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HomeMy WebLinkAboutSample Administrative Service Agreement NRF-0621AO (07/19) Page 1 of 18 ADMINISTRATIVE SERVICES AGREEMENT FOR THE GOVERNMENTAL 457(b)DEFERRED COMPENSATION PLAN This Administrative Services Agreement (“Agreement”) is effective as of the date signed by the Plan Sponsor (the “Effective Date”) by and between Nationwide Retirement Solutions, Inc., a Delaware corporation (“Nationwide”) and an affiliate and subsidiary of Nationwide Financial Services, Inc. and [Plan Sponsor], the Plan Sponsor (hereinafter “Plan Sponsor”). WHEREAS, Plan Sponsor, pursuant to and in compliance with the Internal Revenue Code of 1986, as amended (“Code”), established and sponsors the [plan name(s)] (“Plan”), a Section 457(b) Plan; [USE FOR SOCIAL SECURITY REPLACEMENT PLANS] WHEREAS, Nationwide endorses a specimen Section 457 Plan that permits Plan Sponsor to satisfy its requirements under Code Section 3121 for a Social Security Replacement Plan (aka, FICA Alternative Plan or OBRA Plan); and [END OF SOCIAL SECURITY PLANS LANGUAGE] WHEREAS, Plan Sponsor desires to have Nationwide continue to perform the non-discretionary recordkeeping and administrative services described in this Agreement for the Plans (“Administrative Services”); and WHEREAS, Nationwide desires to provide such Administrative Services subject to the terms and conditions set forth in this Agreement. NOW THEREFORE, Nationwide and Plan Sponsor desire to enter into this Agreement and abide by the terms therein. 1. DESIGNATION a. Plan Sponsor designates Nationwide as a non-fiduciary, non-discretionary provider of Administrative Services for the Plans in accordance with the terms of this Agreement. b. Plan Sponsor represents that the selection and designation of Nationwide complies with any procurement statutes applicable to Plan Sponsor. c. Any duties or services not specifically described herein or delegated in the Plan’s documents as being provided by Nationwide are the responsibility of Plan Sponsor. d. Services in addition to those in this Agreement or delegated in the Plan’s documents may be added by mutual agreement of Nationwide and Plan Sponsor. 2. ELIGIBLE EMPLOYER NRF-0621AO (07/19) Page 2 of 18 Plan Sponsor has determined that it is an “eligible employer” and meets the requirements of Code Section 457(e)(1)(A) and 414(d) (IF ASA INCLUDES A 401(a) PLAN). 3. TERM EVERGREEN TERM (Default)This Agreement is effective until terminated in accordance with Section 22. FIXED TERM a. The initial term of this Agreement is five years from the Effective Date, unless terminated earlier in accordance with Section 21. b. Plan Sponsor may renew this Agreement for up to three additional one-year periods. Each renewal is based on the existing terms, conditions, Nationwide’s performance, pricing, and Plan Sponsor’s fiscal year funding availability, as evidenced by formal written approval of the Plan Sponsor and Nationwide. c. If at the expiration of the initial term or renewal periods Plan Sponsor has not provided Nationwide with instructions for the transfer of administration of the Plan, this Agreement will convert to an “evergreen” agreement and will remain in effect until terminated in accordance with Section 21. 4. GENERAL a. Plan Sponsor adopts Nationwide’s established policies and procedures with respect to the administration of 457(b) and 401(a) (IF ASA INCLUDES A 401(a) PLAN)plans on its administrative system. Nationwide and Plan Sponsor shall mutually agree to any procedures which require customization, e.g., loan procedures. b. Plan Sponsor acknowledges and agrees that Nationwide is not responsible for monitoring deferrals to other Section 457, 403(b), 401(a), and/or 414(h) plans, or any defined benefit plans referenced by the Code. c. Plan Sponsor acknowledges and agrees that Nationwide is not responsible for monitoring inter- plan coordination between the Plans administered by Nationwide and any other plan which Plan Sponsor may have. d. This Agreement does not require, nor will this Agreement be construed as requiring, Nationwide to exercise any discretionary control or authority over the Plans or the assets of the Plans. e. This Agreement does not require, nor shall this Agreement be construed as requiring, Nationwide to provide investment, legal, or tax advice to Plan Sponsor or to Plan participants. 5. PLAN SPONSOR RESPONSIBILITIES a. Plan Sponsor is responsible for timely providing all information that Plan Sponsor and Nationwide mutually agree is necessary for Nationwide to perform the Administrative Services under this Agreement. NRF-0621AO (07/19) Page 3 of 18 b. Plan Sponsor is responsible for timely providing updated information regarding Plan participants. c. Plan Sponsor is responsible for ensuring that the provided information is accurate and complete. Nationwide is entitled to rely exclusively on the information provided by the Plan Sponsor or the Plan Sponsor’s advisors, whether oral or in writing, and will have no responsibility to independently verify the accuracy of that information. d. Plan Sponsor acknowledges that inaccurate or late information could result in tax penalties, participant/beneficiary legal claims, or both. Nationwide assumes no responsibility for, and will not have any liability for, any consequences that result from Nationwide’s inability to complete its work in the ordinary course of its business due to the failure of the Plan Sponsor to provide accurate and timely information to Nationwide. e. Plan Sponsor agrees to be responsible for all maximum deferral limit testing for these Plans. 