UNIGLOBAL® TERMS OF SERVICE
October 1, 2019
These Uniglobal Terms of Service (hereinafter referred to as the “Terms” or “Agreement”) apply to the services provided by Uniglobal Pension Planning, Inc. (“Uniglobal” or “Company”) to the entity or entities (the “Client”) sponsoring one or more retirement plans (the “Plan”) identified in a valid and binding Service Order and are an integral part of the agreement between Uniglobal, Client, and Plan. The Client, the Plan, and Uniglobal are sometimes collectively referred to herein as the “Parties,” or individually as a “Party.” By requesting, purchasing, or permitting Uniglobal to provide Services as listed in a Service Order, Client agrees to be bound by these Terms, which among other things, limit Uniglobal’s liability.
DEFINITIONS: The following capitalized terms, as used in this Agreement, shall have the following meanings set forth below:
“Affiliate(s)” means, with respect to a party to these Terms, any entity that Controls, is Controlled by, or under common Control with such party. “Control,” for purposes of this definition, means the direct or indirect ownership or control of more than fifty percent (50%) of the voting equity of the subject entity, by contract or otherwise.
“Authorized Plan Contact” means an individual authorized by Client to be responsible for the receipt of any communications to Client provided by Uniglobal and to provide Uniglobal with any information necessary to provide Services in accordance with Terms and a valid Service Order.
“Base Administration Services” means the services listed in a valid Service Order.
“Confidential Client Information” mean all Plan data, records, and information concerning the Plan and the participants of the Plan provided by, or on behalf of, the Client to Uniglobal in connection with the Terms, other than information in the public domain, which is obtained from third parties or which is otherwise developed by Uniglobal.
“Commencement Date” means the first day of the first Plan Year for which Uniglobal will provide Services as listed in a valid Service Order to Client and Plan.
“Covered Service Provider” (“CSP”) means, for purposes of the 408(b)(2) regulation, a service provider (providing fiduciary and/or non-fiduciary services) that enters into a contract or arrangement with the covered plan and reasonably expects $1,000 or more in compensation, direct or indirect, to be received in connection with providing one or more of the services described in paragraphs (c)(1)(iii)(A), (B), or (C) of the regulation (29 CFR 2550.408b-2(c)) pursuant to the contract or arrangement, regardless of whether such services will be performed, or such compensation received, by the covered service provider, an affiliate, or a subcontractor.
“DOL” means the U.S. Department of Labor and the subsidiary department of the DOL with authority over retirement plans, the Employee Benefits Security Administration (“EBSA”).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Fee Disclosure” or “Compensation Disclosure” means the required disclosures as outlined in ERISA §408(b)(2) and referenced in a valid Service Order.
“Good Order” means that all plan related data, documentation, and any other materials necessary to perform Services for Client and/or Plan must be provided to Uniglobal electronically in a manner consistent with the specific instructions that Uniglobal will provide to Client in writing.
“IRS” means the Internal Revenue Service.
“Other Service Provider” or “Other Service Providers” means any provider other than Uniglobal that provides services to the Plan for a fee or compensation, which includes, but is not limited to, the Plan’s registered investment advisor, record-keeper, custodian, tax advisor, actuary, and/or legal counsel.
“PBGC” means the Pension Benefit Guaranty Corporation, a government entity that insures participants’ benefits in certain defined benefit plans.
“Plan Administrator” means a fiduciary with the authority to contract for services on behalf of the Plan.
“Plan Fiduciary” means a fiduciary of the Plan.
“Plan Sponsor” means the Client.
“Service” or “Services” means any service provided by Uniglobal to Client and Plan as set forth in a Service Order.
“Service Order” means a valid and binding legal agreement that has been signed by an authorized representative of Client and Plan and accepted by Uniglobal and shall automatically incorporate these Terms by reference.
“Trust Accounting” means any effort on behalf of Uniglobal to accomplish the recording, analyzing, reconciling, summarizing, and classifying of the financial transactions and information of a participant or Plan which aids in the administration of the Plan.
“Uniglobal” means Uniglobal Pension Planning, Inc. a New York corporation, or any Affiliate providing Services to Client and/or Plan as identified in a valid Service Order and any successor thereof.
“Uniglobal IT Assets” means computers, computer software, firmware, middleware, servers, workstations, routers, hubs, switches, data communications lines, and all other information technology equipment, and all associated documentation owned by the Company or any of its Affiliates or subsidiaries or licensed or leased by the Company or any of its Affiliates or subsidiaries pursuant to written agreement (excluding any public networks).
1. ADDITIONAL TERMS, CONDITIONS, AND POLICIES
These Terms incorporate and include all additional terms, conditions, and policies that are (i) set forth in an addendum, attachment, schedule, exhibit, appendix, or amendment to these Terms, (ii) set forth in a Service Order, (iii) posted online at www.uniglobal.com, and (iv) set forth in the Fee Disclosure as applicable to the Other Service Providers with which the Client and/or the Plan have current valid agreement(s).
Uniglobal reserves the right to modify any of the Terms at any time and to add new or additional terms or conditions in support of its Services. In the event the Terms are changed, amended and/or modified pursuant to this Section (herein referred to as a “Terms Update”) and such Terms Update is applicable to Client and Plan then notice shall be provided by e-mail to Client’s Authorized Plan Contact at the e-mail address on file or through the Client’s invoice. Client may exercise its termination rights under Terms if Client objects to a Terms Update. A Terms Update that requires additional disclosures to comply with federal law applicable to CSPs will be effective sixty (60) days after notice is deemed to have been received, which in the case of a notice delivered by e-mail is the day on which it is sent.
