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RSM McGladrey Financial Process Outsourcing

Payroll Terms of Service

(“TOS”)

Section I: Services

RSM McGladrey Financial Process Outsourcing, itself or through a delegate (collectively, “RSMM”) agrees to provide (“Customer”) with the following services Payroll Services (as defined below), and if subscribed to by Customer, optional Direct Deposit via ACH Service, and Tax Filing and Compliance Service, all in the following manner and subject to the Terms of Service ("TOS") described herein. RSMM may delegate certain of its duties under this agreement to a third party, such as PayMaxx, Inc. (“Delegate”).

I-1. Payroll Service:

1. RSMM agrees to process Customer's payroll and deliver Customer's payroll

a. Deliver Customer's payroll package, defined below, to one of the national couriers (such as FedEX, UPS, Airborne) for the next business day delivery to Customer provided Customer has met its Deadline as defined below.

Or:

b. Deliver Customer's payroll package, defined below, electronically to Customer for printing on site ("On-Site Print") sixty- (60) minutes after submission by Customer provided Customer has met its Deadline as defined below.

Or:

c. Deliver Customer’s payroll via Truck mail, if available, provided Customer has met its deadline as defined below.

Customer's payroll package shall include but will not be limited to: Payroll checks / deposit advice (laser printed, signed and sealed); Payroll check register; Earnings report; Labor and Taxable Wages report; Deduction register; Condensed Employee Master report. In addition, PayMaxx will provide electronic New Hire reporting on behalf of Customer to the appropriate agencies in a manner and frequency required by law.

2. If Customer elects to have payroll checks signed, it agrees to complete and sign the Check Signature Authorization (Exhibit B) included in the RSMM Payroll Service Authorization Forms.

3. Customer shall transmit payroll data to RSMM via fax, phone or the Internet, utilizing such applications as RSMM may designate from time to time, in any case on or before the transmission deadline ("Deadline") defined below:

( Fax-in/Call-in: Deadline is 10:00 AM CST/CDT three business days prior to check date if Customer has subscribed to either Tax Filing and Compliance Service (“TFS”) or Direct Deposit via ACH Service (“Direct Deposit”). Example: if check date is Friday, Deadline shall be no later than Tuesday by 10:00 AM CST/CDT. Alternative processing deadlines may be determined depending upon the complexity of payroll and input methods.

( Internet: Deadline is 12:00 noon CST/CDT on any business day 48 hours prior to check date. Example: if check date is Friday, Deadline shall be Wednesday by 12:00 noon CST/CDT.

4. Customer agrees and hereby acknowledges that Customer is responsible for the input of payroll data via faxed timesheet/form, phoned data, or electronically (optional) in a complete, accurate and timely manner. RSMM is not responsible for any errors due to incorrect data entry or submission by Customer. Customer specifically agrees to verify payroll input submission prior to transmission to RSMM for its accuracy and completeness.

5. Customer shall transmit payroll adjustments for end of quarter ("EOQ") and end of year ("EOY") to RSMM no later than 3 business days after Quarter or Year ending dates.

If customer subscribes to tax filing services, at the each EOQ and prior to any statutory deadlines, RSMM should file and send ACH payment to the appropriate taxing authorities. RSMM shall provide customers with the following within two weeks after the close of the quarter: Quarterly Employee Earnings report, Federal 941 liability and summary report, FICA Exception report, Quarterly State/City Taxes report, Negative State Unemployment wages report, State Unemployment Insurance Wage Listings and copy of Federal 941 and quarterly State Unemployment Insurance returns filed by RSMM on behalf of Customer.

At each EOY, prior to any statutory deadlines, RSMM shall provide Customer with the following: Laser W-2 mailers, W-2 summary report, Employee Master report, Electronic filing of the W-2's to the Federal Government and copy of the Federal 940 filed by RSMM on behalf of Customer.

6. Customer understands and hereby acknowledges that RSMM Delegate’s ACH Clearing Account is an interest bearing account and the interest generated therein is used to offset ACH service charges. Any and all profits or other accumulations such as interest income shall accrue for the benefit of and be the sole property of RSMM’s Delegate.

I-2. Direct Deposit via ACH Service:

If Customer has elected to subscribe to Direct Deposit via ACH Services ("Direct Deposit") as described below, such service shall be subject to the additional terms and conditions contained in this Section I-2.

