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Master Services Agreement Version 1.0 For Clients of the HowardSimon Companies This Master Services Agreement (“MSA”) is made by and between the client (“Client,” “you,” or “your”) as identified on the first Service Order submitted as described in Section 3.2 below and each of HS&A Payroll Services, LLC. an Illinois limited liability company doing business as HowardSimon Payroll (“HSP”), and Howard Simon & Associates, LLC, an Illinois limited liability company doing business as HowardSimon Retirement (“HSR”). HSP and HSR are collectively referred to herein as the “HS Companies,” “we,” “us,” or “our.” Each of Client, HSP, and HSR may independently be referred to as a “Party,” or collectively as the ”Parties.” This MSA applies with respect to such Services (defined below) as you may request from time to time, subject to your agreement to accept applicable fees and charges. 1. Entering into the MSA. This MSA is effective upon the date of your first Service Order submission (“Effective Date”) and continues until terminated by either of the parties. By submitting a “Service Order”, you agree that you have read and understood and agree to be bound by the MSA. The individual submitting the Service Order represents that he or she has the authority to enter into this MSA on the Client’s behalf. 2. Certain Notices. THIS MSA CONTAINS AN ARBITRATION CLAUSE AND A CLASS ACTION AND JURY TRIAL WAIVER. You acknowledge that you have read and understood these provisions and agree to be bound by them. 3. General We offer a variety of employer payroll, H.R. solutions and retirement plan recordkeeping and administration services (“Services”). We provide Services using a commercially reasonable level of skill and care, and such additional heightened standards of care, if any, that may be specifically referenced by the written schedules to the MSA describing, respectively, (i) HSP-provided payroll and HR Solutions offerings, (ii) HSR-provided plan administration and recordkeeping service offerings (“Service Schedules”), and (iii) the Swipeclock service offering. All Services provided are governed by this MSA and the applicable Service Schedule. 3.1 Service Order. You may request or discontinue an available Service by logging onto our Client Portal, which is accessible on our website at: https://login.howardsimon.com, or by contacting us. Following your initial Service request, you may request additional Services from time to time by completing and submitting the order form available on the website (the “Service Order”). You may also upgrade or make changes to the level of a previously elected Service by submitting a Service Order. When submitting Service requests, you will specify the Services you wish to elect on the Service Order. Our ability to provide the Services you elect is subject to your provision of such additional information as we may reasonably require. Service requests are subject to prior review and acceptance by us. 3.2 Additional Terms. Attached to this MSA are Service Schedules describing the service offerings of the HowardSimon Companies. Separate Service Schedules apply to (i) HSP-provided payroll and HR Solutions Service offerings and; (ii) HSR-provided plan administration and recordkeeping Service offerings; and (iii) Swipeclock time tracking services (where HSP is the reseller, but not the service provider). Each Service Schedule is solely between you and HSP (for payroll and HR Solutions Services) or HSR (for retirement plan recordkeeping and administrative services) as identified in the Service Schedule, except that SwipeClock LLC shall be an intended third-party beneficiary of the Swipeclock Service Schedule. Each such Service Schedule makes available a range of services, which may be elected on a “bundled” or “à la carte basis”. This MSA hereby expressly incorporates each Service Schedule applicable to any Service you request, and you acknowledge and agree that your request for any Service constitutes your agreement to and consent to be bound by the terms of the applicable Service Schedule. If for any reason this MSA has terms that are inconsistent with those contained in a Service Schedule, the terms of the applicable Service Schedule will control with respect to the relevant Service. 3.3 Changes to Services. Our Service offerings are likely to evolve over time to reflect changes in technology, applicable law and regulation and other changes. Consequently, we may propose changes to this MSA, the Service Schedules and other applicable agreements from time to time as set forth in Section 3.5 (Changes to Terms). 3.4 Changes to Terms. We may update or modify the terms applicable to our provision of Services (including any underlying components or features), including fees, upon 60 days prior notice to you, delivered electronically in the manner described below. At any time prior to the specified effective date for such change, you may indicate your refusal to consent to the proposed change in terms by contacting us in the manner specified in the notice of changed terms. If you choose not to accept changes of which you have been notified, we will discontinue our provision of the applicable Service. By continuing to use a Service following due notice by us of any updated terms, and after such terms become effective, you shall be deemed to have furnished your actual consent to the updated terms. 3.5 Compliance with Law. You will agree to, and shall, comply with applicable laws and regulations in connection with your use of the Services, including all applicable privacy laws as well as those laws and regulations applicable to your business, your employment of individuals, and/or your transactions with service providers (e.g., applicable employment or tax related laws), and/or the administration of employer-sponsored retirement plans, including the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). 