6. SERVICES RELATED TO PARTICIPANT ENROLLMENT a. Plan Sponsor is responsible for determining employees eligible to participate in the Plans. b. Nationwide agrees to process the enrollment of employees eligible to participate in the Plans. c. Nationwide agrees to conduct enrollment meetings with Plan Sponsor’s employees in such number and manner as determined by the parties. d. The Plan Sponsor agrees to allow and facilitate the periodic distribution of materials to Participants at the time and in the manner determined by the Plan Sponsor; provided, however, that all reasonable expenses associated with such distribution will be paid by Nationwide. 7. SERVICES WITH RESPECT TO PARTICIPANT PLAN ACCOUNTS AND ACCOUNT ACCESS a. Nationwide agrees to establish an account for each enrolled participant, beneficiary, and alternate payee of the Plans (for purposes of this Agreement only, hereinafter referred to as “Participants”). b. For each Participant account, at a minimum, Nationwide will maintain the following information, if provided: i. Name; ii. Social Security number; iii. Mailing address; iv. Date of birth; v. Current investment allocation direction; vi. Contributions allocated and invested; NRF-0621AO (07/19) Page 4 of 18 vii. Investment transfers; viii. Benefit payments; ix. Current account balance; x. Transaction history since funding under the Agreement; xi. Contributions since funding under the Agreement; xii. E-mail address; xiii. Beneficiary designation, if applicable; xiv. Benefit tax withholding information; and xv. Such other information as agreed upon by the Plan Sponsor and Nationwide. c. Participants will have the unlimited ability to increase (within the limitations of Code Section 457(b)) or decrease contributions to the 457(b) Plan. Nationwide will process all requests to increase or decrease contribution amounts within five Business Days (The term “Business Day” means each Monday through Friday during the hours the New York Stock Exchange is open for business. No transactions can be completed on any Business Day after such time as the New York Stock Exchange closes.) of receipt of the request, but the request cannot be effective until the earliest date permissible under the Code or, if later, the date the contribution change can be processed by the Plan Sponsor given Plan Sponsor’s payroll processing schedule. d. Participants will have the ability to exchange existing account balances, in full or in part, and to redirect future contributions from one available investment option to another on any Business Day subject to Nationwide policies and any applicable restrictions or penalties applied by the investment options. e. Nationwide will provide reports to the Plan Sponsor within thirty days following the end of each calendar quarter reporting period summarizing the following: i. All Participant activity that transpired during the reporting period; ii. Total contributions allocated to each investment or insurance option under the Plans; and iii. Total withdrawals by Participant. This report shall include the amount, type and date of withdrawal. f. Nationwide will maintain, for a reasonable amount of time, the records necessary to produce any required reports. Plan Sponsor agrees that all related paper and electronic records remains the property of Nationwide. 8. SERVICES RELATED TO PLAN CONTRIBUTIONS a. Plan Sponsor agrees to send all Plan contribution information and related funds to Nationwide on a timely basis that complies with all applicable legal requirements. NRF-0621AO (07/19) Page 5 of 18 b. Plan Sponsor will provide all contribution allocation information with respect to Participant accounts to Nationwide in a mutually agreed upon format. Contribution allocation instructions include direction via electronic sources. c. Nationwide will allocate contribution amounts transmitted by Plan Sponsor to Participant accounts in accordance with the latest instructions from Participants or the Plan Sponsor (as applicable) on file with Nationwide, when such instructions are in good order. d. Nationwide agrees to post funds received in good order (as defined below) from Plan Sponsor in accordance with the separate funding arrangements between Plan Sponsor and Nationwide or any of its affiliates. e. Plan Sponsor may send funds by wire transfer, through an automated clearinghouse, or by check in accordance with written instructions provided by Nationwide. Failure to follow the written instructions provided by Nationwide may result in delay of posting to Participant accounts. f. The term “in good order” means the receipt of required information by Nationwide, in a form deemed reasonably acceptable to Nationwide, with respect to the processing of a request or the completion of a task by Nationwide that reasonably requires information from a third party. More specifically, Plan contributions and contribution allocation information must meet all of the following requirements in order to be deemed to be in good order: i. All records must include the correct and complete Participant name, Social Security number (or other unique identifier), and the amount to be credited to the participant’s account(s); ii. The source of