(sometimes referred to as this “Agreement”) constitutes a legal agreement
between you and ERISA Pros, LLC, a Georgia limited liability company,
("ERISA Pros," "we," or "us"). Through
our Website we provide certain documents and services relating to “ERISA,” as
defined below, for employers (“Employers”)
You are a “Customer” of our web-based services (the
If you are obtaining the Services for internal use, you are
also an Employer. If you are a consultant obtaining Services from us for the
benefit of your clients (“Clients”), your Clients are also Employers.
Any individual that filled in the Forms showing you as the
Customer is your “Representative.”
Your Representative’s clicking on the “Agree Button,” after
filling in the “Customer Data,” constituted the “signing” of, and your
Any individual Representative does hereby represent and
warrant that he or she has entered into such Agreement on Customer’s behalf
with full authority to do so. Any Representative is also bound by all the terms
and restrictions that apply to the Customer hereunder.
You will be required to insert the name and employer
identification number (the “Employer Data”) for any Employer whether that
Employer is you or a Client of yours.
Who We Are
"ERISA Pros" is a trade name and common law service
mark of ERISA Pros, LLC, a Georgia limited liability company that owns
and operates the website with the domain name: ERISAPros.com (the
conditions under which you are permitted to use our Services including, but not
limited to, our “Documents” and “Forms,” both as defined below.
We require that any Customer be at least eighteen (18) years of age. By
using the Services, you represent and warrant that you are at least eighteen
(18) years of age and that your use of the Services does not violate any
applicable law or regulation. Your right to use our Services may be terminated
without warning, if we have reason to believe you are less than eighteen (18)
years of age.
“Content” means any and all text, graphics,
photographs, software applications, software code, audio and video on the
Website, including, but not limited to, articles, Documents and Forms.
"Documents" means completed documents, and
templates for completing documents, required by or provided to comply with
ERISA, including, but not limited to, Plans, SPDs or EDPs.
"EDPs" means electronic delivery packages
prepared in light of the Department of Labor Safe Harbor Regulations under §2520.104b-1, §2520.104b-2 and under any related
means the Employee Retirement Income Security Act of 1974, as amended.
“Forms” mean electronic forms that can be used on our Website to create
the sponsor of the Plan as defined in ERISA Section 3(16)(B) and any applicable
"Plan(s)" means the plan, fund(s), or
program(s) established or maintained for the purpose of providing Plan
Participants, through the purchase of insurance or otherwise, with
"welfare plan" benefits described in ERISA Section 3(1) and any
applicable regulations thereunder, which does not include pension plan benefits
as described in ERISA Section 3(2).
employees, former employees and beneficiaries who participate in the Plan(s).
"SPD(s)" means summary plan description(s)
as described in ERISA Section 102 and any applicable regulations thereunder.
"Term" means the period during which you may use your
login and password to obtain additional or revised Documents by purchase or
otherwise. Notwithstanding the foregoing including any termination, your
license to use a Document you have purchased continues for so long as you
comply with the license granted by this Agreement, including, but not
limited to, complying with the restrictions set forth in this Agreement.
We reserve the right to change any of the terms of this Agreement by
sending an email to the last email address you have given to us. Unless you
give us notice of termination within ten (10) days after either is done, the
changes will be effective at the end of such 10-day period.
Charges and Payments
Other than our charges for personal consulting, which are determined
separately, charges are based upon the particular types of Documents and
Services being provided or generated for a particular Customer or Client. Our
Customers may elect to order and pay for a one-time purchase of one or more
types of Documents, or make the one time purchase and also pay a monthly fee
for continued access to our Website to enable changes to the Documents
purchased. Changes to the Documents may be required because of changes made by
an Employer or changes in applicable law. Our rates for Services and
purchases of Documents are provided on our Website and may be changed from time
to time at our sole discretion.
