Master Services Agreement

Master Services Agreement

Service Provider

A Strongpoint Partner

This Master Services Agreement (“MSA” or the “Agreement”) is entered into between SERVICE PROVIDER (“Service Provider,” “us,” or “we”), an affiliate of SCP Retirement Services, LLC (“Strongpoint”) and CLIENT (“Client,” or “you”).  Each of Client and Service Provider 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”) to us.

This MSA is effective upon your first Service Order submission 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, 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 Service Provider begin prior to the submission of a Service Order or initial payment, this MSA is effective upon your receipt of such services of the Service Provider.

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 payroll, H.R. solutions and retirement plan recordkeeping, administration, and investment advisory 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 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 Service Provider 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 Service Provider and agreed upon by your acceptance.  You may request or discontinue an available Service by contacting us directly.  Following your initial Service Order, you may request additional Services from time to time by completing and submitting a Service Order for such services. You may also upgrade or make changes to the level of a previously elected Service by submitting a Service Order. When submitting Service requests, you will specify the Services you wish to elect on the Service Order.  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 Service Provider. Separate Service Schedules apply to the following Employer Services: (i) payroll and HR Solutions Services; and (ii) Swipeclock time tracking Employer Services.  Separate Service Schedules apply to the following Plan Services:  (i) recordkeeping Services; (ii) third party administration Services; (iii) 3(16) fiduciary administrative Plan Services; and (iv) investment advisory Services. 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 Service Provider may act as an agent on behalf of a related Strongpoint organization and enter into this MSA on such related organization’s behalf. Additionally, you acknowledge that Service Provider or an affiliate acts as a reseller of Swipeclock time tracking Employer Services, which are provided by an unaffiliated entity. 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 Service Provider 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 Service Provider (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. Your Account. You must register for an account on our website (“Client Account”) in order to access the Services. By registering 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.  

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.

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 Service Provider 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 $20.00 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 Service Provider processes any Personal Data that is subject to the California Consumer Privacy Act (“CCPA”), Service Provider agrees to the following:

        a. All Personal Data disclosed by Client to Service Provider, or that Service Provider 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. Service Provider 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. Service Provider 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 Service Provider.

        d. Service Provider will, in a manner consistent with the nature and functionality of the services provided in the Agreement and Service Provider’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 Service Provider receives a Data Subject Request or other complaint directly from a data subject regarding the processing of Client Private Information, Service Provider 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. Service Provider may not combine Client Private Information that it receives from, or on behalf of, Client with personal data subject to the CCPA that Service Provider 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 Service Provider with deidentified Personal Data, or if Service Provider deidentifies Personal Data previously provided by Client, Service Provider 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 Service Provider 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 Service Provider, take reasonable and appropriate steps to stop and remediate Service Provider’s unauthorized processing of Personal Data, provided that Service Provider may terminate the applicable Service or this MSA.

        i. Service Provider 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 Service Provider 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 Service Provider 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 service provider 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. 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.

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.

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.

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 service provider you designate, at your expense, all reasonable and relevant information and records that we maintain as a result of this Agreement.

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 Service Provider, 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 Service Provider 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 Service Provider 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, SERVICE PROVIDER 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 SERVICE PROVIDER 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, Service Provider 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. Service Provider maintains cyber-security insurance to help protect both you and Service Provider in the event of unauthorized disclosure despite our best efforts. However, Service Provider’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 Service Provider 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 Service Provider.

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Payroll and HR Solutions Services Schedule

This Services Schedule reflects the Payroll and Human Resources (“HR”) Services offered by us and Strongpay, an affiliate of Strongpoint. This Services Schedule applies only if you have elected to have these services provided for you by Strongpay. These services 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 these services are reflected on the Service Order.

1. Services We Provide

If you so elect, Strongpay, in conjunction with your Service Provider, will provide the payroll and HR Solutions services described in this Services Schedule and elected by you by submitting a Service Order (collectively, “Payroll and HR Services”). 

Services available for you to select from among include the following:

• Calculating your payroll obligations and associated liabilities
• Processing your payroll and making related payroll payments on your behalf
• Making certain payroll tax payments and payroll tax filings electronically on your behalf
• If applicable, sending wage garnishments, such as child support payments, to applicable local, state, or federal agencies
• Handling check/voucher generations (all checks will be drawn against Service Provider accounts), providing for logos and authorized signatures on all checks/vouchers; check/voucher stuffing, direct deposits, full reporting including online access to checks and payroll histories; and accrual processing

In addition, you may elect to use Strongpay’s Payroll and HR Services technology to improve your human capital management workflow including the secure storage of pertinent employee data and track HR processes in an organized web-based system.

2. Fees

Fees applicable to Strongpay’s delivery of Payroll and HR Services to you are as shown as reflected on your Service Order. 

3. Payroll Set-Up

You agree to complete and sign additional forms or authorizations as we, or Strongpay, may reasonably request, as required by law or as otherwise necessary for Strongpay to provide the Payroll and HR Services. Prior to your initial payroll processing date, you must submit the completed and executed documents Strongpay requires for providing Payroll and HR Services, including your payroll and bank account information, any required federal, state, or local powers of attorney, and any additional information requested. The Payroll and HR Services provided are dependent upon the delivery of complete and accurate payroll information by you (including proof of federal, state, and local tax identification numbers). Failure to provide the required documents and payroll information may adversely impact our ability to perform the Payroll and HR Services. We will notify you via electronic communication or by other means when all information necessary to begin the Payroll and HR Services has been received and the enrollment process for the Payroll and HR Services has been completed.

4. Your Retained Responsibility for Pre-Service Period Payroll Matters

You acknowledge that you are solely responsible for: (i) depositing any federal, state, and local withholding liabilities incurred prior to the commencement of our Payroll and HR Services; (ii) submitting any payroll returns to tax agencies (state, federal, and/or local) that were due for payroll tax liabilities incurred prior to initiation of our Payroll and HR Services, and (iii) canceling any prior payroll service or services of professional employee organizations/employee leasing companies.

5. Service Provider is Not a Fiduciary or Adviser

You acknowledge and agree that (i) Service Provider is not acting in a fiduciary capacity for you, your business or your employees when providing Payroll and HR Services; (ii) using the Payroll and HR Services does not relieve you of your obligations under local, state, or federal laws or regulations to retain records relating to your data; and (iii) any information that Strongpay provides in connection with the Payroll and HR Services is for informational purposes only and should not be construed as legal, tax, or accounting advice. Service Provider and Strongpay are not responsible for tax compliance applicable to your business and payroll. Service Provider and Strongpay do not provide legal advice; any returns, forms, or documents provided to you are on an “as-is” basis and should be reviewed by your counsel.

6. Third-Party Services

Third-party provided services may be made available through the Strongpay platform including, but not limited to, services provided by Swipeclock, Employee Navigator, Federal Express, United Delivery Services, Turbo Tax, HR Answerlink, and Background Checks (“Third Party Providers”). We may serve as billing agent for such Third Party Providers, but bear no responsibility and shall have no liability for the performance of Third Party Providers.   Each Third-Party Provider is solely responsible for the performance of your engagement with them.

