Terms of Service

 

These Terms of Services (“Terms”) and any appendices apply when you (the Plan Sponsor, Employer or Client as defined in your Vestwell Services Agreement Order Form and Fee Schedule (“Services Agreement”) engage Vestwell for Retirement Plan Services, Optional Retirement Plan Services, Investment-Related Services, Gradifi Powered by Vestwell Services, or Emergency Savings Account Services or if you are a party to other service agreements with Vestwell or its subsidiaries that links or refers to these Terms of Service. These Terms are incorporated by reference into your Services Agreement and any other agreements with Vestwell Holdings Inc. or our subsidiaries (“Vestwell”) and may be updated, so it is important that you review them carefully before using our services. Your use of our services indicates that you have read, agree to follow, and are bound by these Terms of Service and any updates to them.

Definitions. For purposes of these Terms of Service, all appendices, amendments, and for all materials provided to you while your Plan or Account is supported by Vestwell, the definitions shall have the meaning as set forth below:

• “Account” means your retirement plan account, emergency savings account (“ESA”), individual retirement account (“IRA”) or Gradifi solutions account supported by Vestwell.
• “Account Data” means all information and records that we require in order to open and support an Account.
• “Code” means the Internal Revenue Code and related regulations and any amendments.
• “Department of Labor” or “DOL” refers to the U.S. Department of Labor and its agency, the Employee Benefits Security Administration, responsible for ERISA oversight and enforcement.
• Some of our Terms apply to all “End Users” of the Vestwell platform, Gradifi Powered by Vestwell platform,or Vestwell’s other services without distinguishing between the categories of users or our services. In those instances, “End Users” means the Plan Sponsors, Clients, and Employers identified in our Services Agreement and each of their Plan participants, eligible employees, and any individual using or receiving Vestwell’s services.
• “ERISA” means the Employee Retirement Income Security Act of 1974 and related regulations as may be amended. 
• “Good Order” means providing Plan Data or Account Data (1) in the proper format, (2) submitted in accordance with the Vestwell established procedures, and (3) by the submission deadlines required by Vestwell, including compliance with specified deadlines before every regular or off-cycle pay period, at year-end, and as part of the annual compliance testing process (where applicable). For retirement Plan conversions from another service provider, Good Order also requires a full accounting in a specified format for all participant accounts with money sources identified. We may also require additional formatting, content, or submission specifications to constitute Good Order depending on your payroll provider, TPA, Plan features, the requirements of any of our banking partners, nature of your Account or the services you are receiving from us, or for other reasons necessary to comply with the Vestwell Platform compatibility and supported features. compatibility .
• “Instruction” means any direction or authorization provided to Vestwell, in any form or by any means, by the End User, any Third Party Applications or Providers, a Plan participant, beneficiary, alternate payee, any of their authorized representatives, or anyone who Vestwell reasonably believes to be acting on their behalf. Vestwell is entitled to rely on, accept, and shall have no liability for following Instructions from a) any End Users or from anyone who accesses the Vestwell Platform, Gradifi Powered by Vestwell platform, or any of our other sites or applications using the login credentials of any End User, Account owner, Plan Sponsor, Plan participant, you or any of their authorized agents or representatives or b) any Instructions that Vestwell reasonably believes to have been submitted with your authorization or the authorization of an Account owner, Plan participant, Plan Sponsor, TPA, advisor, beneficiary, alternate payee, or authorized legal representative.
• “Party” or “Parties” refer to Vestwell and the Employer, Plan Sponsor, or Client identified in our Services Agreement.
• “Plan(s)” refers to a tax-advantaged, defined contribution retirement program offered by employers to their employees that satisfies applicable requirements of ERISA and related regulators.
• “Plan Administrator” shall mean the Plan Sponsor which shall act as the “administrator” of the Plan as that term is defined under Section 3(16)(A) of ERISA, Section 414(g) of the Code, and the Plan documents.
• “Plan Data” means current and accurate census data, payroll files, and documentation of hours worked (if applicable), compensation (as defined by your Plan), deferral changes, salary deferral amounts reported on W-2 forms, auto-enrollment opt-outs, email addresses for all employees and participants (including terminated participants), mailing address, date of birth, date of hire and rehire, date of termination, prior years of service, full social security numbers, and other records or information required by Vestwell to perform our services.
• “Plan Sponsor” is the employer offering the Plan to its eligible employees.
• “TPA” means a Third Party Administrator that you have engaged separately from Vestwell to support your Plan. If your Plan uses a TPA, Vestwell’s scope of services is modified as set forth in these Terms so that your TPA, and not Vestwell, is fully responsible for performing certain responsibilities and for any errors, delays, or omissions.
• “Vestwell” may be referred to as “We,” “we,” “Us,” “us,” “Our,” or “our” (capitalized or not) and, unless specifically stated otherwise, any references to Vestwell include all of Vestwell’s subsidiaries and affiliates.
• “You” and “your” (capitalized or not) refers to the Employer, Client, or Plan Sponsor identified in our Services Agreement.

1. Your Use of the Vestwell Platform and Gradifi Powered by Vestwell Platform (collectively, “Vestwell Platforms”). The Vestwell Platforms are proprietary online platforms developed, owned, and operated by Vestwell. By engaging Vestwell and signing our Services Agreement, you agree to utilize the Vestwell Platforms in accordance with our Services Agreement, these Terms, the privacy policy applicable to you, and the Vestwell Platform Terms of Use, all of which may be updated from time to time and are incorporated into the Services Agreement by this reference. You or anyone acting on your behalf may not adopt procedures, Plan features, or rules that are incompatible or inconsistent with the terms of this Agreement or any of Vestwell’s operations, procedures, or Vestwell Platforms’ capabilities. Vestwell is entitled to rely upon and act upon any Instructions received from any person who logs into your portal or Account that we reasonably believe to be authorized to provide such Instruction. If you identify multiple authorized persons to act on your behalf, we will be entitled to rely on the signature or Instructions of only one such authorized person without any duty whatsoever to verify the scope of such authority. You are also solely responsible for promptly notifying us of any changes to any authorized person.

2. Consideration

1. The Plan Sponsor, Employer, or Client indicated in our Services Agreement shall pay (or cause the Plan to pay, if applicable) all fees and other charges for services to Vestwell, its affiliates, service providers, or third parties as set forth in your Fee Schedule. You understand that Vestwell’s fees are based in part upon your compliance with all applicable law and our practices and procedures set forth in our Services Agreement and in materials provided to you while your Plan or Account is supported on the Vestwell Platforms. To the extent that you deviate from those practices or fail to operate the Plan or your Account in accordance with applicable law or the Plan documents and Vestwell elects to provide additional services, you will be responsible for additional fees as determined by Vestwell’s then-prevailing hourly rate.

2. In addition to the fees set forth in your Fee Schedule, you are responsible for payment of any reasonable out-of-pocket expenses that Vestwell may incur on your behalf or on behalf of the Plan, such as postage or other mailing expenses in the event that you fail to provide us with accurate and valid email addresses for any participants, eligible employees, beneficiaries, or Account owners. We will notify you of such expenses.

3. For Vestwell’s Retirement Plan Services, Vestwell’s final fees to be charged to you or the Plan and any updates and fees regarding the service providers to the Plan will be reflected in the fee disclosure notices provided to you. You confirm that you are a “responsible Plan fiduciary” for all applicable purposes under DOL Reg. §2550.408b-2(c). Payment will be made from the Plan Sponsor or Plan assets, as designated by the Plan Sponsor, and the Plan Sponsor agrees to be liable for all payments in the event the Plan cannot or does not pay for our services. If your Plan has remained in an onboarding phase for more than 90 days after signing the Services Agreement due to a failure on your part to complete your onboarding responsibilities, we reserve the right to begin charging the fees set forth in your Fee Schedule. Plan Sponsor represents and warrants that its bank account is enabled to process ACH transactions and agrees to reimburse Vestwell for any penalties, fees, and assessments incurred as a result of Plan Sponsor’s bank rejecting any ACH transaction. Vestwell has provided you with a fee disclosure that includes a description of services that Vestwell and any of its affiliates or other service providers listed in our Services Agreement or fee disclosures will be providing to the Plan and the compensation that they will receive from or in connection with the Plan. By signing the Agreement and agreeing to these Terms, Plan Sponsor confirms it is a fiduciary and has received, reviewed, understood, and accepted the fee disclosure on behalf of the Plan, and agrees that the disclosed fees are reasonable.

4. Vestwell shall be entitled to obtain payment of all fees for our services via ACH or electronic funds transfer or deducted directly from your Account. The Parties agree to be bound by NACHA Operating Rules as they relate to all ACH transactions. If Vestwell receives notice that insufficient funds are available to satisfy any payment required by our Services Agreement or to pay for any Plan or Account contributions, you hereby authorize Vestwell to take such actions, without being considered a Plan or other type of fiduciary, as Vestwell deems appropriate to redeem shares of any Plan or Account in order to satisfy such payment. Vestwell may, but is not required to, contact you prior to effectuating such redemption and Vestwell may avail itself of any other right pursuant to the Agreement or applicable law, including providing immediate notice of termination of the Agreement.

5. At or before the expiration of the Initial Term or any Renewal Term, we reserve the right to reasonably increase or restructure our fees, effective with the beginning of any Renewal Term, to keep pace with the changing marketplace for our services. We will provide reasonable advance notice of any such fee change consistent with the procedure set forth in the Agreement.

6. Payments are due within 30 days of receipt of any invoice and become delinquent if not paid within that time. Balances not paid within 30 days of the invoice date will be subject to a late finance charge of 18% per year applied to the outstanding balance, or the highest legally permissible rate, until paid in full. If payment is outstanding more than 90 days after the initial invoice date, Vestwell reserves the right to suspend our services until the account is brought current. All payments received will be applied to past balances owed until your account becomes current. If payments are past due more than 120 days, Vestwell may at its sole discretion immediately terminate our Services Agreement; Vestwell's withdrawal under such circumstances does not affect your obligation to pay any outstanding balance owed to us, including any collection fees. Vestwell is not responsible to prepare or file any tax filings, Form 5500 filings, or perform any additional work or pay for any penalties, fines, taxes, or other charges that may be assessed, incurred or required as a result of the delay or stoppage of Vestwell's Services while any Vestwell invoice remains unpaid.

7. Vestwell’s fees do not include applicable transaction taxes. Plan Sponsor is responsible for any sales, use, excise, gross receipts, personal property, privilege, value-added tax liabilities, and any other duties or other transaction taxes or charges that may be imposed by any governmental entity for products and services provided under the Agreement. If Vestwell is notified that it should have charged taxes to you, Vestwell reserves the right to invoice for such charges and any late fees, interest, or other penalties, and the Plan Sponsor is responsible for paying them promptly. Plan Sponsor also agrees to defend, hold Vestwell harmless, and indemnify Vestwell for any and all claims or theory in any way relating to the failure to invoice for such taxes.

8. For Sponsors of Plans subject to Code §403(b) or not-for-profit organizations, Plan Sponsor acknowledges that it will promptly provide contemporaneous documentation (e.g., exemption certificate, etc.), if requested, so that appropriate tax treatment is afforded to the Plan.

9. By signing our Services Agreement, you acknowledge that the Plan or Account sub-custodian may receive additional compensation for its services other than as set forth in the Services Agreement in the form of “float” income in connection with the Plan. The custodian or sub-custodian for your Plan or Account will provide a float disclosure to you. You acknowledge that Vestwell has no responsibility regarding float income that the sub-custodian may earn in connection with the Plan or your Account, the subcustodian’s decision to accept float income, or the calculation of float income.

10. Your Additional Representations and ACH Network Obligations.
    1. ACH Network Terms. “ACH” means Automated Clearing House. “ACH Network” means the funds transfer system (network) governed by the NACHA Rules which provides for the inter-financial institution clearing of electronic entries for participating financial institutions. “Applicable Law” means the laws of the United States, the laws of any state in which a party operates, United States federal regulations appearing in the Federal Register, and the NACHA Rules that apply to the services provided to Client under this Service Order. “Bank Partner” means the originating depository financial institution(s) that collects and issues entries on behalf of Vestwell through the ACH Network. “Entry” means the set information necessary to issue a credit or debit transaction through the ACH Network. “NACHA Rules” means the National Automated Clearing House Association’s Operating Rules and Operating Guidelines that govern the funds transfer system of the ACH Network.
    2. Plan Sponsor acknowledges that it is an “Originator” under the NACHA Rules, and agrees to comply with all NACHA Rules applicable to Originators. It represents and warrants that prior to remitting any information regarding its employees to Vestwell, it obtains from its employees written authorization to perform payroll deductions and that any such authorizations clearly state (i) the pre-tax amount of any deduction or how the amount will be calculated, (ii) the frequency with which deductions will be made, and (iii) the employee’s accounts to which the deductions will be credited through an ACH transaction. Client acknowledges and agrees that it authorizes Vestwell to originate ACH entries on Client’s behalf to Client’s employees’ accounts at other financial institutions in order to provide the services contemplated by this Service Order.
    3. Audit and Review. Without in any way impairing the rights of the parties under this Agreement, you agree, upon at least 30 days written notice by Vestwell, to permit Vestwell and/or its Bank Partner to audit, inspect, and review its policies and processes for purposes of ensuring Client’s compliance with this Agreement and the NACHA Rules.
    4. UCC-4A Disclosures Regarding Electronic “Wholesale Credit” Transactions.
       • Credit given by any of our banking partners to you with respect to an ACH credit entry, is provisional until the banking partner receives final settlement for such entry through a Federal Reserve Bank. If the banking partner does not receive such final settlement, you acknowledge and agree that the banking partner is entitled to a refund of the amount credited to you in connection with such entry.
       • Notice of Receipt of Entry. Under the operating rules of the National Automated Clearing House Association, which are applicable to ACH transactions involving your Plan or Account, you acknowledge and agree that Vestwell and its banking partners are not required to give next day notice to you of receipt of an ACH item and will not do so. We will notify you of all receipts of payments in periodic statements in the ordinary course.
       • Choice of Law. Our banking partners may accept on your behalf payments to your Plan or Account which have been transmitted through one or more Automated Clearing Houses and which are not subject to the Electronic Fund Transfer Act. All rights and obligations with respect to such payments shall be construed in accordance with and governed by the laws and courts identified in section 10 of our Services Agreement or by the applicable dispute resolution or governing law provisions of any agreement utilized by our banking partners.

3. Term and Termination

1. Term. Unless modified by an Exhibit to our Services Agreement or otherwise by us in writing, the term of our Services Agreement begins on the Effective Date stated on the Services Agreement, continues for a period of three years ("Initial Term"), and renews automatically for successive one-year periods (each a “Renewal Term”) unless and until terminated consistent with the provisions of this Agreement.

