Reimbursement Plans Terms and Conditions

Last updated October 1, 2023

These Reimbursement Plans Service Terms (these “Reimbursement Plan Terms”), together with the Terms of Service Agreement available at https://asuresoftware.com/terms (the “Universal Terms” and, together with these Reimbursement Plan Terms, the “Reimbursement Plan Agreement”), set forth the terms and conditions under which Asure Customer & IP HoldCo LLC (including any applicable affiliate, “Provider”) will provide to User certain services (the “Reimbursement Plan Service”), including but not limited to services relating to the formation and administration of one or more of the following employee benefit plans (each, a “Plan”) for the benefit of User’s eligible employees (the “Plan Participants”): a health flexible spending account (the “Health FSA”), a dependent care flexible spending account (the “Dependent Care FSA”), a limited flexible spending account (the “LFSA”), a health reimbursement plan (the “HRA”), and/or qualified transportation fringe benefit plan (the “Commuter Plan”); and/or facilitation of pre-tax contributions by User’s employees to health savings accounts opened with a custodian made available by Provider (the “HSA”). A Health FSA is a health flexible spending arrangement maintained pursuant to Sections 105 and 125 of the Internal Revenue Code (the “Code”) and a group health plan subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”); a Dependent Care FSA is maintained pursuant to Sections 129 and 125 of the Code; a LFSA is maintained pursuant to Section 125 and 213 of the Code, a HRA is maintained pursuant to Sections 105, 106, and 213 of the Code, a Commuter Plan is subject to Section 132 of the Code; and pre-tax HSA contributions are subject to Sections 125 and 223 of the Code.

These Reimbursement Plan Terms are “Service Terms” under the Universal Terms. Capitalized terms used but not otherwise defined in these Reimbursement Plan Terms shall have the meanings ascribed to such terms in the Universal Terms. The Reimbursement Plan Agreement is a legally binding agreement between User and Provider. User is encouraged to read the Reimbursement Plan Agreement carefully and to save a copy of it for User’s records. If User is agreeing to these Reimbursement Plan Terms on behalf of a business or an individual other than User, User represents and warrants that User has authority to bind that business or other individual to the Reimbursement Plan Agreement, and User’s agreement to these terms will be treated as the agreement of such business or individual. In that event, “User” (as defined in the Universal Terms) also refers to that business or individual. By (i) executing the applicable Sales Order for Reimbursement Plan Service, or (ii) accessing or using the Reimbursement Plan Service, User accepts the Reimbursement Plan Agreement, and User agrees, effective as of the date of such action, to be bound by the Reimbursement Plan Agreement.

 

1. Reimbursement Plan Terms Governed by Universal Terms.

The terms and conditions of the Universal Terms agreed to in connection with the execution of the Sales Order, including but not limited to all representations, warranties, covenants, disclaimers, limitations on liability, agreements, and indemnities relating to the Services, are incorporated herein by reference, and User acknowledges and agrees that the representations, warranties, covenants, disclaimers, limitations on liability, agreements, and indemnities contained in the Universal Terms shall remain in full force and effect to the full extent provided therein.

If the terms and conditions of these Reimbursement Plan Terms conflict with the terms and conditions of the Universal Terms, the terms and conditions of these Reimbursement Plan Terms shall control with respect to the provision of the Reimbursement Plan Service.

THE UNIVERSAL TERMS, AVAILABLE AT WWW.ASURESOFTWARE.COM/TERMS, CONTAIN IMPORTANT INFORMATION REGARDING LIMITATIONS OF PROVIDER’S LIABILITY, PROVIDER’S WARRANTY DISCLAIMERS, USER’S INDEMNIFICATION OBLIGATIONS, USER’S DUTY TO MITIGATE DAMAGES, THE LAW GOVERNING THE REIMBURSEMENT PLAN AGREEMENT, AND DISPUTE RESOLUTION PROCEDURES THEREUNDER.

 

2. Obligations Under Universal Terms.

In addition to the obligations specified in these Reimbursement Plan Terms, User has certain obligations under the Universal Terms, including but not limited to obligations to (i) designate Authorized User(s); (ii) be responsible for actions taken under User’s Account; (iii) provide accurate, timely, and complete information required for Provider to perform the Reimbursement Plan Services and maintain the accuracy and completeness of such information; (iv) notify Provider of third-party notices from government agencies such as the IRS and the Department of Labor (the “DOL”), which could affect Provider’s ability to effectively provide the Reimbursement Plan Services, or which could increase the likelihood that a Claim is brought against User or Provider in connection with the Reimbursement Plan Services; and (v) refrain from taking certain prohibited actions, as described in further detail in the Universal Terms.

