Modified last on March 12, 2024
PLEASE READ THIS AGREEMENT AND ANY CORRESPONDING ORDER CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
This Administrative Services Agreement (this “Agreement”) sets forth the terms and conditions under which PlanSource Administrative Services, Inc. (“PlanSource”) agrees to provide certain administrative services, including a self-service, web based human resources information system (“HRIS”) that supports a scope of services and PlanSource’s proprietary online, web-based benefits administration applications and platform (“Platform”) to you (“Client”), together with, if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, and training, as well as certain add-on benefits outsourcing services made available by PlanSource via the Platform or otherwise (each such service and the Platform together are the “Services”). The terms of this Agreement apply to your access to and use of the Services identified in an Order, as defined below. By accepting these terms and conditions through executing an Order or otherwise accessing or using the Services (the “Effective Date”), you agree to the terms of this Agreement. If you do not agree to the terms and conditions in this Agreement, do not access or use the Services.
As of the Effective Date, this Agreement, without waiving or otherwise releasing any right or obligation under any prior agreement or similar document or agreement the parties between the parties respecting the Services (collectively, “Prior Agreements”), supersedes and replaces all Prior Agreements.
If the Fees, as defined below, you pay under any Order are discounted based on your relationship with a PlanSource authorized reseller or with any PlanSource referral partner (collectively “Referral Partner”), or if a Referral Partner pays any Fees on your behalf, the discounted Fees or payment arrangement between you and Referral Partner will be in effect as long as the relationship remains in effect. If the relationship ends for any reason, PlanSource, upon written notice to you (such notice which PlanSource may send via email), will adjust the Fees in the applicable Order to its current retail Fees or otherwise agreed-upon Fees. This adjustment will be effective the first day of the month immediately following delivery of notice to you. The terms of any agreement between you and Referral Partner does not amend or modify any terms of this Agreement.
1. Services. This Agreement specifies the general terms and conditions under which PlanSource will provide the Services. Additional terms and conditions specific to a Service are outlined in an order form, quote or other ordering document that references this Agreement and is mutually executed by the parties (each such ordering documents (including any exhibits, statements of work, and attachments thereunder) is an “Order” All Orders made in connection with this Agreement are incorporated herein by this reference. Client’s Affiliates may also exercise the rights of Client under this Agreement. All rights and obligations existing between Client and Affiliates are repeated and apply as between Client and the respective Affiliate, having issued an Order with reference to this Agreement, unless a written agreement exists to modify them. “Affiliate” means, for either party, any entity controlled by, controlling, or under common control with such party, either now or in the future. Where the term “Affiliate” is used in this Agreement, the company name of the respective Affiliate may be read instead.
2. Restrictions and Responsibilities.
a. Client will not, and will not permit or assist any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, the Platform, or any other software, documentation or data related to the Services, or any portion thereof; (ii) modify, translate, or create derivative works based on the Services or Platform (or any portion thereof), or copy, publicly display, sell, sublicense, loan, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Platform; (iii) remove, obscure or alter any proprietary notices (including but not limited to trademark and copyright notices) on any of the Services or Platform (or any portion thereof); (iv) use the Services or Platform for any benchmarking purposes, or for application service provider, timesharing or service bureau purposes, or any purpose other than Client’s own internal use as contemplated by this Agreement; (v) use the Services or Platform other than in accordance with this Agreement and in compliance with all applicable documentation and applicable laws and regulations (including but not limited to any applicable privacy, data protection and intellectual property laws); (vi) take any action that imposes, or may impose an unreasonable or disproportionately large load on PlanSource’s infrastructure as determined by PlanSource, in its sole discretion, or otherwise interfere with the proper working of the Services, including conducting any load or penetration testing on the Services; (vii) upload invalid data, viruses, worms, or other software agents through the Services; or (viii) disable or bypass any measures that PlanSource may use to prevent or restrict access to or use of the Services or Platform in excess of service capacity limits or usage restrictions set in this Agreement or otherwise determined by PlanSource. Client acknowledges that the Services may include features to prevent use after the applicable Term or use inconsistent herewith. Client will keep the Services and Platform strictly confidential and not provide them or otherwise make them or any part thereof available to any third party, including, without limitation, any third party who provides products or services similar to the Services and Platform without PlanSource’s prior written consent.
b. The successful implementation and ongoing use of the Services are contingent upon Client fulfilling its responsibilities in any applicable Order attached to this Agreement. PlanSource will not be liable for any delays or failures to provide the Services caused by Client’s failure to fulfill such responsibilities or otherwise comply with any requirements outlined in a Service exhibit.
c. Client will make available such personnel and information as PlanSource may reasonably require and take other actions as PlanSource may reasonably request. Client will also cooperate with PlanSource in establishing a password or other procedures for verifying that only designated employees of Client have access to any administrative functions of the Services. Client will be responsible for maintaining the security of its account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client’s account.
d. PlanSource may request written consent or authorization from Client prior to providing certain Services. In such cases, PlanSource will provide Client with an applicable authorization form and Client must sign and return the authorization form to PlanSource within ten days after receipt. Client’s failure to return a signed authorization form to PlanSource within ten days following receipt will constitute consent and authorization by Client for PlanSource to provide the Services specified in the authorization form.
e. PlanSource may use one or more Affiliates to perform its obligations under this Agreement, provided that such use will not affect PlanSource’s obligations hereunder.
3. Client Account and Onboarding of Administrative Users and Clients. In order for Administrative Users, as defined below, and Clients to access the Services to which Client has subscribed, Client must first furnish PlanSource with such information as PlanSource may request in order to set up an account. This may be accomplished through the Services or other means designated by PlanSource from time to time. Once PlanSource opens Client’s account (the “Client Account”), Client will be solely responsible for the configuration thereof, including selection of Administrative Users and Client, issuance of passwords, identification numbers, access codes, private keys, or other identification or login credentials (“Access Credentials”). Client and its Administrative Users and Clients are solely responsible for the accuracy and confidentiality of their respective Access Credentials, as well as for any use, misuse, or communications entered through their Access Credentials. In addition, it is Client’s sole responsibility to establish the parameters in the Client Account for each Administrative User and Client and to establish control over who can see what Client Data, as defined below, who can edit or delete Client Data, and any other security and confidentiality measures Client wishes to have in place with respect to the access of its Administrative Users and Clients. PlanSource may offer to, but shall in no case be obligated to, assist Client in setting up the Client Account or any Administrative User accounts. Regardless of whether PlanSource participates in the setup of the Client Account or any Access Credentials, Client shall remain solely responsible for, and under no circumstance will PlanSource be liable for, any actions or omissions that result from settings in the Client Account. PlanSource reserves the right to delete or change Access Credentials at any time and for any reason. PlanSource will not be liable for any loss or damage caused by any unauthorized use of a Client Account. Client assumes all responsibility for its actions and the actions of each and every Administrative User and Client or any other party that obtains access or uses the Services by or through any Access Credentials or Client Account. Client is responsible for updating all information regarding Administrative Users and Client Access Credentials, including if any Administrative User or Client is no longer employed or engaged by Client. Client must contact PlanSource immediately and promptly provide PlanSource with written notice in accordance with this Agreement if Client believes that an unauthorized person may be using the Client Account or the Client Account has otherwise been compromised, or if any Client Account information or Access Credentials are lost or stolen. “Administrative User” means any of Client’s current employees, administrators, service providers, or agents whom Client authorizes to access and use the Services under the terms of this Agreement; except that any administrators’, service providers’, or agents’ access and use of the Services will be limited to their provision of services to Client. Client may not provide access to the Services to any third party, including its administrators, service providers, or agents, including, but not limited to, any Administrative User, who is a competitor of PlanSource or who provides products or services similar to the Services.