2. Termination for Convenience. Either Party may terminate the Agreement any time without cause by providing the other Party with 90 days’ written advance notice. Vestwell may, without giving any advance written notice, terminate the Agreement if you fail or refuse to promptly correct any compliance issues that we identify during your Plan’s or Account’s onboarding or while it is supported by us or if you repeatedly fail or delay to deposit any employee deferrals or other required contributions to the Plan or any Account. In the event Vestwell is terminated for convenience, we reserve the right to charge a deconversion or services termination fee listed in your Fee Schedule, as may be modified, as reasonable compensation for facilitating the transition of the Plan or Account to a new provider. That fee is in addition to any fees owed for Vestwell’s other services provided up until the effective date of termination.

3. Termination for Material Breach. In the event of an actual or alleged material breach of the Agreement, the nonbreaching Party must provide written notice to the other Party describing in detail the nature of the alleged breach (“Notice Date”). The breaching party shall have 60 days, or any agreed-upon time, from the Notice Date to cure the alleged breach (“Cure Period”). In the event the breach is not remedied within 90 days thereafter, the Agreement may be terminated after the expiration of the Cure Period.

4. Survival of Terms. If our Services Agreement is terminated for any reason, that termination does not waive any rights, remedies, or defenses, nor does it release any Party from any other obligation under the Services Agreement that, subject to any applicable statute of limitations, are reasonably interpreted to apply after the Parties terminate their contractual relationship including sections 3(f), 5(b)-(f), and 8-14.

5. Responsibilities Following Termination. The Parties will return to each other all Confidential Information as described in section 13 except to the extent necessary to comply with applicable laws, regulations and internal record retention policies. Vestwell will send any records to the Plan's new provider upon request electronically through email and may require prepayment for the costs of doing so. No records will be provided while there are unpaid undisputed invoices outstanding, including payment of Vestwell’s deconversion or service provider termination fee. If you engaged Vestwell for our Retirement Plan Services, Vestwell's resignation (either entirely from any obligations or of its fiduciary duties) or Sponsor's termination of the Services Agreement for any reason is deemed to be a removal of Vestwell as a service provider as of the effective date of such termination. In that event, Plan Sponsor will immediately become the successor fiduciary in relation to all duties Vestwell previously maintained in any capacity prior to such termination, and Plan Sponsor agrees, at its own expense, to take whatever steps may be necessary to effectuate that change.

6. Vestwell may amend the Fee Schedule, these Terms of Service, or our Services Agreement at any time in accordance with the following procedures:

• In the event Vestwell determines that there has been a material change to the circumstances in which the Parties entered into the Services Agreement for Vestwell’s Retirement Plan Services, such as a significant decline in the assets of or number of participants in the Plan or a material reorganization of the Plan Sponsor. Vestwell reserves the right to propose a modification of its fees by giving Plan Sponsor 30 days’ advance written notice. The Plan Sponsor must affirmatively consent to the change, discuss and negotiate the change with Vestwell, or you may terminate the Agreement consistent with section 3.
  
• Vestwell may add new features to the Vestwell Platform or require new policies or procedures that apply generally to all Plans or Accounts serviced by Vestwell. These changes may affect the manner by which Vestwell services the Plan or your Account, other functionality of the Platform, or other administrative procedures that must be followed by the Plan Sponsor, participant, or Account owner. Vestwell will use commercially reasonable efforts to give up to 30 days’ advance notice of the change and it will do so by providing End Users with a notice of the change. End Users of the Vestwell Platform and our services will be bound to comply with those new changes, functionality, or procedures and any updated Terms of Service reflecting those changes.
  

4.    Your Responsibilities

Our ability to timely and properly perform the Services is expressly conditioned on your prompt and full completion of certain activities. We will be unable to or delayed in performing the Services if you or anyone acting on your behalf fails, delays, or refuses to fulfill any of these obligations and Vestwell will not be responsible for any fines, penalties, losses, or other damages in such instances. All of the obligations listed in the Agreement and appendices apply to the Plan Sponsor and anyone acting on its behalf, such as a payroll provider, TPA, or investment fiduciary.

1. You must always provide us with all Plan Data and Account Data in Good Order, including, if needed, any required permission or access to online systems where such data or records are stored. We reserve the right to reject any Plan Data or other information or records that is not submitted consistent with these requirements, is unreadable, or is contaminated and we will have no liability for doing so. Vestwell will obtain certain data relating to your Plan or Account from your payroll provider if Vestwell has an integration with that provider, but in all instances, you are always responsible for the timeliness, completeness, and accuracy of all Plan Data regardless of how or by whom it is provided to us.

2. If your payroll provider has an integration with the Vestwell Platforms, it is solely and exclusively your responsibility to confirm with your provider that all payroll files have been set up and formatted to align with the features you have selected for your Plan or Account, such as for consistency with your Plan’s definitions for compensation, eligibility (including excluded employees and hours-based service), and Highly Compensated Employees. For Vestwell’s Retirement Plan Services, those requirements are explained in a Plan Adoption Agreement Guide and Payroll Integrations Help Center that will be provided to you, and they are incorporated by reference into the Agreement. By signing the Agreement and agreeing to these Terms of Service, you confirm that you have read, understand, and agree to comply with all setup and submission requirements applicable to your payroll provider as described in those materials. You must comply with all of the requirements regarding your payroll integration and we will not be liable for any damages, delays, or losses whatsoever of any kind relating to or caused by your or your payroll provider’s failure to comply with those requirements.

3. Vestwell will have no responsibility to and will not independently verify, review, or audit the accuracy of Plan Data or Account Data. We are relying exclusively on the accuracy of the Plan Data and Account Data that you or anyone acting on your behalf provides to us. If we do identify any errors or discrepancies in Plan Data or Account Data, that will not change the scope or nature of our responsibilities, our entitlement to rely on Plan Data or Account Data that you provide to us, or your responsibilities. You agree, at your own expense, to promptly correct any errors in Plan Data or Account Data in your payroll files and other systems.

4. It is solely and exclusively your responsibility to determine whether Vestwell’s fees are paid by you or your Plan and to make prompt and timely contributions to the Plan or Accounts in order to comply with regulations issued by the DOL, ERISA, the Code, or other regulatory requirements.

5. If you want to exclude part-time or other groups of employees from the Plan (which you may do to the extent legally permissible), you are solely responsible for identifying all employees who are reasonably expected to normally work or who have actually worked less than the required number of hours during the applicable twelve-month period, consistent with applicable regulations, and any employee who is also excluded from participation in the Plan and confirming with your payroll provider that the payroll files submitted to us do not include those employees.

6. You are responsible for calculating and providing us with employee and participant “compensation” as defined by your Plan. Vestwell does not perform those calculations and we are not responsible for any damages, delays, or penalties associated with any error or omission regarding those calculations.

7. You agree to comply with all applicable economic sanctions laws and regulations, including anti-money laundering laws and the regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control, and will use your best efforts to prohibit and will not knowingly permit our services to be provided to any person in violation of those laws. We reserve the right to immediately terminate our Services Agreement, without penalty, if we determine in our sole discretion or if you are in violation of this provision.

8. Vestwell is not responsible for voting or determining any appropriate action regarding any proxy statements or similar materials regarding the investment options available to the Plan. We will provide you with any proxy statements or materials that we receive, but it is your responsibility to determine what, if any, action is appropriate and who should take the action, to distribute those materials to affected participants, and to designate all other responsibilities relating to those proxy materials.

5. Incident Reporting and Indemnification

1. Subject to the limitations set forth in our Services Agreement or any Exhibits that apply to you, we will report any benefits administration or compliance issues that we identify to you. The Parties agree to determine, in good faith, the root cause and source of funding for any required corrections. We are not responsible for the cost of or performing any activities required to resolve any errors or other compliance issues that occurred before the effective date of the Agreement.

2. We will report to you any confirmed unauthorized disclosure or use of legally protected data that violates applicable law. Vestwell will promptly investigate any such incident that it becomes aware of or suspects may have occurred. The Parties will cooperate on the appropriate handling and resolution of any such incidents.

3. Vestwell agrees to pay its proportionate share of reasonable costs necessary to remediate any error or omission occurring after the effective date of the Agreement caused by the negligence, bad faith, willful misconduct, breach of contract, or violation of applicable law by Vestwell or any of its subcontractors or affiliates. You understand and agree that all such matters will be resolved consistently with the terms of our Services Agreement and Vestwell’s Corrections Policy, which may be updated periodically and is incorporated by reference into our Services Agreement. By signing our Services Agreement and agreeing to these Terms of Service, you confirm that you have received, reviewed, and accepted Vestwell’s Corrections Policy.

4. The Client, Employer, or Plan Sponsor identified in our Services Agreement and the Plan (if applicable), agree to indemnify, defend, and hold harmless Vestwell, subcontractors of Vestwell, and each of their affiliates, officers, directors, principals, employees, shareholders, legal representatives, and successors from any and all claims, actions, suits, whether known or unknown, and from and against any all liabilities, judgments, losses, damages, costs, charges, attorneys’ fees, and other expenses (“Losses”) arising out of or relating in any way to the breach of your obligations (including Plan Sponsor’s breach of fiduciary duty) under the Services Agreement or for any delays or errors caused in any way by you, any Third Party Application or Provider, or anyone acting or holding itself out as acting on your behalf. This includes but is not limited to Plan Sponsor’s failure to fulfill its obligations set forth in our Services Agreement or to follow Vestwell’s procedures. You also understand and agree that Vestwell shall not be liable, and you will defend, indemnify, and hold Vestwell harmless, for and against any compliance failures, regulatory matters, or administrative issues, errors, or omissions with respect to the Plan or Account that originated prior to the Effective Date.

5. Subject to and without impairing any of Vestwell’s rights under the Agreement, Vestwell will indemnify you for our proportionate share of responsibility for your reasonable direct monetary damages that you actually incur relating to any claims brought by a third party to the Agreement that are directly caused by the gross negligence or willful misconduct by Vestwell or any of its subsidiaries. In the event of a material error or omission by Vestwell in the performance of its services, Vestwell will, within a reasonable time after being notified of or discovering a material error, take commercially reasonable steps that are consistent with IRS, DOL or other agency guidelines (where applicable), and our Corrections Policy to correct such error. So long as Vestwell makes such correction in accordance with this section, that correction shall be the exclusive remedy that you, or anyone claiming through you or on your behalf, and any End Users have as against Vestwell and Vestwell shall have no additional liability to any person or entity for indirect losses and/or damages of any kind as a result of any Vestwell error.

6. For any indemnity claim, the Party seeking indemnification must promptly notify the other Party, in writing, of any claim, threatened claim, regulatory proceeding, or demand for which it is seeking indemnification under the Agreement. For any claim where Vestwell is providing indemnification, Vestwell reserves the right, which it may exercise at its sole discretion, to control the defense (including the decision of whether to engage counsel and which counsel is engaged) or settlement of the claim or it may require the indemnifying Party to control the defense or settlement. For any indemnification claim, the indemnified Party will at its own expense provide reasonable assistance and information. No compromise or settlement may be committed by the controlling Party without the non-controlling Party’s prior review and approval, which will not be unreasonably withheld, delayed, or conditioned.

6. Use of Subcontractors and Service Providers

You understand and agree that Vestwell will need to engage and enter into agreements with service providers or other third parties in order to perform our services. Some of those service providers are affiliated entities of Vestwell and/or have an ownership interest in Vestwell. Some of them will be performing fiduciary services for the Plan or Account, which may include acting as a Trustee, Named Fiduciary, or an investment manager. Vestwell may also enter into agreements with third parties or Vestwell subsidiaries in order to make available rollover IRAs, Emergency Savings Accounts, and perform other activities for participants or eligible employees. You knowingly give Vestwell permission to enter into such agreements, change any such service providers, share Plan Data or Account Data and other information with those third parties so that they can perform their respective services for the Plan or Accounts, and compensate all service providers accordingly from Plan assets or Plan Sponsor’s assets as shown in your Fee Schedule. The Plan and Plan Sponsor knowingly give Vestwell full powers of substitution to exercise any of their rights under our Services Agreement or with respect to any service providers, subcontractors, vendors, and others in connection with their services.

7.  Use of Third Party Applications, Software, or Providers

If you have selected any third party applications, software, advisors, consultants, or providers (collectively, “Third Party Applications and Providers”) in connection with your Plan, such use is at your own discretion and risk and subject to the terms of your agreement with each of those Third Party Applications and Providers. These third parties may include TPAs, payroll providers, and investment fiduciaries that you have selected and engaged to support your Plan separately from Vestwell and they are unaffiliated with us. To the extent directed by Plan Sponsor, Vestwell shall act as agent for the Plan Sponsor for purposes of transmitting and receiving Plan Data to and from any Third Party Applications and Providers. 

With respect to any Third Party Application and Provider, Vestwell does not recommend or endorse them, we are not a party to any agreement you may have with them; we are not responsible in any way for selecting, monitoring, or changing them; and their fees are not included in any fees charged by Vestwell and may not be included in your Fee Schedule or fee disclosures. We do not make any warranty, guarantees, or representations in any way regarding any Third Party Applications and Providers, including that they will meet your requirements; or that they or their services will be uninterrupted, timely, secure, or error-free; or that the results from any Third Party Applications and Providers will be effective, accurate, or reliable. By signing the Agreement, you confirm that you have made your own determination to use these Third Party Application and Providers and did not rely on any advice from Vestwell in doing so. Your use of any Third Party Applications and Providers, any links or documentation on the Vestwell Platform, or deliverables that they provide to Vestwell or you are subject to the following:

1. The output of any Third Party Applications and Providers could include technical or other mistakes, inaccuracies, or errors for which Vestwell is not responsible.

2. At any time without prior notice, we may make changes to the links pointing to any Third Party Applications and Providers or the process by which you may utilize the Third Party Applications and Providers from the Vestwell Platform and you will be bound by those changes.

3. Third Party Applications and Providers may have functionality or integration links that are or become out of date and/or unavailable for your Plan. We make no commitment to update such integrations. Some Third Party Applications and Providers charge a fee to integrate their platform with the Vestwell Platform and we pass on those fees to you or the Plan participants.

4. We assume no responsibility or liabilities for delays, errors, or omissions in the Third Party Applications and Providers or any of the documentation they create or make available from their websites or the Vestwell Platform. Your sole recourse for any related damages is against the applicable Third Party Application and Provider.