 

3. Reimbursement Plan Services.

The Reimbursement Plan Services shall consist of (i) employee participant guides (which may include tax savings examples, reimbursement account information, expense estimation worksheets, eligible and ineligible expenses, and enrollment instructions), (ii) FSA participant welcome kits, (iii) employee forms (which may include enrollment form and authorizations for direct deposit), (iv) employee file maintenance (which may include establishing enrollment related participant files, recording deposits and accruals, processing participant reimbursements weekly, maintaining account balances, and processing claims and reducing balances), (v) customer support during business hours, (vi) participant reports available via asuresoftware.com, and (vii) plan sponsor reports available at https://asuresoftware.wealthcareportal.com (which may include check register, claim/check summary, flex member roster, forfeiture summary, member detail, YTD plan summary, check summary by day, claims by participants, forfeiture detail, member contribution summary, and payroll contributions). For the aforementioned clauses (i) and (iii), Provider will furnish originals to User for duplication/distribution. Printing is available upon request, but will require additional fees as determined by Provider.

For additional fees, to be determined by Provider, the Reimbursement Plan Services may consist of (a) custom reports (additional non-standard reports are available online for an additional fee per report, but Provider requires three weeks notice prior to delivery and reserves the right to negotiate delivery date based on available staff resources and project complexity), optional discrimination testing reports, optional enrollment meeting attendance (request must be submitted three weeks prior to attendance).

If a User desires to utilize a debit card system to expedite reimbursement, Provider will provide User access to a stored value processing system provided by a third- party vendor for the purpose of expediting the receipt and reimbursement of Plan claims (the “System”). User employees who elect to utilize the FSA debit card will have access to their FSAs in accordance with a cardholder agreement executed by each such employee and the third-party vendor. User authorizes Provider to provide to its subcontractor’s information pertaining to User’s employees who elect to utilize the FSA debit card as is necessary to provide services.

 

4. Funding of Claims.

User acknowledges and agrees that User is solely responsible and liable for funding all benefits payable under the Health FSA, Dependent Care FSA, LFSA, HRA and Commuter Plan, as applicable. Provider has no financial liability or responsibility for the payment of any Plan benefit or claim. To facilitate the payment of any Health FSA, Dependent Care FSA, LFSA, HRA or Commuter Plan claims, User agrees to establish one or more general assets bank accounts in User’s name and provide Provider, and any third party Provider may appoint, with check-writing authority with respect to such designated bank account.

To ensure timely payment of Health FSA, Dependent Care FSA, LFSA, HRA or Commuter Plan claims, as applicable, User may elect to be periodically notified of the amount necessary to pay approved claims by Provider. If the amount in such general assets bank account is insufficient to pay approved claims, User agrees to transfer the appropriate funds to such general assets bank account within 24 hours of such notice and take any other action that is necessary to permit Provider to pay approved claims from such general assets bank account, and facilitate such transfers. If at any time User fails to timely transfer funds to the designated general assets account to allow Provider to timely pay any approved claim, Provider may pay such claim. In such case, User is required to reimburse Provider within two (2) business days of notification by Provider of such payment and reimbursement obligation.

User acknowledges that, in order for Provider to provide User with the Reimbursement Plan Services relating to HSAs, User must make available the funds to be deposited into each HSA account associated with a Plan Participant. User assumes liability for any errors in crediting an HSA, including over-crediting an HSA, due to inaccurate or false information provided by User or Plan Participants. User acknowledges that Provider cannot reverse transfer of funds to an HSA in all circumstances, even if such transfer is excessive or otherwise in error. While Provider will use its reasonable best efforts to facilitate reversals from HSAs, User agrees to hold Provider harmless for liabilities incurred as a result of transfers to HSAs. User assumes liability for costs and expenses associated with correcting such crediting errors.

 

5. Plan Document.

If User requests that Provider provide Reimbursement Plan Services relating to User’s Plan, User agrees to adopt the applicable provisions set forth in each Plan’s respective plan document that Provider makes available to User, and any amendments thereto (the “Plan Document”), unless agreed to otherwise in writing. If User requests that Provider facilitate Plan Participants’ contributions to HSAs as described herein, User agrees to enter into a custodial agreement with the custodian made available to User by Provider.

