These Treasury Management Services General Provisions (“General Provisions”), together with the Authorization and Agreement for Treasury Management Services, the terms of each Service enrolled in and/or used by Customer (“Service Terms”), and any corresponding Operational Instructions, each as amended from time to time, collectively make up the Treasury Management Terms and Conditions Agreement (the “Agreement”), which sets forth the terms and conditions under which Capital One, National Association (“Bank”) will provide the Services to Customer. The Agreement supersedes any prior agreement between Bank and Customer with respect to any such Services. The Rules Governing Deposit Accounts applies to Customer’s use of the Account(s) in connection with the Services and is incorporated herein by reference. In the event of a conflict between the terms of the Agreement and the Rules Governing Deposit Accounts, the Agreement will prevail to the extent necessary to resolve the conflict. In the event of a conflict among the Agreement terms, the order of precedence shall be as follows: (i) Authorization and Agreement for Treasury Management Services, (ii) Operational Instructions, (iii) Service Terms, and (iv) these General Provisions. Capitalized terms used herein shall have the meanings provided in Section 28 (Definitions) or the Authorization and Agreement for Treasury Management Services.
Section 1. SERVICE TERMS.
Customer’s use of any Service constitutes its agreement to and acceptance of the Agreement, whether or not Customer has executed the Agreement. By using a Service, Customer acknowledges and agrees it has received a copy of the Service Terms for that Service. The Service Terms apply to Customer’s use of the Service and the Service Terms are incorporated into, and made a part of, these General Provisions. To request a Service, Customer will complete and deliver to Bank any Operational Instructions and other documentation reasonably required by Bank for the Service. Customer agrees to provide any additional information that Bank may reasonably require in connection with the Services and promptly notify Bank of any changes to any information previously provided in the Operational Instructions. Bank will notify Customer if and when the set‑up process (and any necessary credit approvals) for a Service is completed and such Service becomes available. Nothing contained, expressed, or implied in the Agreement obligates Bank to provide any Service for Customer. The Agreement and the use and provision of Services are subject to all Applicable Laws, including without limitation, the UCC and Operating Rules. Both parties agree to be bound by the Operating Rules where applicable and to comply with Applicable Laws in using or providing the Services, as the case may be.
Section 2. ACCESS CHANNELS.
(a) License. All Internet websites or applications that may be used to access the Services and otherwise send and receive information, Payment Orders and other Instructions, including File Delivery and the Intellix Treasury Management Portal (“Intellix”), are referred to as “Channels.” The Channels are also deemed Services under the Agreement. The Channels and the software, design, functionality, specifications, tapes or other media, programs, procedures and equipment provided in connection with the Channels as well as the content and other works of authorship provided, displayed or published in connection with the Channels (collectively, the “Software”) made available by Bank to Customer and used in connection with the Services, will be and remain the sole property of Bank or Bank’s Service Provider and will not be modified or altered in any way or used for any other purpose by Customer. Subject to acceptance or approval by Bank for Customer’s use of the Services, Bank grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use the Software solely in accordance with the Agreement during the term of the Agreement. Customer agrees to comply with the terms of any license made available to Customer through the Services.
(b) Restrictions; Acceptable Use; Feedback. Customer agrees to use the Software only in connection with the Services for legitimate business purposes and only in accordance with Applicable Laws. Bank reserves the right to suspend Customer’s access to and use of any Software with or without notice in the event of a violation of the terms applicable to such Software or where such action is necessary to prevent interference or disruption of services to other Customers, to protect the integrity of Bank services, as required by Applicable Laws, or for any other reason that Bank deems reasonably prudent. Customer shall not (i) sell, assign, transfer, license, or publish the Software or make copies of the Software; (ii) disclose, display or otherwise make available the Software or copies of the Software to third parties without Bank’s written approval; or (iii) reuse, reverse engineer, decompile, disassemble, modify, translate, create derivative works, reproduce, duplicate, or distribute the Software or content of the Services, or make any attempt to discover any source code of any Software from which the Services are comprised. If Customer provides Bank with any Feedback about the Software, then Bank may use such Feedback without obligation to Customer, and Customer hereby irrevocably assigns to Bank all right, title, and interest in any such Feedback. “Feedback” means suggestions, ideas, improvements, and/or feedback about the Software provided by or on behalf of Customer to Bank.
(c) Rights and Responsibilities of Customer. Customer is responsible for having and maintaining the appropriate hardware, software, Internet access, information technology systems and communication devices (“Customer Systems”), which are compatible for use with the Channels based upon the requirements provided by Bank. Customer agrees to adhere to safe computing practices inclusive of utilizing up-to-date virus protection software on the Customer Systems used to access the Channels. Customer is responsible for any malfunction, compromise, security breach or other misuse or problems with the Customer Systems and for the information transmitted and received through the Customer Systems.
(d) Bank Records. From time to time Bank may amend, change, add, delete, update or alter the information contained in the Channels, including information regarding the products and services described in the Channels, without notice. Information that Customer obtains through a Channel is not the official record of an Account or of any Transaction unless otherwise specified. Bank assumes no liability for any errors or omissions in the information contained in the Channels and expressly disclaims any responsibility to update the information contained in the Channels.
(e) Third-Party Links. The Channels may contain links to the websites of third parties or provide the opportunity to use or access third-party software or services that are not part of the Services (collectively, “Third-Party Links”). Bank does not endorse or assume any responsibility for any Third-Party Links and makes no representations or warranties whatsoever with respect thereto. Customer is solely responsible for its use of any Third-Party Links and agrees that it must look to the third-party provider, and not Bank, for any content, services and any problems or claims related to its use of the Third-Party Links, including any security or data breach.
Section 3. SECURITY PROCEDURES.