5. In no event shall we be liable to you or anyone else for any damages or losses of any kind including special, punitive, incidental, indirect or consequential damages or for any damages resulting from disruption, loss of use, loss in value, lost data or profits, or any liability arising out of or in connection with the use of any Third Party Applications and Providers or any other third parties acting on your or their behalf.

6. If you have engaged a third party to serve as the Plan’s investment fiduciary, neither Vestwell nor any of its affiliates will have any fiduciary duty, or any other responsibility, discretion, authority, or liability to you or anyone else of any kind regarding any investment-related services for the Plan. Your investment fiduciary is solely responsible for selecting, monitoring, reviewing, or changing (including the requirements to issue any notices regarding any such changes or any activities necessary to effect an orderly transition in the event of an investment replacement or directing Vestwell to make such allocations and on how to direct participants’ account contributions) any investment options available to the Plan, the content of any fact sheets or other investment education or information materials, and the determination of whether the Plan’s default investment options satisfy regulatory requirements or any other necessary requirements. Vestwell relies solely on the investment fiduciary that you have selected for the Plan for all Instructions in connection with those activities.

7. If you have engaged a third party to serve as the Plan’s investment advisor consistent with ERISA §3(21), Vestwell assumes that you, on behalf of the Plan, have given your consent to make or change the investments selected by your advisor. Vestwell will not conduct any independent review or confirmation of your consent. We will only take direction from the investment advisor or you regarding the investments to be made available to the Plan and make those investments available within a reasonable time after receiving the advisor’s selections, in the format required by Vestwell, and after confirming with the Plan’s custodian that the selected investments are available for trading by the Plan.

8. Representations and Warranties.

The Parties represent the following:

1. The Agreement has been duly authorized, executed, and delivered by each Party and constitutes the legal, valid, and binding obligations of each Party.

2. You represent that your Plan is and will continue to be current with all government and regulatory filings and in compliance with all applicable rules, regulations, and laws pertaining to the Plan. The Plan Sponsor further represents and warrants that it will operate the Plan consistent with the Plan documents and any amendments thereto.

3. The representations and warranties set forth in the Agreement are continuing in nature, binding on each Party’s successors-in-interest,and each Party will promptly notify the other in writing if at any time during the term of the Agreement if any representation or warranty is no longer accurate or applicable.

4. If you have selected to use the “Advisor Managed Accounts” feature for your Plan, by signing the Agreement and agreeing to these Terms you confirm that you have reviewed the fee disclosure notices provided to you, and you agree that the fees and any discounts applied to your Plan services are reasonable.

9. Dispute Resolution, Governing Law, Waiver of Jury Trial, Venue, and Jurisdiction

1. Our Services Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of law principles.

2. The Parties agree that all claims and disputes of every type between you (or anyone claiming through you or on your behalf) and Vestwell shall always be submitted to a senior business leader of the other Party and a good faith, prompt effort will be made to attempt to resolve the dispute. If the matter is not resolved between the senior business leaders of both Parties within 90 days of submission, the matter may then be submitted to mediation with a single mediator appointed and agreed upon by both Parties. The costs of the mediation shall be shared equally by both Parties. In the event the mediator is unable to resolve the dispute within 90 days of submission of the matter to the mediator, then the dispute shall be determined through binding arbitration pursuant to the rules of the American Arbitration Association in effect at the time the dispute is submitted to arbitration. The proceedings and hearings shall take place in New York, New York and the cost of the arbitration shall be shared equally by the Parties. The Sponsor expressly waives any right it may have to institute or conduct litigation, trial, or arbitration in any other forum or location, or before any other body, whether individually, representatively, or in another capacity. Arbitration is final and binding on the Parties. An award rendered by the arbitrator(s) may be confirmed in any court having jurisdiction over the Parties. The prevailing Party in any dispute will not be entitled to recovery of its costs or attorneys’ fees.

3. By executing our services agreement, you also with respect to any dispute waive any right to be part of any class action or any action by any state or federal regulatory authority either as a class member or class representative as well as the right to join or consolidate claims with any other individual or entity. No arbitrator shall have the right to conduct any arbitration that is in any manner inconsistent with this provision or to issue any relief that is applicable to any other individual or organization other than the Plan Sponsor, Client, or Employer identified in the Order Form. The Parties acknowledge that this class action waiver is material and essential to this services agreement. In the event this class action waiver provision is declared by a court of competent jurisdiction to be void, limited, or unenforceable, the remainder of this dispute resolution provision (sections 9(a) and (b)) shall remain in full force and effect.

10.  Notices. Any notice or other communication required or permitted to be given under our Services Agreement shall be in writing, delivered personally, by email, or by certified mail in which event notice shall be deemed delivered one business day after receipt of confirmation of delivery or, if notice is given by email, one day after sending the email. Notices relating to the termination of or alleged material breach of Vestwell or any of its affiliates or subsidiaries must strictly comply with all requirements of section 3 and its sub-parts. Notice to Vestwell shall be delivered to the Legal Department, 360 Madison Avenue, 15th Floor, Floor, New York, New York 10017 with a duplicate copy sent by email to Legal@vestwell.com. Notice to you shall be delivered to the mailing address or email address on our Services Agreement.

11.  Limit of Liability. You understand and agree that Vestwell and any of its affiliates, officers, directors, principals, employees, shareholders, legal representatives, and successors shall have an aggregate maximum liability to you (or anyone claiming through the you, in your name, or your Plan's name, on your behalf, and any successors, including any claim for indemnification) or anyone else of up to three months of fees paid to Vestwell in connection with any damages, losses, or claims of any kind relating to:

1. Any service provided by Vestwell, including any claims for indemnification as set forth in section 5, except to the extent that such claim was a direct cause of Vestwell's gross negligence, fraud, misrepresentation, or intentional misconduct in performing its services. Nothing in the Agreement shall relieve Vestwell from responsibility or liability for breach of any fiduciary obligation, except as permitted under ERISA.

2. This limit of liability also applies, to the fullest extent permitted by law, to the disclosure of data or for any violation of state, local, or federal data and privacy laws.

3. Any loss incurred by any End User or other individual as a result of fraud, fraudulent instructions, account takeover, identity theft, or other similar artifice (“Fraud Loss”) shall not be Vestwell's responsibility if Vestwell complied in all material respects with its policies and procedures in effect at the time the loss is incurred that relate to the transaction at issue. To the extent Vestwell did not follow its procedures in all material respects, Vestwell will only be liable for that portion of any Fraud Loss not otherwise excluded by our Services Agreement or Corrections Policy that arises solely and directly from Vestwell’s material failure to follow its procedures. In addition, Vestwell will be entitled to rely on Instructions provided by any individual purporting to be the participant, Plan Sponsor, Account owner, or other End User that accesses the Vestwell Platforms or any Account using that individual’s credentials; Vestwell shall have no obligation or responsibility whatsoever to independently verify the identity of any individual purporting to be the participant, Account Owner, Plan Sponsor, or other End User. Nothing stated in our Services Agreement or through the course of dealing changes Vestwell’s responsibilities in any way.

To the extent not limited or excluded by the Agreement, Vestwell’s liabilities to you or anyone else (including by indemnification pursuant to section 5) are limited to the direct damages and reasonable out-of-pocket legal fees and expenses actually incurred, up to the maximum limit set forth above, and shall only include direct damages and excludes any special, indirect, incidental, exemplary, punitive, or consequential damages of any kind, such as lost profits, penalties, fines, or legal fees.

Section 11 and all subparts also applies regardless of the form of action, whether such damages are foreseeable, or whether Vestwell advised or has been advised of the possibility of such damages. The provisions of this section 11 and all subparts shall survive the termination of the Agreement.

Vestwell is not responsible at all and shall have no liability for any damages, losses, or claims of any kind due to an interruption in operation of the Vestwell Platform caused by a service outage; planned or unplanned upgrade; site maintenance; act of nature; governmental acts; or participant, sponsor, or user error; or other cause beyond Vestwell’s reasonable control. Vestwell shall also have no liability for any damages, losses, or claims caused by you (or any third party engaged by or acting on your behalf, such as your payroll provider) failure, error, or delay in performing any of its obligations set forth in our Services Agreement.

In case of errors or lost data caused by a power failure, mechanical difficulties with information storage and retrieval systems, or other events not attributable to Vestwell’s own gross negligence or willful misconduct, Vestwell’s sole obligation will be to use its reasonable efforts to reconstruct any records maintained by Vestwell and to amend any reports we prepared which were affected by such event. All performance by Vestwell of any obligations under the Agreement is subject to an appropriate adjustment and extension of time in the event of any event that would constitute a force majeure event under New York law or in the event of a circumstance beyond Vestwell’s control.

For Plans converting to the Vestwell Platform from another service provider, Vestwell may not be able to effectuate an in-kind or trustee-to-trustee transfer of Plan investments and may need to liquidate all accounts before reinvesting Plan assets into the investment options available to participants after the Plan is transferred to the Vestwell Platform. Reinvesting Plan assets will occur as quickly as possible after all participant accounts are reconciled and after a full accounting of all Plan assets from the prior provider. Vestwell is not responsible for any changes in account value or losses of any kind due to market fluctuations or other activities that may occur during the liquidation and reinvestment process or other events beyond Vestwell’s control.

12.   Additional Terms or Conditions

1. You agree to promptly notify us if you become the subject of or party to any legal, investigatory, or regulatory action relating to the Plan or Account.

2. The Agreement has been negotiated in good faith and at arms length by the Parties and, as applicable, their respective legal counsel. The Agreement shall be interpreted fairly in accordance with its terms and without any presumption of construction or interpretation in favor of or against any Party.

3. Consistent with Vestwell’s Privacy Policy, as may be amended, we may utilize anonymized data pertaining to your Plan, Plan Sponsor, employees, participants, and beneficiaries (collectively, “Anonymized Plan Data”). By agreeing to these Terms of Service, you are confirming that you have read, understood, and agree to the terms of our Privacy Policy. Vestwell may, without having to obtain consent, use Plan Data or Anonymized Plan Data: i) to carry out its obligations under the Agreement; ii) share Plan Data with Third-Party Applications and Providers, Service Providers, or other third parties and vendors engaged by you or Vestwell pursuant to section 6 so that they can perform their various services; and iii) for Vestwell’s own business purposes, the results of which shall be owned by us. Anonymized Plan Data subject to this section will not be personally identifiable or attributable to the Plan.

4. You also permit Vestwell or its service providers to use Plan Data and Anonymized Plan Data to provide current and former employees, participants, and beneficiaries with information designed or intended to benefit them. This includes, financial wellness solutions, education (including online and/or live seminars), distribution and distribution education information (including rollover options) and other retail and institutional products and services provided by Vestwell or third parties that are engaged by you or Vestwell to support the Plan.

5. Nothing in the Agreement gives you any rights, license, or other interest in our assets, property, solutions, or technology including any software, written materials, website consent, education or marketing materials, reports or screen formats. Plan Sponsor understands that this includes intellectual property owned by and of substantial value to Vestwell or other third parties and includes proprietary and confidential data or information of Vestwell addressed elsewhere in the Agreement. Vestwell’s intellectual property includes any materials, processes, or know-how developed by Vestwell before or during the term of the Agreement and used by Vestwell to perform the Services under the Agreement. Vestwell’s liability or any obligation to indemnify pursuant the Agreement does not apply if the Plan Sponsor, or anyone on its behalf, modifies, misuses, or uses for an unintended purpose or in a manner contrary to the Agreement any information, deliverables, or reports provided by Vestwell.

6. This Agreement and any specific documents explicitly mentioned such as the Plan Adoption Agreement Guide, Corrections Policy, and Help Center content contains the entire agreement and understanding among the Parties with respect to our services and supersedes all prior and contemporaneous statements, interpretations, agreements, understandings, inducements, and conditions, express or implied, oral or written, of any nature whatsoever with respect to our services. Our Services Agreement controls and supersedes any course of performance, prior representations, and/or usage of the trade inconsistent with any of the terms. Neither Vestwell nor any of its subsidiaries or affiliates will be deemed to have any authority, discretion, judgment, fiduciary or other responsibility that is not expressly stated or delegated to Vestwell in the Agreement. The Agreement may only be modified in writing, signed by authorized representatives of both Parties.

7. You confirm that the person signing the Services Agreement on behalf of the Plan (the “Signer”) is “independent,” within the meaning of ERISA, and to the best of its knowledge, the Signer will not receive any commissions or other consideration directly or indirectly from Vestwell or any of its affiliates.

13. Confidentiality and Security

1. You agree to comply at all times with the Vestwell Platform Terms of Use, which is incorporated by reference into our Services Agreement. Each Party may have access to another Party’s Confidential Information as defined below, which each Party agrees to hold in strict confidence throughout the duration of the Agreement. Each Party further agrees not to make the other Party’s Confidential Information available in any form to any third party or use such Confidential Information for any purpose other than the implementation of the Agreement, unless required by law or by any court or regulatory authority provided that, in those instances, it notifies such other Party in writing prior to disclosure unless prohibited by law so that such other Party has an opportunity to defend, limit, or protect against such production or disclosure by obtaining a protective order or other appropriate remedy, and the disclosing Party agrees to provide reasonable cooperation with the other Party in obtaining a protective order or other remedy. Notwithstanding the foregoing, such notice shall not be required in connection with a routine examination by any regulatory or supervisory authority. In the event such protective order or other remedy is not obtained, the disclosing Party shall disclose only that portion of Confidential Information that is legally required to be disclosed, and the disclosing Party shall exercise best efforts to obtain reliable assurances that confidential treatment will be given to any Confidential Information.

2. “Confidential Information” means nonpublic information clearly identified as proprietary or confidential or which by its nature should be reasonably construed to be confidential. Confidential Information may include, but is not limited to, Plan Data; names of clients or end users of our Services; Vestwell’s proprietary software (existing or under development), databases, applications, procedures, reports or other content on our websites; or our pricing or proposals.

3. Confidential Information does not include information that is or becomes publicly available through no act or omission of the other Party or its representatives (including authorized persons), is disclosed to the other Party by a Party or third party without restriction on disclosure and without breach of a nondisclosure obligation, is independently developed, or is previously known to the other Party without nondisclosure obligations.

14. Severability and Assignment

Any term or provision of the Agreement that is held to be invalid or unenforceable will not render the remaining terms and conditions unenforceable or invalid. You may not assign the Agreement in whole or in part without Vestwell’s prior consent and any attempt to assign any of your rights or obligations that arise under the Agreement without our consent will be void. The Agreement is binding on any of your successors in interest, successor plans, permitted assignees, change of name, or delegees. Vestwell may designate any agent or subcontractor, without notice to or consent from you to perform such tasks or functions to complete any of our services.

