Last Revised: March 25, 2018
This License Agreement (this “Agreement”) is made and entered into by and between Path Financial, Inc. DBA Retiremap (“Licensor”) and client (“Licensee”). In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. General and License.
1.1 General. This Agreement governs the rights with respect to Licensor’s platform and related software as described in Exhibit A, (collectively, the “Platform”) and Licensor’s services as described in Exhibit A (such services and the Platform, collectively, the “Services”).
1.2 License. Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a limited, non-transferable, non-exclusive right, during the term of this Agreement, to: (a) promote, market, offer to sell and sell, directly or indirectly (via third-party resellers and/or distributors that have been pre-approved, in writing, by Licensor (collectively, the “Licensee Sublicensees”)) the Services to entities that acquire the Services for their internal use, and not for resale, lease, loan or redistribution by retirement plan sponsors (“End Customers”) for use by such End Customers’ eligible employees (“Users” or “EEs”); (b) use the Services solely in order to enable Licensee to support End Customers’ and Users’ use of the Services; and (c) grant End Customers (and their Users) the right to access and use the Services.
2. Restrictions. Except as expressly authorized by this Agreement, Licensee may not (and will ensure that Licensee Sublicensees, End Customers and Users do not): (a) modify, disclose, alter, translate or create derivative works of the Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components thereof); (c) disassemble, decompile or reverse engineer the Platform (except to the extent and for the express purposes authorized by any and all applicable federal or state laws); (d) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (e) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (f) copy, frame or mirror any part or content of the Services; (g) build a competitive product or service, or copy any features or functions of the Services; (h) interfere with or disrupt the integrity or performance of the Services; (i) attempt to gain unauthorized access to the Services or their related systems or networks; (j) disclose to any third party any performance information or analysis relating to the Services; (k) remove, alter or obscure any proprietary notices in or on the Services or the Documentation including copyright notices; or (l) cause or permit any third party to do any of the foregoing.
3. Ownership and Reservation of Rights.
3.1 Licensee. As between the parties and subject to Section 5.4, Licensee owns all right, title and interest in and to all Licensee products and services, Licensee’s Marks (as defined below) and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “Licensee IP”).
3.2 Licensor. As between the parties and subject to Sections 1.2 and 5.4, Licensor owns all right, title and interest in and to the Services (including, the Platform and any and all modifications to or derivative works of the Services), Licensor’s Marks, Anonymous Usage Data (as defined below) and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “Licensor IP”).
3.3 Reservation of Rights. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. For the purpose of this Agreement, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
4. Fees and Payment Terms.
4.1 Fees. The fees for the Services are set forth in Exhibit B (the “Fees”). Unless otherwise expressly specified in Exhibit B, Licensee will pay within 15 days of the date Licensor’s invoice to Licensee. Following the Initial Term (as defined below), Licensor may modify the fees of the Services and the Support, at its sole discretion, by providing Licensee with 90 days prior written notice. All payments due under this Agreement will be made: (a) by check or bank wire transfer, in immediately available funds to an account designated by Licensor; and (b) in U.S. Dollars.
4.2 Interest and Taxes. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Licensee will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Services provided under this Agreement,Excluding only taxes based solely on Licensor’s net income. Licensee will indemnify and hold Licensor harmless from and against any and all such taxes and related amounts levied upon the provision of the Services and any costs associated with the collection or withholding thereof, including penalties and interest.
5. Obligations of the Parties.
5.1 End Customer Agreements. Prior to providing an End Customer with access to the Services, Licensee will ensure that each End Customer is subject to an enforceable agreement that includes terms and conditions at least as protective of Licensor and the Services as those set forth in this Agreement (“End Customer Agreement”). Each End Customer Agreement will be executed in such a manner that they are legally binding upon the applicable End Customer. Further, Licensee will (a) ensure that each End Customer Agreement provides that Licensor may monitor, collect, use and store anonymous and aggregate statistics regarding use of the Services (“Anonymous Usage Data”), and (b) use its best efforts to enforce all End Customer Agreements. Any End Customer warranties with respect to the Services will be fulfilled by Licensee, and Licensor and its licensors will have no obligation to provide any warranties or Support directly to any End Customer or User. Licensee acknowledges and agrees that the Services contain click-through End User agreements to which each End Customer and User must agree prior to use of the Services.
