HomeMy WebLinkAbout2010-041 AAA,&, REGIONS
MASTER AGREEMENT FOR TREASURY MANAGEMENT SERVICES
(rev. 07/2009)
This Master Agreement for Treasury Management Services ("Master Agreement") applies to and governs the use of Services provided by and/or
through the Treasury Management Services department of Regions Bank . This Master Agreement supersedes and replaces all prior versions and
editions of the Master Agreement for Treasury Management Services as of the effective date set forth above. By enrolling for the use
of any
Service , or by using or allowing any others to use any Service in relation to any of Customer ' s Accounts , Customer accepts and agrees
to the
terms and conditions of this Master Agreement as may be in effect from time to time.
1 . Definitions . The following definitions apply when the following terms are used in this Master Agreement:
"Account " means any deposit, loan , or other account maintained by Customer with Bank which is eligible for any Service and which
is used or affected in connection with the use of any Service. Bank reserves the right to determine the eligibility and/or ineligibility
of
any account for any Service at any time and from time to time, in Bank ' s sole and absolute discretion .
"Authorized User " means any person or entity authorized by Customer to use any Service or to access any Customer Account, or
reasonably believed by Bank to have been authorized by Customer to use any Service or to access any Customer Account, including
(without limitation) any person or entity to which Customer has provided or disclosed a Security Device or made
available or
disclosed any Security Procedures , or any person or entity knowing or in possession of a Security Device or Security
Procedure
without regard to whether such person or entity gained access to or possession of the Security Device or Security Procedure
from
Customer, and/or any person or entity expressly authorized to use any Service or access any Customer Account in any Customer
Profile or Service Schedule . Any Authorized User shall continue to be an Authorized User unless and until Customer has
notified
Bank, according to notification procedures prescribed by Bank , that such person or entity is no longer an Authorized User and
until
Bank has had a reasonable opportunity to act upon such notice .
"Bank " means and refers to , as the context may require, Regions Bank or any affiliate of Regions Financial Corporation with which
Customer has established one or more Accounts , and/or any agent, independent contractor, designee, or assignees that Bank may, in
its sole discretion, involve in the provision of the Services .
"Confidential Information " means any and all documents , materials , data and/or information , in whatever form or format (including ,
without limitation , electronic media) , which relates to any Service (including, without limitation, the Service Materials and Bank '
s
product and service pricing structure , system design , and programming techniques), and any other information which Bank designates ,
orally or in writing, as confidential or proprietary information or which Customer has reason to know is confidential or proprietary
information ; provided , however, that notwithstanding the foregoing, Confidential Information shall not include information which is
proprietary information of Customer, or which becomes generally available to the public other than as a result of a disclosure by
or
through Customer, or its agents , employees , representatives , contractors , subcontractors , successors or assigns , or which becomes
available to Customer on a non -confidential basis from a source other than Bank , provided that such source is not
bound by a
confidentiality agreement with Bank or is not otherwise prohibited from transmitting the information by a contractual , legal
or
fiduciary obligation .
"Customer " means and refers to, as the context may require , each and every person or entity which now or hereafter is an Account
holder with respect to, or has any interest in , any Account, and each and every person or entity which now or hereafter subscribes to or
uses any of the Services .
" Customer Profile " means any enrollment or informational document or form required or approved by Bank that is completed
,
submitted , or executed by or on behalf of Customer and that requests Bank to provide any Services , provides specifications relating to
the provision of Services , or provides other information or confirmation relating to Customer' s use of any Services, as amended from
time to time .
"Security Device " means, without limitation , any code , password , personal identification number, user identification technology,
token , certificate, or other element, means , or method of authentication or identification used in connection with a Security Procedure .
"Security Procedure " means any process or procedure established between Customer and Bank for the purpose of verifying that
communications , orders , instructions , or inquiries regarding a Service transaction or other Service activity are those of Customer,
and/or for the purpose of authenticating Customer or its Authorized Users in connection with Customer' s use of the Services , and/or
for the purpose of authorizing transactions and other activity through the use of the Services , which process or procedure may or may
not involve the use of a Security Device , as set forth in any applicable Customer Profile , Service Schedule , or User Guide.
"Service " means any feature , functionality, product, and/or service provided , managed, or administered by or through
Bank 's
Treasury Management Services department, as evidenced by and/or described in any Service Schedule , User Guide, or Customer
Profile .
"Service Materials " means , without limitation , any and all equipment, hardware, software , computer programs (together with the
Object and source codes therefore, and any updates , upgrades , fixes , and enhancements thereto), operational manuals , documentation ,
User Guides , instructions , records , tiles , systems , marks , designs , inventions, processes , improvements and enhancements
to
1
inventions and processes , formulae, Security Devices, technological and procedural information, data, any of the foregoing specially
customized, created or developed for Customer' s use of the Services , and/or any other thing of a proprietary nature
which is
developed , created , or provided by Bank or its contractors , as applicable, for use in connection with any Service.
"Service Schedule " means and refers to any document or agreement required or approved by Bank which describes any particular
Service and which sets forth particular terms and conditions prescribed by Bank regarding the provision and use of such Service,
as
amended from time to time . A Service Schedule may also provide specifications relating to the provision of Services , or provide other
information or confirmation relating to Customer ' s use of any Services
" User Guide " means any instructional materials or information relating to the use of any Service and provided by Bank in connection
with such Service, as amended from time to time .
Other terms may be defined elsewhere in this Master Agreement.
2 . Service Enrollment. In order to enroll for and use a Service, Customer must execute and/or accept the applicable Customer Profile(s)
and Service Schedule(s) required by Bank therefore. Bank, in its discretion , may not permit Customer to use the Service
until Bank has
determined that Customer has accepted or executed the applicable documentation and otherwise provided appropriate information
and
specifications for the use of the Service , and until Bank has had a reasonable opportunity to activate the Service. In any event,
Customer agrees
that the use by Customer or any Authorized User of any Service shall , without any further action or execution
or acceptance of any
documentation on the part of Customer, constitute Customer' s acceptance of and agreement to Bank ' s terms and conditions for the use
of such
Service as may be in effect as of the time of such usage, whether set forth in any applicable Service Schedule or otherwise prescribed
by Bank .
The terms of any Customer Profile and/or Service Schedule, as well as the terms of any User Guide applicable to a Service, and the terms
of that
certain proposal for banking services (lockbox and purchasing card) , dated 8/ 10/2009 submitted by Bank to Customer, supplement the terms
of
this Master Agreement and constitute part of the agreement between Customer and Bank for the use and provision of the applicable Service(s)
,
and Customer agrees to observe and comply with all of such terms in the use of any applicable Service. In the event of a conflict
between the
terms of this Master Agreement and those of any Customer Profile, Service Schedule, or User Guide, the terms of the Customer Profile, Service
Schedule, or User Guide, as applicable, shall govern and control with respect to the Service at issue .
3 . Equipment Requirements . Except as otherwise expressly provided in any Service Schedule, Customer, at Customer' s expense , is
responsible for obtaining and for properly installing, maintaining, and securing all telephone equipment and services , internet
connection
services , computer hardware and software (and any and all necessary upgrades thereto) , and any other equipment necessary for Customer
to
access and use the Services . Customer agrees that Customer' s equipment and third party services shall at all times meet or exceed the
minimum
specifications prescribed by Bank from time to time for use of the Services . Bank makes no warranty, either express or implied
, to Customer
regarding Customer' s computer systems or related equipment or software , or that of any of Customer' s third party providers or
contractors,
including but not limited to, any warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. To the extent that Bank
provides any Service Materials to Customer, Customer agrees that :
(a) the Service Materials shall be installed , tested , placed into production, and used in accordance with the
instructions
provided by Bank, as modified or amended from time to time ;
(b) all right, title and interest in and to any and all Service Materials shall be and remain the property of Bank or the third
party
provider, of such Service Materials , as applicable ;
(c) unless otherwise expressly authorized in writing by Bank, Customer may not copy, reproduce, retransmit, disseminate ,
display, publish , sell , broadcast, circulate , distribute, transfer, assign , commercially exploit, or create derivative works of
any Service Materials ;
(d ) Customer shall not reverse engineer or reverse compile any Service Materials ;
(e) upon the termination of a Service for any reason , or at any time upon request by Bank, Customer shall return to
Bank in
good condition any and all Service Materials ; and
(f) Customer shall pay Bank ' s costs , fees , and expenses for the replacement or reissuance of any lost or damaged Service
Materials .