7. Payroll Information

1. Submission and Review. Prior to submitting your first payroll, you shall review the Payroll Information (as defined below) for completeness and accuracy. “Payroll Information” shall mean any information you furnish to us in connection with the Payroll and HR Service, including any all information the information used to calculate and pay employee payroll, pay payroll taxes to applicable taxing agencies (including your employer identification number(s), unemployment insurance tax rates, and employment tax deposit schedule), produce payroll tax returns and W-2 statements, and print checks. You must correct or provide, respectively, any incorrect or missing Payroll Information, by using the payroll software we make available to you. You are fully responsible for the accuracy of all information you provide, submit, and/or approve (whether provided directly or through authorized representatives), and you are solely responsible for any claims, including but not limited to IRS penalties and/or interest, and other penalties and/or interest arising from the failure to timely provide and maintain accurate and complete Payroll Information at all times.

2. Approval. You agree that by submitting each payroll (including the first payroll) to us: (i) you approve all Payroll Information; (ii) you represent and warrant to Service Provider that no Payroll Information submitted to us will result in entries that would violate the sanctions program of the Office of Foreign Assets Control of the U.S. Department of the Treasury or any other applicable laws, rules, or regulations; (iii) you waive and release us from any claims arising out of any errors or omissions in the Payroll Information you have provided and have not corrected; and (iv) you acknowledge that any subsequent request for corrections will be considered special handling, and additional fees may apply. You retain full responsibility for any audits or assessments.

8. Payroll Information

1. Payment Orders. You are responsible for verifying that anyone providing an instruction to approve, release, cancel, or amend the Payroll Information used to create entries (each, a “Payment Order”) to be originated by Strongpay or the Service Provider is authorized to do so. Neither the Service Provider nor Strongpay verifies or reviews Payment Orders for the purpose of detecting any errors; it is your responsibility to verify the accuracy of all Payment Orders.

2. Information Errors. If a Payment Order describes the payee inconsistently by name and account number, (i) payment may be made on the basis of the account number even if you identify a person different from the named payee; or (ii) Strongpay may, in its sole discretion, refuse to accept or may return the Payment Order. If a Payment Order describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the financial institution. If a Payment Order identifies a non-existent or unidentifiable person or account as the payee or the payee’s account, Strongpay may, in its sole discretion, refuse to accept or may return the Payment Order.

9. Bank Account Debiting and Crediting

1. Bank Account Authorization. On or prior to your payroll direct deposit and/or payroll tax deposit date or other applicable settlement or due date, you authorize Service Provider to initiate debit entries to the Bank Account at the depository financial institution (the “Bank”) indicated by the routing number associated with the Bank Account that you provide to us, and to debit the Bank Account in such amounts as are necessary to (i) fund payroll direct deposits; (ii) pay any fees or charges associated with the Payroll and HR Services, including, without limitation, finance charges; (iii) pay your payroll taxes; (iv) pay any debit, correcting, or reversing any Entry initiated pursuant to the Payroll and HR Services which is later returned to us; (v) verify the Bank Account through a test deposit or debit authorization; and (vi) pay any other amount that is owing under or in connection with the Payroll and HR Services. You also authorize us to initiate credit entries to the Bank Account in the event that we are required to return Unpaid Funds to you, as described in Section P of this Service Schedule. These authorizations shall remain in full force and effect until we have received written notice from you of termination of any such authorizations in such time and such manner as to afford us and the Bank a reasonable opportunity to act upon such notice. We are not responsible for determining whether the bank accounts of any payors or payees have deposit or withdrawal restrictions.

2. NACHA Rules. You acknowledge that the origination of Automated Clearing House (“ACH”) transactions to the Payroll Account (as defined below) and the transmission of funds via ACH transactions to the payee’s account must comply with applicable laws, rules, and regulations, including the NACHA Rules, as further described in Section N of this Service Schedule. Furthermore, you acknowledge compliance with NACHA rules includes the right for Strongpay to audit the Client for compliance with the NACHA Rules, as specified by the NACHA rules.

10. Requirements for Bank Account Funds

1. Your Obligation to Maintain Sufficient Funds. You will maintain in the Bank Account, as of each applicable payroll direct deposit date, payroll tax deposit date, or other settlement or due date and time, immediately available funds sufficient to cover all disbursements, fees, payroll taxes or any other amounts due (collectively, the “Amounts Due”) under the Payroll and HR Services. Your obligation to maintain sufficient funds in the Bank Account to cover Amounts Due is in effect at the time Strongpay originates the applicable entries for the Amounts Due and is unaffected by termination of the Payroll and HR Services. Strongpay may set off any amounts you owe to us against any amounts we owe to you in connection with the reconciliation of Amounts Due.

2. Insufficiencies. If you do not maintain sufficient funds in the Bank Account to pay the Amounts Due at the times required, or if you refuse to pay the Amounts Due, then Strongpay will not be able to pay out the Amounts Due to the applicable parties and will not be liable for any consequences or claims directly or indirectly arising from such failure to pay, and Strongpay may (i) debit the Bank Account or any other account owned in whole or in part by you to pay disbursements, fees or charges, payroll taxes, or other amounts due; (ii) reverse any transactions initiated on your behalf; (iii) refuse to pay any unremitted payroll taxes to the applicable tax agencies, in which case the payroll tax liability will become your sole responsibility; (iv) refuse to perform further Payroll and HR Services; and/or (iv) immediately terminate the Payroll and HR Services. For any amounts due and unpaid, we may assess finance charges on such amounts and recover certain fees and costs of collection associated with such amounts.

11. Certain Agreements and Acknowledgements

1. Service Provider’s Payroll Account. Amounts withdrawn from the Bank Account for payroll direct deposits and payroll taxes (“Payroll Funds”) will be held by Service Provider in accounts Service Provider maintains with financial institutions (collectively, the “Payroll Account”) until such time as those payments are due to your employees and/or independent contractors and the appropriate taxing agencies, and no interest will be paid to you on these amounts. You acknowledge that Service Provider is entitled to invest the Payroll Funds and that Service Provider, in its principal capacity (and not as your agent), is entitled to all income and gains derived from or realized from such investments.

2. Indemnity. To the extent Service Provider receives the Payroll Funds, Service Provider shall indemnify and hold you harmless from and against any loss of any portion of the principal amount of the Payroll Funds (including any losses of principal resulting from the investment of the Payroll Funds) caused by Service Provider while holding the funds in its Payroll Account. If Service Provider incurs losses on the investment of the Payroll Funds or uses the Payroll Funds for any other purpose, Service Provider will make the required payroll direct deposits and payroll tax deposits on your behalf by using Service Provider’s own funds or other assets.

3. Rounding. Service Provider calculates applicable payroll taxes in accordance with state requirements; however, due to differences in computational methods (e.g., rounding), it is possible that our computation of your applicable taxes may deviate by an immaterial fractional amount from the amount charged by an applicable taxing authority (typically a difference of less than $0.10 per taxing authority per payroll). Sometimes, this will result in Service Provider withdrawing slightly less than what ultimately is required to be remitted to the applicable taxing authority. In this case, you agree to accept the accuracy of Service Provider’s computation; however, Service Provider will cover the difference on your behalf and will not seek additional funds from you. Alternatively, this process may result in Service Provider withdrawing slightly more than what ultimately is required to be remitted to the applicable taxing authority. In such an instance, you agree to accept the accuracy of Service Provider’s calculation, and that you are not entitled to a refund of or credit for the excess funds.

4. Excess Credits. In the event that Service Provider erroneously credits an amount to the Bank Account in excess of the amount that should have been credited (the “Excess Credit Amount”), if any, then you shall promptly notify Service Provider upon becoming aware of such erroneous credit. You authorize Service Provider to debit any Excess Credit Amounts from the Bank Account, and if the Bank Account contains insufficient funds to cover the Excess Credit Amount, you agree to promptly refund the Excess Credit Amount to Service Provider through other payment methods that Service Provider may deem acceptable at its sole discretion.