5.2 Licensee Sublicensees Agreements. Prior to providing a Licensee Sublicensee with access to the Services, Licensee will ensure that each Licensee Sublicensee is subject to an enforceable agreement that includes terms and conditions at least as protective of Licensor and the Services as those set forth in this Agreement (“Licensee Sublicensee Agreement”). Each Licensee Sublicensee Agreement will be executed in such a manner that they are legally binding upon the applicable Licensee Sublicensee, and Licensee will use its best efforts to enforce all Licensee Sublicensee Agreements. Notwithstanding any terms to the contrary in this Agreement, the use of Licensee Sublicensees will not relieve Licensee of its obligations under this Agreement. Licensee will be responsible for acts or omissions of all of its Licensee Sublicensees to the same extent as if such acts or omissions were undertaken by Licensee, and for purposes of this Agreement, work performed or acts or omissions undertaken by such Licensee Sublicensees will be deemed to have been performed or undertaken, as the case may be, by Licensee.
5.3 Support and Additional Obligations. Licensor will use commercially reasonable efforts to provide Licensee with its standard support for the Services. Further, each party will fulfill its respective obligations as set forth in Exhibit A.
5.4 Marketing. The parties may confer regularly regarding marketing efforts such as incremental press releases, and joint promotional efforts. Subject to the terms and conditions of this Agreement, each party (each a “Grantor”) hereby grants to the other party (each a “Grantee”) a non-exclusive and limited license to use and publicly display the trade names, trademarks, service marks, symbols and logos designated by Grantor (“Marks”) in order to fulfill Grantee’s obligations under this Agreement; provided, however, that each such type of use has been pre-approved by Grantor in writing (which approval will not be unreasonably withheld) and is in accordance with the guidelines provided by Grantor to Grantee. All use and goodwill of Grantor’s Marks will inure solely to the benefit of Grantor. At no time during or after the term of this Agreement will Grantee challenge or assist others to challenge Grantor’s Marks or the registration thereof or attempt to register any Marks confusingly similar to Grantor’s Marks. Grantee agrees that any use of Grantor’s Marks will be accompanied by such symbols, such as ® or ™, as Grantee directs in writing. If Grantee becomes aware, Grantee will promptly notify Grantor of: (a) any use by any third party of Grantor’s Marks; or (b) any use by any third party of similar Marks which may constitute an infringement or “passing off” of Grantor’s Marks.
6. Confidentiality. “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the components of the business plans, financial plans, know-how, customer information, strategies and other similar information. The Receiving Party will maintain in confidence, during the term of this Agreement and thereafter, the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than reasonable care. Any Confidential Information of the Disclosing Party will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under this Agreement. In addition, the Receiving Party: (a) will not reproduce Confidential Information disclosed by the Disclosing Party, in any form, except as required to accomplish the Receiving Party’s obligations under this Agreement; and (b) will only disclose Confidential Information disclosed by the Disclosing Party to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such directors, officers, employees and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 6. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement: (i) in confidence, to legal counsel of such party; (ii) in confidence, to such party’s accountants, banks, financing sources and their advisors; (iii) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (iv) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction. Confidential Information will not include information that: (x) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; or (y) Receiving Party rightfully receives from a third party without restriction on disclosure or use. The Receiving Party agrees that its obligations hereunder are necessary and reasonable in order to protect the Disclosing Party’s Confidential Information, and expressly agrees that monetary damages would be inadequate to compensate Disclosing Party for any breach of this Section 6. Accordingly, Receiving Party acknowledges and agrees that: (1) any such violation or threatened violation will cause irreparable injury to Disclosing Party; and (2) in addition to any other remedies that may be available to Disclosing Party at law, in equity or otherwise, Disclosing Party will be entitled to obtain injunctive relief against any threatened or actual breach of this Section 6 or the continuation of any such breach, without the necessity of proving actual damages and without the necessity of posting a bond (or other security) from any court of competent jurisdiction. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Licensee to Licensor with respect to the Services, the Support or Licensor (collectively, “Feedback”) will constitute Confidential Information of Licensor. Licensor will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on account of Intellectual Property Rights or otherwise.
7. Representations, Warranties and Remedies.
7.1 General Representations and Warranties. Each party represents and warrants that: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; (d) this Agreement is valid, binding and enforceable against it in accordance with its terms; and (e) it will perform its obligations under this Agreement in accordance with all applicable laws.