User agrees to adopt a Plan Document in conformity with all applicable law. Once User adopts a Plan Document, User bears responsibility of fulfilling the obligations described in the Plan Document. Provider shall incur no liability relating to any breach, waiver, alteration, or modification of the Plan Document. In the course of providing the Reimbursement Plan Services, Provider will provide summary plan description templates and related forms for User’s review, completion, and adoption using the Site. Provider will facilitate the distribution of adopted Plan Documents to Plan Participants through the Site.

If User amends or otherwise modifies any term of the Plan Document without Provider’s prior written consent, User must notify Provider in writing of the amendment or modification at least 30 days prior to the effective date of the amendment or modification and provide Provider with the amendment or modification in writing. Provider shall not administer such amendment unless and until it has agreed to administer the amendment in writing. If Provider proposes a change to the Plan Document it has furnished to User, the amendment or restated Plan Document will be provided to User by Provider and will become effective as of the date specified in the amendment or restated Plan Document. If User objects to such amendment or any term in the restated Plan Document, User will have 30 days to notify Provider of User’s objection in writing. User and Provider agree to employ all reasonable efforts to resolve such issue to the mutual satisfaction of the parties.

 

6. User Obligations.

User acknowledges that, in order for Provider to provide the Reimbursement Plan Services, User must (i) ensure that the summary plan descriptions, Plan Documents, and any other documentation are accurately completed and timely adopted in accordance with all applicable laws; (ii) provide final versions of adopted Plan Documents to Provider for its use in connection with provision of the Reimbursement Plan Services; (iii) distribute summary plan descriptions, summaries of plan modifications, and other plan documentation to Plan Participants in a timely manner; (iv) provide Provider with accurate and complete initial enrollment and eligibility data for each Plan Participant and notify Provider, through the Site, of changes to any Plan Participant’s enrollment and eligibility data, status, or benefit election, including, but not limited to, leaves of absence and terminations; (v) inform Provider of any errors in Plan Participants’ data of which User becomes aware, and correct such errors according to the method advised by Provider; (vi) advise Plan Participants of benefit election deadlines and ensure that Plan Participants complete subscription materials prior to such deadlines; and (vii) satisfy all reporting, disclosure, and notice requirements under applicable law.

User represents and certifies that (i) User has determined that proposed and existing Plan Participants are eligible to participate in each Plan for which Reimbursement Plan Services are currently provided or sought; and (ii) information relating to Plan Participants’ enrollment in each such Plan, including current mailing addresses, is accurate and complete.

User acknowledges that, in order for Provider to provide User with Reimbursement Plan Services relating to Health FSAs, LFSAs and/or Dependent Care FSAs, User must (i) process second level and final appeals of any claim for benefits, and (ii) provide Plan Participants who participate under the Grace Period, Carryover, and Run-Out features (each as defined in IRS Notice 2013-71) of any applicable Health FSA, LFSA or Dependent Care FSA (if User elects to offer such features in the adopted Plan Document) with the appropriate information, and continue to remit payment for these participants, even if they are no longer employees of User’s organization.

In connection with Provider’s provision of Reimbursement Plan Services relating to HSAs, User understands, acknowledges, and agrees to the following: (i) User is responsible for the design, funding, and operation of the HSA, including compliance with the Code and other applicable law; (ii) Provider will withdraw funds from User’s account and will deposit such funds into Plan Participant’s account in the amount of each Plan Participant’s election; (iii) such funds will be managed through a custodian made available by Provider; and (iv) Plan Participants will have an independent contractual relationship for deposit, investment, and related services with the HSA custodian bank, any breach of which shall not result in liability to Provider.

User further acknowledges that, in order for Provider to provide User with Reimbursement Plan Services relating to HSAs, User must (i) determine whether an employee is eligible to contribute to an HSA, including eligibility relating to United States citizenship and/or residency, and authorization for employment in the United States; (ii) require that Plan Participants complete HSA enrollment procedures in conformity with the Reimbursement Plan Agreement and any further instructions Provider may provide during the enrollment process; (iii) ensure that each Plan Participant’s salary-reducing HSA contributions do not exceed the maximum limit specified annually by the IRS; (iv) distribute to all Plan Participants all appropriate notices, forms, and disclosures provided by Provider and the plan custodian; (v) provide Provider with all Plan Participant information that Provider requests in connection with initial enrollment or transfer of an HSA account; and (vi) refrain from restraining the transfer or use of HSA funds beyond such restrictions authorized and/or imposed by the Code and other applicable law. By enrolling a Plan Participant in an HSA account through Provider, User represents that such Plan Participant is eligible to participate in an HSA program and that information provided to Provider regarding that employee is true and accurate.