12. ACH Origination

1. Rejected Submissions. The Payroll Information you approve and submit to Service Provider will be applied for the creation, formatting, and transmission of entries in accordance with the NACHA Rules and the UCC. Service Provider may reject any Payroll Information or Entry which does not comply with the requirements in this Service Schedule, NACHA Rules, or the UCC, or with respect to which the Bank Account does not contain sufficient available funds to pay for the Entry. If any Payroll Information or Entry is rejected, Service Provider will make a reasonable effort to notify you promptly so that you may correct such Payroll Information or request that Service Provider correct the Entry and resubmit it. A notice of rejection of Payroll Information or an Entry (each, a “Rejection Notice”) may be delivered through any means, including via email. Service Provider will have no liability to you for (i) the rejection of any Payroll Information or Entry or any claims directly or indirectly arising therefrom; or (ii) any delay in providing, or any failure to provide, you with a Rejection Notice, or any claims arising directly or indirectly therefrom. If you request that Service Provider correct any Payroll Information or entries on your behalf, Service Provider will attempt to do to the extent correction may reasonably be undertaken; provided, however, that Service Provider is not obligated to make any requested correction, and Service Provider is not liable for any claims or other consequences that may directly or indirectly result from Service Provider’s attempt to correct, or failure to correct, such Payroll Information or entries.

2. Finality. After the Payroll Information has been approved by you and submitted to Service Provider for the purposes of initiating a payroll-related transaction (such action, to “Submit,” and Payroll Information that has been submitted in the foregoing manner, “Submitted Payroll Information”) and received by Service Provider, you may not be able to cancel or amend such Submitted Payroll Information. Service Provider will use reasonable efforts to act on any cancellation or amendment requests it receives from you prior to transmitting the entries to the ACH or gateway operator, but will have no liability if the cancellation or amendment is not affected. You will reimburse Service Provider for any expenses, losses, fines, penalties, or damages Service Provider may incur in effecting or attempting to effect such a request. Except for entries created from Payroll Information that has been re-approved and re-Submitted by you in accordance with the terms of this Service Schedule, Service Provider will have no obligation to retransmit a returned Entry to the ACH or gateway operator if Service Provider complied with the terms of the Service Schedule with respect to the original Entry.

M. Payroll Processing Times        

1. Cut-Off Times. Service Provider will process the Submitted Payroll Information and entries in accordance with Service Provider’s then-current processing schedule, provided that (i) the Submitted Payroll Information is received by Service Provider no later than the applicable cut-off time for Submitted Payroll Information on a business day; and (ii) the ACH is open for business on that business day. If Service Provider receives approved and Submitted Payroll Information after the applicable cut-off time for Submitted Payroll Information on a given business day, or if Service Provider receives the Submitted Payroll Information on a non-business day, Service Provider will not be responsible for failure to process the Submitted Payroll Information on that day. If any of the requirements of clauses (i) or (ii) of this paragraph are not satisfied, Service Provider will use reasonable efforts to process the Submitted Payroll Information and transmit the entries to the ACH with the next regularly-scheduled file created by Service Provider (which will only occur on a business day on which the ACH is open for business).

2. Standard Processing Times. Strongpay’s standard processing time for payroll and contractor payments is three (3) business days.

14. ACH Transactions and Entries

1. NACHA Rules; UCC. Origination, receipt, return, adjustment, correction, cancellation, amendment, and transmission of entries must be in accordance with the NACHA Rules, and, with respect to credit entries which constitute Payment Orders, the UCC, as both are varied by this Agreement. You agree to comply with, and be bound by, the NACHA Rules and the UCC with respect to the Payroll and HR Services.

2. Provisional Credit Entries. Credit given by Strongpay to you with respect to an ACH credit Entry is provisional until Strongpay receives final settlement for such Entry through a Federal Reserve Bank. If Strongpay does not receive such final settlement, Strongpay is entitled to a refund from you in the amount credited to you in connection with such Entry, and the party making payment to you via such Entry (i.e., the Originator (as defined in the NACHA Rules) of the Entry) shall not be deemed to have paid you in the amount of such Entry.

3. Entry Reversals. Upon your request, Strongpay will make a reasonable effort to reverse an Entry, but will have no responsibility for the failure of any other person or entity to honor such request, and Strongpay cannot guarantee that the Entry will be successfully reversed. You agree to reimburse Strongpay for any costs or expenses incurred in attempting to honor such a reversal request. If required under the NACHA Rules or the UCC, you must obtain a payee’s consent before attempting to reverse an Entry that was credited to such payee. Each time you initiate a request to reverse an Entry that was credited to a payee, you shall be deemed to have represented and warranted to Strongpay that you have already obtained the payee’s consent for the reversal, if such consent is required under the NACHA Rules or the UCC.

4. Statements of Bank Account Activity. Under the NACHA Rules, which are applicable to ACH transactions, Strongpay is not required to give next day notice to you of receipt of an ACH item and Strongpay will not do so. However, Strongpay will inform you of the receipt of payments through the periodic Bank Account transaction history report that Strongpay makes available to you.

5. International ACH Transactions Not Supported. You acknowledge that Strongpay does not engage in or support International ACH Transactions (“IATs”), as defined in the NACHA Rules. You represent and warrant that (i) the direct funding for the entries originated by Strongpay on your behalf does not come from or involve a financial agency office that is located outside the territorial jurisdiction of the United States; (ii) you will not instruct Strongpay to create, originate, or transmit entries that use IAT as the Standard Entry Class Code (as defined in the NACHA Rules), or are otherwise required to be IATs under the NACHA Rules; and (iii) you will not engage in any act or omission that causes or results in Strongpay creating, originating, or transmitting an IAT or a payment that should have been categorized as an IAT pursuant to the NACHA Rules. Strongpay may, in its sole discretion, temporarily or permanently suspend providing Payroll and HR Services to you, without liability, if Strongpay has reason to believe that you have breached any of the foregoing representations and warranties in this paragraph. You acknowledge that you are the Originator (as defined in the NACHA Rules) of each Entry and assume the responsibilities of an Originator under the NACHA Rules.

6. Indemnity. You acknowledge that under the NACHA Rules and the UCC, Strongpay, as a Third-Party Sender (as defined in the NACHA Rules), is required to make certain warranties on behalf of the Originator with respect to each Entry. You agree to indemnify Strongpay for any claims which result, directly or indirectly, from a breach of any such warranty Strongpay makes on your behalf, unless such breach results solely from Strongpay’s own gross negligence or intentional misconduct. You also acknowledge that under the NACHA Rules and the UCC, Strongpay is required to indemnify certain persons, including, without limitation, the ODFI (as defined in the NACHA Rules), for the Originator’s failure to perform its obligations thereunder. You agree to indemnify Strongpay for any claims which result from the enforcement of such an indemnity, unless the enforcement results solely from Strongpay’s own gross negligence or intentional misconduct.

15. Taxes; Liability

1. Strongpay Not Liable for Inaccurate Information. Strongpay assumes no liability for any penalty, interest, or other claim that results from inaccurate or incomplete information that you, or your authorized representatives supply to us. You shall timely and accurately update all wage and payroll information as necessary to reflect changes and respond with additional information, as may be requested from time to time. Any penalty or interest incurred, or any other claim that arises, due to inaccurate or incomplete information provided by you is solely your responsibility.