7.2 Licensor. Licensor represents and warrants that: (a) it will perform the Support in a professional and workmanlike manner; and (b) the Services will conform, in all material respects, to its applicable specifications set forth in Exhibit A. The representation and warranty set forth in Section 7.2(b) will not apply if a non-conformity of the Services results from any accident, abuse, or misuse by any party other than Licensor or any unauthorized use or combination of the Services (or any component thereof) with any software, hardware or other item not approved, in writing, by Licensor.
7.3 Licensee. Licensee represents and warrants that: (a) it will not make any representations or warranties on Licensor’s behalf; (b) it will not use deceptive, misleading, illegal or unethical practices in fulfilling its obligations under this Agreement; (c) it will use its best efforts to market, promote, offer to sell and sell the Services to End Customers in accordance with the terms and conditions of this Agreement; and (d) that Licensee will not (and will not permit End Customers or Users to) provide any data via the Services unless such data is expressly required by the Services, as set forth in Exhibit A (“Data Requirements”).
7.4 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 7.1, 7.2 AND 7.3, EACH PARTY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT AND THE SERVICES, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
8.1 Infringement Indemnity. Licensor, at its sole expense, will defend Licensee from and against any and all third party claims, suits, actions or proceedings (each a “Claim”), and indemnify Licensee from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Licensor resulting from or arising in connection with the exercise of any of the rights granted under this Agreement with respect to any of the Licensor IP (excluding any open source software) infringing or misappropriating any U.S. patents or U.S. copyrights of any third party. In the event of a Claim pursuant to this Section 8.1, Licensor may, at Licensor’s option and at Licensor’s expense: (a) obtain for Licensee the right to continue to exercise the license granted to Licensee under this Agreement; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify the Services to make them non-infringing. If (a), (b), or (c) is not obtainable on commercially reasonable terms, Licensor may terminate this Agreement, effective immediately, by written notice to Licensee. In the event of a termination of this Agreement pursuant to this Section 8.1, all rights and licenses with respect to the Services will immediately cease. Licensor’s indemnification obligations do not extend to Claims arising from or relating to: (i) any negligent or willful misconduct of Licensee, any End Customers, any Users or any third party; (ii) any combination of the Services (or any portion thereof) by Licensee, any End Customers, any Users or any third party in combination with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination; (iii) any modification to the Services by Licensee, any End Customers, any Users or any third party where the infringement would not have occurred but for such modification; (iv) the use of the Services by Licensee, any End Customers, any Users or any third party in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; (v) the continued use of the Services after Licensor has provided substantially equivalent non-infringing software or service; or (vi) any Licensee IP.
8.2 Licensee Indemnity. Licensee, at its sole expense, will defend Licensor and its directors, officers, employees and agents (“Licensor Indemnitees”) from and against any Claims and indemnify Licensor Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of, based on or related to (a) Licensee’s business operations; (b) any Licensee IP; or (c) any breach or alleged breach of Licensee’s obligations under this Agreement.
8.3 Procedures. The indemnifying party’s indemnification obligations under this Section 8 are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations under Section 8 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
9. Limitation of Liability. EXCEPT FOR BREACHES OF SECTIONS 3 OR 8 OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY LICENSEE TO LICENSOR DURING THE 12 MONTH PERIOD PRIOR TO THE EVENT UNDER WHICH THE DAMAGES AROSE; AND (B) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, LICENSOR WILL COMPLY WITH SECURITY REQUIREMENTS (THE “SECURITY REQUIREMENTS”) SET FORTH IN EXHIBIT A TO PREVENT THE DISCLOSURE OF, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY DATA. IF A DATA BREACH DOES OCCUR AS A RESULT OF A BREACH OF THE LICENSOR’S SECURITY OBLIGATIONS, LICENSOR WILL BE LIABLE FOR UP TO TWO  TIMES THE VALUE OF THE CONTRACT.
10. Term, Termination and Effect of Termination.
10.1 Term and Termination. Unless terminated earlier as permitted below, the term of this Agreement will be for two  years (“Initial Term”), and thereafter, this Agreement will automatically renew for additional one year periods (each a “Renewal Term”). In addition to Licensor’s right to terminate this Agreement pursuant to Section 10.1, either party may terminate this Agreement, for cause, if the other party: (a) breaches this Agreement and does not remedy such failure within 30 days after its receipt of written notice of such breach; or (b) terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. Additionally, either party may terminate this Agreement within thirty  days following the launch date (defined as the date that the program is made publicly available to employees, typically through on-site workshops, a webinar or an email announcement) the pilot program. After the Initial Term, either party may terminate this Agreement, for convenience, with thirty  days prior written notice to the other party. Further, if Licensee uses the Services in any unauthorized manner, Licensor may immediately terminate this Agreement, for cause, with written notice to Licensee.