Uniglobal will enact a Terms Update when required to by applicable law, regulation, or governmental authority to which Uniglobal, Client, or Plan is subject or when mandated by Uniglobal’s own service providers to protect, inter alia, the security, operability, and integrity of Uniglobal infrastructures, or to comply with reasonable policies of such providers in supporting the Services provided by Uniglobal.
2. GENERAL SERVICES
2.1 PLAN DESIGN
Uniglobal will work with the Client and, as necessary, any of the Plan’s advisors to develop the specifics of a new retirement program to meet the objectives of the Client.
2.2 CONVERSION SERVICES
Clients with existing retirement Plans converting to Uniglobal will provide authorization for Uniglobal to coordinate with the Plan’s accountant, advisors, and the Plan’s prior administrator, regarding the Plan. Conversion Services will involve obtaining current and historic Plan documentation and prior administrative records, reviewing the information received, and inputting the records into Uniglobal’s administrative systems.
The sole purpose in reviewing the information for prior years is to collect the data that impacts the work that Uniglobal will be performing for the Client and the Plan. Uniglobal will accept the information it receives as correct and complete, and will not audit those records for accuracy, compliance with government requirements, or consistency. Uniglobal will not be responsible for any errors or omissions made during the time prior to entering into this Agreement, nor for those which may result from its reliance on prior records.
Uniglobal may, at the request of the Client, review the information for prior years to evaluate whether the Plan is in proper compliance with the law and plan documents for those years prior to Uniglobal’s engagement under this Agreement. Uniglobal will report any issues it believes must be addressed for those prior years and will make recommendations necessary for action. Any fees incurred for this review will apply regardless of whether the Client decides to follow Uniglobal’s recommendations. Uniglobal will exercise its best efforts in this review, but it makes no warranty that all prior administrative or documentation errors will be discovered, nor will it be responsible for any issues that are not found and remedied.
2.3 PLAN AND TRUST DOCUMENTS
Uniglobal maintains IRS-approved volume submitter and prototype plan documents. Uniglobal will prepare a plan and trust document for the Client’s review and signature.
In addition to the plan and trust document, Uniglobal will prepare a Summary Plan Description for distribution to the employees of the Client. The Summary Plan Description will describe the provisions of the Plan.
Uniglobal is not a law firm. Therefore, Uniglobal recommends that any documents prepared be reviewed by the legal counsel of the Client and that any changes requested by such counsel be communicated to Uniglobal.
- If the Plan is on a pre-approved plan document, it must be restated in its entirety approximately every six (6) years under current IRS procedures to bring it up to date with all legislation and regulations that become applicable in the interim period. As long as the Client is a client of Uniglobal, Uniglobal will advise the Client of when such update is needed for the Plan.
- If the Plan is on an individually-designed document prepared by Uniglobal, changes must be made pursuant to the annual list of changes that must be made to plans, which is published annually by the IRS. Any changes, if applicable, must be adopted by the Client as amendments to the Plan within two (2) years of the publication of that list. As long as the Client remains a client of Uniglobal, Uniglobal will review the Plan in connection with this list each year, and will advise the Client when amendments to the Plan are required.
- If another advisor, such as the Client’s attorney, has drafted the Client’s Plan document, Uniglobal will not be responsible for keeping that document in compliance with changes in the law. If the document was prepared by an advisor who no longer works with the Client, it is strongly recommended that Uniglobal be permitted to restate the Plan document as discussed above.
2.4 ANNUAL ADMINISTRATION
Uniglobal will request information from the Client annually on or about the Plan year ending date, as described in Section 3.2 below. The requested information will include: employee census data, information necessary to perform Trust Accounting services for the Plan year, and updated company information about the Client.
Upon receipt of complete information from the Client, Uniglobal will perform Base Administration Services for Client and Plan.
2.5 PLAN TERMINATION, IRS SUBMISSION, AND PENSION BENEFIT GUARANTY CORPORATION
Upon the Client’s request, Uniglobal will prepare the necessary termination documentation for the Plan. This includes an amendment to the Plan, an action by the Client to adopt such amendment, and any required notice to the employees or Plan participants.
If requested, Uniglobal will prepare the documents needed to file the plan termination with the IRS to obtain a favorable determination letter. The law requires that the Plan be in compliance with all legislation enacted and regulations issued as of the date of termination, even if the normal amendment due date is still pending. The only way to ensure that this is done to the IRS’s satisfaction is to submit the documents for a favorable determination letter. If the Client does not wish to request such a determination, Uniglobal will make efforts to ensure that the documents comply with all rules, but cannot be responsible if an IRS examiner determines on audit that the Plan was out of compliance at termination. The IRS charges a user fee for review of a plan termination. The amount may be changed by the IRS at any time. This user fee must be paid by the Client, not the Plan.
Uniglobal will communicate, on the Client’s behalf, with the IRS in connection with the termination process and will provide additional information to the government agencies as needed.