(a) Commercially Reasonable Security Procedures. Customer will use the Channels, other Services, and Software in accordance with the terms of the Agreement, including any Security Procedures offered and implemented by Bank in connection with the Services and as may be set forth in the applicable Operational Instructions. Customer has reviewed the Security Procedures offered and recommended by Bank and agrees that such Security Procedures are commercially reasonable and suitable for Customer with respect to authentication of Customer’s Payment Orders and other Instructions based upon Customer’s intended use of the Services as communicated to Bank, including the size, type, and frequency of Customer’s Payment Orders. The Security Procedures are designed to verify the authenticity of, not to detect errors in, Customer’s Payment Orders and other Instructions, and Bank has no obligation to detect errors in Customer’s Payment Orders and other Instructions. Any Payment Orders or other Instructions communicated to Bank in Customer’s name in compliance with the Security Procedures, and all access to and use of Channels and other Services using the Security Procedures assigned to Customer, are considered authorized by Customer and enforceable under the terms of the Agreement if accepted by Bank in good faith. Customer agrees that failure by Bank to use or comply with any Security Procedure shall not excuse Customer from its obligation to pay Bank the amount of any Payment Order made or authorized by the Customer or for which Customer is otherwise liable. Bank may implement different or additional Security Procedures for use by Customer from time to time upon notice to Customer, and Customer’s continued use of the Services and implementation of those additional Security Procedures shall be Customer’s agreement to such Security Procedures.
(b) Rejection or Waiver of Security Procedures. If Customer chooses to communicate any Payment Order to Bank in a manner that varies from the Security Procedures, then Customer agrees to be bound by and pay for such Payment Order accepted by Bank in good faith, whether or not authorized, and Customer will be deemed to have refused the Security Procedures that Bank offers and recommends as commercially reasonable. However, Bank has no obligation to accept any Payment Order that is not communicated in compliance with the Security Procedures, and Bank shall not be responsible for refusal to act upon any Payment Order received which does not comply with the Security Procedures.
(c) Authorized Representatives; Reliance. The titles/positions, individuals, and authorized signers designated in Bank’s records for the Account and Services shall be deemed “Authorized Representatives” of Customer. Bank is entitled to rely and act upon any notice, Payment Order or other Instruction received by Bank purportedly from an Authorized Representative. The Security Procedures are in addition to and do not limit or revoke the authority of any Authorized Representative to transmit Payment Orders and other Instructions in Customer’s name. Customer may add or delete any Authorized Representative by written notice to Bank signed by the Authorized Representative(s) on file with Bank, which notice must be given in the manner and form required by Bank. Bank may continue to rely on such authority and is authorized to act upon Instructions received from any Authorized Representative. Bank will not be responsible for Losses or unauthorized Payment Orders or other Instructions if Customer fails to timely and properly notify Bank of changes in the Authorized Representatives and/or their contact information. Customer is bound by any Payment Order or other Instruction and by use of the Channels by any Authorized Representative. Except as otherwise expressly provided in the Agreement, Bank shall not be obligated to act upon any notice, Payment Order or other Instruction received from Customer or any other person.
(d) Safeguarding the Security Procedures. Customer agrees that the Security Procedures are deemed Confidential Information and subject to the confidentiality terms hereof. Customer acknowledges that Customer’s failure to safeguard the Security Procedures may enable an unauthorized person to use the Services and access Customer’s Accounts, information and data. Customer agrees to implement appropriate security measures to safeguard the Security Procedures and shall notify Bank immediately in the event of any known or suspected unauthorized access to the Security Procedures. In addition to Customer’s obligations to safeguard the Security Procedures and establish procedures to ensure their confidentiality, Customer agrees to change the Credentials periodically and whenever: (i) anyone who has had access to the Credentials is no longer employed or authorized by Customer to use the Services; or (ii) there is known or suspected unauthorized access to the Security Procedures.
(e) Use of Fraud Protection Features. Bank offers a variety of Services and other features designed to assist Customer in reducing or stopping the incidence of fraud and unauthorized activity in Customer’s Accounts. Customer acknowledges that it has reviewed the suite of fraud prevention Services offered by Bank, and to the extent Customer chooses not to use one of these Services or features and the proper use of that Service or feature could reasonably have prevented Losses due to the incidence of fraud or unauthorized activity, Customer shall hold Bank harmless for the amount of such Losses that could have been reasonably prevented and Customer shall be precluded from asserting any claims against Bank for such incidence or fraud or unauthorized activity.
(f) Transaction Monitoring. Bank may, in its sole discretion, implement internal monitoring systems to evaluate Customer Transactions and the risk of possible fraudulent activity. Such Transaction monitoring is part of Bank’s internal processing and is not a component of the Security Procedures, and Customer agrees that the Security Procedures will be considered commercially reasonable regardless of whether they incorporate information from Transaction monitoring. Customer agrees that Bank may process Payment Orders and other Instructions verified by the Security Procedures and Bank will be considered to have acted in good faith and in compliance with the Security Procedures, regardless of the results of Transaction monitoring, including the detection of possible fraudulent activity; provided that Bank does not have actual knowledge that the Transaction is unauthorized and a reasonable opportunity to act on that knowledge. However, Bank reserves the right to reject Payment Orders and other Instructions verified by the Security Procedures in the event Bank identifies a risk of possible fraudulent activity and Bank shall not be responsible for its refusal to act upon any Payment Order or other Instructions based upon the results of Transaction monitoring.
(g) Appointment of Administrator. Customer may appoint one or more individuals (an “Administrator”) with the authority to determine who will be authorized to use the Services on Customer’s behalf and to designate and assign Credentials and Security Procedures to other authorized users at Customer (each, a “User” and collectively, “Users”). Customer assumes sole responsibility for the actions of the Administrator, the authority the Administrator gives other Users to act on Customer’s behalf, and the actions of the Users designated by the Administrator to access and use the Services.
Section 4. FEES; TAXES.
Customer agrees to pay the fees and charges associated with the Services as disclosed to Customer, including in any fee schedule or statement, as they may be changed by Bank from time to time (collectively, “Fees”). Bank will provide prior notice of any changes to the Fees. Unless other arrangements are made for payment of Fees (e.g., account analysis), or alternate payment terms are agreed to in the Service Terms applicable to any Service, Bank will debit an Account in the amount of the Fees owed on a monthly basis. Customer is responsible for all taxes attributable to its use of the Services or the Agreement, excluding taxes based on Bank’s employees, property or net income.