 

7. Transition Services.

Following the termination date of the Reimbursement Plan Agreement, Provider will, at User’s request, use commercially reasonable efforts, for up to 3 months, to transition all of User’s data to a new provider. The monthly fee for such transition services will be equal to the fees paid by the User to Provider in the last full month of the Term.

 

8. User’s Duty to Abide by Applicable Law.

User must comply with all laws, including but not limited to the Code and ERISA, as applicable to each Plan, and make all required filings with governmental agencies, including the IRS and DOL.

User agrees that the Health Insurance Portability and Accountability Act of 1996, as amended, and the Health Information Technology for Economic and Clinical Health Act, as amended, apply to the Health FSA and HSA. User agrees to comply with such law and the terms of the business associate agreement, a form of which will be provided to User by Provider, between the parties with respect to the Health FSA and HSA.

If User becomes aware of any failure or possible failure by User or Plan Participants to comply with any applicable law relating to the Health FSA, Dependent Care FSA, LFSA, HRA, Commuter Plan and/or HSA, as applicable, User must immediately notify Provider in writing of the failure or possible failure and propose corrective action. Such notification must include a description of the facts and issues raised by the failure or possible failure. User is responsible for correcting any such failure or non-compliance and for reimbursing Provider for any reasonable penalties and expenses Provider may incur related to such correction or failure.

User acknowledges and agrees that User is solely responsible for determining the legal and tax status of the applicable Plan, including but not limited to compliance with the Code and ERISA, and their respective implementing regulations and guidance, as applicable. User acknowledges and agrees that with respect to the FSA, User is the named fiduciary within the meaning of ERISA section 402(a)(2), “plan administrator” within the meaning of ERISA section 3(16)(A), and “plan sponsor” within the meaning of ERISA section 3(16)(B).

 

9. Limitation of Liability.

Provider disclaims any liability arising from penalties or other consequences associated with use of the Plan funds for ineligible expenses according to the applicable Plan Document. While Provider has procedures in place to prevent the expenditure of Plan funds for ineligible expenses, it is the User’s sole and ultimate responsibility to ensure Plan Participants use each Plan only for appropriate eligible expenses.

Provider disclaims any liability arising from Plan Participants exceeding the annual contribution limit. While Provider can limit a Plan Participant’s contributions to a specific Plan, a Plan Participant may violate contribution limits through contributions to another employer’s Plan or through a spouse. It is User’s sole and ultimate responsibility to ensure that each Plan Participant does not exceed contribution limits.

Provider makes no representations as to the performance of funds invested through an HSA. Any statements, images, charts, graphs, or other media relating to such performance attributable to Provider or its agents should be construed as purely illustrative, and have no relation to the performance of any Plan Participant’s HSA.

User agrees that Provider shall not be responsible for any interruption in Reimbursement Plan Services, delay in claims processing, or other error or violation of applicable law as a result of User’s failure to fulfill its obligations under the Reimbursement Plan Agreement.

WITHOUT LIMITING THE GENERALITY OF SECTION 12 OF THE UNVERSAL TERMS, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, USER UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT: (I) NOTHING HEREIN CONSTITUTES AN OFFER OR GUARANTEE OF ELIGIBILITY FOR A PLAN; (II) USERS AND PLAN PARTICIPANTS ARE SUBJECT TO REQUIREMENTS PRESCRIBED BY LAW FOR EACH OF THESE SERVICES; (III) PROVIDER RELIES ONLY ON THE REPRESENTATIONS OF USERS AND PLAN PARTICIPANTS OF THE REIMBURSEMENT PLAN SERVICES IN FACILITATING THE FORMATION AND ADMINISTRATION OF THE PLANS, AND IS NOT LIABLE FOR ANY EXPENSE, PENALTY, OR VIOLATION OF LAW BASED ON SUCH REPRESENTATIONS; (IV) PROVIDER DOES NOT WARRANT THAT ANY CLAIM BY A PLAN PARTICIPANT IS FOR AN ELIGIBLE EXPENSE UNDER ANY REIMBURSEMENT PLAN SERVICE; AND (V) PROVIDER IS NOT RESPONSIBLE FOR THE DESIGN, IMPLEMENTATION, AMENDMENT OR TERMINATION OF THE PLAN.