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This Exhibit applies only to Vestwell’s Retirement Plan Services and explains the scope of those services provided by Vestwell and the service providers listed below. If you have engaged a Third Party Administrator (“TPA”), some of these services will be provided by your TPA, not Vestwell, and your TPA is considered a Third Party Application and Provider as defined in your Services Agreement. This Exhibit incorporates by reference all of the Terms of Service except as explicitly provided in this Exhibit. Vestwell is not a law firm, we cannot and do not provide legal advice, and nothing in our Services Agreement or any appendices should be construed as legal advice or creating an attorney-client relationship. You may wish to consult a legal or tax counsel to understand the full extent of your ongoing obligations.

1. Your Use of the Vestwell Platform. In addition to the provisions of section 1 of the Terms of Service, you agree to the following:
   1. Vestwell will deliver its Retirement Plan Services through the Vestwell Platform and provide fiduciary and non-fiduciary services described in this Exhibit to support your Plan. The Plan Sponsor, on behalf of itself and the Plan, acknowledges that it is a Plan fiduciary with authority to delegate these responsibilities to Vestwell, and directs Vestwell to perform the services described in this Appendix for the benefit of the Plan and its participants and beneficiaries. Vestwell has no responsibility to and will not perform any services relating to the Plan that are not explicitly included in this Exhibit nor will we oversee in any way any Plan assets that are not administered on or supported by the Vestwell Platform.
   2. You and anyone acting on your behalf (such as your TPA) may not adopt procedures, Plan features, or rules that are incompatible or inconsistent with the terms of our Agreement or any of Vestwell’s operations, procedures, or Vestwell Platform capabilities.
   3. You also understand that, notwithstanding any delegation of any services to Vestwell, you remain, at all times, a Plan fiduciary and retain responsibility for the administration, oversight of Plan service providers, and management of the Plan. Your retention of those responsibilities applies notwithstanding any position, argument, understanding, belief, or interpretation that these responsibilities are allocated to a service provider. You also understand that except as specifically outlined in our Agreement, Vestwell is a fiduciary under ERISA, state, or federal law only to the extent it has been expressly delegated, and accepts fiduciary responsibilities, from you. You understand and agree that Vestwell does not and will not provide the Plan or any Plan fiduciary with any investment, tax, legal, or accounting advice.
   4. You also understand and agree that Vestwell may terminate its fiduciary status at any time with or without advance notice if you or anyone acting on your behalf fails to provide Vestwell with Plan Data in Good Order, in which event you become the immediate and exclusive fiduciary for all such activities for which Vestwell terminates its fiduciary status, and Vestwell will not be responsible for any losses of any kind to the Plan, participants, or any third party.
   5. If we perform additional services to the Plan, such performance shall not be treated as a course of conduct giving rise to additional obligations, including any fiduciary obligations, on Vestwell’s part under any circumstances. It is further agreed that the responsibility for any Plan-related services and functions not identified in the Agreement is retained and performed by the Plan Sponsor.
   6. Vestwell will not perform any services relating to any other Plan or savings account maintained by you or any participant other than the Plan identified in the Agreement.
   7. If you offer Plan participants a self-directed brokerage account (“SDBA”) offered by the Schwab Personal Choice Retirement Account product, we will only perform the limited services set forth in this section.
      1. We will display the balance associated with any participants’ SDBA in their Account portal, in participants’ benefit statements, and in the Plan balance shown in Plan Sponsor statements and process transactions between their Plan account and SDBA and distributions from the SDBA based on the participants’ Instructions.
      2. At all times, the participant and the SDBA provider or other Third Party Application or Provider are solely responsible for selecting and monitoring the investments in the SDBA, compliance with all laws and regulations applicable to the SDBA, and all other services and activities related to the SDBA not explicitly performed by Vestwell. In addition, we do not review or take any action to maintain consistency of the investments in the SDBA with the Plan’s investment policy statement or other applicable governing Plan documents and we will not be characterized as a fiduciary or have any other obligations in connection with the SDBA, including paying any fees associated with the SDBA.
   8. If you offer Plan participants a SDBA from any other provider, Vestwell will not perform any services relating to that account. We may require you to engage a TPA, which will be solely responsible for all administration, operation, distribution processing, compliance with applicable laws and regulations, and all other activities regarding the assets in the SDBA. Vestwell has no responsibility for and will not be performing, among other activities: identifying or implementing contributions to the SDBA; selecting or monitoring any investment options offered by the SDBA; reporting assets or activities of any SDBA; preparing or delivering any notices or other education materials to participants regarding the SDBA; transferring assets between the SDBA and the Plan; or answering or responding to queries concerning SDBA matters. We will not take into account any balances in the SDBA or any other participant savings account for purposes of reviewing or approving loans, hardship withdrawals, or other distributions. Any trust, plan, or participant reports prepared by us will not include any SDBA assets or activities. Payroll integrations are not available for Plans that include a SDBA and you will be responsible for manually submitting all payroll files to us in Good Order.

2. Termination Procedures. In addition to the termination provisions in section 3 of the Terms of Service, you agree that in the event Vestwell’s Retirement Plan Services are terminated for any reason, the Plan Sponsor shall pay Vestwell its then-prevailing service termination or deconversion fee as reasonable compensation for the services involved in terminating Vestwell’s services and facilitating the transition of the Plan to a new provider. Additionally, if the Agreement is terminated within the first year after the Effective Date, and if Vestwell paid any termination or deconversion fee to your prior recordkeeper, Vestwell reserves the right to charge you and you will be obligated to reimburse Vestwell for that fee. These termination fees must be paid in addition to any fees owed for Vestwell’s services provided up until the effective date of the Plan’s termination. In order to effectuate any termination of Vestwell, we must also be provided with a termination notice, in writing, delivered and signed by the Plan Sponsor and sent by certified mail to Vestwell with the advance notice period applicable to the reason for the termination. Vestwell and the Plan Sponsor must also agree on the terms of a transition agreement that must include the Plan Sponsor’s transition instructions, identification of a successor provider, and other necessary terms so that Vestwell can properly carry out the transition of its services and that transition agreement must be executed by Vestwell and the Plan Sponsor. The Parties understand and agree that Plan assets and records will not be transferred to another provider and Vestwell will not perform any services relating to such termination and transition unless and until all conditions of termination have been fulfilled. The duties set forth in this section must be completed by the Plan Sponsor and not by any third party or anyone acting on its behalf. The Parties also agree that section 3 and all sub-parts of the Agreement and all conditions are material terms of the Agreement.

3. Your additional responsibilities. In order for us to properly and timely onboard and support your Plan, you (and your TPA, if you are using one) must complete certain activities consistent with the terms of our Agreement and other instructions that will be provided to you by your Vestwell representative. Depending on the complexity of your Plan, we may need additional data or assistance beyond the requirements listed in the Agreement. In addition to your responsibilities set forth in section 4 of the Terms of Service, your Plan Adoption Agreement Guide, and other materials that will be provided to you during your Plan’s onboarding. you agree to the following.
   1. Notify your bank, payroll provider, and any other existing service providers. Only you can terminate the Plan's existing service providers and authorize them to provide Plan records, information, and assets to Vestwell. You are responsible for any costs associated with the termination of their services. We cannot process your payroll and perform other functions unless and until we receive confirmation of that termination, all records from a prior provider, and reconcile all Plan assets. You must also inform your bank that you have engaged Vestwell so that we can process contributions. Additionally, for existing Plans that are converting to the Vestwell platform, Vestwell will not be responsible for performing and will not perform any of the Recordkeeping, ERISA 3(16), Custodial, Trustee, Named Fiduciary, or Investment Management services described below until after the Plan has fully completed the onboarding process, all Plan assets have been transferred to the Vestwell platform, and the Plan or Plan Sponsor completed any other compliance or onboarding activities that we may require for your Plan.
   2. Review, sign, and return the Plan Adoption Agreement (“PAA”). Your Vestwell onboarding team will implement your directions regarding the Plan's features and create Plan documents. We recommend that you have these documents reviewed by your attorney. You must promptly review and sign the PAA to indicate your agreement with the Plan's terms in order to avoid delays in onboarding your Plan. We use the PAA as the basis by which to operate your Plan, so you must review it carefully. You will be provided with a PAA Guide and access to the Vestwell Help Center, which may impose additional administrative requirements on you; those materials are incorporated herein by reference and are part of our agreement.
   3. Payroll files and census data. You must provide Vestwell with current and accurate payroll and census data for all of your employees and participants, including terminated participants. All data must be properly formatted and uploaded through the Vestwell Platform. Alternatively, we may require you to give Vestwell permission to access your payroll provider and/or prior recordkeeper so that Vestwell can obtain those files directly from them if needed.
   4. Provide email addresses for all employees, including former employees. Vestwell will deliver certain notices and Plan-related documents to you and participants, beneficiaries, and alternate payees via electronic delivery to the extent legally permissible. Accordingly, you must provide correct email addresses for all employees, including former employees with a balance in the Plan. If you are not able to do so, you agree to pay for additional costs to deliver all such materials by regular mail or distribute Plan materials to those individuals. We will not be responsible for any fines or penalties associated with the late or missed delivery of any required notices for any Plan materials that you deliver.
   5. Additional Sponsor requirements for ERISA 403(b) Plans. Certain ERISA 403(b) Plans for tax-exempt organizations must comply with a "universal availability" requirement whereby the Plan must be offered to all employees except those specifically excluded in the Plan documents. You must provide us with a list of all employees in Good Order. Additionally, employees with more than fifteen years of service may be eligible for additional contributions; you must provide us with a list of those employees as well.
   6. Ongoing monitoring. You have an ongoing fiduciary obligation to oversee and monitor all service providers to the Plan. You must review the reports or other documents that we provide to you and alert us to any errors. If we do not receive any notification about errors, we will assume the data in these reports are correct and we will not be responsible for any losses attributable to data errors that were not reported to us. You must similarly monitor your other service providers. Vestwell makes various education materials available on the Plan Sponsor portal, but we are not a law firm or tax advisor. Any education materials we provide should not be construed as legal advice, and you may wish to consult your own legal counsel to understand the extent of your duties and obligations with respect to the Plan.
   7. Update payroll files and take appropriate action in your payroll system. We utilize and rely on data from your payroll files to perform compliance testing and all operations activities for your Plan; therefore, it is essential for you to keep your payroll system updated with complete and accurate data about your employees. At all times while your Plan is on the Vestwell Platform, you must update your payroll system, your payroll provider, and your Vestwell Plan Sponsor portal to reflect any changes in your payroll or census data, such as changes to employee contact information, employment status, employee deferrals and changes, employee opt-out requests, participant loans, employer contributions, and other data points that are explained in the Help Center (for Plans with a payroll integration) or by your Vestwell representative. You also understand and agree that:
      • Some Plan features are not supported by any payroll integration. If your Plan has those unsupported features, you must follow the content, format, and submission instructions from your Vestwell representative.
      • If your Plan offers an employer matching contribution that changes in any way (e.g., by frequency in which the match is determined or amount of the match), you must promptly inform your Vestwell representative. You must also set up and maintain on your payroll system and Vestwell portal any employer contribution that is determined on a frequency other than on a per-pay-period basis.
      • You must promptly inform us if your payroll company, pay frequency or pay schedule changes, otherwise we will not process your payroll files, which could result in delays in depositing contributions to the Plan. Those delays could cause your Plan to be out of compliance and you will be responsible for payment of any excise taxes or penalties.
      • For existing Plans converting to the Vestwell Platform, we will use the deferral rates that your participants selected with your prior provider, if that data is provided to us, unless your participants make a different selection on the Vestwell Platform with enough time before your first payroll date. Your participants will be instructed to make any deferral changes, including whether they wish to stop making any contributions to their Plan, on their Vestwell participant portal. We will apply their deferral rate changes to your payroll system four days prior to the pay date if your payroll integration supports that feature. If you process your payroll earlier than four business days before the pay date, those deferral changes will not be reflected in your payroll file submission.
      • For employees who are automatically enrolled in your Plan, if applicable, and/or for newly eligible employees, we will send their employee deferral elections to your payroll provider up to four business days before the next pay date in order to update deductions in your payroll system before your next payroll cycle.
      • If necessary for your Plan, you must provide Vestwell with final W-2 forms, as well as Schedule K-1 and Schedule C for all owners and Highly Compensated Employees, within 30 days following the end of the Plan year.
   8. Review fee disclosures, reports, and other notices about the Plan's investment lineup. Reports, fact sheets, and other materials will be provided by Vestwell or your Plan's investment fiduciary regularly. You must review and evaluate each investment’s performance against the agreed-upon benchmark, best execution reporting for all ETF trades, and compliance with your Plan investment policy. Review and evaluate regularly, and at least annually, all fee disclosures provided by Vestwell and other service providers to the Plan, and evaluate the value and extent of services provided and the reasonableness of the fees charged.
   9. Prompt contributions. It is your responsibility to make sure that funds are actually and timely contributed to the Plan when required for tax deductibility, minimum funding standards for pension plans, or for DOL fiduciary requirements (which require payroll contributions for salary deferrals, loan repayments, and other contributions to be made as soon as possible but no later than 7 days after the applicable payroll date). In the event of any late contributions, Vestwell will need to prepare and file a Form 5330 and you will be assessed excise taxes or other penalties. Vestwell will not be responsible for payment of any taxes, penalties, regulatory reviews; or Plan disqualification relating to your failure to satisfy this provision or any of your other contractual obligations.
   10. Compliance and internal controls. You are responsible for ensuring that the fiduciary duties you undertake are performed with the appropriate care. Therefore, you are responsible for implementing your own internal controls to ensure that you are performing your duties appropriately and reviewing them periodically to make sure they are working as planned. You are also responsible, at your own expense, for obtaining and maintaining throughout the term of our Agreement appropriate insurance coverage that is sufficient to cover your potential liabilities under the Agreement. Vestwell makes available various educational materials in the Plan Sponsor portal, but those materials are not legal advice. Vestwell is not a law firm or tax advisor and we recommend that you consult legal counsel to understand your fiduciary obligations and what controls and insurance may be appropriate for your organization. Additionally, throughout the term of our Agreement, you represent and warrant that the Plan Sponsor will remain an organization in good standing with your respective state of incorporation or domicile and eligible to sponsor a retirement plan.
   11. Timely response to requests relating to annual compliance tests. Our annual compliance testing process is contingent on your completion of a year-end checklist. Without creating any new duties for us, we may point out any discrepancies between data about your Plan on our systems and information that you provide to us in your questionnaire responses, in which event we require your prompt responses to and correction of those discrepancies. Your compliance testing, preparation of your annual Form 5500, and your corporate tax filings may be delayed if you do not provide timely, complete, and accurate responses to our year-end questionnaire and any follow up requests. Vestwell will not be responsible for any fines, penalties, or other damages due to those delays or errors. You must also carefully review the annual compliance package provided to you and inform us of any incorrect or missing information.
   12. Changes to your organization. The Plan's operation, tax qualification, and compliance obligations are affected by other Plans sponsored by you or a related entity, changes in ownership structure of the Plan Sponsor or any of its affiliated organizations, or the adoption of any other qualified retirement plans. You must promptly inform Vestwell of any changes to your corporate structure, ownership, sponsorship of qualified retirement plans, and related information. You are solely responsible for determining whether your organization is part of a Controlled Group or Affiliated Service Group, which may trigger various Plan-related requirements, and to inform us of any change in such status due to acquisition, merger or other sale/purchase event. Vestwell will rely solely on your determination and directions.
   13. Fidelity bond and insurance. You are responsible for obtaining and maintaining at your own cost and all times during the Plan’s operation a fidelity bond and any other insurance covering your responsibilities to the Plan. Vestwell is not responsible for any of those costs nor for reviewing the fidelity bond for any reason, including to determine compliance with legal or regulatory requirements. If requested, the Plan Sponsor must promptly provide Vestwell with a copy of the fidelity bond.
   14. Source of payment of fees. Our Services Agreement together with fee disclosure notices provided to you set forth the fees charged by Vestwell and other service providers identified in the Agreement. You are responsible for making sure that Vestwell’s fees are paid from the proper source and consistent with the designations set forth in the Plan’s Fee Schedule.
   15. 403(b) Plans. For Sponsors of Plans subject to Code §403(b), the "universal availability" rule requires the Plan to be offered to all employees who are not in an excluded category. You are required to provide Vestwell with a complete list, in Good Order, of all employees to satisfy that requirement. Plan Sponsor also understands that it may take 30 days or more to onboard the Plan and otherwise satisfy the "immediate eligibility" requirements for certain 403(b) plans.
   16. Review Plan Documents. The operation and administration of benefits for your Plan are governed by the Plan Adoption Agreement (“PAA”), which will be provided to you during the onboarding process. You are responsible for reviewing the PAA and operating your Plan consistently with it, including performing any additional responsibilities that are set forth in the PAA and other materials provided to you. Vestwell will not be responsible for any penalties, damages, or additional costs for your failure to operate the Plan consistent with the Plan documents.
   17. Engaging a TPA. If you select features or your Plan has complexities that Vestwell cannot support, we may require you to engage a TPA to support your Plan. In that instance, your TPA and not Vestwell will perform certain services for the Plan as set forth in this Agreement, our TPA Intake Form, and your separate agreement with your TPA.