If the Plan is a defined benefit plan that is subject to Title IV of ERISA, and if requested by the Client, Uniglobal will prepare all notices and documents that need to be submitted to the PBGC and to comply with the PBGC’s rules.
Uniglobal will calculate the benefits payable to the participants as a result of the termination of the Plan, and will prepare distribution forms to be given to the participants regarding these benefits.
Uniglobal, however, is not responsible for locating “lost participants,” or encouraging or directing participants to remove their remaining assets from the Plan.
Until Uniglobal is apprised that all benefits have been paid from the Plan, Uniglobal will continue to prepare the Annual Return/Report (i.e., Form 5500). This service is not part of the Base Administration Services. Plan Termination Services and Expenses are provided in the Service Order. At such time as it is informed that all benefits have been paid from the Plan, Uniglobal will prepare the final Annual Return/Report.
2.6 CONSULTING SERVICES
From time to time, issues may arise that are not within the scope of the Base Administration Services. These issues will be resolved on a consulting basis. Uniglobal will provide Consulting Services for the Consulting Hourly rates listed in a valid Service Order.
Consulting Services include any item not enumerated in either the prior sections or on any addendum, attachment, schedule, exhibit, appendix, or amendment.
Examples of Consulting Services include, but are not limited to, (i) revision of the Plan to accommodate new objectives or changes in the law, (ii) performing late deposit calculations, including associated interest calculations, or (iii) procedural support assistance for Plan corrections.
2.7 “PARTNERING” WITH THE PLAN’S FUND HOLDER AND/OR OTHER SERVICE PROVIDERS TO PROVIDE SERVICES TO CLIENT
Uniglobal has entered into arrangements with various fund holders that permit it to work with such fund holders to provide services to retirement plan clients. Uniglobal may have such an arrangement with the Plan’s fund holder. Regardless of whether such an arrangement exists, Services provided by Uniglobal to the Client and to the Plan are governed by these Terms and any corresponding Service Order, addendum, attachment, schedule, exhibit, appendix, or amendment. The services that will be provided by the fund holder to the Plan will be governed by the contract, arrangement, or agreement the Client and/or the Plan has signed with such fund holder.
2.8 ASSISTANCE WITH GOVERNMENT INQUIRIES, EXAMINATION, OR AUDITS
Upon request, Uniglobal will assist Client and Plan with gathering information and preparing responses to any IRS or DOL inquiry, investigation or examination. In some circumstances, particularly if sanctions or other fines are likely, Uniglobal may recommend that Client and Plan retain the services of an ERISA attorney to assist in the audit process.
3. RESPONSIBILITIES OF THE CLIENT
It is impossible for Uniglobal to provide services to the Client and the Plan without the Client’s cooperation. Therefore, the Client specifically agrees to the following in support of Uniglobal’s efforts under these Terms:
3.1 CONTACT DESIGNATION
The Client shall provide to Uniglobal, in writing, the name and contact information of an Authorized Plan Contact.
The Client agrees to provide Uniglobal with written notification when the name and contact information for the Authorized Plan Contact changes as soon as administratively possible, but no later than fifteen (15) business days after such change.
3.2 TIMELINESS AND ACCURACY OF DATA
Timely processing of information is essential to the proper administration of the Plan, and avoids costly penalties and other adverse consequences. The Client will provide Uniglobal with the requested information on a timely basis, and will be responsible for ensuring that the information provided is accurate and complete. Uniglobal shall rely exclusively on information provided by the Client or, at the direction the Client, the Plan’s Other Service Providers, and will have no responsibility to independently verify the accuracy of that information, including the value of trust investments and earnings. Uniglobal shall have no responsibility to acquire information other than to request it from the Client, and will not be liable for any errors or omissions made as a result of incomplete or incorrect information furnished by the Client or the Plan’s Other Service Providers that provide services to the Plan for a fee or compensation, which includes, but is not limited to, the Plan’s registered investment advisor, record-keeper, custodian, tax advisor, actuary, and/or legal counsel.
To perform annual Plan administration, Uniglobal will send to the Client a Year-End Data Request Package (“Year-End Package”) every year on or about the Plan year ending date. The Client shall return the information requested in the Year-End Package to Uniglobal within forty-five (45) calendar days after the Plan year end.
If the information requested in the Year-End Package is not received by Uniglobal in Good Order within forty-five (45) days after the Plan year end, Uniglobal (1) will not guarantee the timely completion of any employer contribution calculations or required Discrimination Testing, which is due within 2½ months after the Plan year end; (2) may file for a 2½-month extension of time to file the Annual Return/Report forms (i.e., the Forms 5500 and attachments), for which it will charge the disclosed fee appearing in a valid Service Order; and (3) may not be able to provide the Plan’s Annual Valuation until the information is provided. Uniglobal reserves the right to invoice the Client additional fees disclosed in a valid Service Order under “Terms Specific Expenses for Deadline Related Services” if the information requested in the Year-End Package is not received by Uniglobal as described above.
To the extent that the Client or designated Other Service Providers are unable to furnish the electronic data according to the requirements of this paragraph, Uniglobal reserves the right to increase fees to cover the resulting extra time required to perform its duties under these Terms. Such fees will be charged in accordance with Uniglobal’s “Consulting Services Fees” as listed in a Service Order, addendum, attachment, schedule, exhibit, appendix, or amendment therein. Uniglobal will not be responsible for any late filings, penalties, fines, or taxes that result from the Client’s failure to provide accurate and complete information on a timely basis, and in Good Order as specified above.
