HomeMy WebLinkAboutFifth Third Bank - Treasury Management Agreement 2013 Customer Information
Customer agrees to provide any information that
we reasonably require to enable us to provide the
FIFTH THIRD BANK' requested Services to Customer.For some of our
Services, Customer may be required to complete
MASTER TREASURY a set up and implementation process and
MANAGEMENT AGREEMENT complete related information forms. We will
rely on the information provided to us by
This Master Treasury Management Agreement Customer in this process and the Service Request
("Agreement")governs the provision of Treasury
in providing the Services to Customer. Any
Management Services ("Services") to the changes by Customer to the information
undersigned "Customer" by Fifth Third Bank provided to us must be made in writing and will
("we" or "us") and is effective when and as of be effective after we have had a reasonable
the date executed by us.
opportunity to act on the changed information.
Services We are entitled to rely upon the accuracy of all
information and authorizations received from an
Customer desires to obtain, and we agree to officer or authorized employee or representative
provide the Services as provided in this of Customer(an"Authorized Agent"), and on the
Agreement and the applicable Terms and authenticity of any signatures purporting to be of
Conditions for the Services ("Terms and an Authorized Agent. Customer agrees to notify
Conditions"). Customer may request a Service us immediately of any change in the status of an
by any means we approve ("Service Request"). Authorized Agent. Customer acknowledges that
If we accept and approve a Service Request, we we may require a reasonable time period before
and Customer are subject to the Terms and we act upon any such change. Customer agrees
Conditions for that Service. If Customer uses a that we may refuse to comply with requests from
Service before the Service Request is approved any individual until we receive documentation
by us, Customer's first use of the Service shall reasonably satisfactory to us confirming the
be deemed to be Customer's agreement to the individual's authority.
Terms and Conditions for that Service. Fees and Taxes
Customer acknowledges receiving a copy of the Except as expressly provided in a separately
Terms and Conditions for the Services it desires. agreed and executed pricing agreement referring
Once a Service Request is approved by us or to this Agreement ("Pricing Agreement")
Customer is deemed to have accepted the Terms Customer agrees to pay our standard account and
and Conditions for a particular Service, the Service fees and charges in effect from time to
applicable Terms and Conditions are time as billed by us. In addition, Customer
incorporated into, and made a part of, this agrees to pay our standard fees and charges for
Agreement. Neither party is bound by or subject any requested or required special service or
to the Terms and Conditions for any Service handling_ Customer is responsible for all taxes
Customer does not use. attributable to its use of the Services or this
We provide the Services for the sole and Agreement (excluding taxes based on our
exclusive benefit of Customer, and if we approve employees,property or net income).
in writing, Customer's Subsidiaries (as defined Instructions
below). The Services may only be used for
business purposes and not for personal, Each payment order, wire transfer instruction,
household or consumer purposes. ACH entry, file,batch release and other message
For some of our Services, we may provide in or instruction to us (an"Instruction")that is sent
hard copy or make available online an operating to us electronically in accordance with this
manual or user guide ("User Guide") to assist Agreement or the applicable Terms and
Customer in using the Service, Conditions shall be considered to be an original
writing and to have been signed by an
Authorized Agent. Neither party will contest the
January 2013
validity or enforceability of an Instruction on the Agreements (as defined below) have been
ground that it was not in writing, not signed by authorized by all necessary entity and
an Authorized Agent or not an original. A valid governmental action; (c)the persons signing this
digital signature shall, at all times, be deemed to Agreement and the Related Agreements on
be conclusive proof of due authorization by Customer's behalf are duly authorized to do so;
Customer of the communication, Instruction or (d) this Agreement represents Customer's legal,
document to which it relates. Customer is solely valid and binding obligation; (e) the execution
responsible for the accuracy and completeness of and performance of this Agreement and the use
each Instruction or communication sent to us, of the Services do not and will not violate in any
material respect any Applicable Law,
Our Representations and Warranties Customer's entity governing documents, or any
material agreement by which Customer is bound;
We represent and warrant to Customer that: (a) and (f) each transaction Customer conducts, and
we are duly organized, validly existing, and in each account Customer has with us is conducted
good standing in the jurisdiction in which we are or maintained for a business or commercial
organized; (b) the execution, delivery and purpose and not a personal, family or household
performance by us of this Agreement has been purpose.