1. Customer assumes the responsibility to have on file and send to RSMM an Authorization for Employee Direct Deposit ("EAA") (included in the Payroll Service Manual) completed and signed by each employee who elects to use Direct Deposit. The EAA will give RSMM (on behalf of the Customer) the authority to electronically credit/debit the employee's bank account for the Direct Deposit service. Customer shall retain the original or a copy of each signed EAA for as long as RSMM provides Direct Deposit to Customer and for the designated time period as required by law. This TOS and performance of RSMM will not relieve Customer of any obligation imposed by law or contract regarding the maintenance of records.

2. Customer acknowledges that the processing of Direct Deposit is subject to the operating rules and guidelines of the National Automated Clearing House Association ("NACHA"), and applicable federal laws, regulations and rules (hereby collectively referred to as "Rules"). In the event that application of Rules is inconsistent with this TOS, the Rules shall control.

3. RSMM will calculate Direct Deposit amounts from input payroll data as supplied by Customer. RSMM will cause Customer funds to be electronically deposited into Customer's employee bank accounts based solely on the information Customer provides to RSMM.

4. RSMM agrees to perform Direct Deposit Service for Customer within the time provided by the depository banks unless prevented from doing so by causes beyond the reasonable control of RSMM.

5. Customer agrees to transmit payroll information to RSMM no later than the Deadline, outlined in Section I-1.3 above. Failure to transmit payroll information timely to RSMM will result in late Direct Deposit or issuing paper checks in lieu of Direct Deposit.

6. Customer agrees to complete the Bank Authorization for Company Direct Deposit (Exhibit D) included in the Payroll Service Customer Authorization Forms. This Agreement gives RSMM authorization to debit Customer's designated bank account ("DBA") by an amount equal to the aggregate net amount of all Direct Deposits contained in Customer's payroll file and to credit RSMM Delegate’s ACH Clearing Account for this amount 48 hours prior to check date.

7. Customer agrees to provide immediately available collected funds for Customer's Direct Deposit liabilities as follows:

Customer agrees to maintain sufficient funds in its DBA to cover all its payroll Direct Deposit liabilities. In the event the debit ACH entry is returned to RSMM and its Delegate due to insufficient funds, closed account, etc., Customer agrees to immediately wire its Direct Deposit liabilities to Delegate. In such an event, RSMM may reverse the Direct Deposit records it has issued to Customer's employees and/or stop payment on the Direct Deposit payments in transit to Customer's employees.

Customer acknowledges that RSMM will not provide funds to pay Customer's Direct Deposit obligations. If Customer fails to provide funds, the Direct Deposit obligations will not be honored.

8. In the event the Customer discovers an error with a Direct Deposit entry or file and requests a reversal to be issued, the Customer will provide RSMM with accurate data to initiate a reversal ACH entry or stop payment on the original deposit back to the Receiving Deposit Financial Institution (RDFI), provided that such RDFI accepts such entry and request is ACH’d timely to affect such reversals. A Reversal Request Form may be obtained from RSMM’s payroll customer support department.

9. Customer hereby indemnifies and holds RSMM harmless from any loss, cost or expense, including attorney's fee, arising out of or related to Customer's failure to comply with this TOS including any claims or damages by Customer's employees if payroll Direct Deposits are late or not paid, and including any loss to RSMM if Customer fails to provide immediately available collected funds for Customer's Direct Deposit liabilities.

10. In the event of theft and/or fraud by RSMM’s employees pursuant to which Customer suffers monetary losses, which is not refunded or paid by Customer's bank or any insurance, RSMM agrees to refund Customer for the amounts lost.

11. In addition to the Service Fee provided hereunder, Customer understands and hereby acknowledges that RSMM may charge Customer additional fees due to incidental and non-routine Cash Management services. Such services are enumerated in the Fee Schedule attached hereto as Exhibit (A).

I-3. Payroll Tax Filing and Compliance Service:

The Tax Filing and Compliance Service ("TFS") as described below shall be subject to the additional terms and conditions contained in this Section I-3, and the Bank Authorization for Draft of Tax Liabilities (Exhibit A), included in the Payroll Service Customer Authorization Forms.

1. RSMM will calculate payroll tax liability amounts from input payroll data as supplied by Customer.

2. Subject to Section I-3.10, RSMM will deposit the Customer's tax payment, prepare and file payroll tax coupons and returns as required by federal, state and local taxing authorities as initially specified in the Customer Fact Sheet(s) applicable RSMM Payroll Service Customer Authorization Forms and amended thereafter in writing.