2. Retained Responsibility for Tax Obligations. Even though you have authorized Strongpay to file payroll tax returns and make payroll tax payments on your behalf, you retain responsibility for the timely filing of employment tax returns and the timely payment of employment taxes for your employees. The IRS recommends that you enroll in the U.S. Treasury Department’s Electronic Federal Tax Payment System (“EFTPS”) to monitor your IRS account and ensure that timely tax payments are being made on your behalf. You may enroll in the EFTPS online at www.eftps.gov, or by calling (800) 555-4477 for an enrollment form. State tax authorities generally offer similar means to verify tax payments. You should contact the appropriate state offices directly for details.

16. Failed Direct Deposits

1. Unpaid Funds. In the event that a direct deposit payroll payment fails to be paid to the payee and Service Provider cannot ultimately successfully make a payment on your behalf to the payee, and the funds are returned to Strongpay (“Unpaid Funds”), Strongpay will notify you of such Unpaid Funds and provide you with the appropriate details related to those funds. In addition, Strongpay will return the Unpaid Funds to you. You are responsible for contacting payees and/or otherwise resolving matters pertaining to Unpaid Funds.

2. Abandoned Property Laws. You acknowledge that you are responsible for complying with all applicable state unclaimed or abandoned property laws related to Unpaid Funds, and Strongpay bears no liability or responsibility for claims directly or indirectly arising from state unclaimed or abandoned property laws, including any applicable penalties and/or interest. Strongpay shall have no obligation to defend or otherwise indemnify you in the event of an audit, examination, assessment, or other enforcement action by a state related to the Unpaid Funds under its unclaimed or abandoned property laws.

Q.   Effect of Termination of the Payroll and HR Services

In the event that you or Strongpay terminates the Payroll and HR Services, from and after the date of termination, Strongpay shall have no further obligation to provide Payroll and HR Services, including the completion of payroll tax filings on your behalf.  Furthermore, Strongpay has the right to terminate or suspend services for breach of the NACHA Operating Rules or upon notice from ODFI to terminate client services.  Notwithstanding the foregoing, in connection with a termination of Payroll and HR Services, you may have the option of making specific elections with respect to Strongpay’s completion of certain final payroll tax filings (the “Final Payroll Tax Filings”) on your behalf.

R. Further Acknowledgements and Agreements

1. Data Security Breaches. You agree to notify Service Provider and Strongpay immediately of any data breach, attack, hacking incident, virus or malware attack affecting any of your systems.

2. No Third Party Uses. You shall use the Payroll and HR Services for your own internal business purposes and will not sell or otherwise provide, directly or indirectly, any of the Services or any portion thereof to any third party.

3. Indemnity for Breach. You agree to reimburse Service Provider for all collection costs, including attorney’s fees, which Service Provider may incur as a result of your failure to adhere to the terms and conditions of this Service Schedule.

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 Recordkeeping Services Schedule

This Services Schedule reflects the Recordkeeping Services offered by us. This Services Schedule applies only if you have elected to have these Services provided for you. These Services 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 these services 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 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

If you have elected for us to provide the Recordkeeping Services, we will:

• Maintain record of and provide access to daily updated Plan-level and participant-level account statements including records of all receipts and disbursements, earnings, and expenses, and separate accounting for different contribution types.
• Process employee and Client contributions to participants’ accounts based on information provided by Client or a designated representative; and process changes to contribution rates.
• Process investment balance transfers and changes to future investment allocations.   All such changes are subject to the rules, regulations, and restrictions governing the Plan’s investment funds, including any restrictions on frequent trading.  
• Process new participant enrollments.
• Website access will be provided for Plan participants to accommodate daily trading of accounts and for transfers of funds, as well as reallocation of future contributions.
• You may elect our provision of distribution processing services and reporting (including lump sums, installments, in-service withdrawals, partial distributions and annuities if applicable).

• You may elect our provision of loan processing support and modeling preparation and mailing of loan check, promissory note, and payroll deduction authorizations and the preparation and delivery of delinquent, pending default, suspension, and default notices to participants.

• If elected by you, we will support Qualified Domestic Relations Order (“QDRO”) processing and reporting.

• If elected by you, we will support required minimum distribution (“RMD”) processing.

B.        Instructions and Directions

You authorize and direct us to act as the Plan’s primary agent for purposes of transmitting instructions and directions relating to the Plan (including, by way of example and not limitation, directions with respect to purchases and sales of interests in investment alternatives available under the Plan) to other service providers for the Plan or other persons as necessary to carry out the Services.  If a requested direction or instruction cannot be processed for any reason (including, but not limited to, insufficient funds to cover the cost of a requested transaction, market conditions, or Plan investment alternative restrictions), we will use our best efforts to: (i) notify the party that submitted the instruction or direction that the instruction or direction could not be processed, as soon as practicable after we receive notice of same; and (ii) unless directed otherwise, take steps to ensure the direction or instruction is processed as soon as practicable.

We may conclusively rely upon and will act upon directions, documents, data and other information, which we reasonably believe to have been provided by you, any designated representative, or other parties you designate to provide directions to us (including, to the extent relevant, the Plan’s prior recordkeeper).  We may conclusively rely upon and are directed to act upon telephone, electronic or written directions or information provided to us under a signature which purports to be that of the a participant or beneficiary or provided with a personal identification number or other identifying information used to verify that the transmission originated from the participant or beneficiary, except we may decline to process a participant or beneficiary direction if we believe there has been a possible compromise of Personal Data.

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 Prepare Required Government Reports

Unless you have elected for us to provide additional Plan Services pursuant to another Services Schedule, we shall not prepare any required governmental reports with respect to the Plan, including Form 5500.

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

You shall be responsible for arranging for the distribution of information to participants, including notices, elections and reports required by law.

4. Obligation to Issue Form 1099-R in Connection with Plan Distributions

For pooled investments, outside broker accounts or other certain situations where participant detail is not maintained by us, you acknowledge that we do not customarily prepare the end of year tax forms required by law when a participant receives a distribution from the Plan (i.e., Form 1099-R) nor the forms necessary to report and pay taxes withheld from the distributions (i.e., Form 945 and applicable state forms). If you would like these forms, you must give us written notice and we must agree to provide them at their option. 

5. Compliance Testing

Unless you have elected for us to provide additional Plan Services pursuant to another Services Schedule, we shall not provide Services with respect to nondiscrimination and compliance testing for the Plan.

6. Obligation to Make Discretionary Decisions Regarding Plan Administration

Unless you have elected for us to provide Section 3(16) services pursuant to another Services Schedule , 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 service providers 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.

7. 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.

8.        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.

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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. 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. 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(k) 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.
• Trust accounting.
• 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.

4.        Communication Services

The following may apply as described in the Service Order provided you elect to receive the Communication Services described in this Section A.4. (“Communication Services”):

i.        Prepare standard enrollment materials including information describing Plan features, the enrollment process, and designated investment alternatives.

ii.        Prepare sample forms for legally required notices to Plan participants and beneficiaries, such as, to the extent required for the Plan, annual fee disclosures, quarterly individual benefit statements, default investment notices, and change of investment alternative notices.  

iii.        Note: to the extent the Plan has engaged a third party recordkeeper that produces any of the above notices and disclosures, we may not prepare them.

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”):

2. 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.

3. 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.

4. 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.

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 Issue Form 1099-R in Connection with Plan Distributions

For pooled investments, outside broker accounts or other certain situations where participant detail is not maintained by us, you acknowledge that we do not customarily prepare the end of year tax forms required by law when a participant receives a distribution from the Plan (i.e., Form 1099-R) nor the forms necessary to report and pay taxes withheld from the distributions (i.e., Form 945 and applicable state forms). If you would like these forms, you must give us written notice and we must agree to provide them at their option. 