4. Client Data.
a. Client will provide PlanSource with all necessary, complete, and accurate Client Data and access to all information and documents required to perform the Services.
b. PlanSource shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Except as otherwise permitted hereunder, PlanSource shall not: (i) modify Client Data except to the extent required to provide the Services; (ii) disclose Client Data except as compelled by law or as expressly permitted in writing by Client or its Administrative User or Client; or (iii) access Client Data except to provide the Services and prevent or address service or technical problems, or at Client’s request in connection with Client support matters.
c. Client is solely responsible for the accuracy, quality, content and legality of any data, information, or material that Client and its Administrative Users submit to, collect for, or provide to PlanSource under this Agreement (“Client Data”). PlanSource is under no obligation to review, edit, censor, control, or question the completeness or accuracy of any Client Data. PlanSource will not be responsible for any losses or expenses that arise from Client’s submission of incorrect, incomplete, or untimely Client Data. PlanSource, in its sole discretion, may charge an out of scope fee (as specified in the Order) to take corrective action resulting from Client’s or its Administrative Users’ or Clients’ incorrect, incomplete, or untimely submission of Client Data, including without limitation payroll and other Client data or information.
d. PlanSource shall have no obligation to maintain, or make any determination regarding, any legally required participant or beneficiary documents, whether mandated by the Employee Retirement Income Security Act of 1974 (“ERISA”) or other law or regulation. Client or its insurance carrier will, as mandated by applicable law or agreement, be responsible for maintaining required documents regarding employee eligibility for insurance coverage. PlanSource will not be liable for any discrepancies between the Client Data maintained in the Services and the information maintained by Client or its insurance carrier.
e. Client shall provide all conversion data to PlanSource in the standard template format provided to Client by PlanSource. Client’s failure to provide conversion data in the required format may result in additional fees to remap the data. PlanSource will bill any additional time required for data mapping at the rate outlined in the applicable Order.
f. If either party terminates this Agreement, PlanSource will transfer Client Data in one of the formats below, as elected by Client:
i. A secure database transfer of all Client HR/payroll information in MSSQL format, copies of all prior year W-2s, and copies of all uploaded web content.
ii. Free 90-day administrator view-only and report access to the HRIS and Client Data through the web portal beginning on the effective date of termination of this Agreement.
iii. After the 90-day access period, ‘report only’ access to Client Data through the web portal. PlanSource will bill Client retroactively as of the first day following the 90-day access period for any “report only” access granted to Client at any time following the 90-day access period, regardless of the actual date of access.
g. Notwithstanding any of the foregoing, and except as otherwise set forth in this Agreement, PlanSource will retain and dispose of all Client Data in accordance with our data retention and disposal policies and procedures. As such, we will retain Client Data only as long as is necessary to implement, administer and manage the Services provided under this Agreement, or to comply with legal or regulatory obligations, including under tax and securities laws. In the latter case, PlanSource’s legal basis for the processing of Client Data would be compliance with the relevant laws or regulations or the pursuit by PlanSource of respective legitimate interests not outweighed by Client’s interests, rights or freedoms. When PlanSource no longer needs Client Data for any of the above purposes, we will remove it from our systems.
h. PlanSource has the right to collect and analyze data and other information relating to the provision of the Services (including without limitation, information concerning Client Data and data derived therefrom)(collectively, “Analytics”), and PlanSource will be free (during and after the Term) to: (i) use Analytics to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other PlanSource offerings, and (ii) disclose Analytics solely in aggregate or other de-identified form in connection with PlanSource’s business. Notwithstanding anything to the contrary contained in this Agreement, PlanSource will be the sole and exclusive owner of all rights, title, and interest to the Analytics, and further, PlanSource will be fee to use and disclose on a world-wide basis the Analytics for its business purposes set forth herein.
5. Ancillary Software.
a. PlanSource may from time to time make available to client the option to purchase and integrate certain online applications, software products, implementation, customization and other products or services that are owned or provided by third party vendors with whom Client separately contracts to provide services which are not owned, operated or provided by PlanSource (collectively “Ancillary Software”). Any acquisition by Client of such Ancillary Software, and any exchange of data between Client and any Ancillary Software provider is solely between Client and the applicable Ancillary Software provider. PlanSource does not warrant or support Ancillary Software, whether or not they are designated by PlanSource as “certified” or otherwise. Subject to Section 5.c, no purchase of Ancillary Software is required to use the Services.
b. If Client installs or enables Ancillary Software for use with the Services, Client acknowledges that PlanSource may allow providers of those Ancillary Software to access Client Data as required for the interoperation of such Ancillary Software with the Services. PlanSource shall not be responsible for any disclosure, modification or deletion of any Client Data resulting from any such access by Ancillary Software providers. The Services shall allow Client to restrict such access by restricting its Administrative Users and Clients from installing or enabling such Ancillary Software for use with the Services.
c. The Services may contain features designed to interoperate with Ancillary Software. To use such features, Client may be required to obtain access to such Ancillary Software from their providers. If the provider of any such Ancillary Software ceases to make the Ancillary Software available for interoperation with the corresponding Service features on reasonable terms, PlanSource may cease providing such Service features without entitling Client to any refund, credit, or other compensation.