3. RSMM reserves the right to electronically file any tax return, where applicable, and Customer agrees to cooperate fully to assure this process can be completed. Customer agrees to sign IRS Form 8655 Reporting Agent Authorization for Magnetic Tape/Electronic Files (Exhibit E) included in the RSMM Payroll Service Customer Authorization Forms.

4. Customer agrees to provide RSMM with all coupons/vouchers or letters from all tax authorities immediately after receipt by Customer.

5. RSMM will maintain a record of all tax payments it makes on behalf of the Customer to applicable taxing authorities. RSMM will determine and reconcile the Customer's payroll tax account position with each applicable taxing authority on a quarterly basis and file the necessary tax returns.

6. RSMM agrees to perform TFS for Customer according to the procedures and conditions described in this Section I-3 and within the time limits provided for by the taxing authorities unless prevented from doing so by causes beyond the reasonable control of RSMM. This service does not relieve Customer of any duty imposed on Customer by law to maintain records regarding Customer's payroll taxes, business or employees.

7. Customer shall provide timely, complete and accurate master file information per RSMM specifications, including required deposit and return history, if any, prior to the initiation of TFS. Customer shall verify all Customer master file information and notify RSMM in writing of any required corrections prior to the initiation of TFS. Customer agrees that any changes, additions or deletions to Customer master file information will be made known to RSMM immediately and in writing.

8. Certain states and localities have payroll taxes that are withheld based on the place of residence of the employee ("Residency Tax"). It is the Customer's responsibility to ascertain whether Customer's employees are subject to any Residency Tax and to notify RSMM of such withholding responsibility. RSMM, upon notification by Customer will promptly set up the necessary tax codes for Customer to use RSMM’s payroll system to withhold the correct Residency Taxes. Once the tax codes are properly entered for each Customer Employee subject to Residency Taxes, RSMM will then withhold and remit such Residency Taxes to the corresponding taxing authorities. RSMM will cooperate with Customer in researching the presence of any Residency Taxes.

9. Customer shall agree to transmit payroll information to RSMM no later than the Deadline, outlined in Section I-1.3 above. Failure to transmit payroll information timely to RSMM may result in late deposit of Customer's payroll tax liabilities and may trigger interest and penalties for which Customer will be responsible.

10. Customer agrees to provide immediately available collected funds to RSMM to fund Customer's payroll tax liabilities to taxing authorities as follows:

Customer agrees to authorize the direct debit of a DBA account through the ACH and to maintain sufficient funds in said account to cover all its payroll liabilities. In the event RSMM’s ACH is returned due to insufficient or closed account, Customer agrees to promptly wire its payroll tax liabilities to RSMM. In such an event, RSMM may reverse or stop payments it has issued to taxing authorities on Customer's behalf.

Customer acknowledges that RSMM will not provide funds to pay Customer's payroll tax liabilities. If Customer fails to provide funds, Customer's payroll tax liabilities will not be honored. An event of a returned ACH will terminate the provisions of Section I 3.14 and III.

Customer agrees to fund RSMM via wire transfer if Customer's typical federal tax liability exceeds $100,000.00 per payroll and if so requested by RSMM.

Customer agrees that debits or wire transfers will be made by the Deadline, outlined in Section I-1.3 above. Adjustments required to accurately or timely process Customer's tax returns are computed and charged without prior notification to Customer.

11. Customer's transfer of funds to RSMM (including its delegate) pursuant to this TOS constitutes an acknowledgment by Customer that RSMM may invest such funds, in accordance with investment policies established by RSMM (including its delegate), and that any and all profits accumulations and any other form of gain resulting from such investments shall accrue for the benefit of and be the sole property of RSMM (including its delegate). RSMM (including its delegate) agrees to return Customer funds in excess of actual payroll tax liabilities and any amounts owed to RSMM (including its delegate) under this Agreement but not earnings thereon. RSMM (including its delegate) agrees to provide Customer with a reconciliation of Customer's tax fund balance upon Customer's request.

12. In the event Customer elects to terminate TFS for any reason, Customer agrees to provide at least 30 days written notice of its election to terminate. Should Customer terminate TFS owing tax balances and fees to RSMM and/or any taxing authority, Customer shall be liable for the deficit amount. Such deficits are subject to interest and penalties. Should Customer leave a positive balance with RSMM, said balance shall be promptly refunded to Customer. RSMM reserves the right to set off and deduct any other amounts owed to RSMM from the above referenced positive balance.

13. Customer's failure to comply with all items contained within this Section I-3 relieves RSMM of any liability for the proper execution of TFS as defined herein. Customer understands that all services rendered by RSMM shall be based upon information furnished by Customer.

