plan’s summary annual report.
iv.    If applicable, we will prepare a Form 8955-SSA package for your signature.

B.           Special Provisions Applicable to Distributions, Hardship Withdrawals, Participant Loans, and QDROs
The following may apply as described in the Service Order provided you elect to receive the Plan Services related to Distributions, Hardship Withdrawals, Participant Loans, and QDROs (“Distribution Services”):
 

1. 1. 1. 1. 1. 1. 1. Distributions

Distributions shall be initiated by written notification to us. We will assist with processing participant distribution requests, prepare the necessary forms for signature, and generate necessary documents for the distribution. You will be responsible for obtaining execution of such distribution forms and documents.
In the event of a request for distribution for a beneficiary, it will be your responsibility and/or that of the Plan trustees to approve and direct that we make the distribution to the appropriate beneficiary.

1. 1. 1. 1. 1. 1. 2. Hardship Withdrawals

If the Plan provides for hardship withdrawals, you may elect for us to assist with processing participant hardship withdrawal requests, and assist you in applying the terms of the Plan to determine whether and to what extent a participant is entitled to a hardship withdrawal under the terms of the Plan under the circumstances, provided that you shall at all times be solely and exclusively responsible for making the final determination of whether and to what extent a participant may be entitled to a hardship withdrawal under the terms of the Plan.

1. 1. 1. 1. 1. 1. 3. Participant Loans

If the Plan provides for loans, you may elect for us to assist in the processing of requests for participant loans as may be allowed under the terms of the Plan, including preparation of amortization and repayment schedules, calculation of maximum loan amounts, and preparation of forms and paperwork necessary in connection with the Plan loans, provided that you will be responsible for making the final determination of whether and to what extent a participant may be entitled to a loan under the terms of the Plan.
4.    QDROs
You may elect for us to assist in the processing of domestic relations orders received with respect to the Plan are QDROs within the meaning of Code section 414(p), prepare notifications to participants and alternate payees, and maintain a record of QDROs received with respect to the Plan, provided that you will be responsible for making the final determination of whether a request satisfies the requirements to be a QDRO.
In providing Plan Services related to Distributions, Hardship Withdrawals, Participant Loans, and QDROs, you or your designated representative (which may be the Plan’s recordkeeper) will be responsible for authenticating the proper identity of participants and beneficiaries prior to the submission of participant or beneficiary-initiated requests to us for processing. We are entitled to rely that all such requests submitted to us have been properly authenticated in advance and we assume no independent authentication responsibility.   Subject to the foregoing, we may decline to process such a request and seek further instruction from you if we have reason to believe there has been a possible compromise of Personal Data and/or an attempt by a bad actor to obtain a fraudulent loan or distribution.
5.    1099R Forms
When you make us aware that a Distribution has occurred, we will instruct one of our third party vendors to prepare, file, and mail the appropriate 1099R Forms on your behalf. 

C.           Your Obligations as Responsible Party for the Plan

1. Obligation to Make Timely Contributions to Plan

You shall be solely responsible for making sure that funds are actually contributed to the Plan’s trust when required for tax deductibility and to comply with ERISA and DOL Regulations.
 

2. Obligation to Timely File Required Government Reports

Based on your service elections, we shall prepare certain government reports. You shall be responsible for (i) the accuracy of the government reports' content and (ii) the timely filing of the government reports with the appropriate agency. You acknowledge that failure to timely file required government reports may result in penalties which shall be your sole responsibility if assessed.
 

3. Obligation to Distribute Required Information to Plan Participants and Beneficiaries

You shall be responsible for distributing information to participants, including notices, elections and reports required by law.
 

4. Obligation to Notify Us of Existence of Other Plans and Companies

The Plan’s operation and tax qualification is affected by other plans sponsored by you, your affiliates, successors, assigns, or by other companies that share your principals, directors or officers (whether currently active or terminated and whether we administer the plan). You are responsible for informing us of the existence of such other plans or companies and of notifying us in writing when there is a change in this information or in your tax filing status (e.g., a change from S-corporation to C-corporation status, a change to an LLC, etc.).  We will not be responsible for making any determination with respect to the Client’s status as a controlled group, as defined under Code sections 414(b) and 414(c), or an affiliated service group, as defined under Code section 414(m).  We are also not responsible to determine whether any workers constitute leased employees (who may be eligible for Plan benefits) under Code section 414(n). 
 

5. Obligation to Make Discretionary Decisions Regarding Plan Administration

You are responsible for all discretionary decisions relating to the Plan, including the interpretation of plan document provisions, the determination of eligible employees and proper vesting of their accounts, the evaluation of claims made by participants for plan benefits, the investment of plan assets, distribution of plan benefits, the selection of Cash Balance Actuariess for the Plan.  You must take appropriate action and make such corrections as are required under the Code in connection with any failure in compliance testing.
 

6. Obligation to Obtain Fidelity Bond

ERISA §412 requires that, with certain exceptions, every fiduciary of an employee benefit plan and every person who handles funds or other property of a plan shall be bonded in accordance with the provisions of ERISA §412. You are responsible for obtaining the bond required by ERISA §412.