6. Privacy and Data Protection; HIPAA and GDPR.
a. PlanSource will collect, use, and process Client Data in accordance with our Privacy Policy (available here), which is incorporated into this Agreement by reference. The Privacy Policy is subject to change at our discretion; however, policy changes will not result in a material reduction in the level of protection provided for Client Data during the Term.
b. PlanSource will comply with all applicable data privacy and security laws and regulations that apply to the provision of the Services to you and Client, including, without limitation, Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and EU General Data Protection Regulation (“GDPR”).
c. PlanSource has included a HIPAA Business Associate Agreement (the “BAA”) within its Privacy Policy (available here), which is incorporated into this Agreement by reference. The BAA will apply to Client only to the extent that it is considered to be acting as a covered entity under HIPAA to create, receive, maintain, or transmit personal health information to PlanSource, and where PlanSource, as a result, is considered to be acting as a business associate of Client’s, as those terms are defined under HIPAA. Client may not use or disclose any personal health information under this Agreement without having first agreed to the terms of the BAA.
7. Proprietary Rights.
a. PlanSource and its suppliers and licensors own and shall retain all rights, title and interest (including, without limitation, all Intellectual Property Rights, as defined below) in and to: (i) the Services and all improvements, enhancements, or modifications, thereto; (ii) any software, applications, inventions or other technology developed in connection with the Services; and (iii) Analytics and Documentation and any content, materials, improvements or derivative works thereof. Client and its Administrative Users and Clients will have no rights with respect to PlanSource Intellectual Property Rights, the Services, Analytics, or any related guides and other documentation for the Services that PlanSource provides to Client (the “Documentation”) other than those expressly granted under this Agreement and PlanSource expressly reserves all other rights in and to the Platform, Services, Analytics and the Documentation. “Intellectual Property Rights” means all registered and unregistered intellectual property rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, service mark, goodwill, attribution, integrity or moral right, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
b. Client shall retain title to and ownership of their respective Client Data and any content, materials, improvements or derivative works thereof, together with all Intellectual Property Rights relating thereto. PlanSource will have no rights with respect to the Client Data other than those expressly granted under this Agreement.
c. Subject to the terms and conditions of this Agreement, Client hereby grants PlanSource during the Term a non-exclusive, worldwide, transferable, perpetual, irrevocable, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to PlanSource, including, but not limited to, Ancillary Services providers, to: (i) host, store, cache, use, reproduce, modify, make derivative works of, transmit, distribute and display Client Data or any part thereof where and as PlanSource deems necessary to render or perform the Services or otherwise in connection with and in furtherance of the exercise of PlanSource’s rights and obligations under this Agreement; and (ii) use, reproduce, transmit, distribute or display Client’s trade names, trademarks or service marks as PlanSource deems necessary to render or perform any Services hereunder or otherwise in connection with and in furtherance of the exercise of PlanSource’s rights and obligations under this Agreement.
d. If Client provides PlanSource with reports of defects in the Services or proposes or suggests any changes or modifications (collectively “Feedback”), PlanSource shall have the right to use and exploit such Feedback including, without limitation, the incorporation of such Feedback into PlanSource’s software products and/or services, including the Services, without any obligation to Client.
8. ERISA.
a. PlanSource may perform certain services for Client’s group employee benefit plan(s) (collectively referred to as the “Plan(s)”). Such services shall not include or imply any discretionary authority by PlanSource over the operation of the Plan that would cause PlanSource to be deemed a “fiduciary” of the Plan(s) pursuant to ERISA. Accordingly, to the extent the services to be performed by PlanSource hereunder require PlanSource to assist the Plan administrator (“Plan Administrator”), the performance by PlanSource of such services shall consist of only those ministerial functions enumerated in the Department of Labor Regulations § 2509.75-8, D-2 and shall be performed within the framework of policies, interpretations, rules, practices, and procedures established by Client and Plan Administrator. Consequently, all of PlanSource’s activities with respect to, or on behalf of the Plan shall be subject to review, modification, or reversal by Plan Administrator or any other fiduciary so authorized by the Plan. PlanSource shall have no discretionary or final authority to control or manage administration of the Plan, or to manage or invest assets of the Plan.
b. Except as otherwise set forth in this Agreement in our capacity as a service provider, PlanSource shall have no responsibility, risk, liability or obligation for the funding of the Plan or for the payment of any benefits of the Plan or other liabilities, whether resulting from the ongoing operations of the Plan, termination of the Plan, a change by the Plan in its funding method from or to full or partial insurance, or the nonpayment by an insurer of amounts due to the Plan or any Plan participant. Such responsibility, risk, liability and obligation shall always reside and remain solely with Client, the Plan, Plan Administrator, or such other persons designated by the Plan.
c. If applicable, Client and Plan Administrator acknowledge, on behalf of itself and all other named fiduciaries under the Plan, that:
i. PlanSource is an independent contractor for purposes of this Agreement, and is not an agent or employee of Client;
ii. PlanSource does not assume any lability or responsibility for any breach of Client’s or Plan Administrator’s duty or any act or omission by Client or Plan Administrator;
iii. The performance of our Services hereunder does not and is not intended to make PlanSource the “plan administrator,” “plan sponsor,” or “other fiduciary” as defined under ERISA or other applicable law, and Client and Plan Administrator will not identify or refer to PlanSource or any of our Affiliates as such;
iv. PlanSource will not be deemed to providing legal or tax advice as a result of performing our duties hereunder; and
v. Client and Plan Administrator at all times relevant to this Agreement shall retain fiduciary liability for the administration of the Plan under applicable laws and regulations, including without limitation ERISA, and the related Services provided under this Agreement.
9. Confidentiality.
a. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client Confidential Information includes Client Data. PlanSource Confidential Information includes the Services, the Ancillary Software, any and all object code and source code relating thereto, the Documentation, all pricing and fees relating to the Services as well as any non-public information or material regarding PlanSource’s legal or business affairs, finances, technologies, clients, employees, contractors, Affiliates, properties, or data; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party, (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party, (iii) is received from a third party without breach of any obligation owed to Disclosing Party, or (iv) was independently developed by Receiving Party.
b. Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care): (i) not to use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by Disclosing Party in writing, to limit access to Confidential Information of Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Orders to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 9.b.
c. Receiving Party may disclose Confidential Information of Disclosing Party to the extent compelled by law to do so, provided Receiving Party gives Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure. If Receiving Party is compelled by law to disclose Disclosing Party’s Confidential Information as part of a civil proceeding to which Disclosing Party is a party, and Disclosing Party is not contesting the disclosure, Disclosing Party will reimburse Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
10. Term and Termination.
a. This Agreement will remain in effect until the earlier of: (i) the expiration or termination of all Orders; or (ii) the termination of this Agreement in accordance with this Section 10. Upon termination of this Agreement for any reason, any Orders in effect at the time will terminate automatically, and all rights and subscriptions granted to Client in any such Orders will immediately terminate.