4. Recordkeeping Services. Vestwell Administrative Services, LLC (“Vestwell Admin”), a Delaware limited liability company and subsidiary of Vestwell Holdings Inc., will perform the following non-fiduciary services. The Parties understand and intend that Vestwell Admin shall not be a fiduciary within the meaning of ERISA or any state law with respect to the Plan and the services described in this section are non-fiduciary with Vestwell Admin not having any discretion, control, or authority with respect to the management or administration of the Plan, interpretation of any Plan documents, nor with respect to establishing or changing any rules pertaining to eligibility for or entitlement to benefits, nor with respect to any investments or assets of the Plan, including the selection and continued evaluation or monitoring of investments, benchmarking of any fees, expenses, or indirect compensation relating to the investments, disposition or replacement of any investments or Plan assets, nor determining whether the investment options satisfy the Qualified Default Investment Alternative rules or whether any changes to the investment options require notices to participants. All discretion and control with respect to those activities and all other fiduciary activities to support the Plan shall remain with the Plan Sponsor or the investment fiduciary to the Plan. If you engage a TPA to support your Plan, your TPA will be performing some of these services as set forth below.
1. Plan document review. We will review the Plan documents that you or your TPA provide to us solely to confirm that your Plan has a written, signed Plan document, and to evaluate the protected benefits offered by the Plan. We assume, unless you notify us otherwise in writing, that you have been timely and properly amending your Plan document to comply with regulatory requirements and that you have been operating your Plan consistently with its terms. The purpose of our review (whether you use a TPA or not) is solely for us to determine whether we are able to assume and perform the Services for your Plan and not for any other purpose. We rely on you or your TPA to provide the current Plan documentation and give permission for us to obtain prior administrative and recordkeeping records. We will review the information we receive, but we will not perform any audit or independent review of those records for accuracy, compliance with government requirements, or consistency with how you have been operating the Plan.
   1. We do not guarantee or represent in any way that we will identify all compliance issues. If we discover compliance issues during this review, we may require that you take steps to correct these issues and/or engage qualified legal counsel prior to our commencement of (or provision of additional) services to the Plan. If you choose not to make these corrections, Vestwell may decline to perform Services for your Plan and terminate the Agreement immediately.
   2. We assume that you have properly and timely made all required Plan amendments and filed all required annual returns for your Plan unless you have notified us otherwise, in writing, of the specific deficiencies. In the event that the Plan has not been administered in accordance with any Plan documents, Vestwell is not responsible for any damages, corrections, or other required remediation owed to any participants or others. Vestwell does not issue any opinions about the timeliness or completeness of any amendments or restatements made before the effective Date of the Agreement. We are not responsible in any way for any delays, errors, omissions, audit assistance, or remediating any related issues concerning Plan amendments, required Plan restatements, or annual returns due prior to the later of the effective date of the Agreement or when all assets for existing Plans are converted to our platform.
   3. There may be gaps or ambiguities between the text of your Plan documents (or your interpretation of them) and the way in which the Plan has been operated or administered. Your TPA or counsel is responsible for assisting you in your interpretation of the Plan documents and identifying possible amendments. If your Plan does not use a TPA, and if authorized by you and accepted by us, Vestwell will work with you and/or your attorney to correct compliance or operational issues for an additional fee as listed in your Fee Schedule. Vestwell is not responsible for handling or resolving any compliance-related matters that occurred or are attributable to conduct that occurred prior to the later of the effective date of the Agreement or when all assets for existing Plans are converted to our platform.
   4. While we make reasonable efforts to support most types of Plan features, Vestwell might not be able to support unusual or highly customized features, in which case you may need to accept additional administrative responsibilities for your Plan or engage a TPA at your expense; or we may decline to support the Plan on the Vestwell Platform. If we agree on a Plan redesign, Vestwell or your TPA may need to prepare an amended document package and corporate resolutions and there may be additional charges for those services as shown in your Fee Schedule.
2. Plan document preparation. For new Plans, or amending existing Plans, we will prepare Plan documents based on the features you select, but it is solely your decision whether to have them reviewed by your counsel. We will advise you if amendments are required and confirm, as needed, that amendments to any existing Plan documents required by changes in the law or regulations have been made on a timely basis. Vestwell or your TPA will prepare mandatory and discretionary amendments for an additional fee. Throughout the Term or Renewal Term, we will maintain, consistent with our records retention policy, beneficiary designations completed while the Plan is supported by the Vestwell Platform, loan requests, distribution forms, annual returns, compliance tests, and legally-required notices that we prepare or that your TPA provides to us.
3. Compliance testing. Vestwell will perform applicable non-discrimination and coverage testing including: Code §§401(k) and/or 401(m) Non-Discrimination Test(s); Code §410(b) Coverage Testing; §401(a)(4) General Non-Discrimination Testing; §415 (c) Annual Additions Test; §416 Top-Heavy Status; and the §402 Deduction Limit Test. Vestwell will suggest corrective action to remedy annual nondiscrimination or coverage failures (pursuant to Treasury Reg. 1.401(a)(4)-11(g)(3) and other regulations) for review, approval, and action by the Plan Sponsor. Vestwell will not be responsible for performing and will not prepare any compliance testing or government filings for any Plan year prior to the effective date of the Agreement.
4. Annual Return. We will prepare a signature-ready filing for your review and approval of Form 5500, Form 5500-SF, or Form 5500-EZ (including Forms 5558, 8955-SSA, 5330) as applicable. Upon receiving your approval, we will sign and file it with the appropriate agency on your behalf.
5. Fidelity bond requirements. Vestwell is not an insurance broker and will not obtain the fidelity bond for you. You are responsible for obtaining a fidelity bond as required by ERISA, selecting your own broker, reviewing your bond and other insurance needs, the cost of obtaining a fidelity bond or other insurance, and providing a copy of the bond to us if requested. We will not be reviewing the bond for adequacy of coverage; we only review the bond so that we can confirm for the Plan’s Annual Return that you have obtained one.
6. Onboarding to the Vestwell Platform. Based on the Plan Data provided to us, we will:
   1. Coordinate the termination, blackout periods, and transfer of assets and records from your prior recordkeeper pursuant to our conversion specifications. We cannot onboard your Plan until you terminate your contracts with prior providers, authorize them to provide information to Vestwell and send us confirmation of that termination, and we confirm that we can accept your Plan. Also, depending on the complexity of your Plan, nature of your payroll files, level of cooperation from your existing providers, and other logistics (such as whether you utilize multiple payroll providers, have employees who often change business divisions, if the Plan has multiple employer identification numbers, or if you are undergoing a corporate transaction), we may have additional data, formatting, or other requirements. Those requirements could delay onboarding your Plan, processing employer and employee contributions, sending notices, and/or performing our other responsibilities. We are not responsible for any costs, damages, or penalties associated with those delays. Vestwell is not responsible for any additional costs incurred by you in formatting, collecting, compiling, or any other activities involved in satisfying Vestwell's additional data requirements.
   2. Create and distribute welcome emails and required notices listed in section 4(h) below.
   3. Calculate initial Plan eligibility and coordinate enrollment activities based on the Plan Data you provide to us. We will not be responsible for determining whether minors can be eligible to participate in the Plan. We reconcile Plan assets for existing Plans converting to Vestwell Platform based on valuation and reports from your prior provider.
7. Ongoing services. Based on the Plan Data provided to us, we will:
   1. Calculate and process eligibility, enrollment, and vesting. We can only perform these calculations if you provide us with prior years of service, hours worked, or other required Plan Data. If your Plan determines eligibility based on hours worked and you, or anyone acting on your behalf, fails to provide us with that data in Good Order, Vestwell may make default assumptions regarding participants’ hours worked. In that event, Vestwell will not be considered a Plan fiduciary for any purpose relating to the use of those assumptions and we will not be responsible for any losses to the Plan, participants, or any third party.
   2. Process payroll and participant elections pursuant to participants’ selected deferral rates. We will confirm payroll contributions and monitor regulatory limits on annual elective deferrals based on Plan Data provided to us.
   3. Calculate employer matching and/or profit sharing contributions, as applicable. We assume that you made or will make all required contributions in a timely manner and we do not perform any follow-up or tracking to confirm that you have done so.
   4. Identify participants appropriate for small-sum mandatory distributions on at least an annual basis and process accordingly. If your Plan documents permit a mandatory distribution of all small account balances, by signing the Agreement you are authorizing Vestwell to notify participants that have small balances and process a distribution to them. For participants who fail to make an affirmative election to receive the distribution or have it rolled over to another qualifying vehicle, you delegate authorization to Vestwell Advisors, LLC and Vestwell Trust Company, LLC, both of which are subsidiaries of Vestwell Holdings Inc. to establish an IRA account on behalf of each identified former participant to receive automatic rollover distribution funds from the Plan. You also understand that Vestwell charges a fee for processing the distribution, as set forth in your Fee Schedule, and Vestwell Advisors and Vestwell Trust Company each charge a fee for the establishment and ongoing services provided with respect to the IRA account holder. The Parties understand and intend that Vestwell, by performing its duties, shall not be a fiduciary within the meaning of ERISA or any state law in selecting or becoming the IRA provider.
   5. Process participants’ investment elections and deferral changes. Some payroll systems may require you to also take action to implement participants’ deferral changes. You are responsible for understanding and complying with those requirements. All investments and other transactions are made consistent with Vestwell’s Trading Policies, which are incorporated herein by reference.
   6. Generate quarterly participant statements and post them to participant portals on the Vestwell Platform.
   7. Search for missing terminated participants and coordinate handling of their vested and unvested account balances, if agreed to. Depending on the complexity of the search, there may be additional charges as shown in your Fee Schedule.
   8. Provide general, non-fiduciary informational materials to participants regarding their rollover and tax withholding election options.
   9. Identify participants eligible for Required Minimum Distributions and handle accordingly.
   10. Make Beneficiary Designation Forms available to participants. Vestwell will only store fully and properly completed forms submitted through the Vestwell Platform. Vestwell will not be responsible for the accuracy of completed forms nor for reviewing, storing and maintaining any forms submitted through any other method, such as any paper forms, forms delivered by mail, or forms completed when your Plan was supported by another recordkeeper.
   11. In the event our services are terminated for any reason, we will assist with the transfer of Plan records or assets to a new provider after receipt of our then-prevailing service provider termination or deconversion fee and completion of other conditions set forth in the Agreement.
   12. Vestwell makes a variety of web-based training tools available to participants to help them understand the Vestwell Platform, the benefits of their retirement plan, and other educational messaging. There is an additional fee for any in-person or live training that we agree to provide to your employees.
   13. We will inform you of the Plan’s forfeiture accounts’ status on at least an annual basis by identifying the forfeiture balance on your invoices. For Plans converting to our platform, we assume, unless you notify us in writing otherwise, that any balance in your Plan's forfeiture account is the result of transactions that occurred before the end of the prior Plan year before your Plan was transitioned to our platform. Consistent with our forfeiture process and applicable regulations, we will apply any forfeiture account balance first toward payment of Vestwell's fees and then toward any employer contribution before a) the end of the Plan year in which the Plan is transitioned to our platform; or b) if your Plan was transitioned to our platform during the last half of the calendar year, before the end of the following year.
   14. Invoice processing. We will provide quarterly invoices and deduct asset-based and other fees on a quarterly basis for payment to Vestwell's affiliates and, if applicable, your TPA and any fees required by your payroll provider.
8. Preparation and delivery of legally-required notices. Vestwell will prepare and deliver the following notices: Safe Harbor Notices, Summary Annual Reports, Summary Plan Description, Summary of Material Modifications, Blackout Notices, notices relating to investments in qualified default investment alternatives under ERISA §404(c)(5) and DOL Regulation §2550.404c-5, fee disclosures in accordance with DOL Regulation §2550.404a-5(c)(2)(i) with respect to services covered by the Agreement, and notices required by a Plan’s automatic enrollment feature. Our services do not include preparation or distribution of (a) any notice, mailing or document not explicitly described in this section; (b) any notices to be provided to employees who have been rehired or who have incurred a break in service unless such information has been provided in advance to Vestwell; or (c) required fee disclosure notices with respect to any participant whose Plan account is invested in any respect in an investment option that is held outside Vestwell's recordkeeping system. Additionally, If the Plan uses a third party investment fiduciary, Vestwell is not responsible for determining whether the default investments used in the Plan satisfy the applicable regulatory requirements and we will use content relating to the investments provided by the investment fiduciary. For more information about the division of responsibilities between Vestwell and a third party investment fiduciary, please see the Division of Responsibilities Chart in the Help Center. We deliver all notices and Plan communications, including the welcome notices, to participants via email or other electronic delivery methods to the extent legally permissible. If you are unable or fail to provide us with valid email addresses for your employees or participants with a balance in the Plan, we at our sole discretion will either a) require you to deliver those communications (in which case we assume you have delivered the notices promptly and you are solely responsible for any errors or delays in delivering those materials and for keeping records relating to the delivery of those materials) or b) we will deliver the notices by mail to the addresses provided to us and charge a reasonable fee for postage to send communications.
9. Corrections of benefits administration issues, document errors, or operational failures. Vestwell will report such matters as soon as practical and you are delegating authority to us to resolve errors consistent with our Corrections Policy, which is incorporated herein by reference. You understand that without accepting any fiduciary responsibility, Vestwell will determine the appropriate correction and/or calculation method, consistently to the extent permissible with the Internal Revenue Service or DOL self-correction methods as allowed under Rev. Proc. 2021-30 or rules in effect at the time of any correction.
10. Audit support. Some Plans are required to complete an annual audit. We will make an initial determination, based on our records, regarding whether your Plan requires an annual audit, but it is your responsibility to make the final determination whether an audit is required. Vestwell reserves the right to charge for our time spent assisting your auditors consistent with your Fee Schedule. We also reserve the right to charge an additional fee of $500.00 or more and/or immediately resign from our fiduciary or ERISA 3(16) services if you do not provide your independent audit report by our required deadlines or if you fail to comply with our annual compliance testing process. You are solely responsible for the selection of a qualified auditor and all costs associated with your Plan’s audit.