3.3 PLAN CONTRIBUTIONS
The Client will be responsible for ensuring that funds are contributed to the Plan trust when required for tax deductibility (i.e., generally by the due date of the Client’s corporate return, including extensions), minimum funding standards for pension plans (i.e., within 8 ½ months of the end of the Plan year), or for DOL fiduciary requirements (i.e., as soon as possible for 401(k) salary deferrals and loan repayments, but not later than seven (7) business days after the relevant payroll date, if the plan has fewer than 100 participants).
3.4 GOVERNMENT REPORTS AND RETURNS
The Client will be responsible to file the government reports prepared by Uniglobal with the appropriate agency. The annual Form 5500 must be filed electronically with the DOL. Uniglobal will provide the electronic forms (including the actuary’s certification, where applicable) but the Client must then provide the Plan Sponsor’s electronic signature, thereby enabling the electronic filing to be completed.
As part of the annual reporting obligations, the Client must provide information regarding compensation paid to Uniglobal and the Plan’s Other Service Providers. The necessary information about Uniglobal’s fees and compensation are included in these Terms and any addendum, attachment, schedule, exhibit, appendix, or amendment, the Service Order and the Fee Disclosures and online location referenced therein and Uniglobal will include any additional information required as part of the Schedule C that may be prepared for the Client annually.
If applicable, and upon the request of the Client, Uniglobal can also assist with filing the Form 8955-SSA package with the IRS. If the Client is required to file at least 250 returns of any type with the IRS for any calendar year, the Client will be required to file Form 8955-SSA electronically using the IRS’ Filing Information Returns Electronically (“FIRE”) system. Uniglobal can assist with obtaining the credentials needed to file the 8955-SSA package through FIRE. If electronic filing is not required, the Client may do so through the mail system on paper. Uniglobal can also assist in that process for the fee listed in a Service Order.
3.5 PARTICIPANT INFORMATION AND DISTRIBUTIONS
Uniglobal will prepare necessary information for delivery to the Plan’s participants, including such items as notices, elections, and reports required by law. However, the Client will be responsible for providing such necessary information to the participants and to obtain participants’ and, if required, spouses’ signatures on all benefit distribution forms. Uniglobal will NOT be responsible for providing the Client with the annual and quarterly fee-related disclosures that must be given to Plan participants. The Plan’s fund holder, which provides participant statements, is responsible for sending these disclosures to the Client or the participants. To assist in fulfilling the Client’s obligation to disclose participant-level fees charged by the investments available under the Plan, Uniglobal may forward to the Client disclosure materials provided to it by the issuer of such investment. While Uniglobal assumes that such information is correct (and has no knowledge to the contrary), it makes no representations as to the completeness or accuracy of any such materials passed on to the Client from the investment issuer.
3.6 DISTRIBUTION TAX FORMS AND INCOME TAX WITHHOLDING
Uniglobal does not prepare the end of year tax forms required by law when a participant receives a distribution from the Plan (i.e., Form 1099R). In addition, Uniglobal does not prepare the forms necessary to report and pay taxes withheld from the distributions (i.e., Form 945 and applicable state forms) or those needed to report Unrelated Business Taxable Income to the plan trust (i.e., Form 990T). The Client is responsible for preparing these forms, or making arrangements with another advisor to do so.
3.7 OTHER PLANS AND COMPANIES
The Plan’s operation and tax qualification are affected by other plans sponsored by the Client (whether currently active or terminated, and whether or not Uniglobal administers them). Other companies owned by the Client or by the owners of the Client may also affect the Plan. The Client is responsible for informing Uniglobal of other plans or companies, and of notifying Uniglobal when there is a change to this information.
The options for dealing with certain plan issues when the Client buys another company or when the Client is purchased by another company are much broader before the transaction occurs than after. Uniglobal strongly recommends that the Client advise it as early as possible of a pending company transaction so that Uniglobal can provide the Client with as many options as possible in this context.
3.8 TAXABLE COST OF LIFE INSURANCE IN THE PLAN
The Client and its advisors will be responsible for the preparation of Forms 1099R for participants to report the taxable term cost (i.e., PS-58 cost) of any life insurance held by the Plan for their benefit.
3.9 PLAN LOANS
Uniglobal will assist the Client in preparing loan documentation and amortization schedules for participant loans. However, the Client shall be responsible for setting up procedures relating to making loans to participants from the Plan, including the evaluation of a participant’s creditworthiness, determining the interest rate to be charged on the loan, properly securing the loan, and setting up the loan repayment schedule on the payroll system.
3.10 HARDSHIP WITHDRAWALS
Uniglobal will assist the Client in preparing distribution documentation for hardship withdrawals. However, the Client shall be responsible for setting up procedures relating to when such withdrawals will be permitted and the documentation needed from the participant to support the claim that a hardship has occurred.
3.11 MAINTENANCE OF AN ADEQUATE FIDELITY BOND
Generally, employees of Plan Administrators who handle retirement plan funds must be covered by a fidelity bond. The Client shall be responsible for obtaining and maintaining this bond. The Client must notify Uniglobal of the insurance carrier and the face amount of the fidelity bond.