10.2 Effect of Termination. Upon any termination of this Agreement: (a) all rights and licenses granted to Licensee under this Agreement will immediately terminate; (b) Licensee will immediately pay to Licensor all amounts due and payable up to the effective date of termination of this Agreement; and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Licensee will immediately confirm, in writing, that it has complied with Section 10.2(c) at Licensor’s request. Notwithstanding any terms to the contrary in this Agreement, Sections 2, 3, 4, 6, 7.4, 8, 10.2 and 11 will survive any termination of this Agreement. Further, if Licensor terminates this Agreement for convenience or Licensor terminates this Agreement for cause, each End Customer Agreement will survive such termination of this Agreement for the earlier of the term of such End Customer Agreement or the close of the one year period commencing upon the date of written notice of any termination of this Agreement, and in all other terminations of this Agreement, Licensor may immediately provide the Services directly to End Customers and Users.
11. General Provisions.
11.1 Entire Agreement. This Agreement including all exhibits to this Agreement, all of which are incorporated herein by reference, sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.
11.2 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
11.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement. Prior to the filing or initiation of any action or proceeding relating to this Agreement, the parties must participate in good faith mediation in San Francisco County, California (except an action or proceeding required to protect or enforce a party’s Intellectual Property Rights). If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.
11.4 Publicity. Upon Licensee’s prior written approval, Licensor may use Licensee’s Marks on the Licensor website and publicly-available printed materials, identifying Licensee as a customer of Licensor and describing Licensee’s use of the Services notwithstanding any terms to the contrary in this Agreement. Upon Licensee’s written approval, Licensor may issue a press release identifying Licensee as customer of Licensor.
11.5 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Licensee, by operation of law or otherwise, without the prior written consent of Licensor, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Licensor may assign, delegate or transfer (by sale, merger, operation of law or otherwise) this Agreement or any right, title, interest or obligation hereunder without the prior written consent of Licensee. This Agreement will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of this Agreement.
11.6 Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless made in a non-preprinted agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
11.7 Notices. Any notice (whether this Agreement expressly states “written notice” or “notice”) or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of five days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
11.8 Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
11.9 Counterparts. This Agreement may be executed: (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the parties by exchange of signature pages by mail, facsimile or email (if email, signatures in Adobe PDF or similar format).
11.10 Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers used by Licensor, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).
DESCRIPTION OF SERVICES, SPECIFICATIONS, OBLIGATIONS, DATA AND SECURITY
Path Financial, Inc. (“Licensor”) will provide ________________________________________ (“Licensee”) with the Retiremap Platform which includes:
- Creating End Customer accounts and assets
- Creating User accounts and assets
- Providing administrative access
Overview of Key Platform Functionalities and Services, but not limited to:
I. Retiremap Platform
End Customer accounts
- Create online account using Licensee and End Customer details
- Custom-branded landing page(s)
- Append End Customer settings, such as website address of the retirement or health savings account provider, to new User accounts
Access to a customized package, including engagement strategies, as well as as messages, collateral and other materials to encourage Users to enroll in the Retiremap program
- Update User coaching tracks with new content and advanced engagement strategies
- Create User accounts, whether generated on a computer or a mobile device
- Access for Licensee to an enterprise-level CRM, including profile summaries for all User accounts, as well as the ability to segment and mass message Users
Access forLicensee to online End Customer performance reports based on aggregate User data
II. Initial responsibilities of Licensee for each Retiremap implementation:
- Send all related items required at the beginning of each implementation phase. Some of these items include, but are not limited to End Customer’s company name, number of End Customer’s User count, plan level details, implementation timeline, provider links and other information requested by Licensor.
- On-going assistance with promoting the Retiremap program to Users, by working through interested parties at End Customers, such as human resources directors
- Review and customization of the End Customer and Licensee specific content prior to individual End Customers’ implementations
- Verify account set up and customization have been accurately completed, by creating at least one test User account prior to the launch of the program
- To the extent that a Licensee licenses the Retiremap platform and then enters into a separate agreement with the End Customer to make the platform available for a user fee, the Licensee would similarly be subject to the 408(b)(2) fee disclosure requirements. If the Licensor’s licensing fee varies with the number of End Customer or Users, the Licensee’s 408(b)(2) fee notice to the End Customer would need to disclose the firms role as a subcontractor and its compensation. This disclosure can be found in Exhibit C.