5. ERISA §3(16) Services. If you are engaging Vestwell in a bundled capacity, you are designating Vestwell Administrative Services, LLC the authority to act as a co-fiduciary with you with regard to the following services. If you engage a TPA to support your Plan, your TPA will be performing some of these services as set forth in section 11 below.
1. Processing loans, distributions, rollovers, Required Minimum Distributions, and other withdrawals upon receipt of Instructions from you, your TPA (if your Plan has one), or a Plan participant. Distributions for terminated participants will only be made as a lump sum payment as soon as administratively feasible after termination of employment with immediate eligibility.
   1. You are instructing Vestwell to accept, without Plan Sponsor approval or signature, requests from participants for rollover contributions to the Plan that are accompanied by a properly completed form and any required supporting documentation and are received in Good Order and in a manner acceptable to us, that we may rely on the properly completed form and accompanying documentation without further investigation or action as sufficient to show that the funds being rolled into the Plan(s) constitute an eligible rollover distribution from an eligible retirement plan within the meaning of Code §402.
   2. You are also authorizing us to reject any rollover request received without proper documentation and to return any rollover amounts received with such request. Plan Sponsor acknowledges and agrees that Vestwell does not and will not assume any fiduciary responsibility or any discretionary authority or control with respect to any rollovers accepted pursuant to this section.
   3. For all loans, hardship, and other withdrawals and distributions, you are instructing us to process, without requiring your additional approval or signature, participant requests for distributions that are received in Good Order and in a manner acceptable to Vestwell and to rely on your payroll provider or payroll files for participants’ termination dates, employment status, or other required information. You are also instructing us to rely on the marital status specified by the participant on any distribution request form for spousal consent or other purposes. Vestwell will also coordinate loan processing, including creating amortization schedules and administration of deemed and defaulted loans and hardship withdrawal requests; confirm eligibility for and process distributions, rollovers, payment of death benefits, and in-service withdrawals; and respond to participant claims for benefits from the Plan.
2. We will review certified copies of domestic relations orders provided by participants or their counsel. The purpose of our review is to confirm that the order has sufficient detail for Vestwell to process benefits to the alternate payee and not for any other purpose. Participants will receive and are expected to comply with Vestwell’s QDRO Procedures, a copy of which will be provided to participants, and Vestwell, in a non-fiduciary capacity, will handle communications and distributions with the participant and/or alternate payee consistent with the court order.
3. We will confirm whether Plan deposits are made timely, including that elective deferrals and participant loan payments are contributed to the Plan within DOL guidelines, advise Plan Sponsor of potentially late deposits, determine the amount of interest to be deposited to Plan on late deposits, inform you of excise tax obligations, and confirm that payment of tax is timely completed.
4. Upon receiving your authorization to do so, we will review, sign, and file the Plan’s Annual Return (Form 5500, 5500-SF, 5500-EZ and/or Form 8955 SSA) including any appropriate recordkeeper’s schedules. Vestwell Admin is not responsible for obtaining an independent audit of the Plan or for reviewing the report of the auditor. If your Plan is required to undergo an audit, it is your decision whether to conduct a full or limited scope audit, for bearing the costs of the audit, and providing us with the auditor’s report which we use solely for purposes of filing with the Annual Return. We do not review the auditor’s report for completeness, accuracy or compliance with applicable regulations and we are not responsible for payment of any damages associated with a determination that the auditor’s report was incomplete or inaccurate.

6. Technology Support Services. Vestwell Holdings Inc., as owner of the Vestwell Platform, provides the following services to you and your Plan:
1. Payroll provider integration. In order to simplify the administration of the Plan, Vestwell may be able to provide 180- or 360-integration or other coordination to integrate participant payroll files with the Vestwell Platform. Plan Sponsors must follow the protocol for the submission of payroll records and census files that are applicable to your payroll provider. By signing the Agreement and agreeing to these Terms, you confirm that you have read and agree to follow the process for your provider available on our Help Center. There may be additional data, formatting, or other requirements of the Plan Sponsor in order to implement an integration with the Vestwell Platform. All Plan Sponsors, regardless of whether Vestwell has an integration with your payroll provider, must provide us with a year-end census file directly that we will use when conducting annual compliance testing. Additionally, while these integrations can ease some of the administrative burdens of operating the Plan, the Plan Sponsor is always responsible to ensure that the data being passed by the payroll provider to Vestwell is in Good Order.
2. Enhanced payroll file processing. Where possible, your Plan will be integrated with our PayrollNG solution, which may identify certain potential data errors detected in your payroll files, such as deferrals to ineligible employees, deferrals in excess of maximums, and loan defaults.
3. Implementation on the Vestwell Platform of investment options provided by the Plan’s investment fiduciary with multiple options for participants to select and change their investment elections intended to keep the Plan in compliance with ERISA §404(c), including a managed account feature with a dynamic QDIA option available for the investment fiduciary.
4. Plan Sponsor and participant phone, email, or other customer service support during normal business hours. Vestwell follows the New York Stock Exchange (“NYSE”) calendar and customer service support may not be available or may be more limited on days when the NYSE is closed for business. Additionally, there may be certain times of year when it may take longer than usual to respond to incoming inquiries.
5. Access to Plan Sponsor portal and participant portals on the Vestwell Platform, which includes a portal to access Plan documents and notices, Plan onboarding task tracker functionality, Help Center, investment education, and training materials.

7. Custodial Services. Vestwell Trust Company, LLC (“Vestwell Trust Company”), a subsidiary of Vestwell Holdings Inc., will serve as the custodian for the Plan. Our custodian will establish a custodial account for and in the name of the Plan and hold, invest, and distribute all assets of the Plan in accordance with the Plan document and participant instructions. The Custodian’s obligations are described in more detail in a Custodial Services Agreement, which Vestwell will sign on the Plan’s behalf and will store in your Vestwell account portal.

8. Trustee Services. Vestwell Trust Company will serve as the Trustee for the Plan consistent with ERISA §403(a) and the Plan documents. Vestwell Trust Company is a qualified non-discretionary trustee responsible for establishing a custodial account in the name of the Plan and authorizing the disposition of Plan assets consistent with instructions from the participant, investment fiduciary, and recordkeeper. For large-filer Plans, as defined by the DOL, Vestwell Trust Company can certify financial statements for the Plan that may be used to assist with satisfying the requirements of an ERISA §103(a)(3)(C) audit under SAS 136. The Trustee's services are described in more detail in a Trustee Services Agreement, which Vestwell will sign on the Plan’s behalf and will store in your Vestwell account portal.

9. Named Fiduciary Services. For Plans that engage Vestwell Advisors, LLC as the Plan’s investment fiduciary, Vestwell, LLC, a subsidiary of Vestwell Holdings Inc. will provide the following Named Fiduciary services consistent with ERISA §402(a) that are described in more detail in a Named Fiduciary Agreement, which Vestwell will sign on the Plan’s behalf and will store in your Vestwell account portal. Named Fiduciary services include selecting fiduciary and non-fiduciary service providers listed in this Exhibit to support the Plan, and monitor the performance and fees of those providers; confirming that Plan Sponsor and participants are provided access to the Vestwell Platform in order to maintain compliance with ERISA §404(c); on an annual basis, confirming that the Plan has timely complied with annual report and compliance testing and other legally required notices have been delivered to applicable employees necessary to maintain the Plan's qualified status.

10. Investment Management Services. For Plans that engage Vestwell for this service, Vestwell Advisors, LLC, a subsidiary of Vestwell Holdings Inc., will provide the following fiduciary services in accordance with ERISA §3(38). These services are described in more detail in an Investment Management Agreement, which Vestwell will sign on your behalf and store in your account portal. These services include:
1. Fiduciary investment selection and management of a diversified lineup of investment options for the Plan that complies with ERISA and related rules and regulations.
2. Creating and maintaining a risk tolerance questionnaire on the Vestwell Platform (available only for those Plan Sponsors that select the Risk-Based investment options on the Vestwell Platform).
3. Developing an appropriate Investment Policy Statement ("IPS").
4. Creating, maintaining, and implementing onto the Vestwell Platform model asset allocation portfolios, including Target Date Strategies and Risk-Based Strategies, that may also serve as the Qualified Default Investment Alternative for the Plan.
5. Ongoing monitoring and rebalancing of the model asset allocation portfolios and evaluation of the Plan's IPS.
6. Investing participant funds according to participant instructions and consistent with Vestwell’s Trading Policies.
7. Non-fiduciary services, including the preparation and posting of fact sheets and other educational materials about the model asset allocation portfolios on the Vestwell Platform and offering educational webinars, market trend reports, or other information sessions that are designed and intended for educational purposes only and not as providing individual investment advice.

11. TPA Responsibilities. Your TPA, if your Plan uses one, will perform the following services in lieu of Vestwell. Consistent with section 7 of the Terms of Service, a TPA is a Third Party Application and Provider and Vestwell will not select, monitor, or be held responsible in any way for the services performed or activities of your TPA. It is your responsibility to share our Services Agreement and this Exhibit with your TPA so that your TPA’s services will be consistent with Vestwell’s role and responsibilities when your Plan uses a TPA. Unless Vestwell has agreed with you and your TPA in writing otherwise, your TPA and not Vestwell will perform the following services:
    1. Plan document review and drafting, and amendment drafting. Your TPA will review and prepare Plan documents that must align with the features that you select for your Plan. Your TPA is responsible for preparing any Plan documents, which must be consistent with the capabilities and operation of the Vestwell Platform, the TPA Intake Form, and the terms of our Services Agreement. We will not be liable for any errors or inconsistencies for your TPA’s failure to comply with this provision. Your TPA will advise you if amendments are required and confirm, as needed, that amendments to the Plan documents required by changes in the law or regulations have been made on a timely basis. Unless Vestwell has agreed in writing with your TPA otherwise, your TPA prepares mandatory and discretionary amendments for an additional fee. There may be restrictions on your ability to make any Plan amendments during the middle of the Plan year, and your TPA will provide consultation and recommendations in such a case. This section supersedes and replaces section 4(a) and 4(b) above.
    2. Compliance testing. Your TPA will determine and perform applicable non-discrimination and coverage testing for your Plan. This section supersedes and replaces section 4(c) above.
    3. Annual Report. Your TPA will prepare a signature-ready filing for your review and approval of Form 5500, Form 5500-SF, or Form 5500-EZ (including Forms 5558, 8955-SSA, 5330) as applicable. You are responsible for signing the Annual Report and your TPA will file it with the appropriate agency on your behalf. This section supersedes and replaces sections 4(d) above.
    4. Review and provide Instructions to Vestwell regarding how to process Qualified Domestic Relations Orders, death benefit distributions, and complex distribution or withdrawal requests where Vestwell requires direction from the TPA. This section supersedes and replaces sections 5(a) and 5(b) above.
    5. Verification of eligibility, contributions, and deferrals. Your TPA is responsible for the verification of eligibility, contributions and deferrals. Vestwell will calculate initial and ongoing eligibility, contributions, and employee deferrals and your TPA is responsible for verifying that all eligible employees were offered an opportunity to participate in the Plan and that Vestwell has properly implemented their deferrals and contributions. This section supersedes and replaces section 5(c) above.

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    Exhibit B
    Vestwell’s Student Loan Repayment, College Savings, and Student Loan Match Solutions (collectively. "Gradifi Financial Wellness Solutions")
    
    

    This Exhibit sets forth the terms and conditions of Vestwell’s services for the Gradifi Financial Wellness Solutions.