3.12 RECORD RETENTION AND DOCUMENT CUSTODY
Information related to the preparation of the Forms 5500 and the form that Uniglobal prepares for the Plan and the Client must be maintained for at least seven (7) years. It is the sole responsibility of the Client to comply with such record retention obligations. In addition, the DOL requires the retention of sufficient information to determine the benefits of the participants and beneficiaries. Therefore, the Client must retain copies of the work Uniglobal performs and the information sent to the Client by Uniglobal. Failure to do so can result in a civil penalty payable to the DOL.
Although Uniglobal will retain copies of the work it performs for the Client, such copies are for Uniglobal’s own files and the Client may, therefore, not rely on Uniglobal for compliance with the DOL requirements.
The Client must maintain signed and dated copies of all plan documents at all times. These documents must be made available for inspection by participants and beneficiaries at the Client’s principal office. In addition, copies of these documents must be furnished in writing if a participant so requests (the Client may charge a reasonable fee for reproduction costs).
3.13 DUTY TO MONITOR THE PERFORMANCE OF SERVICE PROVIDERS
As a fiduciary, the Client is responsible for monitoring the performance of anyone providing services to the Plan, including Uniglobal. The Client must review the reports or other items that Uniglobal prepares for it on a regular basis, and notify Uniglobal immediately of any errors or inconsistencies identified on any report, form, or other communication from Uniglobal. The Client must similarly monitor its Other Service Providers.
3.14 DETERMINATION OF FEES THAT MAY BE PAID BY THE PLAN
Under ERISA, the fees for certain services cannot be paid for by the Plan, but must be paid for by the Plan Sponsor. These fees include, but are not limited to, those related to the plan design or redesign to accomplish company goals. If the Client chooses to pay Uniglobal’s or other fees from the Plan, it is the Client’s responsibility as the fiduciary to ensure that ERISA permits the Plan to pay for such activities.
3.15 DETERMINATION OF REASONABLENESS OF FEES
As a fiduciary, the Client is responsible for ensuring that the fees paid with Plan assets for services are reasonable. Therefore, the Client is responsible for reviewing these Terms and the contracts, arrangements, or agreements into which it enters on behalf of the Plan to understand what is being paid to all of the Plan’s service providers (including Uniglobal) and determine that the amount being paid to such service providers is reasonable.
The law requires that the Plan’s service providers provide an estimate of their fees a reasonable time before a services contract is effected. These Terms, and any addendum, attachment, schedule, exhibit, appendix, or amendment, or Service Order, and any fee materials provided to the Client by the Plan’s fund holder, together constitute Uniglobal’s compliance with this law.
3.16 RECOMMENDATION OF OTHER SERVICE PROVIDERS
From time to time, Uniglobal will make recommendations of Other Service Providers or financial institutions for the Plan. Uniglobal receives no fees or other compensation for such recommendations. Further, these recommendations are not endorsements of the amount of any compensation paid to those Other Service Providers or financial institutions and therefore should not be considered a substitute for the Client’s judgment as the Plan’s fiduciary.
4. SERVICES UNIGLOBAL DOES NOT PROVIDE
4.1 INVESTMENT SERVICES
Uniglobal does not invest trust assets, value trust assets, or make recommendations regarding investments and/or investment managers or advisors. It does not handle plan assets. It further does not provide investment advice to the Client, the Plan, or the Plan’s participants.
4.2 FIDUCIARY SERVICES
The Client is responsible for all discretionary decisions relating to the Plan, including the interpretation of plan document provisions, the evaluation of claims made by participants for plan benefits, and the investment of plan assets. Uniglobal performs services in an advisory capacity only, and exercises no discretion as to the administration of the Plan and the management of Plan assets. Therefore, Uniglobal and its employees are NOT fiduciaries of the Plan and Trust, nor are any of them the Administrator of the Plan as that term is defined in ERISA.
4.3 PARTICIPANT COMMUNICATIONS
Uniglobal is retained by the Client to perform certain administrative functions in relation to the Plan. Uniglobal will not communicate directly with participants unless expressly directed to do so. Furthermore, it will not respond to any written or verbal communications initiated by the Plan participants. All such communications, including Uniglobal’s responses to such communications, will be directed through the Authorized Plan Contact.
4.4 SECTION 404(c) COMPLIANCE
Section 404(c) of ERISA provides that, if certain requirements are met, the normal plan fiduciaries will not be responsible for investment losses occasioned by a participant’s own direction of investment of his or her account. Uniglobal is not responsible for ensuring that the Client is in compliance with all the requirements under Section 404(c).
4.5 BROKERAGE ACCOUNTS
If the Plan offers to participants the option of self-directed brokerage accounts, Uniglobal is not responsible for monitoring the access to any such accounts, the Plan assets invested in such accounts, or the risks of violating ERISA that may arise, including but not limited to:
- Verifying that the 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 the Client regarding additional bonding requirements that may result from investments in anything other than “qualifying assets”; and
- Identifying and preparing tax forms in relation to Unrelated Business Taxable Income that may result from certain investments in such accounts.
4.6 ACCOUNTING AND LEGAL SERVICES
Uniglobal is neither a law firm nor a public accounting firm. It is not responsible for, and nothing that it communicates to the Client should be construed as, legal advice or opinions regarding the Plan, the obligations of the Client under the Plan, or the participants’ rights under the Plan. Uniglobal is also not responsible for any accounting decisions related to the Plan.