funds must be identified (e.g., 457(b) salary reduction, employer contribution); iii. The Plan name and Plan number must be clearly identified; iv. Both the Participant allocation detail and the total contribution amount must be received, and these two totals must match each other; and v. All Participants making or receiving a contribution must have an account established on the recordkeeping system. g. If Nationwide determines that the contribution or allocation detail is not in good order (“NIGO”), Nationwide will notify the Plan Sponsor. After such notification, the parties will continue to try to resolve the NIGO status. If the parties do not achieve resolution, Nationwide will return the funds to the Plan Sponsor within thirty Business Days. Nationwide will not be liable for any delay in posting if the Plan Sponsor fails to send the funds representing contribution amounts or contribution allocation information in accordance with Nationwide’s instructions to the central processing site designated by Nationwide, or for any delay in posting that results from the receipt of funds and/or contribution allocation that Nationwide determines to be NIGO. 9. SERVICES WITH RESPECT TO DISTRIBUTIONS a. Nationwide shall make all distributions in accordance with the Plan documents. NRF-0621AO (07/19) Page 6 of 18 b. Except as provided in subsection d, below, Nationwide shall make all distributions as directed by a Participant or the Plan Sponsor. Participants are responsible for selecting a form of payment from those available under the terms of the Plan and making all other elections regarding available distribution options. c. All distributions will be made pro-rata from each of the Participant’s investment options and money sources unless directed otherwise by the participant. d. Nationwide will provide notice and a distribution form to each Participant attaining age 72 (or such other age as determined by current law) or older in the current calendar year. The notice will inform the Participant that required minimum distributions (“RMD”) must begin no later than the April 1 of the calendar year following the later of attainment of age 72 (or such other age as determined by current law) or retirement (subject to the terms of the Plans). Nationwide will automatically distribute the RMD to the Participant if no direction is received from the Participant. 10. TAX REPORTING a. For each Participant that has received a benefit payment, Nationwide shall furnish tax reporting forms. The forms will be provided in the manner and time prescribed by federal and state law. b. To the extent required by federal and state law, Nationwide will calculate and withhold from each benefit payment federal and state income taxes. Nationwide will report such withholding to the federal and state governments as required by applicable law. c. Plan Sponsor will be responsible for all tax reporting requirements for periods before the Effective Date of this Agreement, or after the termination date of this Agreement, unless otherwise agreed to in writing by the parties to this Agreement. 11. UNCLAIMED PROPERTY Nationwide shall administer Participant and beneficiary unclaimed property funds, including but not limited to uncashed distribution checks and death claims, in accordance with Nationwide’s standard unclaimed property procedures. 12. SERVICES RELATED TO PARTICIPANT COMMUNICATION AND EDUCATION a. Communication and Education i. Participant Statements 1. Participants will receive consolidated quarterly statements detailing their account activity and account balances for the Plans. 2. Nationwide agrees to deliver account statements (by U.S. mail or electronically) to Participants within thirty calendar days after the end of each calendar quarter. This timeframe is contingent upon Nationwide receiving fund returns from the mutual fund providers within four Business Days after the end of each quarter. NRF-0621AO (07/19) Page 7 of 18 b. Website i. Participants may access the website via a secured internet site at www.nrsforu.com to review and make changes to their accounts. The website complies with applicable data protection and privacy laws. The website is the exclusive property of Nationwide. ii. Using this site, Participants may: (i) obtain information regarding their accounts, and (ii) conduct certain routine transactions with respect to their accounts. The Plan Sponsor authorizes Nationwide to honor instructions regarding such transactions that a Participant submits using the secure Internet site. Nationwide shall implement reasonable physical and technical safeguards to protect personal information made available on its Internet site. Such safeguards shall be no less rigorous than generally accepted industry practices. iii. The website is available twenty-four hours a day, except for routine maintenance of the system. iv. The Participant website experience will include access to an education library offering investment education. Content is delivered via multiple formats which can include short videos, print materials, and workshop modules. c. INTERACTIVE VOICE RESPONSE SYSTEM i. Nationwide will provide an interactive voice response (IVR) toll free telephone number, which shall be operative twenty-four hours per day, seven days per week, except for routine maintenance of the system. ii. Participants will be able to conduct routine Plan transactions and obtain