In connection with any purchase, you agree to provide our credit card
processor or us, as the case may be, with valid credit card information and,
with respect to charges that are billed on a recurring basis, authorize our
credit card processor or us to deduct the recurring charges against such credit
card and to replace the information for any credit card that expires with
information on a different valid credit card. Any individual using a credit
card represents and warrants that he or she is authorized to use such credit
card and that any and all charges may be billed to such credit card and will
not be rejected.
Intellectual Property Rights
All intellectual property rights in
Content, including, but not limited to, all information, software, services,
and documents such as Plans, Summary Plan Descriptions (“SPDs”), and Electronic
Delivery Packages (“EDPs”), are the exclusive property of ERISA Pros and
are protected by applicable law. In this regard ERISA Pros owns any and
all rights in the Website and the Content, including, but not limited to, any
and all copyright, patent, trade secret, trademark, trade dress and service
The intellectual property relating
to all site design, text, graphics, and the selection and arrangement thereof
and all other Content are the property of ERISA Pros, LLC.
ERISA Pros, ERISA Pros, LLC,
and any logo, and other service marks such as “Wrap-TightSM” and
“Stay-Tightsm” are service marks and/or trademarks of ERISA Pros.
Certain images and text, page headers, custom graphics and customized button
icons may be protected as trade dress.
By using this site, you consent to receiving electronic
notifications from ERISA Pros. These communications will consist of
notices about your account and information related to our Services and Content,
including electronic delivery of purchased Documents. You agree that any
notice, agreements or other communications that we send to you electronically
will satisfy any legal communication requirements, including that such
communications be in writing. Any notice to you will be effective when sent to
the last email or physical address you have given us or posted on our Website.
Any notice to us will be effective when delivered to us with a copy to our
outside counsel: Rob Hassett, Casey Gilson P.C., 980 Hammond Drive, Suite
800, Atlanta, GA 30328 or firstname.lastname@example.org, or such replacement addresses as
we may later provide on the Website.
Use of Our Services
ERISA Pros does not and
cannot guaranty that all Documents, Forms and other Content are always
up-to-date and compliant with all applicable laws, but does and will make
commercially reasonable efforts to create Content that is, and keep its
Content, current and compliant.
It is your responsibility to use all
Content, including Documents and other Forms, correctly and provide accurate
and complete information when asked.
In order to use our compliance services, including Documents
and other Forms, you may be asked to provide information about you, your Client
or a Plan. You agree that any such information, and all other information you
provide to us, will be correct and accurate when provided and kept up-to-date.
You are responsible for providing accurate and complete
information used to produce any and all Documents and to assure that any
Document that relates to a Plan created is formally adopted by its Plan Sponsor.
You acknowledge that any arrangement included under any Plans must be operated
in accordance with its terms and applicable law.
You are responsible for maintaining the confidentiality of
any passwords associated with your account.
You are ultimately responsible for assuring that Documents
you obtain from us are in compliance with applicable law and for avoiding
errors or mistakes caused by any act or omission of you or anyone else acting
on your behalf.
You are responsible for maintaining and updating all
insurance policies, contracts and documentation that make up component benefits
of any Plan.
You are responsible for any error or mistake caused by an
act or omission by you, an employer, a Client, a Plan Sponsor, or any other
We will provide a store credit (pro rata based on a
percentage of the period that is paid for in advance that has expired prior to
termination) only if we terminate our Services to you without cause before the
end of a month for which you have paid. There is no circumstance in which you
will be entitled to a refund from us or be permitted to return used or unused Documents.
ERISA Pros hereby grants you permission to download,
view, copy, print, and upload the Documents you keep on your computer for
distribution to your Plan Participants, your Clients, Plan Participants of your
Clients (or the website you host for your Plan Participants or that your Client
hosts for its own Plan Participants) or to governmental entities which request
such Documents or to which you are required to provide such Documents. You
agree (i) that any copyright, service mark and trademark notice appearing below
will appear in the Documents and (ii) that the Documents will not be used on any
other Web site. Your right to copy, modify, display and distribute Documents
as set forth herein and to use our Forms and other Content, terminates
immediately in the event you violate the terms of this Agreement.