authorized by all necessary corporate and
governmental action; (c)the persons signing this Customer reaffirms these representations and
Agreement on our behalf are duly authorized to warranties each time it uses a Service. In
do so; (d) this Agreement represents our legal, addition, Customer agrees to immediately notify
valid and binding obligation; and (e) our us if any representation or warranty made by
execution and performance of this Agreement Customer is no longer true,
and our provision of the Services do not and will
not violate any Applicable Law (as defined Security Procedures;Operating Procedures
below), our articles of association or bylaws or
any material agreement by which we are bound. Establishment. Access to our Access Channels
(described below) and to some of our Services is
We agree to provide the Services in accordance subject to Security Procedures ("Security
with reasonable commercial banking standards Procedures"). Our Security Procedures include
prevailing for similarly situated financial the use of identification codes, personal
institutions. identification numbers and passwords
("Identification Codes"), call back protocols,
Except as expressed elsewhere in this Agreement tokens and other systems or procedures. The
or in the applicable Terms and Conditions, we Security Procedures enable the use of the Access
make no other representations or warranties, Channels and verify the origin of Instructions
either express or implied, of any kind with and communications sent to us. We and
respect to any Service or our performance of the Customer will agree on the Security Procedures
Services, including, without limitation, those of for a particular Service in the set up process for
merchantability and fitness for a particular that Service and to changes as needed. Customer
purpose. No descriptions or specifications agrees to select the Security Procedure that is
constitute representations or warranties of any suitable for Customer in light of its intended use
kind. of the applicable Service or Services. The
Security Procedures are not designed to detect
Customer Representations and Warranties errors in any Instruction to us.
Customer represents and warrants to us that: (a) Verification. If we accept and act in good faith
Customer is duly organized, validly existing, and on a payment order issued to us in Customer's
in good standing in the jurisdiction in which name and in accordance with the Security
Customer is organized,and is validly qualified in Procedures and any written agreement between
any other jurisdiction where Customer does Customer and us, the payment order is effective
business and is required to be qualified except as Customer's payment order whether or not it is
where the failure to be so qualified would not authorized, and Customer is bound by it. Any
have a material adverse effect on Customer; (b) other Instruction communicated to us in
the execution, delivery and performance by Customer's name in compliance with the
Customer of this Agreement and the Related Security Procedures and all access to and use of
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Services and Access Channels using the Security through Fifth Third Direct. The features and
Procedures are considered authorized by options available through Fifth Third Direct and
Customer. AMP (together with any other means to access
our Services electronically, "Access Channels")
Authority. The Security Procedures are in are described in greater detail below and in the
addition to and do not limit, revoke or affect the User Guide for these Services.
authority of any person (whether by course of
dealing or otherwise) to transmit Instructions in Administration. As part of the set up process for
Customer's name. We may continue to rely Fifth Third Direct, Customer will appoint a
upon such authority and we are authorized to act person ("Administrator") with authority to
upon Instructions received from persons acting manage Customer's use of Fifth Third Direct
pursuant to such authority. Customer is bound by including the authority to: designate personnel
any authorized payment order or other ("Users"), including the Administrator, with
Instruction, and by use of the Access Channels access to some or all of the Services or Service
by authorized personnel. features through Fifth Third Direct; establish
approval processes and limitations (such as
Other Procedures. In addition to the Security dollar amount and transaction type)on the User's
Procedures, we may, in our discretion, use authority for certain Services; enable the
additional procedures to verify the authenticity assignment of Identification Codes; and, accept
of Instructions communicated to us. We will not and act on all communications from us regarding
be responsible for our refusal to act upon any Fifth Third Direct and AMP,
Instruction received that does not comply with
this Agreement or the applicable Terms and Security Procedures. Customer's use of the
Conditions, including where our reasonable Access Channels and the accessed Services are
efforts to verify Instructions in accordance with subject to Security Procedures. The Fifth Third
the Security Procedures have failed or where Direct Service generates unique Identification
such action is delayed until verification can be Codes for each User. The use of Identification
obtained. Codes and,where applicable,Access Devices(as
described below) together with any additional
Safeguardingthe_S_ecuritt procedures. Customer measures agreed to by the parties constitute the
agrees to (a) maintain the complete security and Security Procedure for the Access Channel and
confidentiality of the Security Procedures, and the Service accessed through that Access
(b) institute and use prudent procedures and Channel.
practices to control access to the Services and
use of the Security Procedures, Customer's Access Devices. Access to some Services may
failure to protect the confidentiality of the require the use of a security token or other
Security Procedures may enable an unauthorized security or authentication device and related
person to use the Services and access Customer's software (an "Access Device"). Proper,
accounts and data. Customer must notify us controlled and authorized use of the Access
immediately if there has been a breach of its Device is part of the Security Procedure for these
security,or any Security Procedure has been lost, Services. The use of the Access Device is
stolen,misused or compromised. subject to any terms of use accompanying the
Access Device or any required license, and may
Breach Incidents. We notify customers (and will only be used as and where delivered to Customer
notify Customer) of security breach incidents and only for the purpose of accessing our
involving their information in accordance with Services. Each Access Device and the related
the "Federal Banking Interagency Guidance on technology, documentation and materials at all
Response Programs for Security Breaches dated times remain our or our vendor's property.