3.6 No Professional Advice. Except as may be expressly provided in an applicable Service Schedule, any information, material, or content you may receive through or in connection with the Services is for informational purposes only, and shall not be construed as nor shall it constitute the provision by us of financial, tax, legal, regulatory, investment or other professional advice. 4. Establishing a Client Account 4.1 Your Account. You must register for a Client Account in order to access the Services. By registering your Client Account, you agree to submit accurate and complete registration information to us and to keep such information up to date. You will take reasonable steps to prevent unauthorized use of and to keep your password(s), including those of your designated representative(s), secure and confidential. We encourage you to use “strong” passwords with your account (for example, passwords that use a combination of upper and lowercase letters, numbers and symbols, with a minimum of eight characters). We will not be liable for any losses caused by any unauthorized use of your Client Account. You must notify us immediately of any breach of security or unauthorized use of your Client Account. 4.2 Your Responsibilities. You are solely responsible for: (i) the selection of your designated representative(s); (ii) managing access to your Client Account; and (iii) ensuring that your designated representative(s) access to and use of the Services complies with this MSA and applicable law. 4.3 Equipment and Software. You are responsible for procuring all equipment and software necessary to use the Services, including for example, computer(s), internet access, and a suitable mobile device for using the HowardSimon App if you wish to do so. You are responsible for any fees, including internet or mobile fees, that you may incur when accessing or using the Services. By providing your mobile number and using the Services, you consent to our use of your mobile number for calls and texts in order for us to perform and/or improve the Services. We will not charge for any calls or texts, but standard message charges and/or other charges from your wireless carrier may apply. 4.4 Hiring/Recruiting of Our Employees. You agree not to recruit for employment, offer or accept for hire anyone known to you as a current employee of ours or a former employee of ours whose period of service ended less than 12 months prior, while this Agreement remains in effect and for a period of 12 months thereafter. If you accept an employee or former employee for hire in violation of this Section 4.4, you agree to pay to us as liquidated damages a sum equal to 50% of the annual salary we had most recently paid to such employee (or former employee). 5. Consents & Authorizations 5.1 Client Account Information. You agree to provide us with all the necessary Client Account information for us to provide the Services to you. You also agree that we are not responsible for your inability to use the Services or receive any benefit from the Services due to inaccuracies or omissions in the Client Account information that you provide to us with. 5.2 Authorization of Recurring ACH Debit. You authorize us and our payment processors, as applicable, to (i) store your designated bank or credit card account information and your other payment related information (“Payment Information”), and (ii) use any Payment Information you provide to us at any time to automatically debit all applicable fees from your designated account, via ACH debit transaction, on the date such fees are due under this MSA and applicable Service Schedules. You certify you are an authorized user of the designated account or that you have permission to designate the account for payment. You agree to follow National Automated Clearing House Association (“NACHA”) rules applicable to ACH transactions. You agree that you will not dispute scheduled transactions with your bank so long as the transactions correspond to this MSA (as updated from time to time in accordance with this MSA), an applicable Service Schedule or any other agreement for the Services. You understand that because these are electronic transactions, funds may be withdrawn from your account immediately. If an ACH debit transaction is rejected for any reason, you understand we may continue to re-process the ACH debit transaction (for the amount due and applicable fees as explained in this Section) after the first ACH attempt. Further, you understand that we may also impose a fee for each declined transaction, as permitted by applicable law, and that fees for declined transactions may be in the amount of $20.00 or higher per declined transaction. 5.3 Revocation of ACH Debit. Your authorization of our automatic use of ACH debit for payment of fees on their respective due dates will remain in full force and effect until you send us written notice revoking the authorization at least 30 days prior to the next payment due date. Your revocation of ACH Debit authorization does not relieve you from your payment obligations under this MSA, Service Schedules or other applicable agreements. If you revoke authorization of our automatic use of ACH debit for payment of fees, then we reserve the right to immediately discontinue the provision of all Services. 