License and General Use Restrictions
We are giving you only a restricted, nonexclusive
license to use our Content subject to all of the restrictions set forth herein.
none of the Content, or other portions of the Website, may be copied, downloaded,
reproduced, distributed, republished, displayed, posted or transmitted in any
form or by any means, including but not limited to electronic, mechanical,
photocopying or recording, without the prior express written permission of ERISA Pros
. No part of this site, including but not limited to any logo, graphic, sound or image, may be
reproduced or retransmitted in any way, or by any means, without the prior
express written permission of ERISA Pros. You also may not, without ERISA Pros’
prior express written permission, "mirror" the Website or any
You agree and acknowledge that before you may use our
Services for the benefit of a Client, you are required to provide complete and
accurate Employer Data for that Client. In that regard, the provided employer
ID number for that Client is automatically incorporated into the Documents we
provide to you. You agree to abide by laws regarding copyright ownership and
use of intellectual property, and you shall be solely responsible for any
violations of any relevant laws and for any infringements of third party rights
caused by any content you provide or transmit or that is provided or
transmitted using your ERISA Pros user account.
You are permitted to use the Documents, Forms and other
Content only for your own internal business use, unless you are a consultant,
attorney or other professional, in which event you may use any of such Content
for any Client for which you provided us with Employer Information including
a separate employer identification number. You acknowledge and agree that you
have no right to modify, edit, copy, reproduce, create derivative works of,
reverse engineer, alter, enhance or in any way exploit any of the Documents in
any manner, except as expressly permitted. In this regard, you will not, and you
will not permit anyone else to, use any such documents, forms or other
content to create a competitive product. You shall not remove any copyright
notice from, or change the employer identification number in any Document.
By purchasing Documents, you agree that the Documents you
purchase may only be used by you or for your specified Client’s business use
and may not be sold or redistributed without the express written consent of
Protection of Confidential Information
"Confidential Information" means any oral, written, graphic
or machine readable non-public information about a party,
including, but not limited to, that which relates to patents,
patent applications, research, product plans, products,
developments, inventions, processes, designs, drawings,
engineering, formulae, markets, software (including source
and object code), hardware configuration, computer programs,
algorithms, business plans, agreements with third parties,
services, customers, marketing or finances of the disclosing
party, which Confidential Information is designated in writing
to be confidential or proprietary, or if given orally, is
confirmed in writing as having been disclosed as confidential
or proprietary within a reasonable time (not to exceed thirty
(30) days) after the oral disclosure. Information and materials
related to the ERISA Pros system and documents are deemed to
be ERISA Pros. Confidential Information without the requirement
to identify such information and materials as such.
ERISA Pros and Customer each agree not to use any Confidential
Information disclosed to it by the other party for its own
use or for any purpose other than to carry out discussions
concerning, and the undertaking of, the Relationship.
Neither party shall disclose or permit disclosure of any
Confidential Information of the other party other than to third
parties, or to such disclosing party's employees, directors,
officers, employees, and agents ("Representatives"), who are
required to have the information in order to evaluate the
Relationship or meet such receiving party's obligations under
this Agreement; it being agreed that (i) such Representatives
shall be informed by the receiving party of the confidential
nature of such Confidential Information; (ii) except for
Representatives who are attorneys or accountants, such
Representatives shall be contractually obligated to treat
such Confidential Information as confidential substantially
in accordance with the terms of this Agreement; and (iii)
the receiving party shall be responsible for the actions and
omissions of its Representatives as if they had been committed
by the receiving party. Each party agrees that it shall take
all commercially reasonable measures to protect the secrecy of,
and avoid disclosure or use of, Confidential Information of the
other party, in order to prevent it from falling into the public
domain or the possession of persons other than those persons
authorized under this Agreement to have any such information.