account balance information through the IVR. iii. The Plan Sponsor authorizes Nationwide to honor Participant instructions, which may be submitted using the toll-free number, either through the IVR or a live representative. d. CUSTOMER SERVICE Nationwide’s customer service representatives will be available toll-free to answer Participant questions and process applicable transactions between the hours of 8:00 a.m. and 11:00 p.m. Eastern Time each Monday through Friday, and between the hours of 9:00 a.m. and 6:00 p.m. Eastern Time each Saturday, except for certain holidays as dictated by the New York Stock Exchange holiday trading schedule. e. PARTICIPANT ENGAGEMENT PROGRAM [OPTIONAL] i. Nationwide will provide a personalized communication program (Participant Engagement Program or “PEP”) designed to engage Participants in retirement planning and motivate them to take action to improve their financial future. The program may include delivery methods such as email, digital targeting, social targeting, and Direct Mail. ii. Use of Third-Party Marketing Firm: Plan Sponsor understands that Nationwide may use a third-party marketing firm to provide the PEP, that the use of a third-party marketing firm NRF-0621AO (07/19) Page 8 of 18 may be essential to provide the PEP due to its personalized features, and that such a program cannot be offered without such use. Nationwide shares Participant data with the marketing firm to allow it to target the appropriate retirement plan messages to each Participant based on the Participant’s individual characteristics, demographics, and behaviors while considering the Participant’s preferences for accessing information, electronically or otherwise, for more impactful delivery. iii. Sharing of Participant Data: To facilitate the personalized communication program, Plan Sponsor approves the sharing of data with a third-party marketing firm. Participant data will only be shared with the third-party marketing firm for Plan-related purposes. Only third- party marketing firms that comply with all applicable state and federal privacy laws, including the relevant provisions of the Gramm-Leach-Bliley Act, will be utilized. All Participant data will be secured and protected at all times to avoid unauthorized access, and the third-party marketing firm must agree to abide by all current applicable legal and industry-standard data security and privacy requirements. 13. SERVICES RELATED TO INVESTMENT OPTIONS a. Plan Sponsor acknowledges that it has exercised its fiduciary duties in selecting the Plans funding vehicles and the applicable investment line-up under such funding vehicles. b. Plan Sponsor agrees to accept the terms and conditions of the annuity contracts, mutual funds, any other investment products, and investment advice agreements after being provided with a copy of same. c. With respect to funding vehicles that engage an independent investment advisor to establish and maintain the investment line-up, Plan Sponsor agrees that failure to follow the independent investment advisor’s recommendation in accordance with the terms of its agreement with the independent investment advisor will cause Plan Sponsor to become the investment fiduciary for the Plans. d. Nationwide agrees to accept contributions to the Plans for investment in the investment options selected by the Plan Sponsor, a product’s independent investment advisor, or other responsible Plan fiduciary in its sole discretion and agreed to by Nationwide. XX. ADDITIONAL SERVICES FOR GOVERNMENTAL 401(a) PLAN Nationwide may provide the following services to the Plan Sponsor for the Plan as mutually agreed upon in writing by the Plan Sponsor and Nationwide:  Eligible Employee Verification  Year End Valuation  Contribution and Forfeiture Allocation  Contribution Verification  Vesting Calculation and Maintenance  Contribution Limit Testing (This will be done on an individual plan basis. Nationwide will not be responsible for monitoring aggregate contribution limits to multiple plans or for reviewing or NRF-0621AO (07/19) Page 9 of 18 taking into account contributions to any other plan sponsored by the Plan Sponsor or contributions record kept by another vendor.) 15. COMPENSATION (Pricing Model #4 Default – Fee Normalization) a. Nationwide will be entitled to compensation for performance of the Administrative Services for the Plans under this Agreement. Unless otherwise specified such compensation will be in the form of payments made by Nationwide’s affiliates or unaffiliated companies that are providing products and/or services under their separate arrangements, as described in the following subsection. b. The Plan Sponsor acknowledges the Nationwide and its affiliates receive payments in connection with the sale and servicing of investments allocated to participant Plan accounts (“Investment Option Payments”). As compensation for the services provided in this Agreement, the parties agree that Nationwide and its affiliates are entitled to receive the Investment Option Payments. In addition to the foregoing, the parties acknowledge and agree that Nationwide may receive revenue associated with annuity contracts, revenue from mutual fund providers, as well as fees associated with specific services or products. The Investment Option Payments include mutual fund service fee payments, which are described in detail at www.nrsforu.com, and other payments received from