Section 5. NOTICES; COMMUNICATION WITH CUSTOMER.
(a) Notices. Except as otherwise specifically provided in these General Provisions, the Service Terms, or Operational Instructions for a Service, notices under the Agreement shall be provided in writing by nationally recognized overnight courier or hand delivery. In addition to the foregoing, Bank reserves the right to provide notice to Customer electronically via email or posting to a Channel, each of which Customer agrees will be considered “in writing”, or via United States mail, postage prepaid. Customer may send notices to Bank at Treasury Management Services, Capital One, National Association, 1307 Walt Whitman Road, Melville, NY 11747, or such other address as Bank may specify. Bank may send notices to Customer at Customer’s primary address as shown on Bank’s records at such time.
(b)Other Communications. Each Payment Order or other Instruction that is sent to Bank electronically in accordance with the Agreement including the applicable Service Terms shall be considered to be an original writing and to have been signed by an Authorized Representative. Customer is solely responsible for the accuracy and completeness of each Payment Order or other Instruction or communication sent to Bank. Bank is not responsible for any Losses incurred by Customer arising from interception of any information relating to the Services or Transactions if Customer uses regular e-mail or sends an unencrypted communication using the Channels.
(c) Timing. Any written notice or other written communication to be given to Bank under the Agreement will be deemed to be given upon receipt by Bank; provided, that it will not be effective until Bank actually receives it and has had a reasonable opportunity to act upon it. Any written notice or other written communication to be given to Customer under the terms of the Agreement will be effective and deemed to be given when mailed or electronically transmitted in accordance with the Agreement.
(d) Change Requests. Notwithstanding any terms in this Section 7 to the contrary, any addition, deletion or change to any Operational Instructions or Services requested by Customer (each, a “Change Request”) is subject to Bank’s approval and must be submitted with the information required by and in a form acceptable to Bank. No Change Request will be operative or effective until Bank has had an opportunity to review and respond to the Change Request and confirms to Customer that the Change Request has been approved (including any necessary credit approvals). Nothing contained, expressed, or implied in the Agreement obligates Bank to honor a Change Request initiated by Customer.
(e) Conflicts. Each party is entitled to treat as authentic any notice, communication or instruction believed by it in good faith to be genuine or to have been signed or authorized by an authorized representative of the sending party. In the event of any disagreement hereunder, or if conflicting demands or notices are made upon Bank relating to the relationship or any item or amount received by Bank hereunder, Bank may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder with regard to the subject matter of the dispute, so long as such dispute continues; and Bank shall not be or become liable to any person for its failure or refusal to act, and Bank shall be entitled to continue to refrain from acting until (i) the rights of all parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjusted and all doubt resolved by agreement among all of the interested parties. The rights of Bank under this paragraph are cumulative of all other rights which it may have by law or otherwise.
(f) Monitoring and Recording. Customer agrees on behalf of Customer and Customer’s Authorized Representatives, employees, agents and Vendors, that Bank may monitor and record telephone and electronic communications in connection with the Services at any time, without further notice to Customer or any party to the communication. Bank’s understanding of telephonic communications and records thereof shall be conclusive evidence of the actual notice, Payment Orders or other Instructions given. Bank’s records as to the Agreement, the Services, and any Transactions or other communications related hereto will control in the event of any conflict with Customer’s records.
Section 6. RECONCILIATION; REPORTING ERRORS.
(a) Customer agrees to notify Bank immediately if Customer discovers any error, omission, or discrepancy between Customer’s records and the information Bank provides to Customer about Customer Accounts or Transactions (e.g., in a statement, confirmation, or electronic report produced through any Bank information reporting service or the Channels, each such statement, confirmation or report, a “Statement”), any altered or unauthorized Checks or any failed, erroneous or unauthorized Transactions involving any Account (collectively, “Errors”).
(b) Customer understands that the nature of certain transactions and Applicable Laws relating to certain Services require that Customer provide Timely Notice (defined below) of an Error in order to preserve or exercise rights against third parties that may have been the beneficiary of such Error. If Customer fails to provide Timely Notice to Bank of any Error, then Customer shall be precluded from asserting such Error against Bank. “Timely Notice” is defined as notice provided to Bank: (i) on the same Business Day with respect to any Payment Order, (ii) the next Business Day for other electronic funds transfers, (iii) within thirty (30) days for any other Instruction, transaction or Service, or (iv) within ninety (90) days in the case of Fees, following the date on which such information is sent by Bank or otherwise made available to Customer. Customer agrees that Bank will not be liable for any Losses, including loss of interest, which result from Customer’s failure to give Bank Timely Notice of an Error or which might have been prevented by Customer giving Bank Timely Notice of an Error. Notwithstanding the foregoing, Bank reserves the right in its sole discretion to adjust transaction records for good cause after the expiration of the Timely Notice time periods.
(c) Bank will not be responsible for determining the accuracy, timeliness or completeness of any information that Customer, its agents, Vendors or others provide to Bank. Bank has no duty to interpret the content of any data transmitted to Bank, except to the limited extent expressly set forth in the Agreement. Bank assumes no responsibility for Customer’s reliance on any Account or Service information reported on an intraday or prior day basis that is subsequently updated, verified or corrected. Bank’s sole responsibility for any reporting errors caused by Bank will be to reprocess the information for the period in question and to provide corrected reports at Bank’s own expense. Customer agrees to maintain adequate backup files for a reasonable period of time and provide to Bank upon request all information necessary to remake or reconstruct any deposit, transmission, file, Entry, or other order affecting an Account.
(d) The Statements provided by Bank to Customer will notify Customer of funds transfer payments received by Bank for credit to one or more Accounts. Customer agrees that Bank will not be required to provide Customer any other notice of such receipt of payments. All credits to any Account for funds transfers are provisional until Bank receives final settlement for the funds according to the rules of the funds transfer system by which such funds have been transmitted. Customer acknowledges and agrees that if Bank does not receive such final settlement, Bank is entitled to a refund and may debit the Account in the amount of such funds transfer credited to such Account.
Section 7. EXAMINATION OF ITEMS; RESTRICTIONS.