5. SERVICE ORDER
All Services will be provided in a Service Order, which will set forth as applicable: (i) the Services, costs, and other information about the Services; (ii) Plan Documents being provided to Client and Plan, and (iii) any associated conversion and installation information. The Service Order incorporates by reference these Terms, and when executed by Client, Plan, and Uniglobal becomes a binding and valid legal contract between the Parties.
6.1 ADMINISTRATION AND COMPLIANCE SERVICE FEE
Base Administration Services are provided for the combined Base Fee amount and the Eligible Participant Fee amount as listed in a Service Order and are collectively referred to as the “Administration and Compliance Service Fee”.
6.2 CONSULTING SERVICES
Additional services provided by Uniglobal not otherwise contemplated in Terms or in any addendum, attachment, schedule, exhibit, appendix, or amendment, as applicable, or in a Service Order are Consulting Services. Uniglobal will invoice for these services at its Consulting Hourly Rates as provided in a Service Order.
6.3 ONE-TIME SERVICES
Non-recurring services, such as Plan Design and Conversion Services are “One-time Services”. Uniglobal will invoice for any service request associated with One-time Services.
6.4 COSTS AND EXPENSES
The Client is responsible for payment of all out-of-pocket expenses Uniglobal, its Affiliates, agents, employees, representatives, and contracted third party service providers incurred in good faith in connection with providing its Services to Client and/or Plan. Expenses may include, but are not limited to, messenger service fees, private letter carrier overnight delivery fees, on-site audit support services, and IRS user fees.
Costs associated with providing Services to Client and Plan in accordance with Terms including but not limited to the development, installation, maintenance, and ongoing enhancements of technological equipment and technology features, systems security, storage, and preservation of Client and Plan data will be payable by Client and/or Plan.
Uniglobal reserves the right to request payment of certain fees prior to the performance of Service or to require a retainer prior to performing Services.
6.5 CHANGES IN FEES AND SERVICES
Uniglobal may modify any of its fees for Services at any time; provided, however, that such modifications shall not be effective until at least sixty (60) days after written notice is given to the Client.
In addition, Uniglobal will provide written notification of enhancements, elimination, and creation of Services to Client and Plan in connection with a Terms Update as applicable.
6.6 INVOICING POLICIES
Generally, Uniglobal will invoice for Services on a quarterly basis; provided, however, Client has not elected an alternative frequency. “One-time”, “upon request”, “per occurrence”, “per hour”, and “as needed” Services will be invoiced immediately and separately from regularly scheduled quarterly invoices, such as those quarterly invoices applicable to Base Administration Services.
7.1 PAYMENT TERMS
Invoices shall be due in full upon receipt and become delinquent if not paid within thirty (30) days.
7.2 REFUND OF PAYMENT
Uniglobal will not be obligated to refund any portion of any payment for services should the Client decide not to proceed with the implementation of the plan once installation has begun.
7.3 METHOD OF PAYMENT
In its sole discretion, Uniglobal reserves the right to accept payment by credit card. In situations where Uniglobal agrees to accept payment by credit card, Uniglobal reserves the right to discontinue acceptance of payment by credit card at any time.
7.4 LATE PAYMENT CHARGES
Balances not paid within thirty (30) days of the invoice date will be subject to a reasonable finance charge of 1.5% of the outstanding balance for each month or partial month until paid in full, or the maximum allowed by law, whichever is less.
If payment is outstanding more than sixty (60) days after the initial invoice date, Uniglobal reserves the right to discontinue providing any and all Services. If payments are past due in excess of ninety (90) days Uniglobal reserves the right to withdraw from the engagement, at its sole discretion. Uniglobal’s withdrawal under such circumstances shall not affect the Plan’s or the Client’s obligation to pay the outstanding balance.
Uniglobal is not responsible for any late tax filings or penalties, fines, taxes, or other charges that may be assessed as a result of its nonperformance of services while fees remain unpaid.
In the event that Uniglobal is required to commence collection procedures to collect fees and prevails, the Client agrees to pay all Uniglobal’s attorney fees and court costs.
7.6 ERISA ACCOUNTS
It is possible that the Plan’s financial institution has agreed to make certain funds available for the payment of fees to the Plan’s service providers at the Client’s or the Plan’s direction. This arrangement is commonly called an “ERISA Account.” The Client may direct that these funds be used to pay Uniglobal’s fees under the Terms.
7.7 OTHER COMPENSATION
It is possible that Uniglobal will receive additional compensation from other sources in relation to the Plan. These amounts are paid to Uniglobal because it provides support services to the Client’s or the Plan’s other service providers (such as the Plan’s fund holder, as discussed above) for which the Client or the Plan compensate those providers. Furthermore, it is possible that Uniglobal will receive certain financial and other incentives from other service providers to the Client or to the Plan in relation to the Client’s decision (and the decision of others of Uniglobal’s clients) to use the services of such provider. Uniglobal will disclose to the Plan and the Client the monetary value of anything it receives in connection with its provision of services to the Plan. A listing of these possible additional items of compensation is included in the Compensation Disclosure referenced in a Service Order.
8. ELECTRONIC COMMUNICATION, MONITORING, AND SIGNATURES
Client consents to electronic communication and agrees that notices or other communications posted to an internet website in connection with the provision of Services to Client and Plan shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address.