5.4 Electronic Communications’ Consent. For contractual purposes and without affecting your statutory rights, you consent to receive all communications, notices and disclosures from us electronically via email notification of postings to the Client Portal; this includes tax document notices, payroll documents, and employee benefits notices (e.g., summary plan descriptions, other ERISA notices, COBRA notifications, enrollment information, and plan amendments). You also agree that all communications we provide to you electronically satisfy any legal requirement that the communications would satisfy if they had been provided in a written hard copy, including, for example, agreements, notices or disclosures. You also authorize us to receive such communications electronically on your behalf. You may withdraw your consent to electronic communications at any time by notifying us. If you do withdraw such consent, you acknowledge that we will not be able to provide the Services to you, that your Client Account will be deactivated and that we will suspend the provision of Services. 5.5 Electronic Signature. 5.5.1 Signature Authorization & Consent. You authorize us to use and to re-use your electronic signature (“Signature”) in certain cases without having to separately re-obtain your Signature each time. By electing to use the Services, you authorize us to: (a) use your Signature on the specific documents you authorize us to sign on your behalf, (b) to re-use your Signature on a document previously authorized for Signature in the event that same document is not materially updated or modified, or (c) repurpose your signature to sign or file Documents on your behalf (for example, benefits enrollment forms or tax documents). You represent and warrant that all Signatures will be that of an individual with the authority to bind you. Further, by using the Services, entering into this MSA, and by voluntarily providing us with your electronic signature (i) you agree to do business with us electronically; (ii) you intend your electronic signature to be the same as your handwritten signature for the purposes of validity, enforceability, and admissibility; (iii) you agree to maintain the necessary software and equipment as provided in Section 4.3 (Equipment and Software) to access and use the Services; and (iv) and agree you may access your signed documents through the Services. 5.5.2 Designation of Agent and Attorney-in-Fact. You designate us as your agent and attorney-in-fact (which appointment is coupled with interest and will be irrevocable so long as this MSA is in effect) to act on your behalf for the limited purposes, as necessary, to perform the Services, with the same legal force and effect as if you signed and filed each such document. You may revoke your designation of us as your agent and attorney-in-fact at any time by sending us notice of your revocation. 6. Privacy & Data Security 6.1 General. We will maintain commercially reasonable administrative, physical, organizational, and technical safeguards designed to prevent unauthorized use, access, processing, destruction, loss, alteration, or disclosure of your Client Account or service records. You are responsible for maintaining appropriate safeguards to protect and safeguard the confidentiality of sensitive information, including by not limited to personal identifiable information or “PII,” as well as all other information as provided for under applicable law, used to conduct your business or otherwise within your custody. 6.2 Breach. We will promptly notify you upon becoming aware of a material incident that has actually compromised the security, confidentiality, or integrity of your Client Account as required by applicable state and federal laws and regulations. 7. Confidentiality. Each party will use reasonable care to protect any Confidential Information (as defined below) of the other party. Each party will use Confidential Information only to perform its obligations or exercise its rights under this MSA and applicable Service Schedules. Neither party will disclose any Confidential Information of the other party to any third party, except to its affiliates, employees, or contractors who need-to-know (and who are bound by confidentiality obligations as protective as those in this MSA), without the other party’s prior written consent. “Confidential Information” includes information of a party that should reasonably be understood to be confidential given the circumstances surrounding its disclosure, but does not include any information that (i) is or becomes generally available to the public through no fault of the receiving party; (ii) is in the possession of or was known to the receiving party without restriction prior to entering into this MSA; (iii) is disclosed to the receiving party on a non-confidential basis by a third party who is entitled to make the disclosure; (iv) is or was independently developed by the receiving party without reference to or use of any Confidential Information disclosed under this MSA; or (v) is approved for disclosure by the disclosing party. Neither party will be restricted from disclosing the other’s Confidential Information where the party is required to make the disclosure to a government entity or where the disclosure is ordered by a court of competent jurisdiction; in such case, the party required to make the disclosure will provide the other party prior notice of the disclosure if it is reasonably feasible and legally permissible, and failure to provide such notice will not prohibit the party required to make the disclosure from making the disclosure. Notwithstanding the foregoing, we may use your Confidential Information in the compilation of statistical data in which such information is not identifiable, and all rights to such statistical data shall be solely and exclusively ours. We shall have the sole right to use, sell and distribute any such statistical data. 8. Fees 8.1 Prices. Our prices for the Services we make available can be found on the Pricing Schedule on the Client Portal (“Pricing Schedule”). We may change our prices for Services you have elected from time to time with at least 60 days advance notice to you as described in Section 3.5 (Changes to Terms). Your continued use of the Services following the effective date of any such price change shall constitute your actual consent to the change. 