March 23, 2005," as amended, and applicable
state laws. Customer.Responsibilities. In addition to using
the Security Procedures, Customer agrees to: (a)
Access Channels institute and use reasonable measures to mitigate
the risks of conducting banking transactions
Fifth Third Direct is our internet access portal through the Internet; (b) institute and enforce
and Account Management & Payments ("AMP") effective policies and procedures to ensure that
is our internet-based suite of Services available its personnel use the Services only as authorized
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and within the limits of their permission or authorized portal or after properly
authority; (c) incorporate and use reasonable terminating that connection.
security features and technology in its computer
software, hardware and systems; and (d) educate Account Management&Payments
and update itself and its employees on the proper
and secure use of the Internet, and the existing AMP enables Customer to manage daily cash
and emerging threats from computer viruses and balances,research and reconcile account activity,
attacks, email scams, cybercrimes and other and initiate funds transfers. Customer may elect
attempts to gain Customer's banking to enable one or more or all of the modules for
information, and use reasonable efforts to Customer or a particular User. The features and
address these threats. options available through AMP are described in
greater detail below and in the User Guide for
Equipment and Software. Customer is solely AMP. AMP is only available through Fifth
responsible for having and maintaining at its Third Direct.
expense proper functioning hardware, software,
communication devices and Internet access and Administration. AMP is administered on behalf
service necessary for use with the Access of Customer by the "AMP Administrator."
Channels. Initially,the Administrator for Fifth Third Direct
is the AMP Administrator. In addition to any
Intellectual Property. All software related to the other authority the AMP Administrator may have
provision of the Access Channels, the content, with respect to Fifth Third Direct and other
pages, and other materials, and other works of Services, the AMP Administrator has the
authorship and material displayed or utilized in authority with respect to AMP to:
connection with the Access Channels,the names,
trademarks, logos, slogans and service marks • designate Users with authority for some
used, displayed and found on our websites, and or all features of AMP,
all other intellectual property relating to the a appoint other AMP Administrators with
Access Channels (collectively, "Intellectual the authority of an AMP Administrator,
Property")are owned by and proprietary to us or a give us Instructions and access reports
our vendors or licensors, except as otherwise relating to AMP,
specified. No Intellectual Property may be . elect to enable email Alerts as further
copied, modified, disassembled, reproduced, described in this Agreement,
used in any way (other than as authorized in • elect to enable access to our ACH
connection with the Services) or publicly Service, Wire Transfer Service and
displayed, or distributed in any medium of account transfers between deposit
expression without our prior written permission. accounts and commercial loan accounts
Since the Internet is inherently insecure and ("Funds Transfers") and designate
Users (including the AMP
since there is a risk that data communications Administrator)with authority to execute
and transfers may be subject to interruption, Funds Transfers,and
interception, failure, unavailability, delay or establish approval protocols and
unauthorized access or dissemination + limitations for Funds Transfers and
("Failure Events"), we agree to take
other transactions.
commercially reasonable steps to maintain the
security of such data communications and
transfers, including using encryption and AM�'A�,Mintstrator's Authority. Customer may
other industry standard security features. authorize the AMP Administrator to have non-
functional authority (i.e., authorized only to add
Except where we fail to take commercially
and administer Users) or functional authority
reasonable steps,we shall not be liable for any
(i.e., authority to use the Service including for
Failure Events that occur, including any loss
Funds Transfers). In the set up process for
of privacy or data, or use by others of such
AMP the AMP Administrator will have the
data communications or transfers. Under no option to require"Dual Control Administration,"
circumstances, shall we be liable for any meaning that the approval of a second AMP
Failure Events that occur prior to Customer Administrator is required to verify the
establishing a secure connection to our
designation and authorization of a designated
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User. We recommend that Customer elect to Customer's accounts, but is not intended as a
require Dual Control Administration. We will substitute for proper account management or
rely on the authority of the AMP Administrator regular use of our AMP and other information
and Users designated by the AMP Administrator Services.
until we receive written notice of a change and
we have a reasonable opportunity to act on the Delivery Risks. Alerts may be delayed or
notice. Customer is solely responsible for the prevented by a variety of circumstances beyond
actions, instructions and decisions of the AMP our control. We do not guarantee the delivery of
Administrator and the designated Users. any Alert. Alerts are sent via the Internet without
being encrypted or otherwise coded in any way.