To the extent that Customer engages any third party contractor or service provider to facilitate Customer' s use of any Services , Customer agrees
that such party acts as Customer' s agent in connection with this Master Agreement and agrees to ensure that such party observes , complies
with ,
and does not breach any duty, term, condition , obligation , or responsibility on the part of Customer to be performed , observed or complied
with
pursuant to this Master Agreement. Customer further agrees that Bank shall not be responsible for, and shall have no duty to remedy or correct
,
any acts , omissions , breaches , defaults , or nonperformance on the part of any such third party with respect any services , products , equipment,
or
goods provided by such third party to Customer.
4 . Security Procedures for Service Activity.
(a) As to any Security Procedures agreed to by and between Customer and Bank with respect to any Service, Customer
represents that Customer has carefully considered the circumstances of Customer' s use of the Service and the transactions and
activity that
Customer will effect through the Service, and Customer acknowledges and agrees that the Security Procedures , including (without limitation) any
Security Devices used in connection therewith , constitute commercially reasonable security procedures under applicable law for the transactions
and activity Customer intends to effect through the Service. Customer authorizes Bank to follow any and all instructions entered and transactions
initiated using applicable Security Procedures unless and until Customer has notified Bank, according to notification procedures prescribed
by
Bank, that the Security Procedures or any Security Device has been stolen , compromised , or otherwise become known to persons other
than
Authorized Users and until Bank has had a reasonable opportunity to act upon such notice . Customer agrees that the initiation of
a transaction
using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction notwithstanding any
particular
signature requirements identified on any signature card or other documents relating to Customer' s Account, and Customer agrees and intends that
the submission of transaction orders and instructions using the Security Procedures shall be considered the same as Customer ' s wTitten
signature
in authorizing Bank to execute such transaction . Customer acknowledges and agrees that Customer shall be bound by any and all
transactions
and activity effected through the Service through the use of such Security Procedures , whether authorized or unauthorized , and by any
and all
transactions and activity otherwise initiated by Authorized Users , to the fullest extent allowed by law. Customer further acknowledges and agrees
that the Security Procedures are not designed to detect error in the transmission or content of communications or instructions made
through the
Service and that Customer bears responsibility for detecting and preventing such error.
(b) Customer agrees to keep all Security Procedures and Security Devices protected , secure, and strictly confidential and to
provide or make available the same only to Authorized Users . Customer agrees to instruct each Authorized User not to disclose or provide
any
Security Procedures or Security Devices to any unauthorized person . Upon the request of Bank, or as provided in any applicable
Customer
Profile or Service Schedule, Customer shall designate a security administrator to whom Bank may distribute Security Devices and with
whom
Bank may otherwise communicate regarding Security Procedures . Customer' s system administrator shall have responsibility to distribute
Security Devices to Customer ' s Authorized Users and to ensure the proper implementation and use of the Security Procedures by Customer'
s
Authorized Users . Where Customer has the ability to change or modify a Security Device from time to time (e. g. , a password or PIN
), Customer
agrees to change Security Devices frequently in order to ensure the security of the Security Device . Customer agrees to notify Bank immediately,
according to notification procedures prescribed by Bank, if Customer believes that any Security Procedures or Security Device has been
stolen ,
compromised , or otherwise become known to persons other than Authorized Users or if Customer believes that any Service transaction or activity
is unauthorized or in error. In the event of any actual or threatened breach of security, Bank may issue Customer a new
Security Device or
establish new Security Procedures as soon as reasonably practicable , but Bank shall not be liable to Customer or any third party for any
delay in
taking such actions .
(c) Customer agrees that Bank may rely upon any written signature if in good faith believed by Bank to be the
genuine
signature of an Authorized User. Each Authorized User is authorized to conduct any transaction within the scope of this Master Agreement
and ,
unless otherwise expressly provided in the applicable Customer Profile or Service Schedule, any Authorized User may act alone .
Customer
agrees to notify Bank immediately, according to notification procedures prescribed by Bank, if the authority of any Authorized User shall change
or be revoked . Customer shall recover and return to Bank any Security Devices in the possession of any Authorized User whose
authority to
have the Security Device has been revoked .
(d) Bank reserves the right to modify, amend , supplement, or cancel any or all Security Procedures, and/or to cancel or replace any
Security Device, at any time and from time to time in Bank ' s discretion . Bank will endeavor to give Customer reasonable notice of any change
in
Security Procedures ; provided that Bank may make any change in Security Procedures without advance notice to Customer if Bank, in its judgment
and discretion, believes such change to be necessary or desirable to protect the security of Bank' s systems and assets. Customer' s implementation
and
use of any changed Security Procedures and/or continued use of the Service after any change in Security Procedures shall constitute
Customer ' s
agreement to the change and Customer's agreement that the applicable Security Procedures , as changed , are commercially reasonable and adequate
for
the purposes intended .
(e) In the event of the breach of any applicable Security Procedure, Customer agrees to assist Bank in determining the manner
and source of the breach . Such assistance shall include, but shall not be limited to, providing Bank or Bank ' s agent
access to Customer' s
systems , computer hardware and software, storage media and devices , and any other equipment or device that was used or may have been used
in
breach of the Security Procedure . Customer further agrees to provide to Bank with any analysis of such systems , computer
hardware and
software, storage media and devices , and other equipment or devices , or any report of such analysis , performed by Customer, Customer' s
agents ,
law enforcement agencies , or any other third party.
( 0 Bank reserves the right to establish from time to time, in its discretion , limitations and restrictions with respect to
Service
transaction amounts , frequency of Service transactions , the types of Accounts that are eligible for Services , and other matters
relating to the
Services based on factors deemed significant by Bank in its sole discretion . Customer agrees to abide by and be bound by all
limitations and
restrictions imposed from time to time by Bank , and Customer acknowledges and agrees that such limitations and restrictions are
for the sole
protection of the Bank. Bank will endeavor to provide Customer with reasonable notice of limitations and restrictions (except to the
extent that
the confidentiality thereof is necessary to maintain the security of Bank ' s systems) ; provided , that Bank may impose immediate limitations
and
restrictions , or make changes thereto, without advance notice to Customer if Bank, in itsjudgment and discretion , believes the same to be necessary
or
desirable to protect the security of Bank' s systems and assets.
5 . Physical and Electronic Security.
(a) Customer is solely responsible for providing for and maintaining the physical , electronic, procedural , administrative, and
technical security of data and systems in Customer' s possession or under Customer' s control . Bank is not responsible for any computer
viruses
(including, without limitation , programs commonly referred to as "malware," "keystroke loggers ," and/or "spyware), problems or malfunctions
resulting from any computer viruses , or any related problems that may be associated with the use of an online system. Any material downloaded
or otherwise obtained through the use of any electronic Service is obtained at Customer' s own discretion and risk, and Bank is not responsible
for
any damage to Customer ' s computer or operating systems or for loss of data that results from the download of any such material , whether
due to
any computer virus or otherwise. Customer is solely responsible for maintaining and applying anti-virus software, security patches , firewalls , and
other security measures with respect to Customer' s operating systems, and for protecting, securing, and backing up any data and
information
stored in or on Customer ' s operating systems . Bank is not responsible for any errors or failures resulting from defects in or malfunctions
of any
software installed on Customer ' s operating systems .