investment option providers. The Plan Sponsor acknowledges that it has received all information about compensation paid to Nationwide as the Plan Sponsor has reasonably requested and has determined that the total amount of compensation paid to Nationwide as described in this Section 4 is reasonable and appropriate for the services provided. a. As compensation for the performance of the Administrative Services provided by Nationwide pursuant to this Agreement, the Plan Sponsor and Nationwide agree that Nationwide shall be entitled to receive an annualized compensation requirement of x.xx% (xx basis points) of the Plans account value held by Nationwide (“Compensation Requirement”) to be calculated and collected according to Nationwide’s standard business practices. Nationwide’s Compensation Requirement will be taken in the form of an explicit asset management charge applied against all Plan assets under management, including Plan balances held in the Self-Directed Brokerage Account (“SDBA”) and as outstanding Participant loan balances. The explicit asset management charge of xx basis points will be taken against Participant loans by applying an additional finance charge to the loan interest rate. In addition to the foregoing, the parties acknowledge and agree that Nationwide may receive revenue associated with annuity contracts, revenue from mutual fund providers, as well as fees associated with specific services or products. b. The Plan Sponsor directs Nationwide to assess and collect an additional asset management charge of x.xx% (xx basis points), to be applied against all Plan assets under management, including Plan balances held in the Self-Directed Brokerage Account but excluding participant loan balances, to be remitted to and used by the Plan Sponsor for reasonable and necessary Plan related expenses. This additional asset management charge will be calculated and collected from participant accounts according to Nationwide’s standard business practices. This NRF-0621AO (07/19) Page 10 of 18 Plan expense charge will be in addition to Nationwide’s Compensation Requirement described in Section 14.a above. c. Nationwide will provide the Plan Sponsor with a quarterly Compensation Requirement report within thirty (30) Business Days after the end of each quarter. d. The Plan Sponsor acknowledges that Nationwide and its affiliates receive payments in connection with the sale and servicing of investments allocated to participant Plan accounts (“Investment Option Payments”). The Investment Option Payments include mutual fund service fee payments as described in detail at www.nrsforu.com, and other payments received from investment option providers. The Plan Sponsor directs Nationwide to credit all Investment Option Payments to participant accounts on a quarterly basis. The Investment Option Payments shall be credited to participant accounts on a pro-rata basis based on each participant’s total assets held in all Plan investment options that generated the Investment Option Payments. e. The Plan Sponsor directs Nationwide to establish and maintain a separate account (the “Plan Expense Account”) to which the asset management charge of xx basis points referred to in Section 14.b will be credited. The Plan Expense Account will be funded on a quarterly basis. The Plan Sponsor will select a single investment vehicle to be used for the Plan Expense Account, which cannot be an investment vehicle included in the participant investment option line-up. The Plan Sponsor will direct Nationwide, in writing, to pay reasonable and necessary Plan expenses directly to a Plan service provider. i. When each invoice is submitted to Nationwide for payment, the Plan Sponsor shall certify in writing that the expenses represented by the invoice are reasonable and necessary Plan expenses. As the fiduciary of the Plan, the Plan Sponsor is solely responsible for making determinations with respect to the appropriateness of all expenses of the Plan and how the Plan Expense Account is managed. Nationwide does not accept this responsibility. ii. The account balance, account transactions and investment experience of the Plan Expense Account will be reported to the Plan Sponsor no later than thirty (30) Business Days after the end of each calendar quarter. iii. The Plan Sponsor will maintain the cumulative balance held in the Plan Expense Account at a reasonable level given the size of the Plan and the Plans total annual expenses. Should the cumulative balance of the Plan Expense Account exceed a reasonable level, NRF-0621AO (07/19) Page 11 of 18 Plan Sponsor will direct Nationwide to allocate any excess accumulation to Participant accounts on a pro-rata basis based on their total account balance. iv. Notwithstanding Section 14.e.iii. above, at the direction of Plan Sponsor, any balance in the Plan Expense Account that has not been applied to pay for reasonable and necessary Plan expenses can be allocated to Participant accounts on a pro-rata basis based on their total account balance on an annual basis to be mutually determined and agreed to by the parties. f. The Plan Sponsor acknowledges that it has received all information about compensation paid to Nationwide as the Plan Sponsor has reasonably requested and has determined that the total amount of compensation paid to Nationwide as described in this Section 14 is reasonable and appropriate for the services