Client consents to the electronic security and monitoring practices of Uniglobal, which include, but are not limited to, secure portal access, call recording, and voicemail archiving.
Client consents to execution of Terms as incorporated by reference in a valid Service Order electronically, as provided.
The Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. Electronic signatures on the Agreement and on other documents transmitted to and from Uniglobal are considered to be binding.
9. DISPUTES AND ARBITRATION
To the extent the Client and Uniglobal have a dispute relating to the services that Uniglobal provides with respect to the Plan, the Client and Uniglobal agree to negotiate in good faith to resolve the issue and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties.
If, however, such a solution cannot be met, Client and Uniglobal agree to submit to resolution by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Uniglobal is not required to submit any claim for unpaid fees and expenses to arbitration if the amount involved is $5,000 or less. However, in the event that Uniglobal is required to commence collection procedures to collect fees and prevails, Client agrees to pay attorney fees and court costs incurred by Uniglobal. Such arbitration shall be binding and final.
IN AGREEING TO ARBITRATION, UNIGLOBAL AND THE CLIENT ACKNOWLEDGE THAT, IN THE EVENT OF A DISPUTE ARISING FROM THESE TERMS, OTHER THAN ANY DISPUTE THAT INVOLVES SOLELY UNPAID FEES AND EXPENSES OF $5,000 OR LESS, THEY ARE EACH GIVING UP THE RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND INSTEAD EACH ACCEPTS THE USE OF ARBITRATION FOR RESOLUTION.
10. GOVERNING LAW
Terms shall be governed, interpreted, and construed in accordance with the laws of the Commonwealth of Virginia (without regard to its conflicts of Laws) except to the extent such laws are superseded by ERISA.
In the event that proceedings arise pertaining to the Terms, or relating to the obligations arising out of the Terms, the Client and the Plan consent to venue and exclusive jurisdiction in Fairfax County, Virginia.
Uniglobal has reasonable safeguards to protect against the disclosure or misuse of Confidential Client Information that is in Uniglobal’s care or custody provided through and contained within Uniglobal IT Assets. Uniglobal will protect the Confidential Client Information with the same degree of care that it uses to protect and safeguard Uniglobal’s own like information, but not less than the degree of care that would be exercised by a prudent person given the sensitivity of the Confidential Client Information.
Uniglobal agrees to use reasonable efforts to keep all Confidential Client Information, except as otherwise set forth in the Terms and as needed to perform Uniglobal’s obligations under the Terms. By agreeing to the Terms, Client and Plan authorizes the personnel of Uniglobal to provide Confidential Client Information to the Plan’s Other Service Providers. The Client agrees to provide Uniglobal in writing of the names and contact information for the Plan’s Other Service Providers. The Client also agrees to notify Uniglobal of any changes in the Plan’s Other Service Providers.
In addition, Uniglobal may from time to time, and depending on the circumstances, sub-contract third party providers to assist in the administration of the Plan. Under such circumstances, Uniglobal may share Confidential Client Information with these third party service providers. Uniglobal will use reasonable efforts to ensure that each of the sub-contracting third parties have appropriate procedures in place to prevent the unauthorized release of Confidential Client Information to others.
Uniglobal will use reasonable efforts to notify the Client upon the discovery of any unauthorized disclosure of Client Confidential Information and will reasonably cooperate to help regain such Client Confidential Information and prevent its further unauthorized disclosure.
The Client agrees to indemnify and hold harmless Uniglobal from and against any and all claims, losses, damages, liabilities, costs, and other expenses of any kind whatsoever (including all attorneys’ fees and collection or court costs) (collectively “Claims”) arising from or in connection with the operation of the Plan or the rendering of plan-related services by the Client, the Plan Administrator, or any third party. This indemnification does not include any Claims attributable solely to any gross negligence or willful misconduct by Uniglobal in the performance of its responsibilities under this engagement.
While Uniglobal will make every effort to provide error-free work, subject to the limitations of Section 15 below, it will correct any error that it has caused at no cost to the Plan or the Client. Uniglobal agrees to indemnify and hold harmless the Client and the Plan from and against any and all Claims arising from or in connection with the operation of the Plan or the rendering of plan-related services by Uniglobal, to the extent that such Claims are attributable solely to gross negligence or willful misconduct by Uniglobal in the performance of its responsibilities under the Terms.
The Client agrees to pay Uniglobal’s Consulting Services Fees and any necessary copying costs if Uniglobal is called to testify or give documentation in regard to any lawsuit in relation to the Plan in which the Client or the Plan and Uniglobal are not adverse litigants, whether or not Uniglobal is named as a party, and whether or not Uniglobal is still engaged to perform services for the Client or the Plan.
The provisions of this Section 13 shall survive the termination of this Agreement.
14. NO RELATIONSHIP
Nothing in the Terms creates or is intended to create an association, trust, partnership, joint venture or any other entity or similar legal relationship between Uniglobal and the Client.
15. LIABILITY LIMITATION
The Client agrees that Uniglobal shall have no liability to the Client or the Plan (or anyone claiming through or in the name of the Client or the Plan) in connection with any service provided by Uniglobal except to the extent that Uniglobal has engaged in willful misconduct or been grossly negligent. However, in any event, the liability and cost of Uniglobal shall be limited to the amount of fees that the Client or the Plan paid to Uniglobal for the plan year in which the error occurred and the prior year (if any).