b. The “Subscription Initial Term” of a Service purchased by Client commences on the date specified in the Order and will continue for the Subscription Initial Term specified therein. Client’s subscription will renew automatically for successive periods of one year (each a “Renewal Term” and together with the Subscription Initial Term, the “Term”)) unless otherwise terminated by either party by written notice to the other party at least 60 days prior to the end of the applicable Renewal Term.
c. Upon completion of the Subscription Initial Term, PlanSource may terminate this Agreement or any Order, or suspend Client’s access to the Services, for any or no reason, at PlanSource’s convenience, by providing Client at least 60 days prior written notice.
d. PlanSource may immediately terminate the Agreement or any Order, or suspend Client’s access to Services, in PlanSource’s sole and absolute discretion if Client, or any of its Affiliates, Administrative Users, or Clients: (i) use any of PlanSource’s Intellectual Property Rights other than as expressly permitted here in; (ii) is in default or breach of any provisions of this Agreement that is not cured within 30 days of receipt of PlanSource’s notice of breach; (iii) is in default of any of its payment obligations to PlanSource; (iv) fails to fully fund in advance of distribution for any payroll invoices; (v) fails to obtain or maintain all necessary bank or employee approvals for FSDD services; or (vi) commences liquidation or dissolution proceedings, disposes of or attempts to dispose of its assets other than in the ordinary course of business, fails to continue its business, makes an assignment for the benefit of creditors, or if Client becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.
e. Client may terminate this Agreement or any Order for cause if PlanSource is in default or breach of any provisions of this Agreement that is not cured within 30 days of receipt of Client’s notice of breach.
f. PlanSource may terminate the right of any Administrative User or Client to access and use the Services immediately and without notice if: (i) Client revokes its status as an Administrative User or Client; (ii) an Administrative User or Client fails to comply with any of the terms or conditions of this Agreement; (iii) Client defaults or breaches any of the provisions of this Agreement; or (iv) either PlanSource or Client terminate the Agreement, as permitted hereunder. Client may terminate any Administrative User’s or Client’s right to access and use the PlanSource Services by changing the appropriate Administrative User or Client configurations in the Client Account.
g. If Client terminates any subscription without cause prior to the end of the Term, Client will pay any unpaid fees covering the remainder of such terminated subscription. If PlanSource terminates this Agreement or any Order in accordance with Section 10.d, Client will pay any unpaid fees covering the remainder of the term for each Order in effect at the time of termination. Client agrees that the actual damages in the event of such termination would be difficult or impossible to ascertain, and that such termination charges are intended, therefore, to establish liquidated damages for such early termination.
h. Termination of this Agreement, for any reason, will immediately release PlanSource all obligations under this Agreement, as permitted by law, and Client will immediately assume those obligations. Upon termination, Client will promptly return all PlanSource Confidential Information in its possession to PlanSource and pay in full all Fees and if applicable, early termination fees, due. If Client requests that PlanSource perform any Services following the effective date of termination, Client agrees to pay PlanSource for those Services at the rates provided by PlanSource at the time of termination. PlanSource will retain all rights, claims, or remedies against Client, regardless of any termination under this Section 10 including the ability to collect payment via the established payment method.
i. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement shall survive termination or expiration of this Agreement and continue in full force and effect.
11. Fees and Payment.
a. Client shall pay all fees specified in this Agreement or any Order (“Fees”) . Except as otherwise set forth herein or in any Order: (i) Fees are based on subscription purchases and not actual usages; (ii) payment obligations are non-cancelable; and (iii) Fees paid are non-refundable.
b. Fees are based on monthly periods that begin on the applicable First Bill Month set forth in this Agreement or the Order and each monthly anniversary thereof. Fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the current Subscription Initial Term or Renewal Term.
c. During the first year of the Subscription Initial Term, the Fees will remain fixed. Thereafter, commencing upon the Effective Date’s first anniversary, the Fees will automatically increase each year by six percent above the prior-year pricing. Notwithstanding any of the foregoing, PlanSource reserves the right to modify the Fees (and applicable discounts) at any time as may be necessary to compensate for changes in (i) local, state, or federal laws applicable to the Services that impact the administration of the Client’s group health plan and that result in new features, functionality, or deliverables designed to comply with changes to applicable laws; (ii) Ancillary Software costs that are necessary to integrate the Ancillary Software purchased by Client within the Platform (e.g., custom API); (iii) carrier products, offerings, credits and discounts exclusive to Client; or (iv) changes in Client’s participation in any applicable carrier program.
d. If PlanSource does not receive any invoiced amount by the due date, then at our discretion, and without limiting our rights or remedies, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
e. If any amount owing by Client is 30 days or more overdue, PlanSource may, without limiting our other rights and remedies, accelerate Client’s unpaid fee obligations so that all such obligations become immediately due and payable, suspend the Services until such amounts are paid in full, and seek collection of all amount past due, including reasonable attorney’s fees and costs of collections. PlanSource will give Client at least seven days prior notice that its account is overdue, before suspending the Services.
f. Notwithstanding the foregoing, PlanSource will not exercise its rights under Section 11.d if Client is disputing the applicable charges and reasonably and in good faith is cooperating diligently to resolve the dispute.
g. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added, goods and services, harmonized, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). Client is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If PlanSource has the legal obligation to pay or collect Taxes for which Reseller is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Reseller, unless Reseller provides PlanSource with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, PlanSource is solely responsible for taxes assessable against PlanSource based on its income, property and employees.
h. Except as otherwise agreed upon in writing, Client hereby: (i) agrees that all payments under this Agreement shall be made by electronic funds transfer through the Automated Clearing House network (the “ACH”); (ii) authorizes PlanSource to initiate debit entries to its account at the depository financial institution identified on an authorization form to be provided by PlanSource; and (iii) authorizes PlanSource to debit your account in such amounts and at such times as are necessary to pay PlanSource: (a) any fees or charges associated with the Services, including, without limitation, finance charges; and (b) any other amount that becomes owed under this Agreement. This authorization is to remain in full force and effect until PlanSource receives written notice from Client of your intent to terminate the Agreement, at which time the authorization shall continue in such time and such manner as to afford PlanSource and the depository financial institution a reasonable opportunity to act upon the termination. Client will maintain in our account immediately available funds sufficient to cover all transactions initiated by PlanSource under this Agreement. If Client does not have sufficient funds in its account to pay amounts due at the time required, or if Client refuses to pay, PlanSource will attempt to notify you electronically, by telephone, or in writing, but in any event, PlanSource may suspend or refuse to perform further Services. PlanSource will charge a fee of $35.00 for each non-sufficient funds transaction. Should the Services be recommenced following suspension, PlanSource may require you to pre-pay for the Services and charge a reconnection service fee.
i. The ACH is controlled and managed by the National Automated Clearinghouse Association (“NACHA”) and its member organizations. Where submitting charges over the ACH network, you are required to comply with the Terms and Conditions for Recurring Electronic Funds (“EFT”) attached to this Agreement, the NACHA Operating Rules, as amended from time to time (the “NACHA Rules”), and the PlanSource Recurring Electronic Funds Transfer (EFT) Client Authorization Agreement provided with this Agreement (“EFT Agreement”).