Customer acknowledges and agrees that Bank will not physically examine Checks issued by Customer or payable to Customer and received and processed by Bank as part of any Service or for any Account. Bank may, without inquiry or liability, honor or refuse to honor any Check drawn on, or presented for deposit to, an Account (a) regardless of any special instructions or legends identified on the Check (including “void after 90 days” or “full accord and satisfaction”), or (b) if the Check is post-dated, undated, or stale-dated. Customer agrees that Bank may disregard any such information or date on a Check and process such Checks in compliance with its then current procedures and the terms of any applicable Service. If Customer purports to require two or more signatures on a Check for any Account (including by submitting such requirement in any Operational Instructions or other documentation with respect to any Account), Customer agrees that such requirement is for Customer’s internal control purposes only, and Bank is not required to observe or enforce such requirement. Customer agrees that Bank will be held harmless and will not be liable to Customer for any Losses that Customer may suffer as the result of Bank paying any Check lacking the required number of signatures or processing Checks without regard for any restrictive legends, dates, special instructions, or irregularities.
Section 8. LIMITATION ON LIABILITY.
(a) Notwithstanding any provisions of the Agreement to the contrary, Bank’s liability to Customer for failure to exercise ordinary care resulting in a delay in executing, improper execution of, or failure to execute a Transaction constituting a Payment Order, shall be limited to an amount equal to interest losses attributable thereto; provided, that Bank’s liability to Customer for any loss or damage arising from or relating to the Agreement or any of the Services that are outside the scope of Article 4A of the UCC, regardless of the form of action, shall be limited to direct damages attributable to Bank’s willful misconduct or gross negligence in performing the Services. Bank’s liability hereunder for interest losses will be calculated by using the daily federal funds rate in effect at the Federal Reserve Bank of New York for the period involved.
(b) In no event shall Bank be liable for (i) any punitive, indirect, incidental, consequential or special damages or lost profits, even if Bank has been advised of the possibility of such damages or losses; (ii) the acts or omissions of Customer (including its Authorized Representatives, Administrators, Users, Affiliates, and other current or former employees and agents) or any third party servicer or Vendor used by Customer, or any Losses incurred by any person or entity in connection therewith, excepting damages attributable to Bank’s gross negligence or willful misconduct; (iii) any Losses to Customer in connection with any Channel, Software or Customer’s use thereof, excepting damages attributable to Bank’s gross negligence or willful misconduct; (iv) any interception of any information relating to Customer or its Transactions as a result of Customer’s Payment Orders or other Instructions to Bank or use of the Internet or other Software; (v) any inaccuracy or omission in a notice or communication received by Bank from Customer or any other third party, or the acts or omissions of another financial institution, funds transfer system or other third party, excepting Bank’s Service Providers; (vi) the lack of Available Funds in an Account to complete a Transaction; (vii) Bank’s inability to confirm to Bank’s satisfaction the authority of any person to act on Customer’s behalf; or (viii) Customer’s failure to follow any applicable instructions relating to a Service.
(c) Any claim, action or proceeding by Customer to enforce the terms of the Agreement or to recover for any Service-related loss must be commenced within one (1) year from the date that the event giving rise to the claim, action or proceeding first occurs. Customer agrees to cooperate with Bank in any loss recovery efforts Bank undertakes to reduce any loss or liability that arises in connection with the Services.
(d) Customer agrees that: (i) Bank will be excused from failing to transmit or any delay in transmitting or processing a Payment Order or other Instruction if such transmittal or processing would violate any provision of any risk control program of the Federal Reserve, any Sanctions, or any other Applicable Laws, and (ii) Bank will not be responsible for the acts or omissions of any other financial institution, funds transfer system, Federal Reserve Bank, intermediary, transmission or communications facility, any Receiver or Receiving Depository Financial Institution or any other third party, or for any return of an Entry by such Receiver or Receiving Depository Financial Institutions, none of whom shall be deemed Bank’s agent for this purpose.
Section 9. INDEMNIFICATION.
(a) Customer agrees to indemnify and hold harmless Bank, its affiliates, licensors and Service Providers, and their respective directors, officers, shareholders, employees, agents, successors and representatives against any and all third party suits, proceedings, claims, demands, causes of action, damages, costs, expenses (including reasonable attorneys’ fees, court costs and other legal expenses), liabilities and other losses (collectively, “Losses”) that result from or arise out of: (i) the acts or omissions of Customer or any person acting on Customer’s behalf (including Customer’s Vendors and current or former directors, officers, shareholders, employees, agents, successors and representatives), in connection with Customer’s use of the Services, including, without limitation: (A) the breach by Customer of any provision, representation or warranty of the Agreement; (B) any misuse of the Services or Software by Customer, Customer’s Vendors or any other third party within the control or acting on behalf of Customer; or (C) the failure by Customer to comply with Applicable Laws; (ii) any act or omission of Bank that is in accordance with the Agreement or Customer’s Payment Orders or other Instructions; or (iii) any loss or corruption of data in transit from Customer or its Vendor to Bank. (b) Customer agrees to reimburse Bank for: (i) any fines or penalties and any associated costs (including reasonable attorneys’ fees and other legal expenses) imposed on or assessed against Bank by Nacha, any Federal Reserve Bank, any ACH Operator, any state or federal regulatory agency or other Bank or foreign governmental body, or any clearinghouse or other third party having oversight or rulemaking authority over networks relating to any of the Services, when the fine, penalty or other expense is caused by or related to Customer or Customer’s use of the Services, and (ii) reasonable attorneys’ fees, court costs and other legal expenses incurred by Bank in the event Bank deems it necessary to file an action to enforce the terms of the Agreement or initiate or participate in any litigation or other proceeding relating to Customer’s use of the Accounts or Services, including an action in interpleader, or any bankruptcy or insolvency proceeding or other litigation (or threatened litigation) involving Customer. Such amounts shall be immediately due and payable by Customer to Bank, notwithstanding whether Bank or Customer may have a claim against a third party.
Section 10. BANK REPRESENTATIONS AND WARRANTIES.