.Funds Transfers. The use of our Funds Transfer We will not be liable in any way for non-
Services through AMP is subject to the Security delivery, delayed or wrong delivery of an Alert,
Procedures for those Services, including the use the content in an Alert, or Customer's use of, or
of an Access Device. The Security Procedures reliance on, the absence of any Alert for any
include a variety of approval options, User purpose,
limitations and controls which are described in
greater detail in the User Guide. We recommend Replies. Customer is not permitted to reply to
that Customer establish an approval protocol email Alerts. Any reply Customer sends will not
appropriate for Customer's particular be read or acted upon. Customer should never
circumstances. If Customer does not establish respond to any request purportedly from us
and require adherence to an approval protocol for to provide Customer's account numbers or
Funds Transfers or if Customer selects a "no information, or security details such as
approval" option, Customer assumes the risks of passwords. Customer agrees to report to us
all transactions that could have been prevented promptly any such purported request or other
by requiring approval. Funds Transfers unusual emails.
involving only internal account transfers may not Compliance
be subject to all of the Security Procedures for
other Funds`.transfers. This Agreement, the Terms and Conditions and
the use and provision of our Services are subject
Account Information. Depending upon the to all applicable state, federal, local and foreign
service level Customer selects, Customer will laws, rules, regulations and other laws,including
have access to account and transaction without limitation, the Uniform Commercial
information on a prior day or intraday basis, or Code in effect in the State of Ohio, the NACIIA
both. Account information changes frequently Operating Rules & Guidelines ("Operating
and is subject to updating, verification and Rules"), rules and regulations of any money
correction. We assume no responsibility for transfer system, check clearing or payment
Customer's reliance on any account or Service clearing house, association or network used by
information subsequently updated, verified or us in providing the Services to Customer and the
corrected. regulations and operating circulars of the Federal
Reserve Board (collectively,"Applicable Law").
Email Alerts Both parties agree to be bound by the Operating
Rules where applicable and to comply with
Some of our Services including AMP offer an Applicable Law in using or providing the
email alerts feature. If Customer elects to use Services, as the case may be, including any
this feature, our system will send an email alert control or sanction administered by the Office of
(an "Alert") to Users designated by the Foreign Asset Control. Customer will not make
Administrator that an activity, status or action or accept any payments through or in any
selected by the Administrator regarding a accounts with us in connection with unlawful
selected account has occurred. The Alerts internet gambling,
feature is set up by the Administrator.
Business Continuity
Informational Use. Alerts are provided for
Customer's information and convenience only. We maintain off site business continuity
An Alert does not constitute a bank record for capabilities designed to permit us to recover
the account to which it pertains. The Alerts from a disaster and continue providing Services
feature is meant to assist Customer in managing in accordance with our business continuity plan
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and capabilities. Our business continuity any Instruction or other direction given to us in
capabilities will permit the recovery from a accordance with this Agreement. Customer is
disaster and resumption of the provision of the not, however, obligated to indemnify us for any
Service to Customer within a commercially Loss directly resulting from our gross negligence
reasonable period as dictated by the particular or bad faith.
recovery rating of the system or application in
question. A copy of a summary of the Fifth We agree to indemnify and defend at our own
Third Bank Business Continuity Plan as in effect expense or settle any action brought against
from time to time will be provided to Customer Customer to the extent that it is based on a claim
upon written request. that Customer's use of a Service directly
infringes a copyright, trademark or patent or
Limitation of Liability constitutes misappropriation of a third-party
trade secret, provided, however, that Customer:
CUSTOMER AGREES TO THE MAXIMUM (a)promptly notifies us in writing of such claim;
EXTENT PERMITTED BY LAW THAT IN (b) has not made any admission of liability or
NO EVENT WILL WE BE LIABLE OR agreed to any settlement or other material issue
RESPONSIBLE FOR ANY CONSEQUEN- relating to such claim; (c) reasonably cooperates
TIAL, INCIDENTAL, INDIRECT, PUNITIVE, with us at our expense in the defense or
SPECIAL OR SPECULATIVE LOSSES OR settlement; and (d) gives us sole control and
DAMAGES (INCLUDING LOST PROFITS, authority over all aspects of the defense or
GOODWILL AND OPPORTUNITIES) THAT settlement of such claim.