8.2 Transactional Fees. We reserve the right to charge certain Fees based on specific transactions or requests made through the Services (such as for background checks, OFAC checks, data export requests, document copy requests, etc.). Such Fees will be as set forth in the applicable Service Order. 9. Payment Terms 9.1 Payment. You agree to pay all the fees as identified in the applicable Service Order for the Services you have ordered. All fees, other than transactional fees, are payable when due as stated in the Service Schedule. Transaction Fees, if any, are due in accordance with the applicable Service Order. All fees are quoted in, and all payments must be made in, U.S. dollars. As noted in Section 5.2 (Authorization of Recurring ACH Debit) you authorize us to automatically debit all applicable Fees, from the designated account, via ACH debit transaction on the due date. 9.2 Late Payment. Late payments will accrue interest of 1.5% per month or the greatest amount allowed by state law, whichever is lower. We may suspend or terminate this MSA, a Service Schedule, or access to and use of the Services for failure to pay Fees as they come due. Additionally, if Fees are not paid when due, you will pay us costs of collection, including reasonable attorneys’ fees and expenses actually incurred. 9.3 Taxes. All payments required by this MSA exclude sales, value-added, use, or other taxes and obligations, all of which you will be responsible for and will pay in full, except for taxes based on our net income. If we have the legal obligation to pay or collect taxes for which you are responsible under this Section 9.3 (Taxes), you authorize us to automatically debit the applicable taxes, from the designated account, via ACH debit transaction on the due date, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. 10. Term, Automatic Renewal & Termination 10.1 Term of the MSA. The MSA term starts on the Effective Date and continues until terminated in accordance with the terms of this MSA. 10.2 Termination. 10.2.1 For Material Breach. Either party will have the right to terminate this MSA, including applicable Service Schedules, if the other party materially breaches this MSA and fails to cure such breach within 30 days after receipt of such written notice that it is in breach. This 30-day cure period will not apply in the case of your failure to pay Fees as they become due. A termination for material breach shall be effective immediately upon the delivery by the non-breaching party of notice of termination to the breaching party. 10.2.2 For Convenience. Either party will have the right to terminate this MSA, including applicable Service Schedules, upon 60 days advance written notice to the other party. 10.2.3 Effect of Termination. Upon the effective date of termination of this MSA for any reason: (i) your right to access or use the Services will terminate immediately; (ii) we will cease providing the Services and we will deactivate or delete your Client Account, and all associated materials, subject to our obligation to work with you to export Client records under Section 10.3 (Transfer of Records); (iii) any and all of your payment obligations under this MSA will become due immediately; and (iv) within 30 days from the effective date of this MSA’s termination, if a party provides written notice to the other requesting return of such party’s Confidential Information, the receiving party will destroy (evidenced by a certificate of destruction) or return the tangible embodiments of the requesting party’s Confidential Information in its possession and shall not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. All Service Schedules, to the extent not earlier terminated, will terminate coincident upon termination of this MSA. 10.3 Transfer of Records. Upon your written request within 30 days after the effective date of termination of this MSA, and subject to your acceptance and payment of applicable fees and charges, we will make copies of your records available to you for export or download. Except and unless to the extent legally required, after the transfer of your records or upon the expiration of such 30-day period, we will have no contractual obligation to maintain or provide any records to you. You acknowledge and agree that we may be required to maintain certain records to comply with applicable law or our data retention policies. 10.4 Survival. All provisions of this MSA which by their nature should survive termination of this MSA will so survive, including, without limitation, Sections 11, 12 and 13. 11. Indemnification 11.1 By You. By You. You will, at your own expense, defend, indemnify and hold the HS Companies, their affiliates, related companies, and each of their officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “HowardSimon Parties”) harmless against all claims, demands, actions, liabilities, damages, losses, costs and expenses (including court costs, and attorneys’ fees) arising out of a third party claim against a HowardSimon Party to the extent it arises out of: (i) your unauthorized use of or access to the Services; (ii) your violation of any applicable law, rule or regulation; (iii) any material inaccuracies or omissions in the information you furnished to us to facilitate our provision of Services; (vi) your gross negligence or willful misconduct; or (iv) yourany breach by you of, or other failure to perform your obligations under, this MSA and any applicable Service Schedules. You will have no obligation with respect to any claim for which we are required to indemnify you. 11.2 By Us. We