5. 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).  

6. Obligation to Make Discretionary Decisions Regarding Plan Administration

Unless you have elected for us to serve as the Plan’s Section 3(16)(A) administrator, 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 service providers 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.

7. 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.

8.        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.

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 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 Service Provider the responsibility and authority to perform the 3(16) Services. The Service Provider 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 Service Provider, 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, Service Provider 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

If you have elected for us to provide the 3(16) Services, we will perform the 3(16) Services specifically indicated on the Service Order.  

If “3(16) 5500 Signing” is selected on the Service Order in the 3(16) section we will:

• Sign and file Form 5500 with appropriate governmental agency

If “3(16) Plan Notices” is selected on the Service Order in the 3(16) section we will:

• Deliver the legally-required Plan notices and disclosures to participants as specified on the Service Order.

If “3(16) Distribution Processing” is selected on the Service Order in the 3(16) section:

• We will determine the propriety of, and approve or deny, participant distribution requests, including hardship withdrawals and in service distributions.

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

If “3(16) Loan Processing” is selected on the Service Order in the 3(16) section: 

• We will determine the proprietary of, and approve or deny, participant loan requests.

• You must identify to us any participants who leave employment for military service or other leave of absence which may result in a suspension of loan repayments, and any participants who return from a military service or other leave of absence which may require a resumption of loan repayments.

If “3(16) Domestic Relations Orders Processing”  is listed on the Service Order in the 3(16) section, we will:

• 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, Hardship Withdrawals, Participant Loans, QDROs, or any other participant-directed action, you or your designated representative (which may 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.  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 Service Provider

ERISA requires that fiduciaries of retirement plans be covered by a fidelity bond. If 3(16) Distribution Processing or 3(16) Loan Processing services are selected in the Service Order, you are responsible for ensuring that Service Provider is added as a covered fiduciary under your Plan’s bond. Notwithstanding the foregoing, the Service Provider 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 Service Provider performing 3(16) Services, Service Provider may incur co-fiduciary obligations.  Such co-fiduciary obligations may require Service Provider 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 service providers; and/or (c) advising the DOL of such breach and the potential of harm to participants.

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Investment Advisory Services Schedule

This Services Schedule reflects the non-discretionary investment advisory services (“Investment Advisory Services”) that Jocelyn Investment Management, LLC (“Advisor”), an affiliate of Strongpoint, will perform.  This Services Schedule applies only if you have elected to have these services provided for you.  These Services are provided in a fiduciary capacity. All of the terms of the MSA are incorporated into this Services Schedule. All fees for these services are reflected on the Service Order.

A.        Additional Terms Applicable to the Provision of Investment Advisor Services

1. Appointment.  Advisor agrees that, to the extent it provides investment advice to the Plan as defined in Section 3(21)(A)(ii) of ERISA, it will be acting as a “fiduciary” under ERISA, with respect to the Investment Advisory Services. With respect to the Participant Education Services (defined below), Client acknowledges and agrees that Advisor will provide these non-fiduciary Services to assist Client, and Advisor will not act as a fiduciary to the Plan in providing such Services.
2. Basis of Advice.  Client acknowledges and agrees that Advisor uses third party service providers and obtains information from a wide variety of both publicly available and certain private sources. The Investment Advisory Services provided by Advisor may be based, in whole or in part, upon its analysis of such information, and Client acknowledges, understands, and agrees that Advisor cannot and does not guarantee the accuracy or validity of the data upon which Advisor’s analysis, recommendations, or reviews are based. Client acknowledges that previous investment performance information is not indicative of future performance or results.
3. Service Limitations.

1. Client retains absolute discretion over the selection of trustees, other investment advisers, and other service providers to the Plan, and that Advisor will provide only those services to the Plan or to Client that are specifically enumerated on Section B of this Services Schedule, and will not provide, among other services, legal, tax, accounting, actuarial, or other professional services.
2. Client acknowledges and agrees that Advisor and its IAR’s Services are limited to non-discretionary recommendations, and that nothing in this Agreement requires Client to implement or follow any recommendation or investment advice provided by Advisor, and that the implementation of all (or any portion) of Advisor’s recommendations or investment advice is at the sole discretion of Client.
3. If the Client intends to offer a Qualified Default Investment Alternatives (“QDIA”) as part of the plan investment menu, the Client will be responsible for designating the QDIA and ensuring that it meets the criteria as established under ERISA for a QDIA.
4. Client understands and agrees that it will retain absolute discretion over, and responsibility for, investment and implementation decisions, specifically including the selection of investment managers, trustees, other investment advisers, as applicable, and are free to obtain legal, accounting, actuarial, consulting, advisory, and other professional services from any source. By engaging Advisor, Client acknowledges and agrees that: (i) Advisor does not have or exercise discretionary authority or control with respect to the Plan’s assets; and (ii) any recommendations provided by Advisor will be implemented only to the extent accepted and acted upon by Client, as applicable. Advisor shall cooperate with any investment manager, investment advisers, trustee, attorney, accountant, or broker-dealer chosen by Client, as applicable, relative to implementation of any recommendations.
5. Client acknowledges and agrees that the Investment Advisory Services do not include, and Advisor will not have responsibility to provide, and will not provide, any services related to the following types of assets: (i) employer securities; (ii) real estate (except for real estate funds and publicly traded real estate investment trusts); (iii) self-directed brokerage accounts or brokerage windows; (iv) in-plan annuity options; (v) non-publicly traded partnership interests; (vi) other non-publicly traded securities (other than collective trusts, unitized models and similar vehicles where performance and fee information is readily available through public sources); (vii) other hard-to-value securities or assets; and (viii) other non-standard investment options.
6. Client acknowledges and agrees that Advisor shall not have the responsibility to vote proxies and that the governing Plan documents provide that the Plan’s named fiduciary has reserved to itself (or to another fiduciary so authorized by the Plan’s governing documents) the right to direct the Plan trustee regarding the voting of proxies.
7. Client shall be responsible for directing the Plan’s recordkeeper, custodian and/or third-party administrator to act in accordance with this Agreement, including authorizing the Plan recordkeeper to debit and remit the payment of fees to Advisor, as applicable, and authorizing Advisor to obtain Plan data from the applicable Plan recordkeeper.
8. The Parties agree that Advisor assumes only the specific and limited fiduciary responsibility and liability attendant to the Investment Advisory Services as set forth in this Agreement and will not be considered a fiduciary of the Plan for any other purpose.
9. In performing the Investment Advisory Services, Advisor does not act as, nor has agreed to assume the duties of, a trustee or the “Plan Administrator,” as defined in section 3(16) of ERISA, of the Plan, and Advisor has no discretion to interpret the Plan’s governing documents, to determine eligibility or participation under the Plan, to provide participant disclosures or communications, or to take any other action with respect to the management, administration, or any other aspect of the Plan.
10. At no time shall Advisor have custody or physical control over the Plan’s assets.  Service Provider will not act as custodian to hold the assets of the Plan.  
11. Advisor may restrict the service providers with whom it may work in performance of the Investment Advisory Services.
12. Client understands and agrees that the Plan’s access to investment options is limited to only those investment options available through the Plan’s recordkeeping platform. Therefore, the universe of investment options available to Advisor is limited to those investment options available through the Plan’s recordkeeping platform.
13. Client acknowledges and agrees that Advisor has no responsibility to provide, and will not provide, any services not agreed upon and included in Section B. of this Services Schedule unless specifically agreed to in writing by Advisor.