Such measures shall include, but are not be limited to, the
highest degree of care that the receiving party utilizes to
protect its own Confidential Information of a similar nature
and no less than reasonable care. Each party, to the extent
such party is a receiving party, agrees to promptly notify the
other party whenever the receiving party becomes aware that
Confidential Information of the other party has been used or
disclosed in violation of this Agreement.
Notwithstanding the above, Confidential Information shall not
include any information of the other party, which the receiving
party can prove:
- was in the public domain at the time it was disclosed or
has entered the public domain through no fault of the receiving
- was known to the receiving party, without restriction,
at the time of disclosure, as demonstrated by files in existence
at the time of disclosure;
- is disclosed with the prior written approval
of the disclosing party;
- was independently developed by the receiving
party without any use of the Confidential Information of
the disclosing party and by employees of the receiving party
who have not had access to the Confidential Information, as
demonstrated by files created at the time of such independent
- becomes known to the receiving party, without
restriction, from a source other than the disclosing party
without breach of this Agreement by the receiving party and
otherwise not in violation of the disclosing party's rights;
- is disclosed generally to third parties by
the disclosing party without restrictions similar to those
contained in this Agreement; or
- does not constitute a trade secret under applicable
law and was provided to the receiving party more than two (2)
In addition, neither party shall have liability to the other
with regard to any Confidential Information of the other,
which the receiving party can prove is disclosed pursuant to the
order or requirement of a court, administrative agency, or other
governmental body; provided, however, that the receiving party
shall use commercially reasonable efforts to provide prompt
notice of such court order or requirement to the disclosing
party to enable the disclosing party to seek a protective order
or otherwise prevent or restrict such disclosure. ERISA Pros
acknowledges that certain content it provides was developed
from information already in the public domain (e.g. federal
laws and regulations); however, the inclusion of this content
in ERISA Pros' product does not render the product itself part
of the "public domain" for purposes of this Section 3(b).
ERISA Pros and Company each agree that it shall not modify,
reverse engineer, decompile, create other works from or
disassemble any software programs contained in the Confidential
Information of the other party unless permitted in writing by
the disclosing party.
RETURN OF MATERIALS
Any materials or documents that have been furnished by one
party to the other in connection with the Relationship shall
be promptly returned by the receiving party, accompanied by
all copies of such documentation, within ten (10) days after
(a) the Relationship has been rejected or concluded or (b)
the written request of the disclosing party. Such materials
would include any materials or documents that may have been
provided by an independent third party.
Employees and Independent Contractors
You are responsible for assuring
that your employees and independent contractors, who act on your behalf, comply
with all the restrictions and limitations that apply to you as set forth in this
Agreement and that they do not exceed the scope of the license granted.
Use of Documents
The following plans may be subject to ERISA, but we do
not recommend using the Documents provided, or generated with our Forms,
(sometimes referred to as the “Wrap-TightSM Documents”) for
them. (Please contact us if you need a document to wrap around one or more of
employer welfare arrangements (MEWAs)
employee beneficiary association plans (VEBAs)
or other training plans
419(e) welfare benefit plans
Split dollar life insurance plans
(generally not subject to ERISA)
entity plans (generally not subject to ERISA)
No Legal Advice Provided
The Documents produced by this site are intended (but are
not guaranteed) to comply with the applicable disclosure requirements of the
Employee Retirement Income Security Act of 1974 (“ERISA”), as may be amended
from time to time. The user of this site is solely responsible for determining
whether the Documents prepared by using this site accurately reflect the Plan
Sponsor’s intent and comply with such applicable legal requirements. ERISA Pros
is not a law firm and is not rendering any legal, tax, or accounting advice to
any user of this site. ERISA Pros has no attorney-client relationship
with you or your Client and does not express any opinions as to the legal
effect or sufficiency of any Document created at this site or any comments or
opinions made by its employees. Please consult with your own legal counsel to
review any Documents created at this site.