will, at our own expense, defend, indemnify and hold you, your affiliates, related companies, and each of their officers, directors, employees, agents, representatives, partners and licensors (collectively, the “Client Parties”) harmless against all losses, costs and expenses arising out of a third party claim against a Client Party to the extent such claims arise directly from our intentional misconduct or gross negligence in delivering the Services, or breach of any heighted standard of care set forth in an applicable Service Schedule. We will have no obligation with respect to any claim for which you are required to indemnify us. 11.3 Procedure & Settlements. The parties agree that these indemnification obligations are subject to the indemnitor providing the indemnitee with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) available information and assistance, at indemnitor’s expense, to settle and/or defend any such claim; provided, however, that the failure to give such notice shall not relieve the indemnitor’s indemnifying obligations unless the indemnitor was actually prejudiced by such failure. The indemnitor may not, without the prior written consent of the indemnitee (which shall not be unreasonably withheld, conditioned, or delayed), settle any claim subject to indemnification that provides for any admission of the indemnitee’s guilt or binds the indemnitee to any ongoing obligation other than the payment of money for which the indemnitor is obligated to pay. 12. Limitation of Liability 12.1 Disclaimer of Certain Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE HS COMPANIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, WHETHER OR NOT WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATING TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY. 12.2 Limitations of Liability TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE HS COMPANIES TO YOU REGARDING THIS MSA (INCLUDING APPLICABLE SERVICE SCHEDULES) OR THE SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT YOU PAID TO US, IF ANY, FOR THE SERVICES OVER THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. 12.3 Basis of Bargain. THE LIMITATIONS OF LIABILITY ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. 13. Arbitration & Dispute Resolution. PLEASE READ THE FOLLOWING ARBITRATION CLAUSE CAREFULLY AS IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. 13.1 13.2 Waiver of Jury Trial. THE PARTIES MUTUALLY AGREE TO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. The parties are instead electing that all claims and disputes be resolved by arbitration. An arbitrator can award on an individual basis the same damages and relief as a court and must apply this MSA as a court would. However, there is no judge or jury in arbitration, and a court’s ability to review an arbitration award is very limited. 13.3 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION CLAUSE MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. CLAIMS OF MORE THAN ONE CLIENT CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CLIENT. If a decision is issued stating that applicable law precludes enforcement of any of this Section’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into state courts located in Cook County, Illinois or the federal courts of the United States in the Northern District of Illinois. All other claims will be arbitrated. 13.4 Severability of Arbitration. Except as provided in Section 13.3 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Section are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of this Section will continue in full force and effect. 14. General Provisions 14.1 Assignment. This MSA, and your rights and obligations under this MSA, may not be assigned or otherwise transferred by you without our prior written consent. We may assign this MSA as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of our assets related to this MSA or for commercial purposes. Any attempted assignment or transfer by you without required consent will be null and void. 14.2 Force Majeure. Except for payment obligations, neither party will be liable for any delay or failure to perform resulting from causes outside its reasonable control. 14.3 Notice. We will provide notice(s) to you via the email address you have provided to us. Sending notices to the last e-mail address you have provided to us will satisfy our notice requirements to you under this MSA and such notices will be effective as of the date sent. You may give us notice by logging into the Client Portal and submitting the applicable notice (or request) and such notices will be effective as of the date submitted by you and confirmed by us. 14.4 Waiver; Severability. Any waiver or failure to enforce any provision of this MSA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any part of this MSA is held invalid or unenforceable, that part will be modified to reflect the original intention of the parties, and the other parts will remain in full force and effect. 14.5 Entire Agreement. This MSA, including all applicable Service Schedules, forms a single integrated agreement between you and us. This MSA expressly overrides and supersedes all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral with respect to your access or use of the Services. 14.6 Headings. Section titles in this MSA are for convenience only. 14.7 Independent Contractors. Your relationship to us is that of an independent contractor, and neither party to this MSA are an agent or partner of the other party. 15. Document Versions and Effective Dates Effective 4/1/2023: Master Service Agreement Version 1.0 Effective 4/1/2023: Payroll Services Schedule Version 1.0 Effective 4/1/2023: Retirement Services Schedule Version 1.0 Effective 4/1/2023: Time Keeping (Swipeclock) Schedule Version 1.0 |