CUSTOMER OR ANY OTHER PERSON MAY
INCUR OR SUFFER IN CONNECTION WITH Recordings;Imaging Records
THIS AGREEMENT OR ANY SERVICE
PROVIDED BY US, EVEN IF WE HAVE Customer authorizes us (but we are not
BEEN ADVISED OF THE POSSIBILITY OF obligated) to record electronically and retain
SUCH LOSS OR DAMAGES AND telephone conversations between Customer and
REGARDLESS OF THE TYPE OF CLAIM. us. Imaging and electronic records will be
retained by us in accordance with our policies
Customer further agrees, to the maximum extent and procedures and copies of such records will
permitted by law, that our liability to Customer be available at Customer's request and expense.
arising from any Service will be limited to actual
monetary damages that are the direct result of Confidentiality
our failure to exercise reasonable care in
providing the Service. Notwithstanding the Subject to Customer's duties under Applicable
foregoing, for Instructions which are subject to Law, Customer agrees to keep confidential and
UCC Article 4A, we are liable only for damages not disclose to any third party (other than its
required to be paid under UCC Article 4A. agents) our fees and charges, terms of Service,
User Guides, software, non-public Service
Indemnification Obligations features and other proprietary information and
systems we or our Processors provide and
Customer agrees to indemnify and hold us and disclose in connection with the Services.
our officers, directors, employees, affiliates, Customer acknowledges the exclusive ownership
shareholders and agents harmless from and by us or our Processors of such information, and
against any and all losses, liabilities, damages, agrees to use such information solely for
actions, claims and expenses including court purposes of using the Services.
costs and reasonable attorneys' fees and
expenses ("Losses") resulting directly or We acknowledge that non-public information we
indirectly from,or arising in connection with: (a) obtain from Customer in connection with
Customer's breach of any of Customer's providing a Service to Customer may be
agreements, representations, warranties or confidential. We will maintain the confidentiality
covenants in this Agreement, the Terms and of such information in accordance with our
Conditions or any other agreement with us normal procedures for safeguarding customer
relating to the Services; (b)Customer's violation information. Notwithstanding the foregoing, we
of Applicable Law; or, (c)Customer's use of the may disclose Customer's information as
Services and our complying with or carrying out
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provided in our Fifth Third Privacy Notice for account in the order described in the Commercial
Commercial Customers, Account Rules or similarly named agreement
provided to Customer governing Customer's
Duty to lnspeet accounts with us ("Account Rules"). If we
decide in our discretion to process an item,
Information regarding transactions with the transaction or Instruction despite the Overdraft,
Services is reported on Customer's periodic Customer agrees to reimburse us upon demand
account statement and is also available with one for: (a) the full amount of any Overdraft or
or more of our reporting Services or Access shortfall created by that item, transaction or
Channels. Customer is responsible for Instruction; (b) all Overdraft fees and charges;
monitoring its use of our Services and all activity (c) interest on the amount of the Overdraft or
in its accounts with us including individual shortfall for the day the Overdraft or shortfall
transactions. Customer agrees to: (a) regularly was created and for each following day until the
review the account information we make Overdraft or shortfall has been paid or restored;
available to Customer through our reporting and (d) all Losses we incur in collecting from
services; (b) promptly review the account Customer the Overdraft, or any fees, charges or
statements we send to Customer; and (c) notify interest relating to it.
us as soon as reasonably possible of any error,
unauthorized transaction or other similar matter Transaction Limits
but, in any case, not more than thirty (30)
calendar days after the information is so made If we in good faith determine that: (a) providing
available or sent to Customer. any Service to Customer could reasonably be
expected to result in a violation of any
Customer agrees to institute, maintain and Applicable Law or a material loss to us; (b) we
enforce reasonable and effective procedures to would be entitled to terminate the applicable
prevent fraud, misuse and unauthorized use of Service under the"Termination' section of this
the Services ("Customer Measures"). In Agreement (with or without the lapse of time or
addition to the Customer Measures, we offer a notice)other than under the first sentence of such
variety of Services and other tools designed to section; or (c) Customer is in default under this
assist Customer in reducing or stopping the Agreement or any Related Agreement, we may
incidence of fraud and unauthorized activity in limit Customer's transaction volume or dollar
Customer's accounts including positive pay, amounts, refuse to execute transactions, or
ACH transaction control, disbursement control, terminate that Service to Customer. In addition,
information reporting and account management we may restrict or limit the types of Instructions
Services. To the extent Customer chooses not to Customer may send to us for processing or
use one of these Services or implement execution. We will, to the extent not restricted
reasonable Customer Measures, and the proper by law, promptly communicate our decisions
use of that Service or Customer Measure could regarding such restrictions to Customer. We
reasonably have prevented the incidence of reserve the right to limit transaction volume or
fraud, unauthorized activity or loss suffered by dollar amounts in circumstances not described in
Customer, Customer will be deemed to have the first sentence of this section, provided we
assumed the risk of such fraud, unauthorized give you prior notice of any material limitation
activity or loss so suffered and will be precluded or decrease in previously communicated
from asserting that we are responsible for such limitations. Customer agrees to provide us,upon
fraud, unauthorized activity or loss. our request from time to time, with such
financial information and statements and other
Overdrafts documentation as we reasonably determine to be
necessary or appropriate to enable us to evaluate
We may delay or refuse to process any item, our exposure or risk.