4. Recommendations and Conflicts of Interest.  

1. Client understands and agrees that Advisor and its affiliates have relationships with a significant number of market participants, institutions, and corporations, and provides, and will provide, services to its clients, which may include parties whose interests are not aligned with Client’s interests, or whose interests may even be adverse to Client’s interests. Advisor and its affiliates represent or have previously provided, may be currently providing, or may provide, other services to other companies or clients, including those that are similar to Client, from which conflicting interests or duties may arise. Advisor and its affiliates may perform such services without any duty to notify Client of any such engagement or to disclose to Client information that Advisor or its affiliates have obtained or may obtain about such companies or clients.
2. Nothing in this Services Schedule shall in any way: (i) restrict the right of Advisor and its affiliates to perform services for any other client, including services for other similar plans and plan sponsors; or (ii) impose on the Advisor or its affiliates, any obligation to recommend for purchase or sale by or for the Plan any security that the Advisor may recommend for another client.  Client recognize that Advisors and its affiliates may give, recommend, or provide advice and take action in the performance of its duties to others which may differ from recommendations or advice provided, or in the timing and nature of action taken, with respect to the Plan or to Client. Advisor’s and its affiliates’ performance of services for any other client shall not, in and of itself, be deemed to violate or give rise to any duty of obligation to Client or the Plan. The Client is free to choose any broker, investment adviser, or agent to provide any services outside of Advisor’s provision of Investment Advisory Services to the Plan in accordance with this Services Schedule. In the course of conducting its outside business activities, Client understands that Advisor will not consider Client’s interests, and that, in providing services to its clients, Advisor may recommend activities that would compete with or otherwise adversely affect Client and the Investment Advisory Services provided under this Agreement.

5. ERISA.  Advisor shall discharge its duties and obligations hereunder in accordance with the standard of care applicable under ERISA. If the Plan is not subject to Title I of ERISA, the Parties agree that, for all purposes under this Agreement, the applicable ERISA standard of care (including relevant governmental regulations and judicial precedent) shall be the sole governing standard of care applicable to Advisor with respect to the Investment Advisory Services notwithstanding any state law that may apply to the Plan. In accordance with Section 408(b)(2) of ERISA and regulations thereunder, Advisor acknowledges that it is a covered service provider (as the term is defined in such regulations). Advisor, through its IAR, reasonably expects to provide services pursuant to this Agreement directly to the Plan as an investment adviser registered under the Investment Advisers Act of 1940, as amended (the “Act”) or applicable state law.

6. Compliance with Laws.  Advisor shall comply with the Act and regulations enacted thereunder, the Gramm-Leach Bliley Act and regulations enacted thereunder, and all other state and federal laws, rules, and regulations applicable to its duties and obligations under this Services Schedule.

7. Receipt of ADV Brochure, Brochure Supplement, Privacy Policy, and Agreement.  As required by Rule 204-3 under the Act, Client acknowledges receipt of Advisor’s Form ADV Disclosure Brochure (Part 2A) and Brochure Supplement(s) (Part 2B(s)), Privacy Notice, and this Agreement (collectively, the “Disclosure Documents”). From time to time, additional disclosure documentation may be provided to Client as applicable. Client acknowledges that it has respectively received, reviewed, understood, and agreed to abide by the applicable terms set forth in the Disclosure Documents. Please refer to Advisor’s Form ADV for more information regarding Advisor’s business policies and personnel, including its relationships with affiliated entities.
8. Important Information About Procedures for Entering into a New Relationship.  To assist the United States government in its efforts to fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account, or who has the ability to transact, control, influence or manage the account, whether directly or indirectly, or any person who receives Investment Advisory Services from Advisor. Client acknowledges that upon opening an account or prior to receiving Investment Advisory Services, Advisor will obtain certain information, which may include supporting documentation, on the Client that will allow Advisor, or its affiliate, to confirm their identity. Advisor will also obtain the trust’s legal name, address, entity identification number, identifying information for each trustee and all plan formation documentation, qualified trust formation documentation (if separate from Plan documentation) and potential identification documentation for trustees if they fail non-documentary verification. Advisor may also request and obtain copies of business licenses or other documents to evidence the existence and good standing of the entity. Client’s account may be restricted or closed, or Investment Advisory Services may not be rendered, if Advisor cannot obtain and verify this information. Advisor will not be responsible for any losses or damages (including, but not limited to, lost opportunities) that may result if Client’s account is restricted or closed, or Investment Advisory Services are not rendered due to inability to confirm its identity.
9. Assignment.  Notwithstanding anything in the Agreement to the contrary, Advisor shall provide Client prior written notice (the “Notice Period”) of assignments of the Agreement involving Advisor including an effective date of such assignment. Continued acceptance of Investment Advisory Services under this Agreement and Service Schedule after the Notice Period shall be deemed consent, provided no written objection by Client is received prior to the end of the Notice Period. In addition, Advisor may assign its rights, responsibilities, and obligations to a parent (direct or indirect), subsidiary, or an affiliate thereof, without providing prior written notice. Successors of an entity may assume the obligations, rights or responsibilities under this Agreement without written consent of all Parties if there is no change in actual control or management of the entity and no material change in the ability to perform Investment Advisory Services contemplated under this Agreement.                        

B.        Investment Advisory Services

If this Service Schedule is elected by the Client, Advisor will provide the following Investment Advisory Services

1.        Prepare Investment Policy Statement (IPS) for the Client’s adoption.

2.        Review and monitor the menu of Plan investment options within the Plan in accordance with the IPS.

3.        Provide recommendations to the Client or Plan investment committee (“Investment Committee”) regarding the investment options, including specific recommendations on fund selection, addition, or removal.

4.        Prepare and provide a quarterly monitoring report on the Plan investment options to the Client or Investment Committee, including quarterly performance information and commentary on the Plan’s investment options compared to the applicable investment benchmarks.

5.        As necessary, maintain a “Watch List” of the Plan investment options that continuously fail the IPS standards and require monitoring to determine if replacement is necessary.

6.        As requested, meet with the Client or Investment Committee to discuss the Plan’s investment options.

7.        Provide periodic investment education for Plan participants, including, but not limited to, enrollment inquiries and general distribution alternatives, including leaving assets in the plan (“Participant Education”).  Notwithstanding anything in this Services Schedule to the contrary, Advisor is not a fiduciary to the extent that it provides Participant Education services.  To the extent Participant Education may be considered to be investment advice under the terms of Act, it is agreed that:

1. The Participant Education service is intended to be “impersonal advisory services” as defined in Rule 204-3 promulgated under the Act;
2. Any oral presentations or written materials provided under the Participant Education service will relate to the Plan and Plan participation, but will not reference whether specific investments are appropriate to meet the investment needs for a particular participant or beneficiary; and
3. Any statistical information provided as part of the Participant Education service will contain no expression of opinion as to the investment merits of any particular security.

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Timekeeping and SwipeClock Services Schedule

This Services Schedule reflects the Timekeeping and SwipeClock Services. This Services Schedule applies only if you have elected to have these services provided for you. These services 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 these services are reflected on the Service Order.

The terms and conditions of this Service Schedule apply upon your election to utilize the SwipeClock time clock software and related services (the “Swipeclock Services”) in connection with any Payroll and HR Services and are applicable to the provision of those services. 