II. On-going responsibilities of Licensee:
- Confer at least monthly on marketing efforts to promote Licensor to End Customers
- Contact Licensor if any End Customer data or contact information needs to be updated
Licensor will neither seek, store nor retain personally identifiable information such as social security numbers, credit card information or other personally identifiable information other than name and email address, which are required to create a User account. In the course of creating a User account, Licensor shall collect information about User’s financial goals, approximate household assets, approximate household income, approximate age, marital status, zip code, debt issues and other information. In the event such personally identifiable information is provided that is neither required to create a User account nor requested by Licensor, Licensor shall not be held liable.
Licensor’s products, services and website shall be of good quality and compliant with all applicable laws and regulations, and shall also employ commercially reasonable information and data security procedures to prevent the unauthorized use or disclosure of information and data provided by Users. Licensor shall provide Licensee with information as reasonably requested regarding quality control, internal controls, legal and regulatory compliance, Licensor’s privacy practices and information and data security procedures, and other matters relevant to its operational soundness.
Once the one-time on-boarding process has been completed, End Customer accounts will be created within approximately four  weeks of receiving an online request, provided all necessary information has been accurately submitted.
Licensor will provide [to Licensee] those bug fixes and other updates with respect to the Services that Licensor makes generally available for no additional fees. Customization of the platform for Licensee will be charged on an hourly basis.
Rollovers From Current Plan to IRA:
Based on legal guidance received from the ERISA law firm, The Wagner Law Group, Licensor discloses the following:
“With regard to rollovers from a current employer’s Plan to an outside IRA, if the financial advisor is not otherwise a Plan fiduciary, the use of the Platform to provide participant level assistance will not cause the financial advisor to become a Plan fiduciary. As discussed above, the Platform is intended to provide non-fiduciary “investment education” (and not fiduciary “investment advice”) to participants. Therefore, the delivery of Platform-related services by a financial advisor will not cause the financial advisor to become an “investment advice” fiduciary. If the financial advisor is not a Plan fiduciary, the Platform may be customized so that retiring participants are asked if they would like to schedule a one-on-one meeting with the Plan’s financial advisor to discuss rollover IRAs.
If the financial advisor is a Plan fiduciary (e.g., advisor acts as fiduciary when advising on the Plan’s investment menu), the financial advisor may be prohibited from making rollover recommendations to retiring participants as cautioned in DOL Advisory Opinion 2005-23A. Thus, in the case of any financial advisor who is already serving as a fiduciary to a Plan we recommend that the Firm prohibit the use of the Platform to help capture rollovers from such Plan ( i.e., Plan accounts of retiring participants).”
FEES AND PAYMENT TERMS
Licensing Fee Terms
Licensee will pay a Monthly Subscription, as well as any applicable additional User fees, as defined in the Fees section of PATH FINANCIAL, INC. (DBA RETIREMAP) – SERVICES AGREEMENT.
The one-time on-boarding fee will be invoiced NET 0 based on the Agreement Start Date. At the conclusion of the one-time on-boarding process, Licensee will be invoiced on the first of the month for the full cost of their subscription plan. Payment terms for Licensee’s subscription plan are on a NET 15 payment basis. All additional costs incurred by Licensor, such as shipping or travel expenses, will be billed to Licensee at cost.
408(b)(2) Fee Disclosures for Plan Sponsor
This notice provides important information concerning the compensation earned by the Path Financial, Inc. DBA Retiremap (the “Firm”) in exchange for licensing the applicable services relating to its Retiremap platform.
A description of the services to be provided on behalf of the Plan is described in the licensing agreement for Retiremap (the “Agreement”).
A description of the direct compensation payable to the Firm in exchange for its platform-related services is described in the Agreement. The Firm does not receive any indirect compensation payable through the Plan’s investments or investment providers.
Manner of Receipt
The fee under the Agreement is payable under the following method of payment:
☐ Fee will be billed to Client.
☐ Fee will be paid from Plan assets.
Termination of Services
Upon termination of services in accordance with the Agreement:
☐ Any fee installment that has been prepaid in advance will be refunded to you on a pro-rated basis, based on the number of days that services are provided during the installment period
(through the date of termination of services).
☐ No amount will be refunded upon termination of services.