7.           Brokerage Accounts.

               If the Plan offers to participants the option of self-directed brokerage accounts, we are not responsible for monitoring the access to any such accounts, the Plan assets invested in such accounts, or issues that may arise, including but not limited to:

• Verifying that a self-directed brokerage account option has been made available in a manner that is nondiscriminatory;
• Monitoring such accounts for, or identifying, prohibited transactions that may occur through the use of such accounts;
• Advising you regarding additional bonding requirements that may result from investments in anything other than “qualifying assets”;
• Identifying and preparing tax forms in relation to unrelated business taxable income that may result from certain investments in such accounts and any related unrelated business income tax; and
• Determining whether the fees charged to participants for maintaining these accounts are reasonable and nondiscriminatory.

To the extent that financial information on the Plan’s self-directed brokerage accounts (if any) is not provided to us automatically, then you are responsible for sending us copies of statements outlining all transactions during the year in such accounts.   These will be used by us strictly to provide Services and will not be reviewed for any fiduciary or compliance issues, including the issues listed above.
 
 3(16) Services Schedule

This Services Schedule generally describes the 3(16) Services that we offer. We may make various ancillary or additional 3(16) Services available from time to time that are not specifically listed.  You may elect from among the 3(16) Services that we offer; the specific services that you select and the cost of those services will be reflected on your Service Order. All of the terms of the MSA are incorporated into this Services Schedule. All fees for services selected are reflected on the Service Order.

Pursuant to authority granted to it in the “Plan” (as reflected in the corresponding Service Order), the Client is delegating to Cash Balance Actuaries the responsibility and authority to perform the 3(16) Services. The Cash Balance Actuaries hereby accepts the delegation of responsibility and acknowledges it will act as a fiduciary, as defined in section 3(21) of ERISA, to the extent it provides the 3(16) Services.
You will retain residual responsibility over the administration and management of the Plan under the Plan and Section 3(16) of ERISA in relation to: a) all responsibilities not explicitly delegated to Cash Balance Actuaries, including b) all duties and services outlined in the Section IV of the MSA Agreement.  This retention by you of certain responsibilities shall apply, notwithstanding any argument, understanding, belief, or interpretation that these are responsibilities normally allocated to or associated with the section 3(16) of ERISA, and notwithstanding any Plan provision.
Except as specifically outlined in this 3(16) Services Schedule and elected by you, or another Services Schedule you elect, Cash Balance Actuaries and its employees are NOT fiduciaries of the Plan, and neither this Service Schedule nor any other provisions of this Agreement.
 

1. 3(16) Services

We will perform the following 3(16) Services unless specifically directed not to do so: 

• Sign and file Form 5500 with appropriate governmental agency

 

• We will determine the propriety of, and approve or deny, participant distribution requests

 

• You must notify us when a participant incurs a distributable event (severed employment, death or disability).

 

• Review domestic relations orders submitted to the Plan and determine whether proposed qualified domestic relations orders (“QDROs”) are qualified

 

• For approved QDROs, direct segregation of alternate payee’s benefit

In providing Plan Services related to Distributions, QDROs, or any other participant-directed action, you or your designated representative will be responsible for authenticating the proper identity of participants and beneficiaries prior to the submission of participant or beneficiary-initiated requests to us for processing.  To the extent permitted by applicable law, we will be entitled to rely that all such requests submitted to us have been properly authenticated in advance.   You agree to at your own expense, defend, indemnify and hold us harmless against all claims, demands, actions, liabilities, damages, losses, costs and expenses (including court costs, and attorneys’ fees) arising out of a third party claim against us to the extent it arises out of the failure to properly authenticate a participant or beneficiary’s identity.  Subject to the foregoing, we may decline to process such a request and seek further instruction from you if we have reason to believe there has been a possible compromise of Personal Data and/or an attempt by a bad actor to obtain a fraudulent loan or distribution. 
 

2. Maintenance of Fidelity Bond for Cash Balance Actuaries

ERISA requires that fiduciaries of retirement plans be covered by a fidelity bond. You are responsible for ensuring that Cash Balance Actuaries is added as a covered fiduciary under your Plan’s bond. Notwithstanding the foregoing, the Cash Balance Actuaries may procure such bond at its option, and will pass on the cost of such bond, and all administrative costs, to you. You are responsible for maintaining any necessary fidelity bonds ERISA requires.
 

3. Co-fiduciary Liability

Client acknowledges and agrees that, if the Plan is governed by ERISA, then as a result of Cash Balance Actuaries performing 3(16) Services, Cash Balance Actuaries may incur co-fiduciary obligations.  Such co-fiduciary obligations may require Cash Balance Actuaries to take action to remedy a breach of fiduciary duty, of which it is aware, by Client or other Plan fiduciaries.  Remedial action may include (a) correcting errors or communicating with participants; (b) pursuing claims against other fiduciaries or Cash Balance Actuariess; and/or (c) advising the DOL of such breach and the potential of harm to participants.

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To sign this agreement online, please visit this link.