BANK MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER STATUTORY, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SERVICES, BANK’S PERFORMANCE OF SERVICES UNDER THE AGREEMENT, OR ANY SOFTWARE, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH, WITHOUT LIMITING THE FOREGOING, ARE EXPRESSLY DISCLAIMED BY BANK. No descriptions or specifications, whether or not incorporated into the Agreement, no provision of marketing or sales materials, and no statement made by any sales representative in connection with the Services, any Software or Channel or the Agreement, shall constitute representations or warranties of any kind. Neither Bank nor any of its Service Providers warrants that the Channels, other Services, or Software will operate without interruption, defects or viruses. Neither Bank nor any of its Service Providers assumes responsibility for the operation, security, functionality or availability of any Customer Systems, wireless access device, or mobile network which Customer utilizes to access the Services.
Section 11. CUSTOMER REPRESENTATIONS AND WARRANTIES.
Customer represents, warrants and covenants to Bank as follows:
(a) Customer is duly organized, validly existing, and in good standing in the jurisdiction in which Customer is organized, and is validly qualified in any other jurisdiction where Customer does business and is required to be qualified except where the failure to be so qualified would not have a material adverse effect on Customer;
(b) the execution, delivery and performance by Customer of the Agreement and the use of the Services have been authorized by all necessary entity and governmental action;
(c) the persons signing the Operational Instructions and any other Instructions or documents related to the Services on Customer’s behalf are duly authorized to do so;
(d) the Agreement represents Customer’s legal, valid and binding obligation and is enforceable against Customer in accordance with its terms;
(e) all information provided to Bank on the Instructions, Operational Instructions, or otherwise related to the Services or Accounts is complete, accurate and up to date, including Customer’s legal entity type, state of organization, ownership, management and control persons as well as Customer’s legal name, address and contact information;
(f) unless Customer has notified Bank otherwise in writing, Customer is not insolvent or in receivership nor is Customer subject to any voluntary or involuntary bankruptcy proceeding or any assignment for the benefit of its creditors;
(g) the execution and performance of the Agreement and the use of the Services do not and will not violate in any material respect any Applicable Laws, Customer’s entity governing documents, or any material agreement by which Customer is bound;
(h) each Account Customer maintains with Bank and all use of the Services is maintained or used solely for a legitimate business or commercial purpose and not a personal, family or household purpose;
(i) Customer is not (i) an “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) which is subject to Part 4 of Subtitle B of Title 1 of such Act; (ii) any “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended; or (iii) any entity the assets of which are deemed to be assets of any such “employee benefit plan” or “plan” by reason of the Department of Labor’s plan asset regulation, 29 C.F.R. Section 2510.3-101. In addition, Customer represents that the Transactions contemplated by the Agreement are not and will not be subject to the prohibited transaction rules of ERISA;
(j) the use of the Services does not and will not subject Bank, or Bank’s Service Providers, to the privacy and security requirements of the Health Insurance Portability and Accountability Act, as a business associate (defined at 45 CFR 160.103) or otherwise, unless Customer has notified Bank of such requirements and the parties have entered into a business associate agreement in a form reasonably acceptable to Bank;
(k) none of Customer’s employees are a national of a designated blocked country or “Specially Designated National,” “Blocked Entity,” “Specially Designated Terrorist,” “Specially Designated Narcotics Trafficker,” or “Foreign Terrorist Organization,” as defined by OFAC, or otherwise subject to any limitations or prohibitions under any Sanctions program; and (l) Customer will not use the Services in connection with restricted transactions (defined at 12 C.F.R. 233.2) including those in which credit, electronic fund transfers, checks or drafts are knowingly accepted by gambling businesses in connection with unlawful Internet gambling. Customer reaffirms these representations and warranties each time it uses a Service and agrees to promptly notify Bank in writing if any representation or warranty made by Customer is no longer true.
Section 12. CONFIDENTIALITY.
Customer agrees to safeguard and not disclose to any third party the terms of the Agreement, including, without limitation, any Security Procedures and any Software, and (except when required to be disclosed under Applicable Laws) the payment and pricing terms or fees for the Services, and any other information, in any form, furnished or made available directly or indirectly by Bank to Customer marked confidential, restricted, or with a similar designation, or information which, under the circumstances of its disclosure, a reasonable party would deem to be strategic information, a trade secret or otherwise restricted (collectively, “Confidential Information”), whether or not Bank is then performing Services for Customer. Customer agrees to limit the internal access, disclosure and distribution of all Confidential Information to its employees, agents and representatives who have a need to know such information and will at all times have appropriate policies in effect to ensure the confidential status of such information. Customer will be responsible for the acts and omissions of its employees, agents, representatives and Vendors with respect to Confidential Information. Customer will promptly notify Bank if it knows or becomes aware of any actual or suspected compromise of security, including any unauthorized use or possession of Confidential Information, including the Security Procedures assigned to Customer. Customer shall be responsible for any Losses resulting from Bank’s actions taken in accordance with Payment Orders or other Instructions received by Bank from unauthorized persons when such Payment Orders or other Instructions are provided in accordance with the applicable Security Procedures.
Section 13. TERMINATION. (a) Either Customer or Bank may terminate the Agreement as to some or all of the Services, with or without cause, at any time upon thirty (30) days’ prior written notice. In addition, Bank may terminate or suspend any or all of the Services or terminate the Agreement immediately and without prior notice in the event: (i) Customer breaches the Agreement or any other agreement with Bank or violates any Applicable Laws in connection with the Services; (ii) the confidentiality of Customer’s Security Procedures is compromised; (iii) Bank has reason to believe that an unauthorized Transaction involving any Accounts or the Services has taken or may take place; (iv) Customer becomes insolvent or the subject of a bankruptcy, receivership, or dissolution proceeding; (v) Bank becomes uncertain as to any person’s authority to give Bank Instructions regarding Accounts or the Services; or (vi) the continued provision of the Services in accordance with the terms of the Agreement would, in Bank’s good faith opinion, violate Applicable Laws or any requirement of any regulatory authority or otherwise subject Bank to an unacceptable risk of loss or material security risk.