    Definitions: In addition to the definitions already defined in Vestwell Terms of Service, the following definitions apply to the Student Loan Repayment Services:

    • "Applicable Law" means section 127, 132, or other relevant sections of the Internal Revenue Code to establish and maintain the Client Benefit Plan.
    • "Client Benefit Plan" means one or more education assistance plans adopted by the Client duly organized and in compliance with section 127 of the Internal Revenue Code and other applicable laws and regulations.
    • "CSU Benefit" is Gradifi’s College SaveUp Program solution, which, through the Gradifi platform, permits Clients and Eligible Employees to make contributions toward their savings for qualified education costs, as determined by and consistent with the terms of the Client Benefit Plan and Applicable Laws.
    • "Eligible Employee" means an individual who is lawfully employed by the Client and who the Client has determined to have satisfied all criteria to enroll and participate in the Client Benefit Plan.
    • “Qualified Student Loan” means any indebtedness incurred by the employee to pay qualified higher education expenses of the employee, spouse, or a dependent. A Qualified Student Loan Payment (“QSLP”) is any payment made toward a Qualified Student Loan.
    • “Student Loan Match” means an optional feature of a Plan that permits eligible employees to receive a portion of their QSLP in the form of an employer match in their Plan.
    • "SLP Benefit" is Gradifi’s Student Loan Paydown solution, which, through the Gradifi platform, permits an employer to help eligible employees pay down the balance of a loan that was used to fund the employee’s higher education expenses at an accredited institution where the eligible employee is the primary borrower.
    • "Valid 529 Plan Account" is a college savings plan account for which an eligible employee, as determined by the Client Benefit Plan, is the account owner and for which the designated beneficiary meets criteria established by the Client for the Client Benefit Plan. Initially, Vestwell will only support direct-sold 529 college savings plan accounts. If Vestwell develops functionality to support advisor-sold 529 college savings plan accounts, it will notify the Client.
    1. Services. Section 1 of the Vestwell Terms of Service is replaced by the following sections, which apply to the Gradifi Financial Wellness Solutions.
    1. The Client has established a Client Benefit Plan and engages Vestwell to provide certain services that Vestwell makes available through its website interface, the Gradifi platform, to administer the benefits available to Eligible Employees who enroll in the Client Benefit Plan.
    2. If the Client has engaged Vestwell for Gradifi’s College Save Up (“CSU”) and/or Student Loan Paydown (“SLP”) Benefits, Vestwell will, through the Gradifi platform, enable Client to create an administrator account; identify and invite Eligible Employees to enroll in the Client Benefit Plan; and enable Client to provide a bank account for ACH debit to serve as a funding source for contributions and fees relating to the Client Benefit Plan.
       1. If elected by Client, Vestwell will enable: (i) automation of Client’s secure transfer of Eligible Employee data to Vestwell; (ii) a single-sign-on option for Participants to access their Member Accounts via Client’s internal network; and (iii) secure transfer of imputed income files to Client’s payroll system.
       2. If requested by Client, Vestwell will provide Client with a digital copy of a brochure and FAQs personalized with Client’s name, logo, and Client Benefit Plan details to help Client communicate with employees regarding the Client Benefit Plan. Other communications and promotional materials may also be available, but additional fees may apply.
       3. Member Account Portal and Onboarding Participants. Vestwell will maintain the Gradifi platform through which Client may send email invitations to Eligible Employees and through which eligible employees may establish an account and designate one or more Valid 529 Plan Accounts (for the Gradifi CSU Benefit) or student loan accounts (for the Gradifi SLP Benefit) to receive contributions. Client understands that each Eligible Employee who enrolls in the Client Benefit Plan will be required to agree to the Gradifi Platform Terms and Conditions, which Vestwell may establish and modify from time to time.
       4. Vestwell will require each Eligible Employee to attest that he or she is the owner of the Valid 529 Plan Account(s) and that each account beneficiary meets the criteria established by Client and the Client Benefit Plan. Client understands that Vestwell will solely rely upon the Eligible Employee’s attestation, it will not independently verify or guarantee the reliability or accuracy of any information or attestation of an Eligible Employee, and Vestwell will not be responsible for any fines, penalties, taxes, or other monetary damages relating to any inaccuracy, error, or omission in any attestation from an Eligible Employee.
    3. If Client has engaged Vestwell to provide student loan refinance service (“Refinance Services”), Vestwell will make the Refinance Services available to employees of Client who visit a designated section of the Gradifi platform and reside in states in which applicable law allows Vestwell to provide Refinance Services (“Eligible Refinance Employee”). The Parties also understand and agree to the following:
       1. Vestwell will enable Client to create an administrator account through the Gradifi platform to identify Eligible Employees, view reports regarding utilization of Refinance Services by Eligible Refinance Employees, and Vestwell will provide Eligible Employees with access to interactive tools and content related to general financial and educational loan topics.
       2. Vestwell will present Eligible Refinance Employees with student loan refinancing offers from one or more lenders. Vestwell does not make any commitment of any kind to Client, any Eligible Employees, or any other individual as to the number or terms and conditions of offers. Whether an employee will be eligible for or presented with a particular offer will depend on the parameters established by the lenders, such as the employee’s credit score, loan amount, the state of the employee’s residence, and possibly other factors outside of Vestwell’s knowledge or control. Vestwell will have no liability whatsoever regarding any lender’s decision regarding or terms of any loan offer to any Eligible Refinance Employee.
       3. Client acknowledges that Vestwell is not providing lending, underwriting, or loan brokering services to any of Client’s employees or lenders; providing and evaluating loan terms and conditions, eligibility requirements, and credit underwriting are the responsibility of the lenders making refinancing offers, not Vestwell; and Vestwell cannot and does not guarantee or make any commitment that all Eligible Refinance Employees, any specific employee, or group of employees will be eligible for Refinance Services or offers available through Vestwell.
       4. Client acknowledges that Vestwell may receive compensation from lenders whose offers are available to Eligible Refinance Employees and the terms of any such compensation are separately agreed upon between Vestwell and the lenders.
    4. If the Client has engaged Vestwell for services relating to a Student Loan Match, the Parties understand and agree to the following. In the event the Client engaged Vestwell as the Plan recordkeeper, nothing in this Exhibit is intended to replace the other provisions of these Terms of Service and Exhibit A to the Terms of Service.
       1. The Client is solely responsible for selecting the Plan features, including the eligibility, vesting, and match formula for the Student Loan Match that are consistent with applicable law. The Client will promptly notify us of any changes that it makes to the Student Loan Match or other Plan features that may affect our services in any respect.
       2. The Client, or its Plan recordkeeper, will prepare the Plan document that incorporates the features selected by the Plan Sponsor and at all times operate the Plan in compliance with applicable law and the Plan documents. They are also solely responsible for timely and properly determining employee eligibility for the Plan and the Student Loan Match, providing all eligible employees with required notices and Plan communications, administering all vesting schedules for the Student Loan Match feature, and performing all other recordkeeping and other administrative activities relating to the Plan and do so in compliance with applicable law.
       3. The Client or participant will provide us with the names, email addresses, student loan provider, and any other data we may require of all Plan participants who are eligible for the Student Loan Match feature of their Plan in the format and by the deadlines as Vestwell may require.
       4. Based solely on the data provided to us pursuant to section 1(d)(iv), we will connect the student loan account for any eligible participant with their account in the Gradifi platform and use reasonable efforts to confirm that the student loan is a student loan payment that qualifies for the Student Loan Match and the amount of the participant’s student loan payments made during the preceding Student Loan Match period.
       5. On an annual basis, we will provide to you a report of all QSLPs made by your participants during the Plan year. Your Plan’s recordkeeper or administrator is responsible for calculating the amount of any Student Loan Match and processing such payments to eligible participants’ Plan accounts.
       6. In performing our services, we are entitled to rely at all times on the participants’ certification that (1) he or she is legally obligated to pay the student loan; (2) that the loan is used to pay for a qualified higher education expense of the participant, a spouse, or dependent at the time the loan was taken.
    5. With respect to all of Vestwell’s services relating to the Gradifi platform, in no event will Vestwell be deemed to be acting as a fiduciary (including within the meaning of the Employee Retirement Income Security Act of 1974, as amended) or with respect to the Client Benefit Plan(s) or any of Client’s employees, beneficiaries, or other persons in providing the Services under this Agreement or otherwise. The Client has made all decisions regarding the features offered in the Client Benefit Plan or its other Plans without reliance on or obtaining advice from Vestwell in any respect regarding the selection of those features or reviewing the Client Benefit Plan or other Plans for compliance with applicable law. Additionally, in no event will Vestwell be deemed to be a payroll agent, a common law employer, a co-employer, or an “employer” as that term is defined in section 3401(d) of the Internal Revenue Code with respect to the Client Benefit Plan(s) or the Client’s employees. Client also understands that Vestwell does not fund or control the source of the funding for the Client Benefit Plan. If the Plan has 500 or more eligible employees, Client may establish a process to fund via an alternative form of electronic payment.
    2. Term and Termination. In addition to section 3 of the Vestwell Terms of Service, and without in any way impairing the rights of the Parties under this Agreement, the Parties agree to that if Vestwell, its Bank Partner, lenders, banking institutions, or any regulator identifies Client’s breach of the NACHA Rules, Vestwell may (i) immediately suspend the Services until such time as Vestwell, in its sole discretion, is satisfied that the breach is cured; and/or (ii) upon ten (10) days written notice, may terminate this Agreement and discontinue services. Vestwell may also terminate this Agreement, the Gradifi service that is the subject of the termination event, or require Client to remove any Eligible Employee immediately if Client or any Eligible Employee: (i) fails to provide any required information within 10 days of a request; (ii) defaults in paying the fees for any service for more than 30 days after receiving notice of such default; (iii) fails to timely remit amounts to be contributed under the Client Benefit Plan(s); or (iv) makes an assignment for the benefit of creditors, files (or has filed against it) a petition under the bankruptcy laws of any jurisdiction, appoints (or has appointed for it) a trustee or receiver for its property or business, or is adjudicated bankrupt or insolvent. Upon termination or expiration of this Agreement, Vestwell will cease to collect any further Client Information or perform any Services covered by this Agreement. Vestwell may continue to use pre-existing information regarding the Client and any Eligible Employee to the extent and for the purposes authorized by the Client or the employee whose data is being used.
    3. Required Information About Certain Individuals. To fight the funding of terrorism and money laundering activities, federal law requires Vestwell to obtain, verify, and record information that identifies its clients. Vestwell may also utilize a third-party information provider for verification purposes. Subject to the exception set forth in the last sentence of this Section, upon the execution of this Agreement, Client will provide the name, address, date of birth and social security number (or passport number or other similar information, in the case of foreign persons) for the following: (i) a Control Person of Client and (ii) each Beneficial Owner of Client. For purposes of this Section, Control Person means an individual with significant responsibility for managing Client (for example, a chief executive officer, chief financial officer, chief operating officer, managing member, general partner, president, vice president, or treasurer) and Beneficial Owner means each individual who owns, directly or indirectly, 25% or more of the equity interests (e.g. shares) of Client. The requirements set forth in this Section will not apply if (i) Client’s common stock (or analogous equity interests) is listed on the New York Stock Exchange, the American Stock Exchange (currently known as NYSE American), or NASDAQ stock exchange; or (ii) at least 51% of Client’s common stock (or analogous equity interests) is owned by a company that would meet the exception described in clause (i).
    4. Client Responsibilities. In addition to the responsibilities listed in section 4 of the Vestwell Terms of Service and elsewhere in this Exhibit, the Parties agree that the Client is also responsible for the following:
    
    
    1. Performing all activities necessary to carry out the proper administration of the Client Benefit Plan(s) in accordance with the terms of the Client Benefit Plan(s) and applicable laws and regulations and ensuring that the terms of the Client Benefit Plan(s) are consistent with the provisions of this Agreement. The Client understands and agrees that Vestwell is not a law firm, it does not provide legal advice, and it is not in any way responsible for reviewing the Client Benefit Plan or its operations for compliance with applicable laws and regulations and is not responsible for any fines, penalties, or other monetary damages relating to the noncompliance of the Client Benefit Fit with applicable laws and regulations.
    2. Determining and notifying Vestwell of its employees that are eligible to participate in the Client Benefit Plan(s) (each, an “Eligible Employee”) and reviewing and approving any amounts that will be disbursed through the Client Benefit Plan(s).
    3. Funding and controlling the source of employer contributions and Client Benefit Plan(s) fees and coordinating with any payroll processing or other service provider for the proper data collection, reporting, and withholding of income and employment taxes arising from any taxable amounts payable or disbursed under the Client Benefit Plan(s).
    4. Executing and filing with any governmental authority \ all reports or documents required in connection with the Client Benefit Plan(s), including as required by federal, state, and local tax authorities and paying all sales or use taxes or any taxes in lieu thereof with respect to our services.
    5. Reviewing each report and statement issued by Vestwell in connection with our services and, unless Vestwell receives written notice of any incompleteness or inaccuracy in the report or statement that is the result of a Vestwell error within 60 days after the sending thereof, each such report or statement will be deemed correct.
    6. Providing Vestwell with true and correct Client Benefit Plan terms, notifying Vestwell of any amendment to the Client Benefit Plan(s) or interpretation thereof that may affect Vestwell’s performance of its services.
    5. Representations. In addition to the representations in section 8 of the Vestwell Terms of Service, if the Client uses Student Loan Repayment Services, Client agrees that it has obtained all approvals that may be required pursuant to the provisions of the Client Benefit Plan(s) and it is currently not a party to any agreement with any third party that is in conflict with this Agreement. Client acknowledges that Vestwell, its officers, employees and affiliates are not being engaged to furnish legal, payroll, tax, accounting, investment, or financial advice to Plan Sponsor or its employees and it will seek its own counsel and advisors with respect to such matters as needed. Nothing contained on the Vestwell website and no comments made by Vestwell, its employees or agents should be understood or used as the basis for any investment or financial decision, nor should they be construed as advice, endorsements, or recommendations.
    6. Monthly CSU and SLP Cycles. The following chart outlines each step of Vestwell’s monthly service cycle that requires action within a given timeframe and the party responsible for its completion. The Parties understand that some steps in the cycle are dependent on an uncompleted prior step and they will make good faith efforts to resolve issues in a timely manner. If payments are delayed due to preceding steps in the process, Vestwell’s target for completion of payment processing for the preceding month’s eligibility cycle is the last business day of the current month.
    