1. SwipeClock Services

The Swipeclock Services are web-based services provided by SwipeClock LLC (“Swipeclock”) to assist businesses in managing their workforce. Strongpay is a reseller of the Swipeclock Services. The Swipeclock Services may be subject to additional terms, conditions, restrictions and requirements (collectively, “Additional Terms”), which may be made available on Swipeclock’s website or by other means (for instance, online terms of use, service terms, end user license agreements, privacy policies, and the like), and which may be updated periodically. You agree to be bound by all applicable Additional Terms (provided, that in the event of conflict between the terms of this schedule and any such Additional Terms, the terms of this schedule shall control).

 The Swipeclock Services are made available for your use, and you are the author and owner of all data you produce using the Swipeclock Services. Neither Strongpay nor Service Provider claims any ownership of the data and are not responsible, and shall not be required, to collect, capture, obtain, possess, transmit, use, or store information you produce using the Swipeclock Services.

2. Data Verification

To the extent you supply timekeeping data to Swipeclock during your use of the Swipeclock Services, you are responsible for verifying any data provided to you by Swipeclock.

Prior to preparing payroll for you, we shall have the right to seek confirmation that your data matches the information sent to us by Swipeclock, provided that it remains your obligation to verify all such data and nothing herein shall require Strongpay to take possession of, collect, capture, obtain, or store any such data. Strongpay may, on your behalf, inform Swipeclock of any discrepancies you identify for us.

3. Data Ownership and Data Transfer

You are deemed the author and owner of all data you produce within the Swipeclock Services. Notwithstanding the foregoing, by using the Swipeclock Services, you grant Swipeclock a non-exclusive, perpetual, irrevocable, worldwide license to retain, use, copy, and distribute aggregated and anonymized data Swipeclock receives from you for any legitimate business purpose.

It is your responsibility to keep adequate records for audit purposes.

The Swipeclock Services and all copyrights, trademarks, trade secrets, source code and other intellectual property and proprietary rights throughout the world (“Intellectual Property Rights”) therein and thereto are and shall remain the exclusive property of Swipeclock. All rights in and to the Swipeclock Services not expressly granted to you or to Strongpay in this schedule have been reserved by Swipeclock.

4. Warranties

EXCEPT FOR THOSE WARRANTIES EXPRESSLY MADE IN THIS SCHEDULE OR UNDER THE MSA, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE OTHER PARTY IN CONNECTION WITH THIS SCHEDULE (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY).

ALL SERVICES PROVIDED TO YOU ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” THERE IS NO GUARANTEE OR WARRANTY OF ANY KIND THAT SWIPECLOCK SERVICES WILL MEET YOUR NEEDS.

5. Liability Limitation

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, SERVICE PROVIDER AND STRONGPAY ASSUME NO LIABILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND INCLUDING, WITHOUT LIMITATION, STATUTORY DAMAGES, LOSS OF BUSINESS, LOST PROFITS, LOST DATA OR FAILURE OF SECURITY RESULTING IN ANY WAY FROM THE YOUR USE OF THE SWIPECLOCK SERVICES, EXCEPT TO THE EXTENT CAUSED BY SERVICE PROVIDER OR STRONGPAY’S FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER, WHETHER OR NOT FORESEEABLE (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES). IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY OF ANY PARTY UNDER THIS SCHEDULE EXCEED THE AMOUNTS RECEIVED FROM YOU UNDER THIS SCHEDULE DURING THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

6. Confidentiality

The Parties acknowledge that, in the course of performing their respective obligations pursuant to this Agreement, each will have access to and contact with Proprietary Information (as defined below) of the other or of Swipeclock. Each Party agrees that it will not, during the term or at any time thereafter, disclose to others, or use for its benefit or the benefit of others, any Proprietary Information of the other Party, or of Swipeclock, unless this Agreement expressly permits such use or disclosure or such disclosure is required by law. For purposes of this Agreement, “Proprietary Information” means any information relating to a Party or a Party’s affiliate, including all Intellectual Property Rights, customer lists and customer data, provided that Proprietary Information will not include information that: (a) is or becomes generally available to the public other than as a result of a wrongful disclosure, (b) was lawfully in the receiving Party’s possession prior to disclosure by the disclosing Party, as can be shown by the receiving Party’s written records, (c) is independently developed by the receiving Party without resort to the Proprietary Information, as can be shown by the receiving Party’s written records, (d) was or becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party without a wrongful act, or (e) is required by law or judicial order, provided that the receiving Party shall give the disclosing Party prompt written notice of such required disclosure in order to afford the disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure, and shall reasonably cooperate with the disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure.

7. Data Protection

1.  Definitions. Capitalized terms used herein shall have the meanings set forth in this Section.

1.  “Authorized Persons” means Swipeclock’s, Service Provider’s, Strongpay’s, and your respective employees, contractors, agents, and auditors who have a need to know or otherwise access Personal Information to enable the Swipeclock, Service Provider, Strongpay, and you to perform their respective obligations under this schedule, and who are bound by confidentiality and other obligations sufficient to protect Personal Information in accordance with the terms and conditions of this schedule.

2. “Personal Information” means information that you provide or for which you provide access to Swipeclock or Strongpay, or information which Swipeclock or Strongpay creates or obtain on your behalf, in accordance with this schedule that: (i) identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii), including Sensitive Personal Information as defined in sub-Section G.a.iii., below. Your business contact information is not by itself Personal Information.

3. “Sensitive Personal Information” means an individual’s: (i) government-issued identification number, including Social Security Number, driver’s license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; or (iii) biometric, genetic, health, or health insurance data.

4. “Data Breach” means any unauthorized access to or disclosure or acquisition of your Personal Information as defined under applicable law.

2. In connection with the performance of the Swipeclock Services under this schedule, each of Strongpay and you will:

1. Comply with the terms and conditions set forth in this Schedule.

2. Comply with applicable laws and regulations in its creation, collection, receipt, access, use, storage, disposal, and disclosure of Personal Information.

3. Employ reasonable security measures to protect Personal Information in its possession or under its control in accordance with such Party’s respective information security policy as amended from time to time (“Information Security Policy”).

4. Be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession.

5. Not disclose Personal Information to any person other than its Authorized Persons, or the Swipeclock Authorized Persons, without your prior written consent unless required by applicable law, in which case, the Service Provider will use reasonable efforts and, to the extent permitted by applicable law, notify you before such disclosure or as soon thereafter as reasonably possible.

6. Use and disclose Personal Information only for the purposes for which you provide the Personal Information, or access to it, pursuant to the terms and conditions of this schedule, and not use or otherwise disclose or make available Personal Information for Strongpay’s own purposes without your prior written consent. You acknowledge, however, that Swipeclock may aggregate, de-identify, or anonymize Personal Information and use such aggregated, de-identified, or anonymized data, which shall no longer be considered Personal Information, for its own research and development purposes.

3. You acknowledge and agree that you shall be solely responsible for:

1. any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under your control or in your possession.

2. complying with any applicable laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Personal Information to Swipeclock.

8. Data Breach Procedures

1. Strongpay, Service Provider, and you maintain a cyber incident breach response plan in accordance with its Information Security Policy (“Cyber Incident Response Plan”) and will implement the procedures required under such plan on the occurrence of a Data Breach.

2. Upon the occurrence of a Data Breach, the Party experiencing the Data Breach (“Breached Party”) will notify the other Party of a Data Breach as soon as reasonably practicable after the Breached Party becomes aware of it.