(b) Customer acknowledges and agrees that it is Customer' s responsibility to protect itself and to be vigilant against e-mail
fraud and other intemet frauds and schemes (including, without limitation , fraud commonly referred to as "phishing") . Customer
agrees to
educate Customers Authorized Users , agents , and employees as to the risks of such fraud and to train such persons to avoid such risks .
Customer
acknowledges that Bank will never contact Customer by e-mail in order to ask for or to verify Account numbers , Security
Devices , or any
sensitive or confidential information . In the event Customer receives an e-mail or other electronic communication that Customer believes , or
has
reason to believe, is fraudulent, Customer agrees that neither Customer nor its Authorized Users , agents , and employees shall respond
to the e-
mail , provide any information to the e-mail sender, click on any links in the e-mail , or otherwise comply with any instructions
in the e-mail .
Customer should forward any suspected fraudulent or suspicious e-mail to phi shin g(o),regions . com or as Bank otherwise may direct . Customer
agrees that Bank is not responsible for any losses , injuries , or harm incurred by Customer as a result of any electronic , e-mail , or internet
fraud .
6 . Data Recording. To the fullest extent permitted by applicable law, Customer agrees that Bank may (without any obligation) record
,
retain , and/or monitor any information , data, or communications (including, without limitation , telephone conversations) furnished , exchanged , or
made in connection with this Master Agreement or any Services provided hereunder without further notice to any person . All such information
,
data , and communications recorded , retained, or monitored by Bank shall be and remain the property of Bank . Bank may, in its sole
discretion ,
make such information , data or communications available to Customer upon Customer ' s written request therefor, and Customer agrees to
pay
Bank for any expenses Bank incurs in making such information , data or communications available to Customer or to any
third party at
Customer' s request. Customer acknowledges that Customer is responsible for the maintenance and storage of Customer ' s own data and
other
information created through Customer' s use of the Services .
7 . Prohibited Transactions . Customer agrees to comply with all applicable laws and regulations in connection with Customer' s use
of
the Services . Customer further agrees to be bound by operating rules and regulations imposed by any processing networks, funds
transfer
systems , or clearinghouses in which Bank participates and/or which process Service transactions . Customer agrees not to use or attempt
to use
any Service (a) to overdraw any Customer Account (unless and only to the extent that Customer has overdraft rights or privileges pursuant
to an
express written agreement with Bank), (b) to exceed any credit limit on any credit Account, (c) to engage in any illegal purpose or
activity or to
violate any applicable law, rule or regulation , (d) to breach any contract or agreement by which Customer is bound , or (e) to
engage in any
internet or online gambling transaction , whether or not gambling is legal in any applicable jurisdiction , or (f) to engage in any
transaction or
activity that is not specifically authorized and permitted by this Master Agreement or the applicable Service Schedule. Customer acknowledges
and agrees that Bank has no obligation to monitor Customer' s use of the Services for transactions and activity that is impermissible or
prohibited
under the terms of this Master Agreement; provided , however, that Bank reserves the right to decline to execute any transaction or
activity that
Bank believes violates the terms of this Master Agreement.
8 . Information Obtained Through Services . Any Account, transaction , or activity information that is provided to Customer through
a
Service will include a date and/or time as of when such information is current. Customer acknowledges that such information may not
reflect
transactions and activity in process and may, therefore, differ from Customer' s own records . The number of records available
through any
Service, and the period of time during which such records may be available, will be determined by Bank from time to time in its discretion .
Bank
makes no representation or warranty as to the completeness, accuracy, reliability, or currency of any third parry information or data that Customer
obtains through the use of any Services . Customer agrees to promptly and regularly review Account, transaction , and activity information that
is
made available through applicable Services and to notify Bank immediately of any errors or suspected unauthorized transactions
or activity,
according to notification procedures prescribed by Bank. Customer agrees not to rely or act upon any data or information obtained
through the
Services that Customer knows , or has reason to know, is erroneous , incomplete, or not current.
9 . Electronic Records and Signatures . Customer agrees and consents to enter into agreements and to accept Service terms , conditions,
and information electronically, and otherwise to transact Service business with Bank electronically, as Bank directs or requires . Customer
agrees
that Customer' s use of electronic sounds , symbols , or processes required by Bank to establish Customer' s acceptance of or agreement to
Service
terms , conditions, and/or disclosures constitutes Customer' s electronic signature and signifies Customer' s intent to be bound . To the
extent that
any Service provides for the use and delivery of electronic records, Customer consents to the receipt of electronic records of Service information
,
documentation , and data in lieu of a hard or paper copy or version thereof. Customer agrees that Customer shall not alter
any electronic
information , data, or records furnished by Bank , and Customer agrees that Bank ' s record of any such information , data, or records
is the best
evidence of the information set forth therein . Bank reserves the right to furnish to Customer, and the right to require Customer to furnish
to Bank,
writings or paper copies of information , communications , data , or records relating to any Service , in lieu of and/or in addition
to electronic
records thereof, at any tirne in Bank' s discretion .
10. Customer Information . Customer shall from time to time provide Bank with such financial and other information or documentation as
Bank may request for the purpose of determining Customer' s eligibility and/or qualifications for any Service, for the purpose of enabling Bank to
provide or deliver the Services, or for the purpose of enabling Bank to comply with applicable laws and regulations (including, without limitation,
such information as Bank may require relating to Authorized Users and such information or documentation as Bank may require with respect
to
Customer' s corporate or organizational authorizations and resolutions ). Customer agrees to provide any information promptly upon
Bank ' s
request therefor, in the form required by Bank. Customer authorizes Bank to investigate or reinvestigate at any time any information provided
by
Customer and to request reports on Customer' s financial condition and business affairs from third party reporting agencies from time
to time as
Bank deems desirable in its discretion . Customer further agrees to execute and deliver such additional documentation as Bank may from
time to
time require to confirm Customer ' s continuing eligibility for and agreement to the terms and conditions for the use of the Services
. Customer
agrees that Bank may disclose Customer information to third parties as Bank deems necessary or convenient in order to discharge Bank ' s
duties
and responsibilities in the delivery of the Services and in the execution of Service transactions and activity, and/or as necessary
for Bank to
comply with applicable law or regulation . Customer further agrees to permit Bank physical access to Customer ' s facilities from
time to time
upon Bank ' s request for the purpose of verifying any information provided by Customer in connection with the Services and/or for the purpose
of
verifying Customer' s compliance with the terms and provisions of this Master Agreement or any applicable Service Schedule.
] 1 . Fees and Charges . Subject to the terms of that certain proposal for banking services (lockbox and purchasing card) , dated
8/10/2009
submitted by Bank to Customer, Customer agrees to pay all fees , charges , and assessments imposed by Bank for use of the Services, as
set forth
in the applicable Service Schedules or in Bank ' s fee schedules . Bank, in its discretion , may collect any fees , charges , assessments
, taxes , and
commissions due from Customer by debiting any Customer Account, by billing Customer, or by considering amounts due in any
Account
analysis performed by Bank with respect to Customer' s Account(s) . Customer acknowledges and agrees that any fees, charges , or assessments
imposed in connection with the Services are in addition to any costs , fees , or expenses Customer may incur with respect to maintaining
or using
any Account with Bank , using or purchasing any services or products other than the Services, and/or establishing any capabilities necessary
for
the use of the Services (including, without limitation , telephone or internet access service and/or any required software, hardware, or equipment) .
12 . Checks and Other MICR Documents . Customer shall purchase all checks and other magnetic ink character recognition ("MICR")
documents from vendors selected or approved by Bank . In the event that Customer selects its own vendor for checks or other MICR documents
,
subject to Bank ' s approval , Customer must submit sample documents to Bank for testing before any applicable Service involving such documents
is rendered . Checks and other MICR documents must meet the standards and specifications required by Bank from time to time in its discretion
.