(b) The termination of the Agreement will not affect Customer’s or Bank’s rights or obligations that arise prior to termination, including Customer’s payment obligations for any Services. All provisions of the Agreement relating to the parties’ warranties, representations, confidentiality obligations, proprietary rights, limitation of liability and indemnification shall survive the termination of a Service or the Agreement, including, without limitation, those set forth in Sections 8, 9, 11, 12, 18, 22 and 26 . Any provision of the Agreement that contemplates performance or observance after termination or expiration of the Agreement will survive termination or expiration of the Agreement and continue in full force and effect.
Section 14. USE OF THIRD PARTIES.
(a) Any third party servicer provider or vendor used by Customer in connection with any of the Services (each, a “Vendor”) shall be deemed to be Customer’s agent, and each Vendor is required to comply with the terms of the Agreement and the use of any of the Services as set forth herein to the same extent required of Customer. Customer agrees to be liable for (i) any Vendor’s failure to comply with Applicable Laws, any Security Procedures or operating requirements relating to the Services; (ii) all fees, costs and expenses owed to each Vendor for its services; (iii) any claims, damages, costs and expenses incurred as a result of any Vendor’s failure to perform, or delay or error in performing, its services; (iv) any Payment Orders or other Instructions received from a Vendor using Security Procedures assigned to Customer, which shall be deemed to be sent by Customer; (v) any breach by a Vendor of any provision of the Agreement.
(b) Customer acknowledges and agrees that Bank may arrange for some or all of the Services, the Software, and/or Channels to be performed or provided by a third-party service provider, vendor or processor (each a “Service Provider”). Bank’s use of a Service Provider shall not relieve Bank of its obligations under the Agreement, and Bank shall be responsible for the aspects of the Services performed by its Service Providers to the same extent as if Bank had performed or failed to perform the Service. Customer agrees not to bring a claim or any form of legal action against any Service Provider and agrees to hold any Service Provider harmless in connection with the Agreement and acknowledges that any such claims will be brought only against Bank. Customer acknowledges and agrees that Bank may disclose any information concerning Customer or the Accounts to Bank’s Service Providers and affiliates in connection with the provision of Services, Software, and/or Channels.
Section 15. OVERDRAFTS.
Customer will at all times have and maintain one or more Accounts for use in connection with a Service and maintain in such Account a sufficient collected balance to pay for Customer’s use of, and Transactions in, such Account, including Fees and expenses payable to Bank. Except as expressly provided in the applicable Service Terms, nothing in the Agreement will obligate Bank to extend any credit of any type, including any overdrafts, even if Bank has done so in the past. Bank may stop permitting overdrafts at any time without prior notice and delay or refuse to process any item, Payment Order or other Instruction that would result in an overdraft in an Account. If Bank decides in its sole discretion to process any item, Payment Order or other Instruction despite the overdraft, Customer agrees to reimburse Bank immediately for: (a) the full amount of any overdraft created by such item, Payment Order or other Instruction; (b) all overdraft fees and charges; (c) interest on the amount of the overdraft for the day the overdraft was created and for each following day until the overdraft has been paid; and (d) all Losses Bank incurs in collecting from Customer the overdraft or any fees or charges related to it.
Section 16. TRANSACTION LIMITS.
Customer agrees not to exceed any transaction limitations established by Bank from time to time, including limitations on Accounts, Users, Services or the types of Payment Orders or other Instructions Customer may send to Bank for processing or execution. Bank promptly will communicate decisions regarding such transaction limitations to Customer, to the extent not restricted by Applicable Laws.
Section 17. SECURITY INTEREST AND SET-OFF RIGHT.
In addition to all rights provided by Applicable Laws, Customer agrees that any and all amounts on deposit in any accounts (including all Accounts) of Customer with Bank may be set-off and applied against any liability in any currency Customer owes Bank under the Agreement or any other agreement between Customer and Bank. Customer further grants Bank a security interest in all accounts (including all Accounts) of Customer with Bank now or in the future to secure payment of any and all obligations under the Agreement or any other agreement between Customer and Bank, whether or not such obligations accrue after the filing of any case under the Bankruptcy Code and whether or not a claim for post-filing or post-petition interest, fees and charges is allowed or allowable in any such proceeding. This security interest is supplemental to and not in lieu of the security interest granted by Customer to or for the benefit of Bank under any other agreement.
Section 18. AUDIT.
Upon Bank’s request, Customer agrees to: (a) provide Bank with the records Customer maintains with respect to Customer’s use of the Services as required by Applicable Laws and the Agreement; (b) provide Bank with internal and external audit reports relating to Customer’s use of the Services and Customer’s information technology infrastructure and operational processes and procedures; (c) provide Bank with such financial information and statements and other documentation Bank reasonably determines to be necessary or appropriate to enable Bank to evaluate its exposure or risk; and (d) permit Bank (including its regulators and auditors) reasonable access to the locations where Customer uses any of the Services during normal business hours to audit Customer’s (including Customer’s Vendors’) compliance with the terms of the Agreement and Applicable Laws. Customer will cooperate with any such audit and provide, at Customer’s expense, any information or documents as may be reasonably requested by Bank in the course of such audit.
Section 19. AMENDMENTS.
The Agreement may be amended from time to time by Bank. Amendments will be made in any manner deemed acceptable by Bank, including, without limitation, by general posting on the Bank’s website. Customer acknowledges that if Bank amends the Agreement by general posting on the Bank's website, Bank shall be under no obligation to communicate directly to Customer that any such amendments have been made; it being understood that Customer's access to the website shall be viewed as sufficient notice thereof. Customer agrees that the Agreement may be amended in this manner. If Customer continues to use the Services or the affected Service, as the case may be, after the effective date of such amendments, Customer is bound by the Agreement terms as modified. Bank may notify Customer of any changes to the Security Procedures or software and hardware requirements for the Channels that Bank, in its sole discretion, deems necessary, which changes will take effect immediately upon Bank notifying Customer.
Section 20. FORCE MAJEURE.