transaction or Instruction that exceeds the
amount of available funds in the account on Except as expressly provided in the applicable
which it is drawn or presented or would reduce Terms and Conditions, nothing in this
the balance in such account below any required Agreement requires us to extend any credit of
minimum balance (Le., the item, transaction or any type,even if we have done so in the past_
Instruction would create an "Overdraft"). We
process Items and other debits to Customer's
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Limited Audit Recommendations. If, as a result of an audit, we
make a material recommendation relating to
General. Subject to the limitations expressed in Processes and Customer fails to institute any
this section and only for a Required Purpose (as such recommendation, we have the right to
defined below), we reserve the right for terminate or suspend each affected Service
ourselves and our regulatory authorities to audit, pending satisfactory resolution of the
inspect and, if warranted, test Customer's circumstances giving rise to the
equipment, IT infrastructure, workflow and recommendation.
processes, and security policies and procedures
relating to a Service (collectively, "Processes") Processors
and Customer's books and records relating to the
origination and sending to us or our Processors Customer acknowledges and agrees that we may
of payment orders and other Instructions, and arrange for certain or all of the aspects of the
check images. Customer agrees to reasonably Services including software and processing to be
cooperate with us and make its facilities, performed or provided by third-party processors
Processes and all relevant records, reports, expressly engaged by us ("Processors"). To the
information and personnel relating to the extent we have engaged a Processor, we are
Processes reasonably available to us. responsible for the aspects of the Service
provided by them.
Limitations. The purpose of any audit we may
conduct is limited to assessing the security and Vantiv
compliance with applicable standards and
Applicable Law, of the Processes related to the If Customer is using the services of Vantiv, LLC
Services and Customer's use of our Services. (including its successors, "Vantiv"), Customer
We will not exercise this right except to the understands that Vantiv is no longer a division of
extent required by our regulatory authorities or us and is a separate, independent legal entity.
we are made aware of actual or potential Customer acknowledges and agrees that Vantiv
incidents of material weaknesses or security is not our Processor and that we are not
breaches in the Processes relating to the Service responsible for Customer's selection of, any
or a violation of Applicable Law ("Required agreement Customer has with, or the actions or
Purpose"). If we desire to conduct an audit, we obligations of, Vantiv or any agent or vendor
will give Customer at least twenty (20) days' engaged or used by Vantiv.
advance notice, conduct the audit only during
business hours and strive to avoid any disruption 'Vendors
or interference with Customer's operations. The
results of any audit or the fact that we do not Any third party servicer or vendor used by
conduct an audit are not to be taken as an Customer in connection with the Services
assessment of the Processes or Customer's ("Vendor") is Customer's agent and not ours,
compliance with any standards including and Customer will be liable and solely
Applicable Law. We and Customer will each responsible for: (a) any Vendor's failure to
bear our own costs in connection with the audit. comply with this Agreement, the Terms and
Conditions or any Security Procedures or
Confidentiality. We will keep confidential the operating requirements relating to the Services,
information Customer provides us in connection and(b)all fees, costs and expenses owed to each
with the audit, as well as the results and our Vendor for its services,
findings with respect to the audit, except to the Use of System
extent disclosure is required by our regulatory
authorities or Applicable Law or legal process.
We will not seek access to any information If a Service involves the use of software,
Customer is prohibited by law or contract from hardware, processing, or databases provided by
providing or making available to us, including or through us or a Processor to Customer (a
personal financial and other confidential or "System"), we or the System vendor may require
protected information of its customers. Customer to execute a license or other agreement
to use or acquire the System. Customer agrees to
treat the System as strictly confidential at all
times. Customer is solely responsible for the use
or misuse of the System and assumes the risk of any account established in connection with the
all consequences of the use or misuse of the Services without establishing a replacement
System by Customer, its personnel or third account; (b) Customer breaches a material
parties(other than us and our personnel). obligation under this Agreement, any Applicable
Law or any other material agreement with us; (c)
Setoff Customer becomes insolvent, is placed in
receivership or is adjudicated bankrupt or
Customer grants us a contractual right of setoff Customer becomes subject to any voluntary or
against Customer's deposits and funds in involuntary bankruptcy proceeding or any
Customer's accounts with us or any of our assignment for the benefit of its creditors; (d)
affiliates at any time (excluding any account Customer's financial condition has become
expressly titled to clearly demonstrate that the impaired in our good faith opinion; (e) any
account is held by Customer in a fiduciary or person or group acting in concert that is not a
representative capacity for a third party) in order controlling stockholder of Customer on the date
to satisfy any unpaid or unperformed obligation of this Agreement acquires, directly or indirectly
to us under this Agreement, now or at any time (whether by merger, stock purchase or issuance,
in the future. We may exercise our right of recapitalization, reorganization or otherwise), a
setoff without demand or notice, and without majority of Customer's outstanding stock; or(f)
recourse to any other collateral but we will use the continued provision of Services in
reasonable efforts to provide notice to Customer accordance with the terms of this Agreement
following the exercise of our rights. Our rights would, in our good faith opinion, violate
as described above are limited to the extent of Applicable Law or subject us to an unacceptable
limitations and restrictions imposed by risk of loss.