If Customer encodes any information on checks, deposits , or other items in magnetic ink, Customer warrants that the information encoded
is
accurate and correct. Customer agrees to defend , indemnify, and hold Bank harmless from and against any loss, claim, action
, or expenses
(including reasonable attorneys ' fees) arising out of or relating to any and all Customer encoding errors . Without regard to whether
Customer
purchases MICR documents from a vendor selected by Customer or by Bank, whether the MICR items meet the Bank' s specifications,
or
whether 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 discretion . If the reject rate of Customer's MICR documents exceeds Bank ' s established reject rate, Customer agrees that
Bank may,
at its option , terminate any applicable or affected Service or assess additional fees for rendering the Service .
13 . No Obligation to Lend ; Overdrafts . Customer acknowledges and agrees that nothing in this Master Agreement shall be deemed
to
constitute a credit facility of any kind or nature whatsoever in favor of Customer, or to create any right on the part of Customer to borrow
funds
from Bank, or to create any obligation on the part of Bank to lend funds to Customer. Bank, in Bank ' s sole and absolute discretion
, and without
any obligation to Customer whatsoever, may execute any Service transaction notwithstanding that the collected balance in Customer ' s Account is
insufficient to fund the transaction . Without limiting any other rights , remedies , or recourse available to Bank, in the event
that any Service
transaction creates an overdraft in Customer ' s Account or causes Customer' s collected balance to become negative, Customer shall promptly
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 of conduct on the part of Bank, Customer agrees that Bank ' s failure to execute any Service transaction that
is presented against
insufficient funds 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 on the part of Bank. The provisions of this section are not intended to affect, annul , modify, or amend
the express terms
and conditions of any applicable Service Schedule or any separate written overdraft or credit agreement between Customer and Bank in respect of
Customer ' s Account.
14 . Representations and Warranties . Customer represents and warrants to Bank as follows :
(a) The acceptance and performance of this Master Agreement, and any Customer Profile or Service Schedule , are within
Customer ' s organizational power and have been duly authorized by all necessary organizational action .
(b) 'llie person who accepts this Master Agreement on behalf of Customer, and any person who accepts, completes , and/or
executes any Customer Profile or any Service Schedule , has been duly authorized to do so , and this Master Agreement,
together with any applicable Customer Profile or Service Schedule, constitutes the legal , valid , and binding obligation of
Customer and is enforceable against Customer in accordance with its terms .
(c) All information at any time provided by Customer to Bank in respect of Customer ' s business affairs and financial condition
is accurate and complete and truthfully reflects the business and financial condition of Customer as of the period (s) covered
by such information .
(d) Any and all information and data at any time provided by Customer, or by Customer' s Authorized Users , employees
,
agents , and/or representatives , to Bank in respect of Service transactions , activity, or inquiries initiated by or on behalf of
Customer is accurate , complete, and without error, and Bank may rely thereon without verification in the performance of
Bank ' s duties and responsibilities under this Master Agreement and in the execution of such transaction , activity, and
inquiries .
15 . Confidential Information . Customer is governed by Florida Statutes Chapter 119 (Public Records) regarding access
to and
confidentiality of any records . Customer acknowledges and agrees that Bank, or its third party contractors and service providers as the
case may
be, has a proprietary and protectible interest in the Confidential Information and that the Confidential Information is and shall remain the
property
of Bank, or its third party contractors and service providers . Customer agrees (a) to keep all Confidential Information confidential and
not to use
or disclose any Confidential Information for any purpose other than the purpose for which such information was provided in connection with
the
Services; (b) to restrict access to Confidential Information to those persons who are actively and directly 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 and all persons or entities
who have
access to Confidential Information by or through Customer, including (without limitation) Customer' s contractors and service providers
, to
observe and comply with the terms of Customer' s confidentiality obligations ; (d) not to copy or duplicate any Confidential Information except
as
expressly authorized inwriting by Bank ; (c) to treat any and all copies of, and notes , memoranda, analyses , compilations, abstracts,
synopses ,
studies of other material produced from, the Confidential Information as Confidential Information ; (f) not to use Confidential Information
in any
way that is detrimental to Bank; and (g) upon the termination or cancellation of any Service for any reason , to promptly return to Bank
all related
Confidential Information . In the event Customer shall inadvertently receive from Bank any data or information pertaining to a customer of Bank
other than Customer, Customer agrees to treat such data or information as Confidential Information , to promptly notify Bank of
Customer' s
receipt thereof, and to promptly return such data or information to Bank in 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 Information , Bank shall have, in addition to any
other rights
I
and remedies available at law or in equity, the right to obtain interim, interlocutory and permanent injunctive relief without the
necessity of
proving either actual damage or that any irreparable harm would or might result from a failure to obtain such injunctive
relief, it being
acknowledged and agreed by Customer that any such breach will cause irreparable harm to Bank and that monetary damages , alone , will
not
provide an adequate remedy (provided , that nothing shall preclude Bank from seeking and collecting monetary damages ) .
16 . Standard of Care .
(a) Bank ' s responsibility to Customer under this Master Agreement, and in performing its duties and obligations with respect
to any Service, is limited to the exercise of ordinary care and good faith . If Bank substantially complies with the
terms , conditions , and
provisions set forth in this Master Agreement and in the applicable Customer Profile(s) and Service Schedule(s), Bank shall be deemed
to have
exercised ordinary care and good faith . Customer agrees that clerical errors and mistakes do not constitute a failure to exercise ordinary care
or to
act in good faith . Bank makes no, and hereby disclaims any, representation or warranty that any Service will meet Customer' s requirements
or
expectations or that any Service will be uninterrupted , timely, secure, or error-free. Bank further disclaims any representation or
warranty that
any errors in technology will be corrected . To the fullest extent permitted by law, and except as otherwise expressly provided by the terms
of this
Master Agreement or any applicable Customer Profile or Service Schedule (and only to the extent so provided) , Customer agrees that Customer
assumes and bears all risk as to unauthorized transactions , activity, and inquiries effected through the Service(s), and Customer agrees
that Bank
shall have no liability to Customer whatsoever for any unauthorized transaction , activity, or inquiry effected through any Service .
(b) Customer agrees that Customer ' s use of the Services is at Customer' s sole risk, and that the Services are provided on
an
"AS IS " and "AS AVAILABLE" basis . Customer further agrees and acknowledges that Bank may from time to time temporarily suspend
or
interrupt the operation of any Service, without notice or liability to Customer, for maintenance or for any other operational or business
needs as
determined by Bank . Bank expressly disclaims all warranties of any kind relating to the Services and/or to the Service Equipment, and/or
to any
equipment or third party services obtained by Customer, whether express or implied, including (without limitation) the implied warranties
of
MERCHANTABILITY , FITNESS FOR A PARTICULAR PURPOSE, and noninfringement, and any implied warranties arising from course of
dealing or course of performance. Customer acknowledges and agrees that no advice, statement, or information , whether oral or written , obtained
by Customer from Bank or its representatives, or through or from Customer' s use of any Service shall create any warranty, representation
,
promise, or agreement on the part of Bank not expressly stated in this Master Agreement or in any applicable Customer Profile
or Service
Schedule .