provided. g. To the extent offered under the Plan, in addition to the above described fees, Nationwide shall also receive fees with respect to a Participant’s use of Participant loan administration, the Self- Directed Brokerage Account (“SDBA”), and Nationwide’s managed account service (“ProAccount”) as follows: i. Loans – If requested by the Plan Sponsor and permitted under the terms of the Plan, Nationwide will assist the Plan Sponsor in processing Participant loan requests pursuant to Participant loan administrative procedures approved by the Plan Sponsor and Nationwide. All Participant loan fees are governed by Nationwide’s Plan Loan Procedures document, a copy of which has been provided to the Plan Sponsor. ii. Self-Directed Brokerage Account – The Plan offers an SDBA investment option for qualifying participants in the Plan. Initial and annual administrative fees may be charged as outlined in the separate fee agreement for the SDBA that will be provided to each Participant by Nationwide. iii. Managed account services (Nationwide ProAccount) – Managed account services are offered by Nationwide Investment Advisors (“NIA”), an affiliate of Nationwide, and the Plan Sponsor must execute a separate agreement with NIA if the Plan Sponsor wants to add ProAccount to the Plan. Only participants who choose to utilize Nationwide’s ProAccount managed account service are assessed fees. Such fees are authorized in a separate ProAccount agreement between the participant and NIA, and are assessed pursuant to the terms and conditions of such agreement. NRF-0621AO (07/19) Page 12 of 18 h. Plan Sponsor may request Nationwide and/or its affiliates to provide additional services not described in this Agreement by making such a request in writing, which Nationwide may decide to perform for compensation to be negotiated by the parties prior to the commencement of the additional services. 16. FRAUD a. Nationwide will investigate suspected fraud in accordance with its standard procedures. b. Nationwide will report any fraud that is confirmed after performing its investigation to Plan Sponsor. c. Nationwide will work with Plan Sponsor to determine the appropriate action to mitigate or rectify any discovered fraud. d. If Nationwide suspects fraud with respect to an ACH transfer, Plan Sponsor agrees that Nationwide may issue a physical check to the Participant instead. 17. ASSIGNABILITY AND PROVISION OF SERVICES a. Excepted as otherwise specifically provided for in this Agreement, Plan Sponsor acknowledges that the Administrative Services under this agreement will be performed by Nationwide or one of its affiliates. b. Except as provided for in Subsection “a”, above, no party to the Agreement will assign the performance of services without the express written consent of the other party, which consent shall not be unreasonably withheld. Unless agreed to by the parties, such assignment shall not relieve any party to this Agreement of any duties or responsibilities herein. This provision does not restrict Nationwide’s right to delegate certain services to an agents, affiliates, and vendors. 18. CONFIDENTIALITY a. Nationwide agrees to maintain all information obtained from or related to all Plan Participants as confidential. b. Plan Sponsor authorizes Nationwide to disclose Plan and employee information to its agents, affiliates, vendors, brokers, registered representatives, and professional advisors (such as attorneys, accountants and actuaries) to enable or assist them in the performance of their duties hereunder and other plan-related activities. c. Plan Sponsor agrees to allow the periodic distribution to its employees of materials prepared by Nationwide regarding products and services offered by Nationwide, or its affiliates, which Nationwide reasonably believes would be beneficial to such Plan Participants. NRF-0621AO (07/19) Page 13 of 18 d. Except as provided for in Sections 12(e) and 17(b), Plan Sponsor agrees that Plan and Participant information may also be used or disclosed by Nationwide to other third parties pursuant to a written authorization signed by Plan Sponsor. e. Notwithstanding anything to the contrary contained herein, it is expressly understood that Nationwide retains the right to use any and all information in its possession in connection with its defense and/or prosecution of any litigation that may arise in connection with the Agreement, the investment arrangement funding the Plans, or the Plans; provided, however, in no event will Nationwide release any information to any person or entity except as permitted by applicable law. 19. INDEMNIFICATION a. Nationwide agrees to indemnify, defend and hold harmless Plan Sponsor, its officers, directors, agents, and employees from and against any loss, damage or liability assessed against Plan Sponsor or incurred by Plan Sponsor arising out of or in connection with any claim, action, or suit brought or asserted against Plan Sponsor alleging or involving Nationwide’s non-performance of the provisions of the Agreement under Nationwide’s exclusive control, or negligence or willful misconduct in the performance of its services, duties and obligations under the Agreement. In addition, Nationwide represents, warrants and covenants that the indemnification in this paragraph is enforceable under applicable law and that Nationwide will not assert a position contrary to such representation in any