3. Immediately following notification to the other Party of a Data Breach, the Parties will coordinate with each other, as necessary, to investigate the Data Breach in accordance with the Breached Party’s current Cyber Incident Response Plan.

4. To the extent permitted by applicable law and law enforcement, the Breached Party agrees that it will not inform any third party of any Data Breach without your prior consent, other than to inform a complainant that the matter has been forwarded to your legal counsel.

5. At least annually, Strongpay, Service Provider, and you will obtain a security controls review or audit performed by an independent third party based on recognized industry standards.

6. Upon the termination or expiration of this schedule, Strongpay will promptly return to you or securely dispose of all Personal Information in their possession, except as they are required by applicable law to retain such Personal Information for legal or regulatory purposes. If we are not reasonably able to return or securely dispose of Personal Information, including, without limitation, Personal Information stored on backup media, we will continue to protect such Personal Information in accordance with the terms of this schedule until such time that it can reasonably return or securely dispose of such Personal Information. Such retention of Personal Information will be in accordance with applicable law and in no case will we retain biometric information for longer than 3 years.

9. Acknowledgements

1. You acknowledge that in the event that data is purged from Swipeclock’s systems, whether at your or our request or upon Swipeclock’s own initiative, purged data may continue to remain in offline backups and/or archives maintained by Swipeclock, and that a complete purge from all of Swipeclock’s equipment and media is likely impossible.

2. You acknowledge that despite commercially reasonable efforts, absolute security from any Internet-connected system is impossible.

3. You hereby acknowledge and agree (i) any biometric identifiers or biometric information of your employees that may be collected by your or on your behalf may only be collected with the explicit, written, informed consent of your employees, (ii) you, as owner of such biometric identifiers or biometric information, are required to obtain such explicit, written consent from your employees before such information is collected, (iii) you, as the employer, are responsible for all obligations relating to the collection of biometric identifiers or biometric information, and (iv) you, as the employer and owner of such biometric identifiers or biometric information, are responsible for all obligations relating to the possession, storage, transmission, protection, retention, destruction, disclosure, redisclosure, other dissemination,  of biometric identifiers or biometric information.  You acknowledge and agree that explicit, written consent will be obtained by you before you transmit, transfer, or direct any other Person to collect, capture, receive through trade, or otherwise obtain any biometric information on your behalf.  You further acknowledge and agree that Strongpay shall not be deemed to be in possession of, or to collect, capture, purchase, receive through trade, otherwise possess, sell, lease, trade, otherwise profit from, disclose, redisclose, otherwise disseminate, use, store, transmit, or protect biometric identifiers or biometric information by virtue of your use of the Swipeclock Services.

4. You also acknowledge and agree that Strongpay does not hereby undertake to provide legal advice of any kind or to make any representation or warranty regarding the enforceability or effectiveness of any notice provided by or consent obtained by you in connection with your use of the Swipeclock Services.

10. Software License Agreement

1. Some products offered for sale by Swipeclock, including, without limitation, time clocks, voice clocks, biometric devices, downloadable software, packaged software, and other products, may contain intellectual property of Swipeclock such as source code, object code, or program documentation (“Swipeclock Software”). In such case, except where expressly superseded by another license agreement the following terms shall apply:

1. You acknowledge that any license to use the Swipeclock Software is nonexclusive and non-transferable, and is only for use on equipment provided or approved by Swipeclock, and only in conjunction with the use of the Swipeclock Services for your internal business purposes.

2. You hereby acknowledge and agree that you shall not (i) copy, in whole or in part, software or documentation provided to you hereunder, (ii) modify the software, (iii) reverse compile or reverse assemble all or any portion of the software, or (iv) rent, lease, distribute, sell or create derivative works of the software.

3. You agree that aspects of the licensed materials, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Swipeclock. You agree not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Swipeclock. You agree to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to software and documentation shall remain solely with Swipeclock.

4. During use of the Swipeclock Services, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Swipeclock Services. Any such activities, and any terms, conditions, warranties or representations associated with such activities, are solely between you and the applicable third-party. Strongpay shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. We do not endorse any sites on the Internet that are linked through the Swipeclock Services. Such links are provided only as a matter of convenience, and in no event shall Strongpay be responsible for any content, products, or other materials on or available from such sites. You recognize that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different licenses or other terms prior to the use of or access to such software, hardware or services.

5. You hereby acknowledge and agree that you shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, (ii) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights, (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (iv) interfere with or disrupt the integrity or performance of the Swipeclock Services or the data contained therein, or (v) attempt to gain unauthorized access to the Swipeclock Services or its related systems, networks, or data contained therein.

11. License Agreement for Customization Work

1. As part of the suite of services Swipeclock offers, it may from time to time create programming, scripts, or rules (“Customization Code”) designed to accommodate feature requests, programming needs, and/or customizations on your behalf. For example, you may need a custom script to accommodate an unusual shift schedule or non-standard overtime rules.

2. Customization Code may include, but is not limited to, all of the following: scripts, rules, classes, source code, object code, object definitions, schemas, report templates, and file formats, all of which serve a narrow purpose for you. However, the source code of the base application software constituting the core Swipeclock Services available to everyone and/or not created to customize the system for you is not Customization Code.

3. You expressly acknowledge and agree that programming for payroll-related tasks often makes use of common “building blocks,” or pieces of Customization Code which may be useful for solving similar problems for you. Accordingly, except for portions of such programming that consist solely of confidential raw data belonging to us or to you (e.g., a list of confidential pay rates formatted in the syntax of a scripting language), neither we nor you shall assert any claim to ownership of intellectual property intended to prohibit or encumber the re-use of any Customization Code for the benefit of any of our other clients to which it may be deemed useful.

12. Further Commitments

You hereby acknowledge and agree that, except where agreed upon in writing, (i) you shall not collect, store, process, transmit or send Social Security Numbers or other privileged data to the timekeeping website for any reason, notwithstanding the ability for the system to accept, or to be configured to accept, any such data, and (ii) you shall abstain from using such data for convenience (e.g., using the Social Security Number as a login or PIN on the time clock).

13. Indemnification

You shall indemnify, hold harmless, and, at Strongpay’s option, defend, Strongpay, their Service Providers, agents, affiliates, and licensors, including but not limited to Swipeclock, from and against any and all claims, demands and actions, and any liabilities, damages and expenses (including court costs and attorney’s fees) (collectively “Liabilities”) resulting therefrom, caused by or relating to your (i) breach of the terms or conditions of this schedule; (ii) violation of applicable law, including all applicable privacy laws relating to, covering, or regulating, directly or indirectly, biometric information, data, and/or identifiers; (iii) violation of privacy rights or publicity rights; (vi) usage of any SwipeClock device or services in violation of this schedule; or (v) willful misconduct of you or your personnel. Your obligations under this paragraph shall exclude any and all claims, demands, actions, and Liabilities arising from Strongpay’s negligent or more culpable acts or omissions, including any breach of this schedule.

14. Swipeclock Privacy Policy & Illinois Biometric Resource Page

The Privacy Policy for Swipeclock is available here: https://www3.swipeclock.com/privacy-policy/. The Swipeclock Illinois Biometric Resource Page is available here: https://www.workforcehub.com/blog/understanding-illinois-biometric-information-privacy-act-relation-employers/.

15. Agreement Between the Service Provider and Strongpay.

The Service Provider and Strongpay are bound by a subsidiary agreement, which authorizes the Service Provider to contract with clients on behalf of Strongpay in providing services outlined in this Service Schedule in accordance with the terms of the MSA and this Service Schedule.