12. Warranties; Disclaimers.
a. PlanSource warrants that the Services will be accessible 99.0% of the time, measured monthly (the “Uptime Warranty”). The Uptime Warranty shall not apply where downtime or interruption of the Services results from: (i) regular planned outages for repairs and upgrades (i.e., monthly maintenance, quarterly software deployment, etc.) scheduled in advance and announced with as much advance notice as possible; (ii) occasional unplanned outages scheduled in advance and announced at least 2 weeks in advance (iii) other emergency, but planned outages we deem necessary to maintain the performance, integrity, and availability of the Services, and of which PlanSource will make commercially reasonable efforts to notify Client as soon as practicable (typically 1-3 days in advance), provided that such outages are scheduled after business hours in order to cause minimal disruption to Client’s, Administrative Users’ and Clients’ use of the Services; (iv) issues or failures with Client’s equipment, service providers, software, communications or internet providers; (v) the actions, omissions, or failures of any Ancillary Software or other third party providers; (vi) Client’s, Administrative Users’ and Clients’ material acts or omissions; (vii) any suspension or termination of access to the Services by PlanSource; or (vii) a Force Majeure event as defined under Section 20 of the Agreement.
b. If PlanSource fails to comply with the Uptime Warranty, we will use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity. This will be Client’s sole and exclusive remedy under this Section 12.
c. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SERVICES, THE ANALYTICS, THE ANCILLARY SOFTWARE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PLANSOURCE NOR ITS VENDORS OR SUPPLIERS MAKES ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NEITHER PLANSOURCE, NOR ANY OF ITS AFFILIATES, THIRD PARTY LICENSORS OR SUPPLIERS IS RESPONSIBLE FOR ANY ACCESS TO OR USE OF THE CLIENT ACCOUNT OR ANY ADMINISTRATIVE USER OR END USER ACCOUNT OR ANY ACTIVITIES THEREUNDER INCLUDING ANY ALTERATION, DELETION, DESTRUCTION, DAMAGE, LOSS OR ANY FAILURE TO STORE ANY CLIENT CONTENT. TO THE EXTENT THAT EITHER PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
d. THE SERVICES MAY FROM TIME TO TIME CONTAIN OR COMPRISE, OR OTHERWISE REQUIRE USE OF, THIRD PARTY SOFTWARE LICENSED TO PLANSOURCE PURSUANT TO ONE OR MORE THIRD PARTY LICENSE AGREEMENTS. NEITHER CLIENT NOR ANY ADMINISTRATIVE USER OR END USER ACQUIRES ANY RIGHT OR LICENSE IN OR TO ANY SUCH THIRD PARTY SOFTWARE BY VIRTUE OF THIS AGREEMENT OR OTHERWISE, NOR MAY UNDER ANY CIRCUMSTANCE DIRECTLY OR INDIRECTLY COPY, MODIFY, ALTER, TAMPER WITH, CREATE ANY DERIVATIVE OF, REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE ATTEMPT TO DISCERN OR DERIVE THE SOURCE CODE OR ANY UNDERLYING ALGORITHM OF ANY SUCH THIRD PARTY SOFTWARE, OR ATTEMPT TO DO ANY OF THE FOREGOING. PLANSOURCE MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS), ARISING OUT OF THIS AGREEMENT, ANY ORDER, OR THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER THE DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF THAT DAMAGE. PLANSOURCE’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF: (i) THE TOTAL AMOUNTS ACTUALLY PAID TO PLANSOURCE BY CLIENT FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT, LESS ANY REFUND OR CREDITS RECEIVED BY CLIENT FROM PLANSOURCE FOR SUCH, OR (ii) $50,000. THIS REMEDY WILL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY.
14. Indemnification.
a. Client will indemnify and hold harmless PlanSource, its stockholders, officers, directors, employees and agents (“PlanSource Indemnitees”) against all claims, losses, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising from: (i) Client’s or its Administrative Users’ breach of this Agreement or violation of any applicable laws; (ii) any act, omission, or misconduct of Client, any of its employees, contractors, or any Administrative User or Client; or (iii) an assertion that Client Data infringes or misappropriates any Intellectual Property Right of a third party. In the event PlanSource Indemnitees seek indemnification hereunder, we will give written notice to Client promptly after PlanSource Indemnitees become aware of the facts giving rise to the claim for indemnification.
b. PlanSource will indemnify and hold Client harmless against any claims, actions, proceedings, or expenses (including reasonable attorney’s fees) to the extent arising out of or relating to: (i) PlanSource’s willful misconduct or gross negligence; or (ii) an assertion that the Services infringe or misappropriate any Intellectual Property Right of a third party. In the event Client seeks indemnification hereunder, you will give written notice to PlanSource promptly after becoming aware of the facts giving rise to the claim for indemnification.
15. Relationship of the Parties. The parties to this Agreement will be independent contractors in the performance of this Agreement. This Agreement does not create or imply any partnership, agency, or joint venture. Neither party will have, or hold itself out to third parties as having, authority to bind or enter into any agreement on the other party’s behalf. Client agrees that it remains the sole employer of all Client employees and remains responsible for compliance with applicable local, state, and federal labor and employment laws and regulations. Client further understands that it has the sole discretion and authority: (i) to direct, control, and supervise its employees; and (ii) to establish the terms and conditions of employment, compensation, discipline, and dismissal concerning its employees. Client acknowledges that it is your sole responsibility to ensure that you remain in compliance with all laws and regulations as they relate to your business, human resources and payroll practices and procedures.
16. Dispute Resolution. The parties will attempt in good faith to resolve informally any disputes or disagreements relating to this Agreement. The aggrieved party will notify the other party in writing of the nature of the dispute with as much detail as possible. Each party will designate a representative with full authority to address and resolve the dispute. The designated representatives will meet (in person or by telephone) no later than 15 business days after the date of the written notification to reach an agreement about the nature of the dispute and the corrective action the parties will take. If the designated representatives do not meet or are unable to agree on corrective action, the parties will have 30 days within which to institute a one-day mediation with a third party mediator mutually agreeable to both parties. The parties will share the cost of the mediation, exclusive of attorneys’ fees. Neither party may initiate legal action to enforce its rights until both parties have substantially complied with or waived this dispute resolution procedure.