(c) Bank shall not be responsible for any nonperformance or delay in performance of any of Bank' s
obligations ,
responsibilities , and/or covenants hereunder, whether expressed or implied, nor shall Bank be liable to Customer for any losses , costs ,
expenses ,
liabilities, claims or damages whatsoever, if at any time, or from time to time , performance thereof shall be prevented or hindered
by, or be in
conflict with, or such losses , costs , expenses , liabilities , claims or damages result in whole or in part from, (i ) any federal or
state law, regulation
or rule, or the order of any court of competent jurisdiction ; (ii) any processing network, funds transfer system, or clearinghouse operating rule
or
regulation ; (iii ) any Act of God , war, epidemic , strike, lockout, riot, weather conditions, equipment or computer failure or malfunction
, material
shortage, electrical power disruption or shortage, or communication, telephone or intemet failure or malfunction ; (iv) stoppages of the U . S . Postal
Service and/or commercial carriers , or acts, omissions, or errors of any carrier and/or agent operating between Customer and Bank and/or
any
other party participating in transactions or activity contemplated by this Master Agreement; (v) any incorrect, unauthorized , or fraudulent
use or
other fraud by any person other than Bank ' s employees ; or (vi ) without limiting the generality of the foregoing, any other cause or
circumstance
beyond Bank' s reasonable control or other conditions or circumstances not wholly controlled by Bank .
(d ) To the fullest extent permitted by law, and except as otherwise expressly provided by the terms of this Master Agreement
or any applicable Customer Profile or Service Schedule (and only to the extent so provided), Customer agrees that in no event
shall Bank be
liable to Customer in connection with any matter contemplated by or within the scope of this Master Agreement, or in performing
or failing to
perform, or in erroneously performing, any transactions or activity contemplated by or within the scope of this Master Agreement,
for any
incidental , special , indirect, punitive, exemplary, or consequential damages of any kind, including (without limitation) lost profits or
attorneys '
fees , regardless of whether Bank was advised , had reason to know, or in fact knew of the possibility thereof,
or for any other damages
whatsoever, regardless of the form of action , whether in contract, warranty, tort (including, without limitation , negligence), strict
liability, or
otherwise . Bank ' s liability to Customer under this Master Agreement shall be limited to correcting errors resulting from Bank
' s failure to
exercise ordinary care or to act in good faith .
17 . Termination .
(a) Customer may terminate Customer' s enrollment in and use of any Service at any time upon written notice to Bank ,
as
provided in this Master Agreement or in the applicable Service Schedule . Customer agrees that Bank shall have a reasonable opportunity
to act
upon any termination notice submitted by Customer. Upon Customer' s termination of any Service, Bank reserves the right to complete or cancel ,
in Bank ' s sole and absolute discretion , any pending Service transactions, activity, or inquiries .
(b) Bank may terminate Customer' s enrollment in and use of any Service at any time upon at least thirty (30) days '
prior
written notice to Customer; provided , that Bank may terminate or suspend Customer' s use of any Service (including, without limitation
, any
pending transactions , activity, or inquiries) immediately and without prior notice to Customer in the event that:
(i ) Customer shall breach or default in the due observance or performance of any obligation, covenant, condition
or
agreement on the part of Customer to be observed or performed pursuant to the terms of this Master Agreement or with
respect to any Service ;
Customer shall breach or default in the due observance or performance of any obligation , covenant, condition
or
agreement on the part of Customer to be observed or performed pursuant to the terms of any other agreement or contract
by and between Customer and Bank;
any representation or warranty made by Customer shall prove to be false or misleading in any material respect as of the
time made, or any report, data, information, certificate, financial statement or other instrument furnished by Customer in
connection with this Master Agreement or any Service shall prove to be false or misleading in any material respect as of
the time furnished ;
(iv) Customer or any person or entity which has guaranteed the payment and performance of Customer' s obligations under this
Master Agreement or with respect to any Service (together with Customer, the "Obligors") shall (A) apply for or consent
to the appointment of a receiver, trustee, liquidator or other custodian for Obligor or any of Obligors properties or assets ,
(B ) fail or admit in writing Obligor' s inability to pay its debts generally as they become due, (C) make
a general
assignment for the benefit of creditors , (D) suffer or permit an order for relief to be entered against Obligor
in any
proceeding under the federal Bankruptcy Code, or (E) file a voluntary petition in bankruptcy, or a petition or an answer
seeking an arrangement with creditors or to take advantage of any bankruptcy, reorganization , insolvency, readjustment of
debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against
Obligor in any proceeding under any such law or statute, or if partnership action shall be taken by any Obligor for the
purpose of effecting any of the foregoing;
(v) a petition shall be filed, without the application , approval or consent of Obligor in any court of competent jurisdiction,
seeking bankruptcy, reorganization, rearrangement, dissolution or liquidation of Obligor or of all or a substantial part of
the properties or assets of Obligor, or seeking any other relief under any law or statute against Obligor, or the appointment
of a receiver, trustee, liquidator or other custodian of such Obligor or of all or a substantial part of the properties or assets
of such Obligor, and such petition shall not have been stayed or dismissed within sixty (60) days after the filing thereof;
(vi) any Obligor shall die, if an individual, be dissolved or liquidated, if an entity, or cease to be solvent
or suspend or
discontinue business in the ordinary course ;
(vii ) any writ of execution , attachment or garnishment shall be issued against a substantial portion of the assets of any Obligor
and such writ of execution , attachment or garnishment shall not be dismissed , discharged or quashed within thirty (30)
days of issuance;
(viii ) any final judgment for the payment of money in excess of $50,000 shall be rendered against any Obligor and the same
shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed ;
(ix) any guarantor of Customer' s obligations shall default in the due observance or performance of any covenant, condition or
agreement on such guarantor' s part to be observed or performed under such guarantor's guaranty agreement or shall
terminate or attempt to terminate such guarantor' s guaranty agreement; or
(x) in Bank ' s discretion and judgment (A) there has been an adverse change in Customer' s financial condition or business or
(B) Customer may not have sufficient available funds in its Account on any settlement date in connection with a Service
which requires funds to be available, or (C) Bank deems itself or its assets insecure or at unreasonable exposure or risk with
respect to any Service transaction, activity, or inquiry.
(c) No termination of any Service for any reason shall relieve Customer of any liability for Customer' s obligations which have
accrued prior to the effective time of termination or for Customer ' s obligations and duties hereunder which by their
nature or by express
provision are intended to survive termination . Following any termination of a Service, Customer shall pay or perform any and
all related
outstanding obligations , and return to Bank any and all related Service Materials and Confidential Information, promptly upon Bank' s
demand .
No termination or suspension of any Service by Bank, and no failure on the part of Bank to demand payment or performance of any outstanding
obligations , shall limit Bank ' s right to pursue any recourse and remedies available to Bank in the event of breach by Customer
of any terms,
provisions, or conditions of this Master Agreement.
18 . Indemnification . Except for those losses caused directly by Bank ' s negligence, gross negligence or intentional acts , Customer
agrees
to indemnify, defend , and hold Bank, its officers, directors, shareholders, agents , employees, and affiliates, and their respective officers , directors,
agents and employees, harmless from and against any and all losses, costs, suits, damages, claims, liabilities, and expenses (including,
without
limitation , reasonable attorneys ' fees) arising from or related in any way to (a) any Service transaction or activity performed in compliance
with
Customer ' s instructions or directions, (b) Bank ' s action or inaction in reliance upon any instructions or information received from any Authorized
User or any other person reasonably believed by Bank to be an authorized representative of Customer, (c) breach by Customer
or any of
Customer' s agents , representatives , employees , service providers, or contractors of any of Customer 's covenants , agreements, responsibilities
,
representations or warranties under this Master Agreement, and/or (d) breach or violation by Customer or any
of Customer ' s agents ,
representatives , employees , service providers, or contractors of applicable laws, rules or regulations . Without limiting or diminishing
any other
obligations of Customer to Bank described in this section , Customer also agrees to fully cooperate with and assist Bank in any efforts
on the part
of Bank to recover from any third party or parties any losses incurred by Bank as a result of the execution of any Service transaction or activity.
19 . Notices and Communications .
