Summer Secure 2.0 Terms and Conditions

Summer and Plan Sponsor hereby agree that the Order for Summer Secure 2.0 Administrator Services (“Order”) between them will be subject to the following terms and conditions (“Terms”):

1. Definitions. 
   1. ‍“Applicable Law” means, with respect to a party, any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction that is, in each case, applicable to such party’s conduct under these Terms.
   2. “Confidential Information” means, with respect to a party, (i) all such information communicated by that party that should reasonably be considered confidential under the circumstances, whether it was or was not identified as confidential at the time of disclosure; (ii) all such information identified as confidential to which the other party has access in connection with the subject matter of these Terms, whether before or after the Effective Date; (iii) these Terms, (iv) any trade secret; (v) any existing or contemplated product, service, design, technology, software, process, technical data, engineering, technique, research, development, invention,  methodology and concept and any related information; (vi) information relating to any business plan, sale or marketing method, marketing, merchandising, pricing, analysis and report, Eligible Individual or End User information, and (vii) financial and accounting information.
   3. “Effective Date” is the date specified on the Order.
   4. “Eligible Individual” means an individual (typically an employee) who is eligible TO receive the retirement match under Plan Sponsor’s Retirement Match Program (defined in the Order), the Secure 2.0 Act (defined in the Order), and other Applicable Law.
   5. “End User” means an Eligible Individual who resides in the United States and its territories, holds student loan debt, and has opened an account on the Summer website and agreed to be bound by Summer’s terms (e.g., terms of use, privacy policy).
   6. “Summer Administrator Services” means the services specified on the cover page of these Terms and in Section 3.
2. Plan Sponsor Responsibilities. In accordance with these Terms, Summer shall do the following:
   1. Enter into an agreement with ADP that appoints ADP as Recordkeeper;
   2. Enter into an agreement with Summer that appoints Summer as Administrator;
   3. Timely furnish Summer with the information needed by Summer to manage the Retirement Match Program, which information includes without limitation (i) information about the Eligible Individuals necessary to perform the Summer Administrator Services; (ii) regular updates on the pool of Eligible Individuals (e.g., those newly eligible and those no longer eligible); and (iii) other information necessary to confirm an Eligible Individual’s eligibility for the Retirement Match Program;
   4. Comply with the workflow agreed between the parties for the Retirement Match Program, including with respect to information transfer, confirmation, reporting, and funding by Plan Sponsor of the matching contribution to End Users’ retirement account; and
   5. Perform its responsibilities under these Terms in compliance with Applicable Law.
3. Summer Responsibilities. In accordance with these Terms, Summer shall do the following:
   1. In a professional and skillful manner, operate and manage the Summer Administrator Services; 
   2. Perform its responsibilities under these Terms in compliance with Applicable Law, in a manner that is consistent with good business practice; and
   3. Timely respond to the online inquiries of the Eligible Employees regarding the Summer Administrator Services, and maintain a user-friendly process for Eligible Employees to use the Summer Administrator Services and enroll as End Users.
4. Fees. Summer will be compensated by Plan Sponsor for the Summer Administrator Services. ADP has agreed to collect and remit Summer’s fee for Summer’s Administrator Services to Summer, and therefore Plan Sponsor will not receive an invoice directly from Summer for the Summer Administrator Services.  
5. Term; Termination
   1. This Order will begin upon the Effective Date and continue until the (i) expiration or earlier termination of Plan Sponsor’s recordkeeping agreement with ADP or (ii) termination of ADP’s Student Match Program responsibilities by ADP or Plan Sponsor in accordance with the recordkeeping agreement between the parties.
   2. The following provisions shall survive the expiration or earlier termination of these Terms: Sections 4, 5, 6, 7, 8, 9.b., 11, and 12.
6. Confidentiality. The parties acknowledge that, in the course of performance under these Terms, one party (the “Disclosing Party”) may disclose, deliver or permit access by the other party and its contractors, agents, and/or advisors (collectively, the “Receiving Party”) to its Confidential Information. The Receiving Party shall hold all Confidential Information of the Disclosing Party in confidence and shall not disclose or provide such Confidential Information to any third party without the express written consent of the Disclosing Party in each instance. In all events the Receiving Party shall handle, store and maintain all Confidential Information of the Disclosing Party with a degree of care that is reasonable for the circumstances of disclosure and the nature of each component of Confidential Information. The Receiving Party shall have no obligation under this Section 5 with respect to any Confidential Information which the Receiving Party can demonstrate by reasonable written evidence: (i) was already known to it at the time of its receipt hereunder; (ii) is or becomes generally available to the public other than by means of breach of these Terms; (iii) is independently obtained from a third party whose disclosure to the Receiving Party does not violate a duty of confidentiality; or (iv) is independently developed by or on behalf of the Receiving Party without use of, reference to or reliance on any Confidential Information of the Disclosing Party. 
7. Security. During the Term, Summer agrees to maintain reasonable data security measures designed to protect the personally identifiable information (“PII”) of the End Users from unauthorized disclosure or use, to the extent Summer processes or receives such information. Each party agrees to comply with the data security and data privacy federal and state laws that are applicable to its performance under these Terms. 