17. Subcontractors. PlanSource may use subcontractors, including offshore subcontractors, in its delivery of the Services. PlanSource will ensure its subcontractors comply with the obligations and restrictions of this Agreement. PlanSource will be solely responsible for the performance of its subcontractors under this Agreement.
18. Marketing and Promotion. PlanSource may disclose that Client is a PlanSource client and use Client’s name and logo in any PlanSource external materials (e.g., printed marketing collateral and Client websites). Client, in its sole discretion, will participate in PlanSource promotional activities, including reference lists, case studies, testimonials, or press releases regarding PlanSource products or services and in any advertising, publicity or similar material presented to prospective clients.
19. Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that PlanSource may assign all or any of its rights to any of its Affiliates and wholly owned subsidiaries or in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. No assignment hereunder will relieve the assigning party of its obligations under this Agreement.
20. Force Majeure. Except for Client’s payment obligations under the Agreement, neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control (“Force Majeure Events”), including but not limited to: (i) acts of God; (ii) war (or the threat of war), acts of terrorism or other civil disorder or unrest; (iii) government orders, laws, and regulations; (iv) disasters, strikes or other labor disturbances (except those involving the employees or agents of the party seeking the protection of this clause); (v) epidemics, pandemics and quarantines; (vi) national or regional emergencies; or (vii) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event.
21. Governing Law. The laws of the state of Florida, without giving effect to its principles of conflicts of law, will govern all disputes arising out of this Agreement. Venue for any action brought under this Agreement will be exclusively in Orange County, Florida.
22. Notices. All notices and communications required or permitted under this Agreement will be in writing and will be sent by registered or certified mail, postage prepaid, return receipt requested, facsimile transmission, with confirmed answer back, or electronic mail, with confirmation of receipt, to us or you at the respective addresses the parties provide to each other or to such other addresses as the parties may from time to time specify by notice given as provided in this paragraph. In the case of PlanSource, the address is 122 W. Pine Street, Ste. 203, Orlando, Florida 32801, Attention: Legal Counsel.
23. Modifications to the Agreement. Except as otherwise set forth in this Agreement, PlanSource may revise or modify this Agreement (including any policies or agreements which are incorporated herein by reference) at any time without notice to Client, Administrative Users, and Clients and such revisions shall be effective immediately upon positing them to our website or any subdomain. The modified terms will become effective upon posting, or if we notify you by email, as stated in the email message. Client agrees that: (i) PlanSource may notify you after such revisions by posting them on our website or any subdomain; and (ii) you use of the Services after such revisions have been made (as indicated by the “Last Revised” date at the bottom of this page) shall constitute your acceptance of this Agreement as last revised. In addition, PlanSource may occasionally notify you of upcoming revisions to this Agreement by email. We therefore recommend that you keep your account information including, but not limited to, your email address, current.
24. Severability; Waiver. If any provision of this Agreement is found to be invalid, illegal, or unenforceable for any reason, the remainder of this Agreement shall continue in force, and if any such provision may be made enforceable by limitation, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law. All waivers by either party will be effective only if in writing. Any waiver or failure by either party to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
25. Non-Solicitation. During the term of this agreement and for one year after termination of this Agreement, Client will not, directly or indirectly, on Client’s own behalf or on behalf of others, solicit or attempt to solicit, divert, or hire away any person employed by PlanSource without the prior written consent of PlanSource.
26. No Legal Advice. The Services do not include and PlanSource does not provide investment, tax, compliance, or legal advice. If Client requires legal or other expert advice, Client should consult its own legal counsel or professional advisor. Client will engage appropriate counsel for any legal advice or compliance with labor and employment law matters or any and all other legal and compliance matters and provide findings to PlanSource as required for system updates or corrections.
27. Entire Agreement. This Agreement, including all applicable Service Exhibits, and our Privacy Policy contains the entire understanding of the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous agreements, proposals, understandings, commitments, or negotiations with respect thereto, including, without limitation, any confidentiality or non-disclosure agreements, whether written or oral, and any prior click-wrap, shrink-wrap, or browse-wrap agreements between the parties with respect to the terms and conditions hereof. There are no other oral or written understandings, terms, or conditions, and neither party has relied upon any representation, express or implied, not contained in this Agreement.
Terms and Conditions for Recurring Electronic Funds
The provisions set forth these Terms and Conditions for Recurring Electronic Funds shall be incorporated by reference into this Agreement and the EFT Agreement. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement, the EFT Agreement, or the NACHA Rules. Client may review the NACHA Rules at https://www.nacha.org/rules.
Client, as an Originator, makes the following representations, warranties, covenants, certifications, authorizations and acknowledgements:
1. Client acknowledges and agrees:
i. to be bound by and warrants it will comply with the NACHA Rules, as the same may be amended from time to time;
ii. it will not submit Entries that violate the laws of the United States;
iii. it will comply with all U.S. laws, rules and regulations, including, as applicable, laws, rules and regulations applicable to IAT Entries (including those of the Office of Foreign Assets Control (“OFAC”) and the Financial Crimes Enforcement Network). It shall be the responsibility of Client to ensure that the origination of ACH transactions complies with U.S. law, including but is not limited to sanctions enforced by OFAC. It shall further be the responsibility of Client to obtain information regarding such OFAC enforced sanctions. This information may be obtained directly from the OFAC Compliance Hotline at 800-540-OFAC or from the OFAC’s home page site at www.ustreas.gov/ofac. Client agrees that the performance of any action by PlanSource to debit or credit an account or transfer funds otherwise required by the Rules is excused from the performance of such action to the extent that the action is inconsistent with United States law, including the obligations of PlanSource under OFAC;
iv. PlanSource shall have the right to audit Client’s compliance with the provisions of these terms and conditions, the EFT Agreement, ASA and the NACHA Rules;
v. PlanSource shall have the right to suspend or terminate initiating ACH transactions immediately upon notice to Client in the even Client breaches any of the NACHA Rules; and
vi. PlanSource will charge Client with any fines or penalties imposed by OFAC, NACHA or any organization which are incurred as a result of non-compliance by Client and Client agrees to fully reimburse and/or indemnify PlanSource for such charges or fines. The specific duties of Client provided in the following paragraphs these terms and conditions in no way limit the foregoing undertaking. The duties of Client set forth in the following paragraphs of these terms and conditions in no way limit the requirement of complying with the Rules.
2. Client’s approval for use of the Services may be subject to underwriting criteria established by PlanSource from time to time. If PlanSource requires application of underwriting criteria approval for use of this Service, PlanSource will communicate to Client the nature and content of that criteria and the information Client will be required to provide to PlanSource. Client agrees to provide PlanSource such financial, business and operating information as PlanSource may reasonably request in connection with Client’s underwriting and approval process. PlanSource may require the personal guarantee of a principal or an owner of company.
