|
(including reasonable attorneys' fees) arising out of or relating to any and all Customer encoding errors. Without regard to whether Customer
<br />purchases MICR documents from a vendor selected by Customer or by Bank, whether the MICR items meet the Bank's specifications, or whether
<br />the Customer encodes its own items, the reject rate of the MICR documents shall not exceed the rate established from time to time by Bank in its
<br />discretion. If the reject rate of Customer's MICR documents exceeds Bank's established r ject rate. Customer agrees that Bank may, at its option,
<br />terminate any applicable or affected Service or assess additional fees for rendering the Service.
<br />13. No Obligation to lend: Overdrafts. Customer acknowledges and agrees that nothing in this Master Agreement shall be deemed to
<br />constitute a credit tiicility of any kind or nature whatsoever in favor of Customer, or to create any right on the part of Customer to borrow funds
<br />from Bank, or to create any obligation on the part of Bank to lend fiords to Customer. Batik, in Bank's sole and absolute discretion, and without
<br />any obligation to Customer whatsoever, may execute any Service transaction notwithstanding that the collected balance in Customer's Account is
<br />insufficient to fiord the transaction. Without limiting any other rights, remedies, or recourse available to Bank, in the event that any Service
<br />transaction creates an overdraft in Customer's Account or causes Customer's collected balance to become negative, Customer shall promptly
<br />reimburse Bank in full, and shall pay to Bank any applicable fees and/or interest, upon Bank's demand. Notwithstanding any prior action or course
<br />of conduct on the part of Hank, Customer agrees that Bank's failure to execute any Service transaction that is presented against insufficient fiords
<br />or that would cause Customer's Account to be overdrawn if executed shall not be construed as a wrongful dishonor of the transaction or a breach
<br />on the part of Brink. The provisions of this section are not intended to affect, annul, modify, or amend the express terms and conditions of any
<br />applicable Article of Part 2 of this Master Agreement or any applicable Service Schedule or any separate written overdraft or credit agreement
<br />between Customer and Bank in respect of Customer's Account.
<br />14. Reipresentations and Warranties. Customer represents and warrants to Bank as follows:
<br />(a) The acceptance and performance of this Master Agreement, and any Customer Profile or Service Schedule, are within
<br />Customer's organizational power and have been duty authorized by all necessary organizational action
<br />(b) The person who accepts this Master Agreement on behalf of Customer, and any person who accepts, completes, and/or
<br />executes any Customer Profile or any Service Schedule, has been duly authorized to do so, and this Master Agreement,
<br />together with any applicable Customer Profile or Service Schedule, constitutes the legal, valid, and binding obligation of
<br />Customer and is enforceable against Customer in accordance with its terms.
<br />(c) All information at any time provided by Customer to Bank in respect of Customer's business affairs and financial condition
<br />is accurate and complete and truthfully reflects the business and financial condition of Customer as ofthe pedod(s) covered
<br />by such information.
<br />(d) Any and all information and data at any time provided by Customer, or by Customer's Authorized Users, employees, agents,
<br />and/or representatives, to Bank in respect of Service transactions, activity, or inquiries initiated by or on behalf of Customer
<br />is accurate, complete, and without error, and Bank may relythereon without verification in the performance of Bank's duties
<br />and responsibilities under this Master Agreement and in the execution of such transaction, activity, and inquiries.
<br />15. Confidential Information. Customer acknowledges and agrees that Bank, or its Third Party Service Providers, as the case may be, has
<br />a proprietary and protectable interest in the Confidential Information and that the Confidential Information, including, without limitation, any
<br />related patent, copyright, trademark, service mark, trade secret, intellectual property or other ownership rights, is and shall remain the exclusive
<br />property of Bank, or its Third Party Service Providers, as applicable, even with respect to Confidential Information created by Bank or its Third
<br />Party Service Providers specifically for or on behalf of Customer. All Confidential Information provided to Customer in connection with any
<br />Service is provided on a strictly confidential or limited use basis. All copies ofConfidential Information in Customer's possession shall remain the
<br />exclusive property of Bank or its Third Party Service Providers, as applicable, and shall be deemed to be on loan to Customer during the tern of
<br />Customer's enrollment in the Service for which the Confidential Information was provided Customer agrees (a) to keep all Confidential
<br />Information confidential and not to use or disclose any Confidential Information for any purpose other than the purpose for which such information
<br />was provided in connection with the Services; (b) to restrict access to Confidential Information to those persons who are actively and directly
<br />participating in the use of the Services and who need to know such information in order to use the Services on behalf of Customer, (c) to cause any
<br />and all persons or entities who have access to Confidential Information by or through Customer, including (without limitation) Customer's
<br />contractors and service providers, to observe and comply with the terms of Customer's confidentiality obligations; (d) not to copy or duplicate any
<br />Confidential Information except as expressly authorized in writing by Bank; (e) to treat any and all copies of, and notes, memoranda, analyses,
<br />compilations, abstracts, synopses, studies of other material produced from, the Confidential Information as Confidential Information; (f) remove,
<br />erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Confidential
<br />Information, or fail to preserve all copyright and other proprietary notices in any authorized copy of any Confidential Information made by
<br />Customer, (p) not to use Confidential Information in any way that is detrimental to Bank; and (h) upon the termination or cancellation of any
<br />Service for any reason, to promptly return to Bank all related Confidential Information. In the event Customer shall inadvertently receive from
<br />Bank any data or information pertaining to a customer of Bank other than Customer, Customer agrees to treat such data or information as
<br />Confidential Information, to promptly notify Bank of Customer's receipt thereof" and to promptly return such data or information to Bank in
<br />accordance with Bank's instructions. In the event of a breach by Customer of any of its obligations regarding the use and treatment of Confidential
<br />Information, Bank shall have, in addition to any other rights and remedies available at law or in equity, the right to obtain interim, interlocutory
<br />and permanent injunctive relief without the necessity of proving either actual damage or that any irreparable harm would or might result from a
<br />6 of 29
<br />P45
<br />
|