8. Intellectual Property Rights.
   1. Summer Intellectual Property. Summer retains all right, title and interest in and to the Summer Administrator Services, its programs, and the technology, software, data, information or other content embodied therein or provided thereby, and the Intellectual Property Rights (including all marks) associated with each of the foregoing. Other than as may be expressly licensed by Summer pursuant to the Order, Plan Sponsor does not acquire any rights in or to the Summer Administrator Services, its programs, and the technology, software, data, information or other content embodied therein or provided thereby, and the Intellectual Property Rights (including all marks) associated with each of the foregoing.
   2. ”Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to Applicable Law governing patent, copyright, trademark, trade secret, database protection or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world. 
9. Representations and Warranties
   1. Each party hereby represents and warrants that (i) it has the legal right and authority to enter into and perform its obligations under this Order; and (ii) the execution and performance of this Order will not conflict with or violate any provision of any law having applicability to such party; and (iii) this Order, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
   2. EXCEPT AS SPECIFICALLY STATED HEREIN, THE SUMMER ADMINISTRATOR SERVICES, PROGRAMS, INFORMATION, AND DATABASES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  SUMMER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SUMMER ADMINISTRATOR SERVICES AND PROGRAMS WILL MEET THE PLAN SPONSOR’S OR ANY ELIGIBLE INDIVIDUAL’S OR END USER’S REQUIREMENTS, RESULT IN ANY OUTCOME OR BE FREE OF ERRORS.  SUMMER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
10. Indemnification
    1. Plan Sponsor will defend, indemnify, and hold harmless Summer and its affiliates, and their respective directors, officers, employees, agents and third party licensors, from and against any loss, damage, settlement, cost and expense (including reasonable attorneys’ fees and costs) (collectively, “Losses”) related to or arising out of any third party claim, lawsuit, or proceeding (a “Claim”) based on an allegation that, if true, would constitute a breach of a representation, warranty, covenant or obligation under this Agreement by Plan Sponsor. “Claim” excludes any allegation or claim brought against the Plan Sponsor by its affiliate.
    2. Summer shall promptly notify Plan Sponsor in writing of the claim for which Summer is seeking indemnification; it being understood, however, that failure to provide such notice promptly shall not relieve Plan Sponsor of its indemnification obligations hereunder, except to the extent that Plan Sponsor has been materially prejudiced by such delay. Plan Sponsor shall control the defense of the indemnified claim, including through choice of counsel, provided that Summer may appear at its own expense through its own counsel. Plan Sponsor will not enter into any settlement that affects Summer’s rights or interest without Summer’s prior written approval, which approval will not be unreasonably withheld, delayed or conditioned.
11. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, OR LIABILITIES TO THIRD PARTIES IN EACH CASE ARISING OUT OF THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN NO EVENT SHALL A PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS RECEIVED BY SUMMER FROM THE PLAN SPONSOR IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE FIRST LIABILITY.
12. General
    1. Entire Agreement. This Order, including these Terms, is the entire agreement between the parties and supersedes any other oral or written communications, proposals, quotes, advertisements or understandings regarding the subject matter hereof. Summer reserves the right to amend these Terms from time to time, by posting the new Terms to its website; provided that Summer will use commercially reasonable efforts to notify Plan Sponsor by email if the new Terms will amount to a substantive adverse change to Plan Sponsor’s rights or obligations.
    2. Severability. If any of the provisions of this Order is held invalid or unenforceable, unless such invalidity or unenforceability substantially frustrates the underlying purpose and intent of the remainder of this Order, such invalidity or unenforceability shall not affect the remainder of this Order. All terms and conditions are severable and all remedies hereunder or at law or in equity are cumulative and nonexclusive.
    3. Waiver. Any party’s failure to insist upon strict performance of any provision of this Order is not a waiver of any of its rights under this Order. 
    4. Relationship between the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and the Plan Sponsor does not have any authority of any kind to bind Summer in any respect whatsoever.
    5. No Third-Party Beneficiary. Plan Sponsor understands and agrees that Summer’s contractual relationship and obligations under this Agreement extend only to Plan Sponsor, and not to any Eligible Individual or End User. There are no third-party beneficiaries of this Agreement.
    6. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; or upon receipt, if sent either by overnight express mail, or certified or registered mail (return receipt requested), postage prepaid, to the address listed for notice on the cover page of this Agreement.
    7. Force Majeure. Under no circumstances will either party be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or other similar causes beyond such party’s control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, acts of God, war, governmental actions, strikes, or non-performance of third parties, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate this Agreement if such force majeure condition continues for a period of ninety (90) days.
    8. Governing Law; Venue. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the State and County of New York. Summer and Plan Sponsor hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
    9. Counterparts. This Agreement may be executed in one or more counterparts, by either original signature, PDF signature, or other electronic signature technology, and each copy so executed will be deemed to be an original and all copies so executed will constitute one and the same agreement.