3. Client certifies that it has not been suspended and does not appear on a National Association list of suspended Originators and warrants that it will not transmit any Entry if it has been suspended or appears on a National Association list of suspended Originators.
4. Client authorizes PlanSource to initiate Entries on behalf of Client to its Receivers’ accounts and Client agrees to be financially responsible to Originating Depository Financial Institution (“Bank”) for all Entries initiated by PlanSource on Client’s behalf.
5. Client acknowledges and agrees that PlanSource and Bank: (i) may restrict certain types of Entries; (ii) shall have the right to reject any Entry or series of Entries; and (iii) shall have the right to reverse Erroneous Entries.
6. Client represents, warrants and certifies that: (i) prior to submission, each Entry has been properly authorized by Client and the Receiver in accordance with the NACHA Rules, including, but not limited to: (a) the authorization has not been revoked, (b) the agreement has not been terminated, (c) Client has no knowledge of the revocation of the Receiver’s authorization or termination of the agreement between the Receiver and the RDFI concerning the Entry; and (d) at the time the Entry is processed by a RDFI, the authorization for that Entry has not been terminated, in whole or in part, by operation of law; (ii) Client will retain all authorizations for a minimum of two years following termination or revocation of the authorization; and (iii) Client will provide a copy of such authorization to PlanSource or Bank upon request.
7. Client represents, warrants and certifies that: (i) all credit and debit Entries will be accurate and timely; and (ii) each Entry will contain all information required by the NACHA Rules for specific Entry types, including, but not limited to, the Receiver’s correct account number, dollar amount of the Entry, Client’s Name, Client’s Entry description.
8. Client acknowledges and agrees that: (i) Client shall be responsible for correcting any errors; (ii) any Entry sent to PlanSource that identifies the Receiver inconsistently by name and account number may be processed by Bank based solely on the account number provided; (iii) PlanSource is authorized to take such measures as PlanSource deems appropriate to carry out the intent of Client in completing any particular Entry, including, but not limited to, PlanSource may contact Client or may attempt to retransmit any Return Entry; and (iv) subject to any limitations set forth in the Agreement, Client shall indemnify PlanSource, its parent, subsidiaries, predecessors, successors, affiliates, directors, officers, fiduciaries, insurers, employees and agents, for any claim, demand, loss, liability or expense (including reasonable attorneys’ fees, penalties, fines or interest) resulting from the debiting or crediting of any Entry or a breach of the Agreement or these terms and conditions.
9. Client represents and warrants, to the extent applicable, that: (i) the origination of each IAT Entry shall comply with the laws and payment systems rules of the receiving country; and (ii) any submission by Client requiring Initiation of an IAT Entry by PlanSource shall include the name and physical address of each of Client and the Receiver, the account number of the Receiver and the identity of the Receiver’s bank, bank ID number and bank branch code.
10. Client shall not initiate any ACH transactions utilizing PlanSource services that constitute IAT transactions without first: (i) notifying PlanSource of such transactions in writing; and (ii) complying with the requirements applicable to IAT transactions. PlanSource shall not be liable for any delay or failure in processing any ACH transaction due to Client’s failure to notify PlanSource of Client’s IAT transactions or Client’s failure to comply with applicable IAT requirements.
11. Client agrees to pay for all credit Entries issued by Client, User(s), or credit Entries otherwise made effective against Client. Client shall make payment to PlanSource on the date as determined by PlanSource in its sole discretion (“Payment Date”). Client shall pay PlanSource for the amount of each debit Entry returned by a Receiving Depository Financial Institution (“RDFI”) or debit Entry dishonored by Originating Deposit Financial Institution (“ODFI”). Payment shall be made by Client to PlanSource in any manner specified by PlanSource. Notwithstanding the foregoing, PlanSource is hereby authorized to charge the account(s) (“Authorized Account(s)”) designated in EFT Agreement, as payment for all payments due PlanSource under this Agreement. Client shall maintain sufficient collected funds in the Authorized Account(s) to pay for all payments due PlanSource under this Agreement on the Payment Date. In the event the Authorized Account or any other Client bank account does not have collected funds sufficient on the Payment Date to cover the total amount of all Entries to be paid on such Payment Date, PlanSource may take any of the following actions:
i. Refuse to process all Entries, in which event PlanSource shall return the data relating to such credit Entries to Client, whereupon PlanSource shall have no liability to Client or to any third party as a result thereof; or
ii. Process that portion of the credit Entries as Client has sufficient available funds in the Authorized Account to cover, in whatever order PlanSource in its sole discretion shall elect to process, in which event PlanSource shall return the data relating to such credit Entries as are not processed to Client, whereupon PlanSource shall have no liability to Client or any third party as a result thereof; or Process all credit Entries. In the event PlanSource elects to process credit Entries initiated by Client and Client has not maintained sufficient available funds in the Authorized Account with PlanSource to cover them, the total amount of the insufficiency advanced by PlanSource on behalf of Client shall be immediately due and payable by Client to PlanSource without any further demand from PlanSource. If PlanSource elects to pay Client’s account in the overdraft on any one or more occasions, it shall not be considered a waiver of PlanSource rights to refuse to do so at any other time nor shall it be an agreement by PlanSource to pay other items in the overdraft.
12. Client is required to pre-fund an account maintained at PlanSource prior to the Settlement Date of the ACH file. Client will provide immediately available and collected funds sufficient to pay all Entries initiated by Client: (i) not later than 8:00 a.m. Eastern Standard Time, no fewer than three banking days before each Settlement Date; and (ii) prior to initiating any Entries for which pre-funding is required. If pre-funding is not received by the aforementioned timeframe, Client is required to wire transfer funds to pay all Entries initiated by Client.
13. Client transaction activity will be evaluated by PlanSource from time to time, for the purpose of establishing averages for transaction frequency, amount, returns and adjustments. These evaluations will occur at least annually and may occur more frequently at PlanSource discretion. In connection with these evaluations, PlanSource reserves the right to require Client to establish reserves with PlanSource calculated by PlanSource to cover Client’s obligations to PlanSource arising from ACH activities under these terms and conditions. Reserves may be expressed as a fixed dollar amount or as a “rolling reserve” calculated based on “rolling” averages determined by PlanSource periodic evaluations. The amount of reserves required by PlanSource, if any, will be communicated directly to Client from time to time. Client agrees to establish reserves as required by PlanSource within three banking days after receipt of a communication from PlanSource setting forth the amount of required reserves and the basis of calculation used to determine the amount of reserves. PlanSource may suspend ACH processing activity for Client if Client fails to establish the required amount of reserves within the time period specified by PlanSource in its communication to Client.