14. RSMM makes the limited warranty that it will pay the costs of tax penalties and interest imposed by tax authorities arising from its own unexcused breach of this Agreement or other legal wrongdoing provided that the following conditions are satisfied:

a. The penalties and interest imposed by taxing authorities have arisen solely from RSMM’s error or negligence in timely performance of TFS; and

b. Customer has fulfilled its obligations hereunder including providing accurate data and funds in a timely manner; and

c. Customer has promptly forwarded any notices from tax authorities along with all relevant correspondence to RSMM; and

d. Customer has fully cooperated with RSMM’s efforts in first abating or reducing the amount of interest and penalty claimed.

Interest due under the provisions of this limited warranty may be reduced in the event that Customer had the benefit of the funds that were needed to pay the underlying tax obligation.

15. Customer understands and hereby acknowledges that Section I-3.14 above does not apply to any occurrence relating to the use of an "Applied For" tax identification number. Furthermore, RSMM may, at its sole discretion, charge the Customer on a time and material basis for any research it may do relating to an "Applied For" tax identification number.

16. In the event of theft and/or fraud by RSMM’s employees pursuant to which Customer suffers monetary losses, which is not refunded or paid by Customer's bank or any insurance, RSMM agrees to refund Customer for the amounts lost.

17. Customer agrees that it has read the Customer Fact Sheet(s) and hereby certifies the validity of the information contained therein.

18. In addition to the Service Fee provided hereunder, Customer understands and hereby acknowledges that RSMM may charge Customer additional fees due to incidental and non-routine TFS. Such services are enumerated in the Fee Schedule attached hereto as Exhibit (1)

II-2 Term and Termination:

Subject to the provisions below, this Agreement shall be in effect for a period of twelve (12) months from the effective date (“Term”), which is hereby defined as Customer’s first payroll check date.

1. Customer hereby agrees that RSMM may adjust the Service Fee it charges Customer at any time by giving Customer thirty- (30) days prior written notice.

2. Notwithstanding the above, Customer or RSMM may terminate this Agreement for any reason at any time by giving the other party sixty- (60) days advance notice in writing.

Section III: Warranties & Limitation of Liability

1. RSMM shall not be responsible for any delay or failure in its performance significantly related to circumstances beyond its control including but not limited to (whether similar or dissimilar to the following), communication line failure, power failure, delegation transportation, acts of God, hostilities, riot, fire, flood or other disasters, acts of government, strikes and labor disputes. In the event RSMM is delayed in the delivery of its services, for reasons beyond its control, delivery or installation shall take place as soon thereafter as it is reasonably feasible.

2. Unless otherwise specified herein RSMM makes no warranties or representations, express or implied, in fact or in law, including the implied warranties of merchantability and fitness for a particular purpose.

3. Notwithstanding the form (e.g. contract, negligence, tort or otherwise) in which any legal action may be brought against RSMM, RSMM shall in no event be liable for special, consequential, or incidental damages or for any indirect damages such as but not limited to exemplary or punitive damages, even if RSMM has been advised of the possibility of such damages.

4. RSMM obligations contained in Section I-3.14 are not subject to the limitation of liabilities stipulated in Section III-3, to the extent of RSMM’s obligations under Section I-3.14.

5. Customer acknowledges that although RSMM, as an accommodation to customer, is willing to discuss with customer’s tax filings and payments prior to RSMM assuming responsibility for the same under these terms of service, RSMM was not involved in making such filings and payments and has limited information about them, which may result in incomplete or inaccurate advice or information from RSMM relating thereto. RSMM makes no warranties as to such advice or information and customer agrees that RSMM shall have no liability or any kind (whether arising from contract, tort or any other legal theory or basis whatsoever) to customer or any other person as to such advice or information.

Section IV: Miscellaneous Provisions

1. All parties agree that any information, software, systems, documentation ("Proprietary Information") transmitted or conveyed by one party to the other is of a confidential and proprietary nature. It is acknowledged that the parties at great expense have developed such Proprietary Information, which contains formulae and calculations and information proprietary to the parties and their trade secrets. All parties agree not to divulge such information to any third person and to take all reasonable measures necessary to protect the proprietary rights of the other party.