judicial or administrative proceeding. b. To the extent not prohibited by state law, Plan Sponsor agrees to indemnify, defend and hold harmless Nationwide, its officers, directors, agents, and employees from and against any loss, damage or liability assessed against Nationwide or incurred by Nationwide arising out of or in connection with any claim, action, or suit brought or asserted against Nationwide alleging or involving Plan Sponsor’s non-performance of the provisions of the Agreement under Plan Sponsor’s exclusive control, or negligence or willful misconduct in the performance of its duties and obligations under this Agreement. In addition, Plan Sponsor represents, warrants and covenants that the indemnification in this paragraph is enforceable under applicable law and that Plan Sponsor will not assert a position contrary to such representation in any judicial or administrative proceeding. 20. PARTIES BOUND This Agreement and the provisions thereof shall be binding upon and shall inure to the benefit of the successors and assigns of Nationwide and Plan Sponsor. This Agreement shall be enforceable only by the parties, not by Plan Participants or other third parties, and is intended to create no third-party beneficiaries. 21. MODIFICATION a. The parties intend this writing to be both the final expression of the Agreement between the parties and a complete statement of the terms of the Agreement. Notwithstanding anything contained herein to the contrary, the parties may amend the Agreement from time to time and as mutually agreed upon. Except as otherwise provided herein, no modification of the NRF-0621AO (07/19) Page 14 of 18 Agreement will be effective unless and until such modification is evidenced by a writing signed by both parties. b. Notwithstanding the above, if Nationwide determines that an amendment to the Agreement is necessary that affects more than one plan sponsor and this change is communicated in writing to all affected plan sponsors, Nationwide reserves the right to implement the amendment on a prospective basis for any plan whose plan sponsor fails to respond to the request for written approval of the amendment in a timely fashion. Plan Sponsor hereby approves all such amendments unless a proper and timely response is made to Nationwide regarding any Agreement modification communicated to Plan Sponsor. 22. TERMINATION a. Either the Plan Sponsor or Nationwide may terminate the Agreement for any reason upon providing 120 days written notice to the other party. b. In the event either party fails to perform any or all of its obligations as defined in the Agreement, the non-defaulting party shall give the defaulting party written notice, specifying the particulars of the default. If such default is not cured within sixty days from the date in which notice of default is given, the non-defaulting party may terminate the Agreement upon 60 days written notice to the defaulting party. c. Provision of such written notice of termination by Plan Sponsor to Nationwide does not relieve the Plan Sponsor of any termination requirements that may be associated with specific investment options. d. Plan Sponsor further acknowledges and agrees that the Plans are responsible for any investment product liquidation fees, if applicable, and that neither Nationwide nor any of its affiliates assumes liability for any such fees. e. Upon the effective date of termination of this Agreement the following shall occur: i. Nationwide will no longer accept contributions to the Plans except by agreement of the parties. ii. Nationwide will: 1. Provide Plan Sponsor, or such other entity as the Plan Sponsor may designate in writing, with a copy of all Participant records in an electronic format and within a time frame as mutually agreed upon between Nationwide and Plan Sponsor. 2. Transfer any periodic distribution amounts and schedules, continuing loan repayments, or other ongoing Participant transactional activity to the Plan Sponsor, or such other entity as the Plan Sponsor may designate in writing, in accordance with the time frame agreed to by the parties for the delivery of Participant records. NRF-0621AO (07/19) Page 15 of 18 3. Transfer all Plan assets under its control to the Plan Sponsor or to such other entity as the Plan Sponsor may designate in writing in accordance with the funding arrangement terms. Nationwide agrees to provide a final accounting of all Plan assets for which Nationwide provides recordkeeping. f. If the Plan is not funded within 180 days of the date this Agreement is signed by the parties or the Effective Date of the Agreement, if later, Nationwide reserves the right to terminate the Agreement by providing written notice of the termination to Plan Sponsor. 23. CIRCUMSTANCES EXCUSING PERFORMANCE a. Neither party to the Agreement will be in default by reason of failure to perform in accordance with its terms if such failure arises out of causes beyond their reasonable control and without fault or negligence on their part. Such causes may include, but are not limited to, Acts of God or public enemy, acts of the government in its sovereign or contractual capacity, severe malware or cyber-attack, fires, floods, epidemics, quarantine or restrictions, freight embargoes, and unusually severe weather. b. Neither party will be responsible for performing all of that portion of services precluded by the foregoing events for such period of time as Plan Sponsor or Nationwide are precluded from performing such services in the normal course of business. Neither Nationwide nor Plan Sponsor will be liable for lost profits, losses, damage or injury, including without limitation, special or consequential damages, resulting in whole or in part from the foregoing events. c. “Acts of God” are defined as acts, events, happenings or occurrences due exclusively to natural causes and inevitable accident or disaster, exclusive from all human intervention. 