Bank shall not be liable for any failure or delay in providing the Services, transmitting data, providing reports, taking action or otherwise carrying out any of its obligations under the Agreement if such failure or delay results from Bank acting in accordance with Applicable Laws, or from acts of God, interruption of transmission or communication facilities, Channel outages, equipment or system failure, power failure, delay in transportation, war, pandemic, epidemic or disease outbreak, legally mandated quarantine or travel or work restrictions, emergency conditions, including strike or stoppage of labor, disruptions in the financial markets, adverse weather conditions or any other cause beyond Bank’s reasonable control (each, a “Force Majeure Event”).
Section 21. SUCCESSORS AND ASSIGNS.
Customer may not assign any right or delegate any obligation under the Agreement without Bank’s prior written consent. Bank may assign its rights and delegate its duties under the Agreement in whole or in part without Customer’s consent: (a) to an affiliate of Bank; (b) pursuant to or in connection with any merger, consolidation or combination involving Bank or its parent company, or the sale or transfer of all or substantially all of Bank’s assets or stock; or (c) in connection with the sale or other disposition involving a line of business to which the Agreement relates; provided, that Customer has the right to immediately terminate any or all Services in the event of a transaction as described in (b) or (c).
Section 22. FORUM SELECTION; GOVERNING LAW; WAIVER OF JURY TRIAL.
Any and all disputes between the parties, whether sounding in contract, tort or otherwise, shall be exclusively brought in the state or federal courts of New York and shall be governed by and construed under the laws of the State of New York without giving effect to the conflict of law or choice of law principles thereof. Customer consents and waives all objections to personal service of process of documents, including a summons or complaint, and agrees that the service thereof may be made by certified or registered mail at the Customer’s last known address. __EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDINGS (WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, OR RELATED TO, THE AGREEMENT OR ANY SERVICES. __
Section 23. WAIVERS.
No party’s failure or delay in exercising any right or remedy under the Agreement will operate as a waiver of such right or remedy, and no single or partial exercise of any right or remedy under the Agreement will preclude any additional or further exercise of such right or remedy or the exercise of any other right. No waiver by either party of any breach of the Agreement will operate as a waiver of any prior, current or subsequent breach. No waiver of any breach, right or remedy under the Agreement will be effective unless made in writing.
Section 24. COMPLETE AGREEMENT; SEVERABILITY.
Unless Bank agrees otherwise in writing, the Agreement constitutes the entire agreement between Customer and Bank with respect to the Services. If the performance of the Services in accordance with the terms of the Agreement would result in a violation of Applicable Laws, then the Agreement will be deemed amended to the degree necessary to comply with such Applicable Laws and Bank will incur no liability to Customer as a result of such violation or amendment. If any provision of the Agreement is held to be invalid, illegal or unenforceable, such provision shall be valid, legal and enforceable to the maximum extent permitted by such holding and the validity, legality or enforceability of the other provisions of the Agreement will not be affected or impaired by such holding.
Section 25. THIRD PARTY BENEFICIARIES.
Except as expressly provided herein, nothing in the Agreement is intended to confer any rights or remedies under the Agreement to any third party. Unless Customer has Bank’s prior written consent, Customer may not use the Services to process transactions for or on behalf of third parties.
Section 26. AFFILIATES.
(a) Customer, each Affiliate of Customer listed on the Authorization and Agreement for Treasury Management Services (if any), and Bank agree that each such Affiliate shall have all of the rights and obligations of and shall for all purposes be a party under the Agreement as a “Customer.” The Customer indicated on the Authorization and Agreement for Treasury Management Services shall be referred to as the “Master Customer” for purposes of this Section 26.
(b) Each Affiliate hereby authorizes Master Customer to act as agent for such Affiliate in connection with any and all matters relating to the Agreement, including, without limitation, administering the Services and originating Transactions, issuing Payment Orders and other Instructions, transmitting deposit data, executing Operational Instructions, terminating the Agreement, agreeing to modifications and amendments to the Agreement, and receiving notices under the Agreement (which will be effective against the Affiliates, even if such notices and communications are sent only to Master Customer); any and all such actions by the Master Customer shall be binding on the Affiliates. Bank may conclusively rely on Master Customer’s authority to act for itself and to bind the Affiliates with respect to the foregoing. Master Customer agrees to notify the Affiliates of any such notices received, agreements made, and actions taken on behalf of any such Affiliate.
(c) Master Customer and any Affiliate acknowledge and agree that the Security Procedures provided by Bank to the Master Customer shall be used to access the Services. As such, each Customer acknowledges and agrees that (i) Bank may rely on and act on any and all communications, Payment Orders and other Instructions it receives through a Channel using the Security Procedures assigned to the Master Customer and Bank’s reliance shall not constitute negligence or willful misconduct or bad faith, (ii) the Security Procedures offered and recommended by Bank, and agreed upon and used by Master Customer on behalf of Customer, are commercially reasonable for the Payment Orders and other Instructions submitted by Master Customer on behalf of Customer, (iii) each Customer shall be bound by such use of the Services and any Payment Orders and other Instructions (including funds transfers) and liable for any transactions debiting the Account of the Affiliate, and (iv) Bank shall have no liability or responsibility for notifying any Affiliate with which Master Customer shares its Security Procedures. Each Affiliate and Master Customer understands and agrees that use of the Services and any transactions affecting each Affiliate’s Accounts may be reflected on the records of Bank as initiated by the Master Customer. In addition to any other indemnification obligations set forth herein, Master Customer agrees to indemnify Bank for any and all Losses that Bank may suffer or incur in connection with providing the Services to the Affiliates or any other matters related to the Agreement, except for Losses attributable to Bank’s gross negligence or willful misconduct. In addition, Master Customer agrees that it is liable to Bank for each Affiliate’s performance under, and compliance with, the terms of the Agreement (including, without limitation, the payment of Fees and any overdrafts of any kind or other amounts owed to Bank for the initiation of any ACH, wire or other electronic funds transfer), and with regard to such performance and compliance by any Affiliate, Bank may enforce the Agreement directly against Master Customer without first being required to seek enforcement against any Affiliate.