2. RSMM hereby grants to Customer a non-transferable and non-exclusive license to use RSMM’s payroll system strictly for the purposes authorized by this Agreement during the Term of this Agreement and any renewals thereof. Customer's license to use RSMM’S payroll system will expire upon the termination of this Agreement. RSMM will defend, at its own expense, any action brought against Customer to the extent that such action is based on a claim that RSMM’s payroll system or any part thereof infringes on a United States copyright or patent or constitutes an unlawful disclosure, use, or misappropriation of a trade secret, provided that Customer notifies RSMM of such action upon knowledge that such action is being brought.

3. In the event that either party brings any proceedings or legal action against the other in connection with this Agreement, the prevailing party shall be entitled to recover its litigation costs and reasonable attorney's fees.

4. The parties shall make diligent efforts through negotiation to settle any disputes arising out of or related to this Agreement. Any dispute, controversy or claim arising out of or related to this Agreement, or the breach thereof, not settled by such negotiation within 30 days after initially raised in a writing by one of the parties to the other referring to this provision shall be settled by final and binding arbitration before one arbitrator, administered by the American Arbitration Association under its commercial arbitration rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Arbitration hearings shall be held at Nashville, TN. The arbitrator shall award reasonable attorneys’ fees and costs to the prevailing party. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary without breach of the arbitration agreement without any abridgement of the powers of the arbitrator. If, however, Fleming is a party to such dispute, controversy or claim, then this Section shall be superceded and such dispute, etc. shall be governed by the arbitration agreement set forth in RSMM’S agreement with Fleming, by which both parties hereto agree to be exclusively bound.

5. Customer shall not assign or otherwise transfer this Agreement to any other person, corporation or other entity without written authorization from RSMM. Any unauthorized assignment shall be null and void.

6. If RSMM or its delegate is notified by NACHA, any ACH organization, any taxing authority or governmental entity that such entity has amended or changed its rules, then RSMM may amend or change this Agreement effective immediately, to the extent and in the manner deemed necessary by RSMM to conform to such change(s) or amendment(s).

7. Except as set forth above, no modifications or amendments to this Agreement shall be valid unless in writing and signed by both parties.

8. Customer agrees that it has read this Agreement, understands it and, by signing the RSMM Payroll Service Authorization Forms, agrees to be bound by its terms and conditions.

Exhibit 1 - Service Fee Schedule

| Payroll Service: |Fee |Occurrence |

| Reverse ACH file |$50.00 |Each |

| Void entire payroll |$50.00 |Each |

| Positive paycard or check reconciliation file(s) |$8.00 |Store/Payroll |

| Reverse tax liability payment file |$100.00 |Each |

| Reverse tax liability impound file |$50.00 |Each |

| Develop custom reports |$125.00 |Per Hour |

|401 k file |$5.00 |Per Payroll |

|  |

| Direct Deposit via ACH Service: |Fee |Occurrence |

| Returned Direct Deposit for an employee |$3.00 |Item |

| Notification Of Change ("NOC") received for an employee |$3.00 |Item |

| Returned debit impound due to NSF or closed account |$50.00 |Item |

| Reversal entry for an employee |$10.00 |Item |

| Wire transfer |$25.00 |Item |

|  |

| Tax Filing and Compliance Service: |Fee |Occurrence |

| Response to correspondence from taxing authorities relating to Periods the Customer was not|$125.00 |Per Hour |

|using TFS | | |

| Response to correspondence from taxing authorities for notices generated due to Customer |$125.00 |Per Hour |

|provided data being incorrect | | |

| Non-routine Fed Wire due to Customer late transmission, incomplete or inaccurate data |$75.00 |Each |

| Amended returns |$55.00 |Each |

|W-2 C with Client Preparation |$2.50 |Each |

|W-3C |$55.00 |Each |

|Work-site reports |$15.00 |Each |

| Creation of electronic media for State Unemployment Insurance or EOY State Income Tax |$75.00 |Per State |

|returns for Customers who have not elected TFS | | |

| Special handling due to Customer error or mandated by any Customer reorganization |$125.00 |Per Hour |

|Customer Termination Charge – Continuation of service for tax filing and tax notice |$250.00 |On Termination |

|resolution. | | |

|  |

| Professional Service: |Fee |Occurrence |

| Special projects such as reorganization and restructure of Customer's payroll database |$125.00 |Per Hour |

| Custom programming and consulting services. |$125.00 |Per Hour |

| Other non-routine professional services. |$125.00 |Per Hour |

|Special File Transfers: Section 125, 401k. If PayMaxx is providing the Section 125 and 401k|$125.00 set up |$5.00 per payroll |

|services, these fees are waived. | | |

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