(a) Subject to the following provisions of this section , all notices, demands, requests, or other communications which may be
or are required to be given , served , or sent pursuant to this Master Agreement or with respect to any Service shall be in
writing and shall be
7
delivered by personal or hand delivery, facsimile transmission , nationally recognized express overnight delivery service (with charges therefor
Prepaid ), or certified or registered mail , return receipt requested (with postage therefor prepaid) . Notices shall be deemed received upon
receipt,
if hand or personally delivered , the next business day after the notice has been transmitted by facsimile or deposited with a nationally recognized
express overnight delivery service, or the third business day after the notice has been deposited with the United States Postal Service. Bank
may
transmit notices to such physical address , mailing address , or facsimile number which Bank reasonably believes to be correct contact information
for Customer based upon any Customer records on file with Bank . Customer shall transmit notices to the Bank as follows :
Regions Bank
Commercial Client Services
250 Riverchase Parkway East
Birmingham, Alabama 35244
Fax (205) 560-5193 or (205 ) 560-5194
(b) Customer agrees that Bank may send notifications to Customer hereunder and/or with respect to any Service (including,
without limitation , change of terms notices and any information , disclosures , and/or notices relating to the Services) in electronic form,
either by
posting such information , disclosures, and notices at Bank ' s website at Regions .com or by transmitting them, or notice of the availability
thereof
at Bank ' s website, to any e-mail address that Customer has provided in connection with Customer ' s use of the Services . Customer
shall be
deemed to have received electronic notices or disclosures three (3 ) days after Bank posts them at Bank ' s website or transmits them,
or notice of
the availably thereof at the applicable website, to Customer ' s e-mail address , as applicable, whether or not Customer has retrieved them
by that
time. Customer agrees to frequently and regularly retrieve Customer' s e-mail and review posted messages and information at Bank ' s website
to
ensure that Customer is aware of current terms, conditions, and information relating to the Services . Bank reserves the tight at any
time , in Bank ' s
discretion , to mail to Customer ' s address that appears in Bank ' s records , or otherwise transmit to Customer pursuant to any
other method to
which Customer has agreed in connection with its Account, paper copies of any information , disclosures and/or notices relating to the Services
in
lieu of or in addition to electronic versions thereof.
(c) Except as otherwise expressly provided in any applicable Customer Profile or Service Schedule , Customer agrees that
Bank may transmit confidential information , including (without limitation) Security Devices, to the current mailing address shown in
Bank ' s
records for any of Customer' s Accounts, or to the e-mail address Customer has provided in connection with Customer' s use of the
applicable
Service, whether or not that address includes a designation for delivery to the attention of any particular individual . Customer further agrees
that
Bank shall not be responsible or liable to Customer in any way in the event that such properly addressed information
is intercepted by an
unauthorized person , either in transit or at Customer' s place of business .
(d) Customer agrees to keep its mailing address(es) and any applicable e-mail address(es) current and updated with Bank at all
times . In the event of notices sent to Customer via e-mail , Customer agrees that Bank is under no obligation to re-send , re-transmit,
or otherwise
deliver to Customer any Service notifications or information that Bank has transmitted to Customer ' s e-mail address and that has been
returned
"undeliverable " or otherwise rejected for delivery.
(e) In the event that Customer believes that any Security Procedures or Security Device has been stolen , compromised ,
or
otherwise become known to persons other than Authorized Users , or if Customer has revoked or limited the authority of any Authorized User,
or
if Customer believes that any Service transaction or activity is unauthorized or in error, Customer shall notify Bank immediately
by calling
1 - 800-787 -3905 .
( f) With respect to Service communications exchanged between Bank and Customer via e -mail or other electronic messaging,
Customer (i ) agrees that Bank has no obligation to monitor or investigate the use of Customer' s computer system or
the source of any
communication received from Customer bearing Customer' s e-mail address or other information that identifies the sender as Customer,
(ii )
releases Bank from any claim or liability arising from or in connection with any communications sent or received using e-mail or other electronic
messaging, and (iii ) agrees to indemnify and hold harmless Bank from all claims , losses , expenses or liability arising
in any way out of or
connected in any way with the use of e-mail or other electronic messaging for the communication of Service information between
Bank and
Customer. Customer acknowledges and agrees that no provision of this Master Agreement relating generally to communications between Bank
and Customer via e-mail or other electronic messaging shall displace or modify any specific requirement set forth in this Master
Agreement , in
any Customer Profile or Service Schedule, or in any other agreement or term between Customer and Bank that Customer communicate in writing
(and not electronically) or in any particular mode or fashion to Bank , and Customer agrees to observe and comply in any event
with ' any such
requirement in all applicable instances .
(g) The general provisions of this section are subject and subordinate to any specific provisions for the giving of notice under
particular circumstances or conditions as set forth elsewhere in this Master Agreement or in any applicable Customer Profile or Service Schedule
.
20 . Entire Agreement; Services Provided by Third Parties .
(a) Bank and Customer agree that the terms , conditions , and provisions of all applicable Customer Profiles , Service Schedules ,
and User Guides, together with the terms of that certain proposal for banking services (lockbox and purchasing card ), dated 8/10/2009 submitted
by Bank to Customer, are incorporated into this Master Agrecmertt and made a part hereof by reference . Tlmis Master Agreement, together
with
applicable Customer Profiles , Service Schedules , and User Guides , constitutes the current, sole and entire agreement between Customer and Bank
with respect to the Services . This Master Agreement supplements , but does not replace , other agreements , terms and conditions
governing
Customer ' s Accounts and/or any other services used by Customer in relation to Customer' s Accounts (including, without limitation , the
deposit
agreement governing Customer' s Accounts) . Such other agreements , tem-is and conditions remain in fell force and effect, and Bank
may apply
the provisions thereof to Customer' s use of the Services , as the context may require; provided , however, that in the event of a conflict
between
the terms of this Master Agreement and those of any other agreement, the express terms of this Master Agreement, or the terms of any Customer
Profile , Service Schedule or User Guide, as applicable, shall control with respect to the Services .
(b ) Customer acknowledges and agrees that Bank , in its sole and absolute discretion , may arrange for certain Services
, or
elements or features thereof or products relating thereto„ to be provided to Customer by one or more third parties that are unaffiliated with
Bank
("Third Party Service Providers") and that Customer may be required to enter into contracts directly with Third Party Service Providers in
order
to obtain such Services (" Third Party Service Agreements") . Customer acknowledges that Bank is not a party to any Third
Party Service
Agreement, except to the extent that Bank otherwise expressly agrees in writing, and Customer agrees that Bank assumes no responsibility
for,
and shall have no liability to Customer for, the performance , nonperformance, or negligent performance of any obligations under any Third Party
Service Agreement . Customer agrees to look solely to the Third Party Service Provider, and not to Bank, for the performance of any applicable
Third Party Service Agreement, for the enforcement of any rights or remedies thereunder, and for the delivery of the Service
contemplated
thereby. No breach or default by any Third Party Service Provider under any Third Party Service Agreement shall in any way relieve Customer
of Customer' s obligations to Bank under this Master Agreement or allow Customer to withhold the performance thereof. Customer
further
agrees to indemnify, defend , and hold harmless Bank from and against any and all liability, losses , or claims arising out of or in
any way related
to any breach or default on the part of Customer with respect to any Third Party Service Agreement. in the event of a conflict between the
terms
of this Master Agreement and those of any Third Party Service Agreement, the terms of the Third Party Service Agreement shall control
with
regard to the relationship between Customer and the Third Party Service Provider and the Third Party Service Provider' s provision of the Service
contemplated thereby. The provisions of this subsection are not intended to limit or affect any other terms , provisions , or
conditions of this
Master Agreement relating to Customer' s dealings or relationships with third parties in the course of using the Services contemplated
by this
Master Agreement .
21 . Amendments .