24. NO WAIVER The failure of either party to enforce any provision of the Agreement will not be construed as a waiver of that provision or of any other provision in the Agreement. Either party may, at any time, enforce a provision previously unenforced, unless a modification to the Agreement has been executed that makes such provision unenforceable. 25. SEVERABILITY Any provision of the Agreement which is prohibited or unenforceable in any jurisdiction where performance is required will be ineffective to the extent such provision is prohibited or unenforceable without invalidating the remaining provisions. Any prohibited or unenforceable provision in any one jurisdiction will not prohibit or render unenforceable such provision in any other jurisdiction. 26. AUTHORIZED PERSONS NRF-0621AO (07/19) Page 16 of 18 Plan Sponsor will furnish a list to Nationwide (and from time to time whenever there are changes therein) of the individuals authorized to transmit instruction to Nationwide concerning the Plans and/or assets in the Plans, and written direction regarding the form of such instructions. 27. COMPLIANCE WITH LAWS Both Plan Sponsor and Nationwide agree to comply, in their respective roles under this Agreement, in all material respects with all applicable federal laws and regulations as they affect the Plans and the administration thereof. Nothing contained herein will be construed to prohibit either party from performing any act or not performing any act as either may be required by statute, court decision, or other authority having jurisdiction thereof. 28. SURVIVAL OF REPRESENTATIONS, WARRANTIES, INDEMNITY, AND CONFIDENTIALITY a. Notwithstanding anything to the contrary, any representations and warranties contained herein will survive termination of the Agreement for the full period of any applicable statute of limitations that may apply to the Agreement. Further, the party making any representation or warranty shall notify the other party in writing within five business days of any representation or warranty that is no longer valid. b. Notwithstanding anything to the contrary, any indemnity provisions contained herein will survive the termination of the Agreement for the full period of any applicable statute of limitations that may apply to the Agreement. c. Notwithstanding anything to the contrary, any confidentiality provisions contained herein will survive the termination of the Agreement for the full period of any applicable statute of limitations that may apply to the Agreement. 29. PRIVITY OF CONTRACT Plan Sponsor acknowledges and agrees that Nationwide and Participants of the Plans have no privity of contract with each other. 30. APPLICABLE LAW AND VENUE This agreement will be construed in accordance with the laws operating within the State of Ohio. 31. ATTORNEY’S FEES Each party agrees that in the event of a claim, arbitration, or lawsuit filed by a party to this Agreement, each party will be responsible for its own attorneys’ fees and/or any costs or expenses related to the bringing or defense of any such claim, arbitration, or lawsuit. 32. HEADINGS The headings of articles, paragraphs, and sections are included for convenience only and will not be considered by either party in construing the meaning of the Agreement. 33. NOTICES NRF-0621AO (07/19) Page 17 of 18 All notices and demands to be given by one party to another must be given by certified or United States mail, addressed to the party to be notified or upon whom a demand is being made, at the addresses set forth in this Agreement or such other place as either party may, from time to time, designate in writing to the other party. Notice will be deemed received on the earlier of: (1) three days from the date of mailing, or (2) the day the notice is actually received by the party to whom the notice was sent. If to Nationwide: Nationwide Retirement Solutions, Inc. 10 W. Nationwide Blvd., 05-04-101A Columbus, Ohio 43215 If to Plan Sponsor: ____________________________________ ____________________________________ ____________________________________ ____________________________________ By executing this agreement, Plan Sponsor represents and warrants that it is an “eligible employer,” as that term is defined in Code Section 457(e)(1)(A) and 414(d), (IF ASA INCLUDES A 401(a) PLAN) which means “a State, political subdivision of a State, and any agency or instrumentality of a State or political subdivision of a State.” IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first written above. NRF-0621AO (07/19) Page 18 of 18 Nationwide Retirement Solutions, Inc. By: Name: __________________________________ Title: ___________________________________ Date: ___________________________________ __________________________ Plan Sponsor By: Name: __________________________________ Title: ___________________________________ Date: ___________________________________