    

    Day	Milestone	Description	Responsible Party
    Last calendar day of the month preceding payment	Eligibility  Locked	Determine, finalize, and submit to Vestwell the list of all Eligible Employees for the next month’s payment cycle. See “Eligible Employee Information Deadline” below for more detail.	Client
    First business day of the month	Contribution Processing	Present contribution totals from locked eligibility population. See “Contributions Review and Approval” below for more detail.	Vestwell
    Second through third business day of the month	Contributions Approval	Approve eligibility totals. See “Contributions Review and Approval” below for more detail.	Client
    7th through 10th business day of the month	Funding Process	Remit payment of contributions and participant fees with full settlement no later than the 10th business day. Specific funding dates provided each month. See “Funding and Payment Remittance” below for more detail.	Client
    13th through 16th business day of the month	Send Payments	Send payments to Valid 529 Plan Accounts and/or student loan accounts. See “Funding and Payment Remittance” below for more detail.	Vestwell

    
    
    
    1. Eligible Employee Information Deadline. For each payment period for which Client has an active Client Benefit Plan, Client is required to provide a list of Eligible Employees that specifies the CSU or SLP Benefits for which each employee is eligible (“Eligible Employee List”) as of the last business day of the month preceding payment. The Client is solely responsible for maintaining information on its Eligible Employee List, and Vestwell is not responsible for unintended or incorrect payments that are completed based on information contained in the Eligible Employee List as of the last business day of the month preceding payment.
    2. Contributions Review and Approval. By the first business day of each month in which Client has contributions scheduled, Vestwell will present: (1) a list of employees that (i) are on the Eligible Employee List, (ii) have completed the process of establishing an individual Member account including accepting its terms and conditions, (iii) meet the then-current criteria outlined for the applicable CSU or SLP Benefits, and (iv) have at least one Valid 529 Plan Account or student loan account registered in the Vestwell system; and (2) the total dollar amount required to fund Client Benefit Plan contributions payable in that month and the associated fees. Unless Client has opted for auto-approval through the Vestwell website interface, Client will be responsible for reviewing and approving this information within the Vestwell website interface by no later than the third business day of each month in which Client has contributions scheduled. If Client does not approve this information by the third business day of the month, payments may not be processed for that month. Client will be responsible for informing Participants in the event payments for any CSU or SLP Benefits are not processed because the monthly deadline is missed. Client understands that, if it opts for auto-approval, Vestwell will not be responsible for unintended over-or under-funding based on incorrect or outdated information provided by Client, or anyone on its behalf, except to the extent such error is directly caused by Vestwell’s error.
    3. Funding and Payment Remittance. Vestwell will process and collect Client’s contributions and fees for its Client Benefit Plan and will remit such contributions to the Valid 529 Plan Account program administrator(s) for the Valid 529 Plan Account(s) specified by each Participant or Participant’s student loan account. If Client does not sufficiently fund its Client Benefit Plan contributions and fees by the applicable deadline, payments may not be processed for that month; Client will be responsible for informing Participants if payments are not processed due to any funding shortfall or errors or delays caused by the Client or anyone acting on its behalf.
    4. Suspended Participant Payments. If a payment is rejected or returned to Vestwell by the 529 plan program administrator for the Valid 529 Plan Account indicated by a Participant or for the Participant’s student loan account, Vestwell will suspend collecting additional CSU or SLP Benefits contributions from the Client for that Participant and attempting to make additional payments to the designated Participant’s Valid 529 Plan Account or student loan account until the issue can be resolved. If the issue is not resolved within 30 days, Vestwell will issue a credit to Client in the amount of the returned payment. If Vestwell learns that a 529 plan program or student loan account administrator has returned a payment to a Participant (rather than to Vestwell), Vestwell will suspend contributions and payments to the Participant’s Valid 529 Plan Account or student loan account until the issue can be resolved and will request that the Participant return the funds to Vestwell. If the Participant returns the funds and the payment issue cannot be resolved within 30 days, Vestwell will issue a credit to Client in the amount of the returned payment.
    7. Publicity. Client agrees that Vestwell may add Client’s name and company logo to its website and issue a press release announcing the signing of this Agreement.
    8. Entire Agreement. This Exhibit together with the Terms of Service and your Fee Schedule and Order Form constitute the entire understanding of the parties with respect to our services and supersedes all prior agreements and understandings. There are no expectations, restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein. This Agreement may be amended only by a written instrument duly executed by the parties or their respective successors or assigns. Nothing in this Agreement will be construed as a contract of insurance. Vestwell will be under no obligation to pay from its own funds or insure any payments properly payable under the Client Benefit Plan(s). The services to be performed by Vestwell are intended solely for the benefit of Client. Nothing contained herein will confer any rights upon or create any duties on the part of Vestwell or Client toward any person not a party to this Agreement.

    ---

    
    
    
    Exhibit C
    Vestwell’s Emergency Savings Services
    
    

    This Exhibit sets forth the terms and conditions of Vestwell’s services for the administration of Emergency Savings Services ("ESA"). Definitions. In addition to the definitions in the Vestwell Terms of Service, the following definitions apply to the ESA Services:

    • "Account" or "Depository Account" means the cash balance of the funds held at a Depository Institution in the name of and for the benefit of the Eligible Employee.
    • "Client ESA Benefit Plan" means a benefit program duly established and administered by the Client, in compliance with the Internal Revenue Code and applicable laws and regulations, that offers its eligible employees the opportunity to open Depository Accounts.
    • "Deposit Arrangement" means the arrangement between Vestwell and the Depository Institution(s) by which Vestwell establishes the Account(s).
    • "Depository Institution" means the FDIC-insured financial institution to which Vestwell may deposit the Owner’s contributions to the Account pursuant to a separate Deposit Arrangement with the Depository Institution.
    • "Eligible Employee" means an individual who is lawfully employed by the Client and who the Client has determined to have satisfied all criteria to enroll and participate in the Client ESA Benefit Plan.
    • "FDIC" means the Federal Deposit Insurance Corporation, an independent agency of the U.S. government.
    • "Identification Number" means a social security number or alien identification number or, with specific written consent of Vestwell, a passport number together with the country of issuance.
    1. Services.
    
    1. The Client has established an employee benefit program that provides the opportunity to open an emergency savings account for eligible employees and complies with the Internal Revenue Code and applicable laws and regulations. Vestwell will, through its website interface, create a Client portal for Client to identify eligible employees, Identification Numbers for all eligible employees, view reports regarding the utilization of ESAs, and provide a bank account for ACH debits to serve as a funding source for contributions and fees for any ESA opened by an eligible employee. If available, Vestwell will establish an integration with the Client’s payroll company to forward the Client’s contributions through its payroll system to Vestwell or the Depository Institution for contribution to the Account. In the event the payroll company charges a fee for any integration, Vestwell will pass along that fee to the Client and the Client agrees to pay for such charges.
    2. Vestwell, through its subsidiary Vestwell Trust Company, LLC, will enter into an agreement with a Depository Institution to hold funds as agent for the Owner and provide FDIC insurance for each Account. Vestwell Trust Company will enter into a services agreement with any Eligible Employee who wishes to create an ESA and contribute to it. Vestwell Trust Company, LLC will serve as Trustee and Custodian for the ESA accounts and provide ongoing account administration consistent with the terms of its services agreement.
    3. Client understands and acknowledges that:
       1. Vestwell does not and will not provide legal, tax, investment, lending, underwriting, or loan brokering services to Client or eligible employees in connection with the Client’s ESA Benefit Plan.
       2. Vestwell does not and will not make any determinations regarding any employee’s eligibility to open an ESA or the compliance of the Client Benefit Plan with the Code or applicable law or regulations. Vestwell will receive and follow the Client’s Instructions regarding the Client’s identification of any employees who are eligible to participate in the Client ESA Benefit Plan.
       3. The Client ESA Benefit Plan is not intended to constitute an "employee welfare benefit plan" or an "employee pension benefit plan" as defined by the Employee Retirement Income Security Act (“ERISA”) 29, USC 1001 et seq or any similar state or federal law. ESAs are personal savings vehicles rather than group employee benefits. Regardless of the status of any ESA under ERISA, Vestwell is not a "plan administrator" or "plan sponsor" of the Account or of any arrangement or plan of which the Account is a part. Vestwell expressly disclaims responsibility for ERISA's participation, vesting, funding, reporting, disclosure, and fiduciary requirements as they may apply to the Account, including but not limited to any requirement to provide notices or election forms regarding continuation coverage under ERISA. Vestwell is not providing services to the Owner or the Account as a fiduciary under ERISA, under any comparable and applicable provisions of federal, state, or local law, or under the Investment Advisor's Act of 1940, and nothing in this Agreement shall be construed as conferring fiduciary status upon Vestwell (except solely as is required by applicable law to maintain administrator/directed custodian status). If and to the extent that the Account is deemed to be part of an arrangement or plan subject to ERISA, including any determination that the Account is subject to ERISA's continuation coverage requirements, this Agreement may be amended or terminated at Vestwell's sole discretion as of the effective date of such determination or date as Vestwell deems appropriate.
       4. Vestwell has no duty to and will not determine whether the Client’s contributions or distributions comply with the Code, Treasury Regulations, IRS Rulings, or this Agreement. In no event shall Vestwell be responsible to determine if contributions made by the Client to any Account, if applicable, meet the requirements for comparable contributions, the rules of which are set forth in the Code and IRS published guidance.

    2. Term and Termination. In addition to section 3 of the Vestwell Terms of Service, and without in any way impairing the rights of the Parties under this Agreement, the Parties agree to that if Vestwell, the Depository Institution, or any regulator identifies Client’s breach of the NACHA Rules, Vestwell may (i) immediately suspend the Services until Vestwell, in its sole discretion, is satisfied that the breach is cured; and/or (ii) upon ten (10) days written notice, terminate this Agreement and discontinue services. Vestwell may also terminate this Agreement, or the Account or services agreement that is the subject of the termination event, immediately if Client: (i) fails to provide any required information within 10 days of a request; (ii) defaults in paying the fees for any service for more than 30 days after receiving notice of such default; (iii) fails to timely remit amounts to be contributed under the Client ESA Benefit Plan(s); or (iv) makes an assignment for the benefit of creditors, files (or has filed against it) a petition under the bankruptcy laws of any jurisdiction, appoints (or has appointed for it) a trustee or receiver for its property or business, or is adjudicated bankrupt or insolvent. Upon termination or expiration of this Agreement, Vestwell will cease to collect any further Client Information or perform any Services covered by this Agreement. Vestwell may continue to use pre-existing Client Information and employee’s transaction history to the extent and for the purposes authorized by the Client or the employee whose data is being used. In the event the Client terminates this Agreement, the agreement between Vestwell and each Eligible Employee remains in effect and can only be terminated according to the separate terms of that agreement.

    3. Required Information About Certain Individuals. To fight the funding of terrorism and money laundering activities, federal law requires Vestwell to obtain, verify, and record information that identifies its clients. Vestwell may also utilize a third-party information provider for verification purposes. Subject to the exception set forth in the last sentence of this Section, upon the execution of this Agreement, Client will provide the name, address, date of birth and social security number (or passport number or other similar information, in the case of foreign persons) for the following: (i) a Control Person of Client and (ii) each Beneficial Owner of Client. For purposes of this Section, Control Person means an individual with significant responsibility for managing Client (for example, a chief executive officer, chief financial officer, chief operating officer, managing member, general partner, president, vice president, or treasurer) and Beneficial Owner means each individual who owns, directly or indirectly, 25% or more of the equity interests (e.g. shares) of Client. The requirements set forth in this Section will not apply if (i) Client’s common stock (or analogous equity interests) is listed on the New York Stock Exchange, the American Stock Exchange (currently known as NYSE American), or NASDAQ stock exchange; or (ii) at least 51% of Client’s common stock (or analogous equity interests) is owned by a company that would meet the exception described in clause (i).

    4. Client's Responsibilities. In addition to the responsibilities listed in section 4 of the Vestwell Terms of Service and elsewhere in this Addendum, the Parties agree that the Client is also responsible for the following:

    1. Performing all activities necessary to carry out the proper administration of the Client ESA Benefit Plan(s) in accordance with the terms of the Client ESA Benefit Plan(s) and applicable laws and regulations and ensuring that the terms of the Client ESA Benefit Plan(s) are consistent with the provisions of this Agreement. The Client understands and agrees that Vestwell is not a law firm, it does not provide legal advice, and it is not in any way responsible for reviewing the Client ESA Benefit Plan or its operations for compliance with applicable laws and regulations and is not responsible for any fines, penalties, or other monetary damages relating to the noncompliance of the Client ESA Benefit Fit with applicable laws and regulations.
    2. Determining and notifying Vestwell of Eligible Employees and reviewing and approving any amounts that will be disbursed through the Client ESA Benefit Plan(s).
    3. Reviewing, approving, funding and controlling all contributions to the Account. The Client is solely responsible for determining the source of employer and Eligible Employee’s contributions to any Account, payment for all Client Benefit Plan(s) fees, and coordinating with any payroll processing or other service provider for the proper data collection, reporting, and withholding of income and employment taxes arising from any taxable amounts payable or disbursed under the Client Benefit Plan(s). In the event that any contribution to an Eligible Employee’s Account is rejected, reversed, or dishonored for any reason, and Vestwell has already processed the contribution, the Client is solely responsible to immediately and fully fund all contributions. Client understands that it is strictly liable without any defense or limitation of liability for funding all contributions once they are submitted to Vestwell.
    4. Executing and filing with any governmental authority all reports or documents required in connection with the Client Benefit Plan(s), including as required by federal, state, and local tax authorities and paying all sales or use taxes or any taxes in lieu thereof with respect to the Services.
    5. Reviewing each report and statement issued by Vestwell in connection with the Services and, unless Vestwell receives written notice of any incompleteness or inaccuracy in the report or statement that is the result of a Vestwell error within 60 days after the sending thereof, each such report or statement will be deemed correct.
    6. Providing Vestwell with true and correct Client Benefit Plan terms, notifying Vestwell of any amendment to the Client Benefit Plan(s) or interpretation thereof that may affect Vestwell’s performance of its services.

    5. Representations. In addition to the Representations in section 8 of the Vestwell Terms of Service, the Client agrees that it has obtained all approvals that may be required pursuant to the provisions of the Client Benefit Plan(s) and it is currently not a party to any agreement with any third party that is in conflict with this Agreement. Client acknowledges that Vestwell, its officers, employees and affiliates are not being engaged to furnish legal, payroll, tax, accounting, investment, or financial advice to Plan Sponsor or its employees and it will seek its own counsel and advisors with respect to such matters as needed. Nothing contained on the Vestwell website and no comments made by Vestwell, its employees or agents should be understood or used as the basis for any investment or financial decision, nor should they be construed as advice, endorsements or recommendations.

    6. Entire Agreement. This Exhibit together with the Terms of Service and your Fee Schedule and Order Form constitute the entire understanding of the parties with respect to our services and supersedes all prior agreements and understandings. There are no expectations, restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein. Our Services Agreement may be amended only by a written instrument duly executed by the parties or their respective successors or assigns. Nothing in our Services Agreement will be construed as a contract of insurance. Vestwell will be under no obligation to pay from its own funds or insure any payments properly payable under the Client ESA Benefit Plan(s). The Services to be performed by Vestwell are intended solely for the benefit of Client. Nothing contained herein will confer any rights upon or create any duties on the part of Vestwell or Client toward any person not a party to this Agreement.

    7. Publicity. Client agrees that Vestwell may add Client’s name and company logo to its website and issue a press release announcing the signing of this Agreement.

    
    Last updated: October 2024
    
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