Suspension and Removal
We may suspend and/or terminate our Services to you at any
time with or without cause. We will refund a pro rata portion of your monthly
prepayment (or prepayment for some other time period) if we suspend and/or
terminate you without cause during a month (or other time period) for which you
prepaid. We will not refund and/or reimburse you, if there is cause, such as
you using our system for an individual or entity for which you are not
Account and Password
You are responsible for maintaining the confidentiality of
any account name and password provided to you. You are solely responsible for
uses of any account provided to you, whether or not authorized by you. You
agree to immediately notify us of any unauthorized use of any account of yours.
U.S. Export Controls
The software that supports the
Services (the "Software") is further subject to United States export controls. None of the Software may be downloaded or otherwise exported or
re-exported in violation of United States export laws.
Notice to U.S. Government End Users. The Software, including all
documentation, are "Commercial Items," as that term is defined at 48
C.F.R. §2.101, consisting of "Commercial Computer Software" and
"Commercial Computer Software Documentation," as such terms are used
in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable, consistent with 48
C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable.
The Commercial Computer Software and Commercial Computer Software Documentation
are being licensed to U.S. Government end users (a) only as Commercial Items
and (b) with only those rights as are granted to all other end users pursuant
to the terms and conditions herein. Published and unpublished rights are
reserved under the copyright laws of the United States. Manufacturer is ERISA Pros,
LLC, 5901C Peachtree Dunwoody Road, Suite 480, Atlanta, GA 30328.
Limitation of Geographic Scope
The services we provide apply only to the ERISA laws of the United States and no other use is contemplated.
Limitations of Warranties and
THE WEBSITE AND ALL CONTENT,
INCLUDING, BUT NOT LIMITED TO, DOCUMENTS AND FORMS, PROVIDED ON OR THROUGH YOUR
USE OF THE SITE ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, ERISA PROS
EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
ERISA PROS MAKES NO WARRANTY THAT: (A) THE WEBSITE OR
THE MATERIALS WILL MEET YOUR REQUIREMENTS; (B) THE SITE OR THE MATERIALS WILL
BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; (C) THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE, OR ANY DOCUMENTS OFFERED
THROUGH THE SITE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY
PRODUCTS, SERVICES, INFORMATION OR OTHER CONTENT PURCHASED OR OBTAINED BY YOU
THROUGH THE SITE OR IN RELIANCE ON THE CONTENT, WILL MEET YOUR EXPECTATIONS.
OBTAINING OR CREATING ANY DOCUMENTS THROUGH THE USE OF THE SITE IS DONE AT YOUR
OWN DISCRETION AND AT YOUR OWN RISK. ERISA PROS SHALL HAVE NO
RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS
FROM THE DOWNLOAD OF ANY CONTENT, MATERIALS, INFORMATION OR SOFTWARE.
IN NO EVENT SHALL ERISA PROS, OUR OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGE (INCLUDING BUT NOT LIMITED TO LOSS OF
BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT
ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION,
OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THIS SITE
OR MATERIALS AVAILABLE FROM THIS SITE, EVEN IF ERISA PROS HAS BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IF YOUR USE OF MATERIALS
FROM THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF
EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE DISCLAIMERS
WILL APPLY EVEN IF DAMAGES ARE CAUSED BY OUR NEGLIGENCE OR
THE NEGLIGENCE OF OUR EMPLOYEES, SUBCONTRACTORS OR SUPPLIERS.
ERISA Pros is not responsible for any employee,
participant, or beneficiary lawsuits, fees, taxes, interest, or penalties
levied by any government agency responsible for enforcing ERISA, COBRA, HIPAA
or any federal or state law. ERISA Pros is not responsible for any
attorney’s fees associated with such a lawsuit or levy.
In any event our total liability is limited to the amount,
if any, actually paid by you for the use of the Website and the Services during
the twelve months before the occurrence on which the claim is based.
Maintenance and Upgrades
We may take the site down from time to time for maintenance
and upgrades. Out web hosting company may take the site down from time to time
as well. We will attempt to provide reasonable advance notice. However, we
cannot guarantee the site will be available at all times. We reserve the right
to take the site down without warning, if required.