Applicable Law.
Upon any termination of this Agreement,
Force Majeure Customer shall: (a) promptly pay to us all sums
due or to become due under this Agreement; (b)
Neither party shall be responsible, and neither return immediately to us at Customer's expense,
shall incur any liability to the other; for any the System (if applicable), and all related
failure, error, malfunction or any delay in materials, and all copies and reproductions
carrying out any of its obligations under this thereof, whether written or in magnetic media
Agreement directly resulting from causes beyond and whether received from us or otherwise and
such party's reasonable control, including shall pay us for any damages to any such
without limitation, fire, casualty, lockout, strike, materials (ordinary wear and tear excepted); and
unavoidable accident, act of God, act of (c) have no further right to make use of the
terrorism, riot, war or the enactment, issuance or System or the Services.
operation of any adverse governmental law,
ruling, regulation, order or decree, or an Termination of a Service or this Agreement does
emergency that prevents such party from not relieve or excuse Customer's payment
operating normally; provided, however, that obligations for any Services that we provide to
Customer shall not be relieved of its Customer before or after the Service or this
responsibility for timely performance of any of Agreement is terminated, nor does it release
its payment obligations to us. Customer or us from any of our respective
obligations that arose or became effective prior
Termination to such termination. In addition, all provisions
of this Agreement relating to the parties'
Either party may terminate this Agreement or warranties, representations, confidentiality or
any Service at any time by giving 30 days' prior non-disclosure obligations, proprietary rights,
written notice of termination to the other party. limitation of liability and indemnification shall
We may terminate or suspend immediately any survive the termination of a Service or this
Service without notice to Customer if Customer Agreement.
fails to maintain sufficient available funds in any
account maintained for such Service. In Entire Agreement
addition, we may terminate this Agreement or
terminate or suspend any Service immediately This Agreement, together with the Terms and
upon notice to Customer if. (a) Customer closes Conditions, any applicable User Guide, the
9
Service Requests, Account Rules, the signature pursuant to, or in connection with any merger,
card, Pricing Agreement, account fees, terms of consolidation or amalgamation involving us or
use and any resolution or other document our parent company, or the sale or transfer of all
establishing Customer's authority to engage in or substantially all of our assets or stock, or (b)
the Services and open accounts with us in connection with the sale or other disposition
(collectively, the "Related Agreements") involving a line of our business to which this
constitutes the complete and exclusive statement Agreement relates. We will use reasonable
of the agreement between the parties with respect efforts to notify Customer of any such
to the Services and supersedes any prior or assignment. Customer expressly reserves its
contemporaneous agreements between the right to terminate any or all Services in the event
parties with respect to such Services. If there is a of any such transaction.
conflict between this Agreement and the Terms
and Conditions or the Account Rules, the Terms Governing Law;Venue
and Conditions or the Account Rules, as This Agreement and any claims or disputes
applicable, shall prevail to the extent necessary relating to or arising out of this Agreement or the
to resolve the conflict. Nothing in this
Agreement confers a right or benefit on any Service shall exclusively be governed by, and
p construed in accordance with, the laws of the
person or entity other than us and Customer,
except for our Processors. State of Ohio, without regard to Ohio's conflict
of law principles, and with applicable federal
Amendment laws and regulations. Customer irrevocably
submits to the nonexclusive jurisdiction of the
This Agreement and the Terms and Conditions courts of the state and federal courts in Ohio and
agrees that any legal action or proceeding with
may be modified by a written agreement respect to this Agreement may be commenced in
executed and signed by the parties. We may, such courts.
however, modify this Agreement or the Terms
and Conditions by giving Customer thirty (30)
calendar days' prior written notice. If Customer Waiver of Jury Trial
continues to use any Service or the affected Customer agrees that any suit, action or
Service, as the case may be, after the expiration proceeding, whether as part of a claim or
of the thirty-day period or a later effective date counterclaim, brought or instituted by Customer
specified in such notice, Customer is bound by on or with respect to this Agreement or any
the Agreement or Terms and Conditions, as the event, transaction or occurrence arising out of or
case may be, as so modified. in any way connected with this Agreement shall
Notwithstanding the foregoing, if a modification be tried only by a court and not by a jury.CUSTOMER EXPRESSLY, KNOWINGLY
to this Agreement or the Terms and Conditions is AND VOLUNTARILY WAIVES ANY RIGHT
required by or under Applicable Law or by a TO A TRIAL BY JURY IN ANY SUCH SUIT,
regulatory authority with jurisdiction over us or ACTION OR PROCEEDING.