(a) Bank shall have the right to modify, amend , change , or supplement the terms of this Master Agreement, any Customer
Profile, and/or any Service Schedule (including the separate sections thereof) , and/or the fees , charges, and other terms and conditions applicable
to the Services , at any time and from time to time in Bank ' s discretion upon written or electronic notice to
Customer, including (without
limitation) by posting notice in Bank ' s manned offices where deposits are received , by including notice with or on Customer' s account statement,
or by posting notice on Bank ' s official web site at http ://www. regions .com or any subsequent official Bank web site . Customer
agrees that a
summary of any change in terms is sufficient notice. Any changes made by Bank shall be effective as of the time Bank determines , as
provided
in Bank ' s notice . Customer agrees that Bank may from time to time in its discretion add to, modify, and/or delete administrative and
operational
features and elements applicable to the use of the Services (including, without limitation , User Guides) and/or make any changes
that are in
Customer' s favor without notice to Customer. If Customer does not agree to any change or amendment, Customer must discontinue its use of the
Services . By using any Service after any such change or amendment, Customer agrees to that change or amendment.
(b) Customer may in no way alter, modify, amend , or supplement this Master Agreement, or any Customer Profile , Service
Schedule, or other document or agreement constituting a part of this Master Agreement, without Bank' s express written agreement and consent in
each instance . Customer acknowledges and agrees that no practice or course of dealing between Customer and Bank, nor any oral representations
or communications by Customer and/or any of Bank ' s agents, employees or representatives, which vary the terms and conditions of this Master
Agreement, or any applicable Customer Profile or Service Schedule , shall constitute a modification or amendment of the terms and conditions
thereof. Notwithstanding the foregoing, Customer may from time to time request Bank to change, add , or delete certain specifications , terms ,
set-
up instructions , or features of Services used by Customer by telephoning Bank, by electronic communication, or
by other means of
communication . Bank may make such changes , additions , or deletions in Bank ' s sole and absolute discretion without further action on the
part of
Customer and without execution of any additional documentation by and/or between Customer and Bank, and Customer agrees that Customer
shall be bound by any such changes , additions, or deletions made by Bank in reliance upon the instructions given by any Authorized User
or any
other person reasonably believed by Bank to be an authorized representative of Customer.
22 . Remedies ; Waiver. The rights , remedies , and recourse afforded to Bank with respect to the enforcement of this Master
Agreement,
whether arising in law or in equity, are cumulative and concurrent and may be exercised by Bank in such order and in such manner
as Bank may
determine in Bank ' s sole and absolute discretion . No delay or omission by Bank in exercising any right or remedy under this Master Agreement
or
applicable law shall impair such right or remedy or be construed as a waiver of any such right or remedy. Any single or partial exercise
of a right
or remedy shall not preclude further exercise of that right or remedy or the exercise of any other right or remedy. No waiver shall be valid
unless
in writing and signed by Bank. A waiver on any one occasion shall not be construed as a bar or waiver of any rights
or remedies on future
occasions . Where this Master Agreement or applicable law permits Bank to take action , or not to take action , in Bank ' s discretion on
any matter,
any action or inaction on Bank ' s part with respect to such matter shall not obligate Bank to repeat such action or inaction with
respect to similar
matters that may subsequently arise . Except as otherwise required by the express terms and provisions of this Master Agreement,
or any
applicable Customer Profile or Service Schedule, no notice to or demand on Customer in any case shall entitle Customer to any other or
further
notice or demand in similar or other circumstances .
23 . Assignment; Successors and Assigns . Customer may not assign or transfer this Master Agreement, or any of Customer
' s rights
hereunder, in whole or in part , whether voluntarily, involuntarily or by operation of law or otherwise , including (without. limitation)
by merger,
consolidation , dissolution , sale of a controlling interest or otherwise , without Bank ' s prior written acknowledgement and consent, which may
be
granted or withheld in Bank ' s absolute discretion . Any such assignment without Bank ' s prior written acknowledgement and consent
shall be
void and of no force or effect ; provided , that Bank shall have the right, at its option and discretion , to enforce any of Customer' s liabilities,
duties ,
and obligations hereunder against any purported assignee of Customer. Bank may assign this Master Agreement and/or any or all of
Bank ' s
rights hereunder, or delegate any or all of Bank ' s responsibilities or duties hereunder, to any third party or parties in
Bank ' s discretion and
without notice to Customer. Subject to the foregoing, this Master Agreement shall be binding on the parties hereto and
their respective
successors and assigns .
24 . WAIVER OF JURY TRIAL.
CUSTOMER AND BANK VOLUNTARILY, KNOWINGLY, AND INTENTIONALLY WAIVE
ANY RIGHT TO A JURY TRIAL WITH RESPECT 110 ANY DISPUTE OR CONTROVERSY RELATED
TO OR ARISING OUT OF THIS AGREEMENT, TO THE FULLEST EXTENT ALLOWED BY LAW.
EACH PARTY ACKNOWLEDGES THAT IT HAS RECEIVED THE ADVICE OF COMPETENT
COUNSEL WITH REGARD TO THE WAIVER OF THE RIGHT TO JURY TRIAL ,
25 . Goveming Law; Venue . This Master Agreement, and the rights, remedies, obligations, and liabilities arising hereunder, shall be
governed
by and construed in accordance with the laws of the State of Florida, without regard to its conflict of laws principles , and , where applicable, the
laws of
the United States. In the event of any judicial or other adversarial proceeding between the parties relating to or concerning this
Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys ' fees and other costs in addition to any other relief to which it may
be entitled .
26 . Survival . Customer ' s obligations and liabilities under or relating to this Master Agreement shall survive the termination of this Master
Agreement and/or the termination of any applicable Service for any reason .
27 . Severability. If a court of competent jurisdiction finds any provision of this Master Agreement to be invalid or unenforceable as to any
person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances . If feasible,
any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however,
if the offending
provision cannot be so modified, it shall be stricken and all other provisions of this Master Agreement in all other respects shall remain
valid and
enforceable, subject to the express terns and provisions of this Master Agreement.
28 . No Third Party Beneficiaries . Except as otherwise expressly provided by the terms of this Master Agreement, this Master Agreement
shall not be construed to confer any rights or remedies upon any person not a party to this Agreement, whether as a third party
beneficiary or
otherwise, against Customer or Bank, their respective successors , assigns, and/or affiliates .
29 . Construction . This Master Agreement is an agreement between parties who are experienced in sophisticated and complex matters
similar to the transactions and activity contemplated by this Master Agreement, is entered into by both parties in reliance upon the economic
and
legal bargains contemplated hereby, and shall be interpreted and construed in a fair and impartial manner Hithout regard to such
factors as the
party which prepared the instrument or drafted any provision thereof, the relative bargaining powers of the parties , or the domicile of
any party .
The captions and headings used in this Master Agreement are for convenience of reference only and shall not be used to limit the applicability
or
meaning of any provisions of this Master Agreement. All personal pronouns used in this Master Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders where the context so requires . The use of the singular form shall include the plural
, and
the use of the plural shall include the singular, where the context so requires .
IN WITNESS WHEREOF , the parties have executed this Agreement hereto as of the day and
year shown below . . .
IV P.. Ifsa � 1
Indian River County t E F4
BY :
_ CC
Chairman , Indian River County
Board of County Commissioners, ` . _ •, :"
T
_. Sr .,
Attest : b y "
for : J . K . BARTON
CLERK CIRCUIT COURT
REGIONS BANK
By : 2eo
Ryan . Santeufemi
Vice President
Attest :
APPROVED AS TO FORM
Ate ® ZELSUFIFICIEIV
9Y
GEOME A. LLPlP!
ASSISTANT COUNTY ATTORNEY
INDIAN RIVER COUNTY , FLORIDA EXHIBIT "A"
BANKING SERVICES PROPOSAL
Volume Analysis - Cost Proposal
Regions is only bidding on Lockbox Serivices (Wholesale and Retail ) . Volumes are adjusted based on
the anticipated volumes expected for each service . N/A indicates service not applicable.