14. Upon proper and timely request by Client, PlanSource will use reasonable efforts to effect a reversal of an Entry or File. To be “proper and timely,” the request must: (i) be made within five Business Days of the Effective Entry Date for the Entry or File to be reversed; (ii) be made immediately, not to exceed ten hours, upon discovery of the error; and (iii) be accompanied by a Reversal/Cancellation Request form. Under no circumstances shall PlanSource be liable for interest or related losses if the requested reversal of an Entry is not effected. Client shall reimburse PlanSource for any expenses, losses or damages it incurs in effecting or attempting to effect Client’s request for reversal of an Entry.
15. PlanSource has no obligation to discover and shall not be liable to Client for errors made by Client, including, but not limited to, errors made in identifying the Receiver, or an Intermediary or RDFI or for errors in the amount of an Entry or for errors in Settlement Dates. PlanSource shall likewise have no duty to discover and shall not be liable for duplicate Entries issued by Client. Notwithstanding the foregoing, if Client discovers that any Entry it has initiated was in error, it shall notify the PlanSource of such error. In the event that Client makes an error or issues a duplicate Entry, Client shall indemnify, defend all claims, and hold PlanSource harmless from any loss, damages, or expenses, including, but not limited to, attorney’s fees, incurred by PlanSource as result of the error or issuance of duplicate Entries.
16. Client agrees not to use or attempt to use the Services: (i) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulation; (ii) to breach any contract or agreement by which Client is bound; (iii) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction; or (iv) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement. Client acknowledges and agrees that PlanSource has no obligation to monitor Client’s use of the Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that PlanSource reserves the right to decline to execute any transaction or activity that PlanSource believes violates the terms of this Exhibit.
17. Client must send prenotification that it intends to initiate an Entry or Entries to a particular account within the time limits prescribed for such notice in the NACHA Rules. If Client receives notice from PlanSource that such prenotification has been rejected by an RDFI, or that an RDFI will not receive Entries without having first received a copy of the Authorization signed by its Receiver, Client will not initiate any corresponding Entries to such accounts until the cause for rejection has been corrected or until providing the RDFI with such authorization within the time limits provided by the NACHA Rules.
18. PlanSource shall notify Client by e-mail, facsimile transmission, US mail, or other means of the receipt of a returned Entry from the ACH Operator. Except for an Entry retransmitted by Client in accordance with the requirements herein, PlanSource shall have no obligation to retransmit a returned Entry to the ACH Operator if PlanSource complied with the terms of these terms and conditions with respect to the original Entry. PlanSource shall provide Client all information, as required by the NACHA Rules, with respect to each Notification of Change (“NOC”) Entry or Corrected Notification of Change (“Corrected NOC”) Entry received by PlanSource relating to Entries transmitted by Client. PlanSource must provide such information to Client within two banking days of the Settlement Date of each NOC or Corrected NOC Entry. Client shall ensure that changes requested by the NOC or Corrected NOC are made within three banking days of Client’s receipt of the NOC information from PlanSource or prior to initiating another Entry to the Receiver’s account, whichever is later.
20. With respect to each and every Entry transmitted by Client, Client represents and warrants to PlanSource and agrees that: (i) each person or entity shown as the Receiver on an Entry received by PlanSource from Client has authorized the initiation of such Entry and the crediting or debiting of its account in the amount and on the Effective Entry Date shown on such Entry; (ii) such authorization is operative at the time of transmittal or crediting or debiting by PlanSource as provided herein; (iii) Entries transmitted to PlanSource by Client are limited to PPD; CCD credit and debit Entries; (iv) Client shall perform its obligations under this Exhibit in accordance with all applicable laws, regulations, and orders, including, but not limited to, the sanctions laws, regulations, and orders administered by OFAC; laws, regulations, and orders administered by the Financial Crimes Enforcement Network (“FinCEN”); and any state laws, regulations, or orders applicable to the providers of ACH payment services; (v) Client shall be bound by and comply with the provision of the NACHA Rules (among other provisions of the NACHA Rules) making payment of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry; and (vi) Client shall ensure that any and all non-public personal information provided by Receiver to PlanSource shall be secure and will not be disclosed to any unauthorized person. Client shall defend, indemnify, and hold harmless PlanSource, and its officers, directors, agents, and employees, from and against any and all actions, costs, claims, losses, damages, or expenses, including attorney’s fees and expenses, resulting from or arising out of (a) any breach of any of the agreements, representations or warranties of Client contained in these terms or conditions; or (b) any act or omission of Client or any other person acting on Client’s behalf.
21. PlanSource may from time to time request information from Client in order to evaluate a continuation of the Service to be provided by PlanSource hereunder and/or adjustment of any limits set by these terms and conditions. Client authorizes PlanSource to investigate or reinvestigate at any time any information provided by Client in connection with these terms and conditions or the Services.
22. Client acknowledges and agrees that, if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry transmitted by PlanSource to the RDFI may be made by the RDFI on the basis of the account number supplied by Client, even if it identifies a person different from the named Receiver, and that Client’s obligation to pay the amount of the Entry to PlanSource is not excused in such circumstances. Client is liable for and must settle with PlanSource for any Entry initiated by Client that identifies the Receiver by account or identifying number or by name and account or identifying number.
23. PlanSource may amend these terms and conditions from time to time upon written notice to Client. In the event that performance of services under these terms and conditions would result in a violation of any present or future statute, regulation or governmental policy to which the PlanSource is subject, then these terms and conditions shall be amended to the extent necessary to comply with such statute, regulation or policy. Alternatively, PlanSource may terminate these terms and conditions if it deems such action necessary or appropriate under the circumstances. PlanSource shall have no liability to Client as a result of any such violation, amendment or termination. Any practices or course of dealings between the PlanSource and Client, or any procedures or operational alterations used by them, shall not constitute a modification of these terms and conditions or the NACHA Rules, nor shall they be construed as an amendment to these terms and conditions or the NACHA Rules.
24. Except as stated herein, PlanSource shall not be required to act upon any notice or instruction received from Client or any other person, or to provide any notice or advice to Client or any other person with respect to any matter. PlanSource shall be entitled to rely on any written notice or other written communication believed by it in good faith to be genuine and to have been signed by an authorized representative of Client, and any such communication shall be deemed to have been signed by such person. Such notice shall be effective on the second Business Day following the day received by PlanSource. Except as stated herein, any written notice or other written communication required or permitted to be given under this terms and conditions shall be delivered or sent in accordance with the notice provisions of the Agreement.