(d) Master Customer unconditionally and irrevocably guarantees to Bank the full and prompt payment and performance by each Affiliate of all obligations they or any of them may incur under the Agreement, including obligation for Fees and charges, indemnification obligations, in any case that any payment to Bank by an Affiliate is set aside, rescinded or otherwise required to be returned in any bankruptcy or similar proceeding. Master Customer agrees to pay any and all such amounts upon demand by Bank.
Section 27. RELATIONSHIP.
The relationship of the parties under the Agreement is that of independent contractors on a non-exclusive basis. Nothing in the Agreement creates a partnership, joint venture, or similar relationship between the parties, and neither Bank nor Customer shall be deemed an agent of the other or have any right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party. Bank is not in a fiduciary or similar relationship with, nor does it have fiduciary duties or obligations to, Customer under the terms of this Agreement.
Section 28. DEFINITIONS.
The meanings of defined terms shall be equally applicable to the singular and plural forms of the defined terms. All references to “include,” “includes,” or “including” shall be deemed to be followed by the words “without limitation.”
“Account” means all of Customer’s deposit account(s) maintained by Customer with Bank and any other deposit account at Bank for which Customer has access to or control over the funds on deposit.
“ACH Operator” has the meaning given in the Rules.
“Administrator” has the meaning given in Section 3(g).
“Affiliate” means any entity that is directly or indirectly controlled by, controlling, or under common control with the Customer with the authority to access Accounts of such Affiliate and use the Services under the terms of the Agreement.
“Agreement” has the meaning given in the preamble.
“Applicable Laws” means, as applicable to the Services, a party, or the activities of a party, any declaration, decree, directive, legislative enactment, order, ordinance, law, rule or regulation, or other binding restriction of or by any governmental authority (including any federal, State, municipal, local, territorial, or other governmental department, whether domestic or foreign), and the rules of the association or organization through which transactions are processed, including the Operating Rules. References to “Applicable Laws” shall mean such laws as they may be amended, modified or otherwise exist from time to time.
“Authorized Representatives” has the meaning given in Section 3(d).
“Available Funds” means collected and available funds as determined by Bank's availability schedule in effect from time to time.
“Bank” has the meaning given in the preamble.
“Business Day” means each calendar day, but does not include Saturday, Sunday, or any day on which Bank is permitted or required to be closed.
“Change Request” has the meaning given in Section 5(c).
“Channels” has the meaning given in Section 2(a).
“Check” means a draft that is payable on demand, drawn on, or payable through a United States financial institution, whether negotiable or not, and in whatever medium including an imaged or substitute check.
“Confidential Information” has the meaning given in Section 12.
“Credentials” means usernames, personal identification numbers, identification codes, passwords, and other mechanisms that Customer uses to access the Services. “Customer Systems” has the meaning given in Section 2(c).
“Customer” has the meaning given in the Authorization and Agreement for Treasury Management Services.
“Cutoff Time” means the time on any Business Day when Bank will no longer accept Payment Orders or other Instructions or process Transactions for that Business Day and any such Payment Orders or other Instructions received after such time, if accepted, will be processed as of the next Business Day.
“Error” has the meaning given in Section 6(a).
“Entry” has the meaning given in the Rules. Each Entry where Customer is the Originator will be deemed Customer’s Payment Order.
“Feedback” has the meaning given in Section 2(b).
“Fees” has the meaning given in Section 4.
“File Delivery” means the file-based Channel utilized to facilitate the exchange of financial transactions or information between Customer and Bank.
“Force Majeure Event” has the meaning given in Section 20.
“General Provisions” has the meaning given in the preamble.
“Instruction” means any instruction (including any Payment Order or an application for credit), request, instrument, or other communication provided using Customer’s Security Procedures, or otherwise provided by or on behalf of Customer to Bank to perform a Service or take action on behalf of Customer or its Accounts.
“Intellix” has the meaning given in Section 2(a).
“Losses” has the meaning given in Section 9(a).
“Master Customer” has the meaning given in Section 26(a).
“Nacha” means the National Automated Clearing House Association.
“OFAC” means the United States Office of Foreign Assets Control.
“Operating Rules” means, collectively, the Rules and the rules, regulations and operating guidelines of any regional clearinghouse, payment card association or payment network (e.g., ECCHO) in effect from time to time used by Bank to provide the Services.
“Operational Instructions” means any forms or agreements establishing Administrators, Transaction limits, written Security Procedures, Accounts linked to Services and other rights, restrictions and parameters associated with configuration and/or use of a Service. “Payment Order” has the meaning as set forth in Article 4A of the UCC, and shall include, but not be limited to, instructions given for the use of any Service for the origination, processing and payment of electronic funds transfers, including any wire transfers, Entries, and any internal funds transfers between Accounts.
“Receiver” has the meaning as set forth in the Rules.
“Receiving Depository Financial Institution” or “RDFI” shall have the meaning as set forth in the Rules.
“Rules” means the Nacha Operating Rules and Guidelines.
"Sanctions" means economic or financial sanctions or trade embargoes or controls imposed, administered or enforced from time to time by any governmental authority, including OFAC, the U.S. Department of State, U.S. Department of Commerce, or U.S. Department of Justice, or the United Nations Security Council, the European Union, or Her Majesty's Treasury.
“Security Procedures” means any Credentials, security codes, keys, personal identification numbers, template numbers, algorithms, callback procedures or other programs or keystrokes that are adopted for use in the Services to verify the authenticity of communications from Customer (to prevent unauthorized access to the Services). By way of example, a Security Procedure may be the combination of a specific password with specific user identification or other Credential.
“Service Provider” has the meaning given in Section 14(b).
“Services” means each of the treasury management services enrolled in and/or used by Customer.
“Software” has the meaning given in Section 2(a).
“Statement” has the meaning given in Section 6(a).
“Third-Party Links” has the meaning given in Section 2(e).
“Timely Notice” has the meaning given in Section 6(b).
“Transaction” means executing an Instruction, including any Payment Order, on behalf of Customer as part of the Services.
“UCC” means the Uniform Commercial Code as enacted in the State of New York, as amended.
“User(s)” has the meaning given in Section 3(g).
“Vendor” has the meaning given in Section 14(a).