Notwithstanding anything else in these Terms or otherwise, Uniglobal 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. Uniglobal maintains cyber-security insurance to help protect both Uniglobal and Client in the event of unauthorized disclosure despite Uniglobal’s best efforts. However, Uniglobal’s liability and cost to Client or the Plan (or anyone claiming through or in the name of the Client or the Plan) in connection with a breach of cyber-security shall be limited to the amount payable by such insurance in relation to your claim.
Further, Uniglobal shall not be liable for any special, indirect, consequential, incidental or punitive damages of any kind whatsoever in any way due to, resulting from, or arising in connection with any of the services or the performance of or failure to perform obligations under its Terms. This disclaimer applies without limitation to claims arising from the provision of the services or any failure or delay in connection therewith; to claims for lost profits; regardless of the form of action; and regardless of whether such damages are foreseeable or whether Uniglobal has been advised of the possibility of such damages. The provisions of this section shall survive the termination of Services and these Terms.
Uniglobal is not 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, or any other force majeure, and including, but not limited to, a loss or corruption of data due to weather.
16. NO ASSIGNMENT OR DELEGATION
Neither the Client nor Uniglobal may assign this Agreement in whole or in part, nor delegate all or any part of its duties without the other’s prior written consent, except as otherwise provided for in these Terms. However, such consent shall not be required where an entity becomes an assignee due to the purchase of substantially all of Uniglobal’s or the Client’s assets or by virtue of being the successor to either the Client’s or Uniglobal’s business (whether by merger, consolidation, stock sale or otherwise), if such assignor guarantees and remains fully liable for the obligations of the respective assignee.
Uniglobal may provide you with notices and other communications in connection with these Terms and the Services, including Terms Updates. Notices and other communications shall be in writing and sent by personal delivery, a nationally-recognized, next-day courier service, first-class registered or certified mail, with return receipt requested and postage prepaid, facsimile, electronic communication (including e-mail and posting to the internet), or otherwise actually delivered:
If to Uniglobal, at:
Uniglobal Pension Planning, Inc.
4114 Legato Road, Suite 300
Fairfax, VA 22033
If to the Client, to the Authorized Plan Contact, at the address and/or e-mail address (and/or alternate e-mail addresses associated with Client) provided by Client. Any such notice, demand or other communication shall be deemed to have been given on the date actually delivered electronically or otherwise or upon the expiration of three (3) days after the date mailed, as the case may be.
If any term, covenant or condition contained in these Terms or any Service Order is, to any extent, held invalid or unenforceable in any respect under the laws governing these Terms, the remainder of these Terms shall be valid and enforceable to the fullest extent permitted by law.
19. SERVICE TERMINATION AND TERMS TERMINATION
Either the Client or Uniglobal may terminate these Terms on sixty (60) days’ written notice. Upon termination of Terms and Services, all fees owed to Uniglobal, including fees for Administration and Compliance Services performed for the current year earned through the date of termination, will be immediately payable in full. Uniglobal will retain all fees paid for subsequent years services, including those paid for services that would have otherwise been performed as part of the Administration and Compliance Service Fee had a termination of Terms and Services not occurred.
Upon termination of these Terms and associated Services, Uniglobal will, upon written instructions from the Client and receipt of payment for the costs of doing so, either return to the Client, destroy, or transfer to a successor provider designated by the Client, at the Client’s expense, all information and records that Uniglobal maintains as a result of these Terms. Fees that may be due in relation to the termination of Services and Terms as disclosed in a Service Order. No records will be provided while there are fees outstanding. Uniglobal will discontinue the sponsorship of any Prototype Plan as of the date of the termination of Services and Terms.
These Terms will also be considered terminated upon the termination of the Plan covered by acceptance of Terms and Services and the preparation by Uniglobal of a final Annual Return/Report as described in Section 3.4 above.
20. NO WAIVER
If either the Client or Uniglobal fails to exercise any right, power, or privilege provided under these Terms, neither is waiving the ability to exercise that right, power, or privilege in either that or any subsequent situation.
While Uniglobal is providing services to the Client and/or the Plan, and for a period of one (1) year thereafter, the Client shall not, directly or indirectly, for its own benefit or for, with or through any other person, firm, corporation, or other entity solicit or attempt to solicit any employee or customer of Uniglobal, including but not limited to, ending his or her employment or business relationship with Uniglobal or to work in any capacity for any person or entity other than Uniglobal; or (ii) attempt to hire, employ, or associate in business with any person employed by Uniglobal or who has left the employment of Uniglobal within the preceding twelve (12) months, or discuss any potential employment or business association with such person. If the Client breaches this provision, it shall promptly pay to Uniglobal, as liquidated damages and not as a penalty, an amount equal to the employee’s total annual compensation amount based on the annualized run rate which was in effect immediately before the termination of his or her employment or engagement with Uniglobal, plus lost profits and business opportunities Uniglobal suffers as a result.
22. ENTIRE AGREEMENT
This Agreement, together with the applicable Service Order(s), replaces and supersedes any prior or contemporaneous agreements, statements, understandings, writings, commitments, or representations concerning its subject matter, as between Client, Plan, and Uniglobal.