is, in our good faith opinion, necessary to
preserve or enhance the security of a Service, we
may modify this Agreement or the Terms and Miscellaneous
Conditions by giving Customer notice of the
modification by any means permitted by Notices. Except as otherwise specifically
Applicable Law, and the modification will be provided in the Terms and Conditions or User
effective immediately upon us giving such Guide with respect to a particular Service, all
notice, notices and other communications by either party
relating to this Agreement or the Services shall
Assignment be given promptly in writing or electronic
medium and shall be effective either on the date
Customer may not sell, assign or transfer, or it is actually received or five (5) days after it is
grant a security interest in any of its rights or mailed, sent by courier, transmitted or posted,
obligations under this Agreement without our whichever is earlier. The address to which all
prior written consent. We may assign our rights notices(other than notices given electronically as
and obligations under this Agreement in whole permitted in this Agreement) concerning this
or in part without Customer's consent (a) Agreement or a Service shall be sent to
10
Customer is that address we have in our records for all purposes be a party under this Agreement
with respect to this Agreement or that Service, as"Customer." Each Subsidiary will be deemed
respectively. The address for notice to us will be to make to us all representations and warranties
as we specify to Customer in writing. of, and will be subject to and undertake all
obligations as"Customer" under this Agreement
Counterparts. The Agreement may be executed and the Related Agreements. Additional
in counterparts, each of which shall be deemed Subsidiaries can be added through an addendum
an original and all of which shall constitute a to this Agreement in the form required by us and
single instrument. executed by Customer and us.
Severability. If performance of Services in Customer represents and warrants to us that
accordance with the terms of this Agreement Customer (or another Subsidiary) owns a
would result in a violation of any Applicable majority of the outstanding shares or equity
Law or governmental policy to which we are interests of each such Subsidiary.
subject, then this Agreement and any Related
Agreement shall be deemed amended to the Each Subsidiary acknowledges and agrees that it
degree necessary to comply with such is responsible for the payment of fees or
Applicable Law, and we shall incur no liability maintenance of required balances for the
to Customer as a result of such violation or Services that it receives from us, and for all
amendment. If any provision of this Agreement obligations and liabilities it incurs.
is held to be invalid, illegal or unenforceable,
such provision shall be valid, legal and Customer unconditionally guarantees to us the
enforceable to the maximum extent permitted by full and prompt payment and performance by the
such holding and the validity, legality, or Subsidiaries of all obligations they or any of
enforceability of the other provisions of this them may incur under this Agreement or the
Agreement will not be affected or impaired by Related Agreements, including in any case that
such holding. any payment to us by a Subsidiary is set aside,
rescinded or otherwise required to be returned in
Headings. Headings are for reference purposes any bankruptcy or similar proceeding.
only and are not part of this Agreement.
Customer represents and warrants to us that all
Waiver. No party's failure or delay in exercising transfers and commingling of funds, if any,
any right or remedy under this Agreement will between or among Customer and any Subsidiary
operate as a waiver of such right or remedy, nor whether or not listed(the"Group")in connection
shall any waiver by either party of any breach of with any Service are supported by adequate
the other party's obligations under this consideration between and among the members
Agreement operate as a waiver of any prior, of the Group and have been duly authorized by
current or subsequent breach. No waiver will be all necessary entity and governing body action
effective unless made in writing. on the part of each member of the Group. These
representations and warranties shall be
Subsidiaries continuing while we are providing the Service.
Customer agrees to provide to us upon our
By executing this Agreement, Customer, each reasonable request adequate documentary
"Subsidiary" of Customer listed below (if any), evidence of such authorization from each
and we agree that each such Subsidiary shall member of the Group,
have all of the rights and obligations of,and shall
****SIGNATURE PAGE FOLLOWS****
11
SIGNATURE PAGE TO MASTER TREASURY MANAGEMENT AGREEMENT
WITNESS,the parties have caused this Agreement to be executed by their respective duly authorized
representatives.
CUSTOMER NAME: METH THIRD BANK
B
Tax Y:
1 Print name:
Print title:
Print na e: Kam,,
DATE:
Print title:
NOTE: If required by resolution,second officer of
Customer must sign bel
By:
Print name: �p,
Print title: F1nC',r'nc..AL }-
Signing as a duly authorized officer or agent of each
of the Subsidiaries listed below:
By:
Print name:
Print title:
This Agreement includes the following Subsidiaries:
Subsidiary Name: Tax ID No.:
TM Legal 01.2013
180962