Release by Clients
Before using our Services for the benefit of any Client, you
will obtain, at a minimum, a release from such Client from any claim against us
which may name us specifically or apply to all of your suppliers. In this
regard you acknowledge that you will be required to indemnify us from any claim
any Client of yours makes against us relating to any Services or Documents we
provide to you.
You agree to indemnify and hold harmless ERISA Pros
and its directors, officers, employees and representatives from any and all
losses resulting from the claims of you or third parties, including, but not
limited to, attorneys fees, that result in whole or in part from any actions
that you or such third parties may assert based on your use of this Website or
the Services, the Forms or the Documents including claims based on ERISA Pros’
own negligence. You agree to indemnify ERISA Pros from any damages,
losses, costs, or expenses, including, but not limited to, attorney fees and
expenses, that it may incur as a result of your use of this site or your use of
the Content, Documents, Forms and/or Services available through this site for
any reason. The parties agree that this section represents a reasonable
allocation of risk and will survive the termination of the Term of this
Right to Modify or Terminate,
You may terminate this Agreement (i)
immediately, where you have elected the Single Document Program or (ii) upon
thirty (30) days advance notice, where you have elected the Stay-Tightsm
program. We may terminate or suspend our Services to you at any time with
or without cause. If you are under our Stay-Tightsm program,
we will refund any unused portions of payments you have made to us if we
terminate without cause. In the event of cause or any violation of the Terms
of Use on your part, we will not provide a refund or reimburse you.
Survival of Certain Provisions
Any provision which by its nature
and context would be expected to survive termination of the Term of this
Agreement will so survive. In this regard, for the avoidance of doubt,
provisions relating to payment owed to us for services provided during the
Term, intellectual property rights, your responsibility to assure compliance
with applicable law, your license to use Documents that you have already
purchased, including the scope of and restrictions concerning that license,
disclaimers of providing legal advice, restrictions on warranties and
liabilities and indemnities, and jurisdiction, applicable law and waiver of
trial by jury shall all remain in full force and effect.
If any provision of these Terms of
Use is held invalid or unenforceable in whole or in part in any jurisdiction,
that provision shall be ineffective in that jurisdiction without affecting the
You agree that if ERISA Pros does not exercise or
will not be taken to be a formal waiver of ERISA Pros’ rights and that
those rights and remedies will still be available to ERISA Pros.
By using ERISA Pros’ services or accessing the ERISA Pros
site, you acknowledge and accept that submitting your telephone number to ERISA
Pros via the ERISA Pros site constitutes an inquiry to ERISA Pros,
and that ERISA Pros may contact you at the number submitted even if such
number appears on any state or federal Do Not Call Lists (taking into account
inquiry exception time frames as appropriate).
Except as otherwise provided in this Section below, any
dispute arising between the parties relating to or arising out of this
Agreement shall be brought before any court, state or federal (located in
Fulton County, Georgia or the Northern District of Georgia) having jurisdiction
over such a dispute. If, under applicable law relating to the selection of
venue in Georgia, the case may not be brought in the above-mentioned federal or
state courts, the case may be filed in a state or federal court of competent
jurisdiction located in the State of Georgia, where legally permitted, and
if none, wherever in the United States such claim is permitted.
This Agreement and the application or interpretation of this
Agreement shall be governed exclusively by the laws of the State of Georgia without giving effect to its conflicts of laws provisions.
Waiver of Trial by Jury
Each of the parties hereby waives
the right to trial by jury in any court proceeding that takes place relating to
or arising out of this Agreement.
understanding of the parties, and supersede all prior agreements, representations
and understandings between the parties.
In addition to becoming a party to this Agreement by
clicking the OK Button, by using ERISA Pros’ Services or accessing
the ERISA Pros site, you acknowledge that you have read these Terms of
Use and agree to be bound by them.