Annual Per Total
Volume Item Annual
Totals Cost Cost
General Services
Deposits 528 See Lockbox Services
Disposable Night Bags 21100 N/A N/A
Items Paid 28 , 200 N/A N/A
Deposited Items-Charged Back 638 N/A N/A
Deposit Corrections 32 N/A N/A
Deposited Items - On Us 531556 0 . 05 21677 . 80
Deposited Items - Local 530556 0 . 05 21677 . 80
Deposited Items - Regional 53 , 556 0 . 06 31213 . 36
Deposited Items - Other Fed 53 , 556 0 . 06 3 ,213. 36
Currency Deposited 32 , 744 N/A N/A
Stop Payments 6 N/A N/A
ACH
Items Paid (All Elec W/D and ZBA Trsfr Out) 21924 N/A N/A
Deposits (All Elec Dep and ZBA Trsf In) 53022 N/A N/A
Per Item-Credit (Direct Deposit) 18744 N/A N/A
Per Item-Debit (Utilities AFT Payments) 66 , 110 N/A N/A
ACH Returns-Debit 286 N/A N/A
Per Transmission 102 N/A N/A
Per Rejected Debit 10 N/A N/A
ACH Returns Email 386 N/A N/A
Wire Transfers
Incoming Wire 182 N/A N/A
Outgoing Non-Repetitive 304 N/A N/A
Automatic Standing Wire 252 4 . 00 11008 . 00
Reconcilements
Full Recon - Per Output Item 24 , 294 N/A N/A
Full recon - Per Input Item 25 , 368 N/A N/A
Additional Services
Positive Pay - Per Account (2) N/A N/A
Cleared Check CDs (4 Accounts) N/A N/A
ACH Block Services N/A N/A
Internet Access to all Accounts - 10 Users (via iTreasury) 12 45 . 00 540. 00
Deposit Tickets - 3 Part 91000 N/A N/A
Deposit Tickets - 4 Part 1 , 000 N/A N/A
Disposable Night Bags 21500 N/A N/A
Cash Envelopes 11500 N /A N/A
Deposit Stamps (One Time Charge) 40 N/A N/A
Maintenance (Per Account) - Assumes 2 analyzed accts. 24 10 . 00 240 . 00
Other Service Fees not Listed ( please specify) :
FDIC Charge (non-interest bal . only - assumes $ 15 , 000 avg .) 12 2 . 85 34 . 20
Returned Deposited Items per item 5 . 00
Redeposits per item 5 . 00
Cash Deposited per $ 100 per $ 100 0 . 17
Account Analysis Report - On-Line 12 5 . 00 60 . 00
DDA Statement Report - On-Line 12 0 . 00 0 . 00
Total Services Cost Without Lockbox : $ 13 ,664.52
/ Z
INDIAN RIVER COUNTY, FLORIDA EXHIBIT "A"
BANKING SERVICES PROPOSAL
Volume Analysis - Cost Proposal
Regions is only bidding on Lockbox Serivices (Wholesale and Retail ) . Volumes are adjusted based on
the anticipated volumes expected for each service. N/A indicates service not applicable.
Annual Per Total
Volume Item Annual
Totals Cost Cost
Wholesale Lockbox
Per Unprocessable Item/Correspondence Handling` 51642 0 . 08 451 . 36
Standard Item Processed 6 , 582 0 . 30 11974 . 60
Deposits 256 0 . 20 51 .20
'Correspondence Imaged-typically not returned it imaged.
Wholesale Lockbox - Additional Required Fees
Wholesale Lockbox Set Up Fee 1 0 . 00 0 . 00
Wholesale Lockbox Monthly Maintenance 12 85 . 00 11020 . 00
Wholesale Lockbox Return Non-Processable Items (only if returned) 0 . 08
Wholesale Lockbox Imaging Set Up Fee 1 0. 00 0. 00
Wholesale Lockbox Imaging Monthly Maintenance 12 55 . 00 660. 00
Wholesale Lockbox Imaging per Check 6 , 582 0 . 05 329 . 10
Wholesale Lockbox Imaging per Document 51642 0 . 08 451 . 36
Wholesale Lockbox - Optional Services
Wholesale Lockbox Check Photocopy per Item 0 . 15
Wholesale Lockbox Re-Association per Item 0 . 15
Wholesale Lockbox Image CD/DVD 12 20 . 00 240 . 00
Wholesale Lockbox Data Capture per Field 0 . 10
Retail Lockbox
Std Pre-Screen < 1 OK Per Envelope 120 , 000 0 . 00 0 . 00
Std Pre-Screen 1 OK - 50K Per Envelope 92 ,498 0 . 00 0 . 00
Per Check - OCR Match < 1 OK 120 , 000 0 . 10 12 , 000 . 00
Per Check - OCR Match 10K - 50K 48 , 726 0 . 10 4 , 872 . 60
Per Check - OCR Non-Match < 1 OK 181552 0 . 12 21226 . 24
Per CPN- Multiple or ck only < 1 OK 20 , 396 0 . 12 21447 . 52
Per Deposit 256 0 . 20 51 . 20
Per Unprocessable ck or coupon" 41796 0 . 25 1 , 199 . 00
Per Return or Correspondence 21188 0 . 25 547 . 00
Stop Pay - Per Item Stopped 28 See Options Below
Per Data File Transmitted 256 5 . 00 1 , 280 . 00
'Anticipate this number decreasing as we process exception work.
Retail Lockbox - Additional Required Fees
Retail Lockbox Set Up Fee 1 0 . 00 0 . 00
Retail Lockbox Monthly Maintenace 12 85 . 00 11020 . 00
Retail Lockbox Overnight Package 256 Cost Cost
Postage Due Unknown Cost Cost
Retail Lockbox Return Package Preparation 256 0 . 00 0 . 00
Cash Received with Coupon per Item Unknown 0 . 50 Cost
Retail Lockbox Imaging Set Up Fee 1 0 . 00 0 . 00
Retail Lockbox Imagaing Monthly Maintenace 12 55 . 00 660 . 00
Retail Lockbox - Optional Services
Stop File - (File from County that Stops Payments from posting ) 12 100 . 00 11200 . 00
Retail Lockbox Image DVD 12 20 . 00 240 . 00
Image Archive per Item 0 . 005
Retail Lockbox Credit Card Payment per Item 0 . 30
Custom Programming per Hour (After Initial Set Up) Per Hour 175 . 00 As Needed
Total Lockbox Services - ( Includes Addl Required and Optional Services ) : $ 32,921 . 18
Total Services Cost With Lockbox : $46 , 585 .70
Monthly Equivalent: $3 ,882 .14
Regions requires that the County maintain a balance of $ 2,000 ,000 in our Public Funds Premier
Money Market account. This account is collateralized and has a tiered rate as follows :
Balances Rate
$21000 ,000 - $ 5 , 999 ,999 0.75%
$69000 ,000 - $ 10 ,9999999 1 .00%
$ 11 ,000 ,000 + 1 . 25%
13
EXHIBIT ` B "
BANKING SERVICES REQUIREMENTS
Does
Meets not Meet Explanation , Exception or
iN Requirements Requirement Requirement Additional Information
Minimum RequiremenLS:
I Bank is a "Qualified Public Depository" under the Florida /
Security for Public Deposits Act . ✓
2 Home office or full service branch is located in Indian River Viddlv� QN � 61� v�lG�
County . Listing and map of all branch locations in IndianV/ uvY�taS�✓J� dan
River County provided . P ��/ /
3 Financial statements for two previous fiscal years have been /
submitted .
4 Two of the most recent quarterly FDIC reports have been
submitted .
5 Ratings from an independent bank rating agency have been /
submitted .
General Requirement:
6 Bank is willing to offer partial services if it is determined by /
the RFP evaluation committee to be in the best interest of the ✓
County to split up the required services .
Account Structure:
7 Bank can meet the needs of the County in having a
COnee1lt1-ati0n and sweep account structure as noted in the
RFP .
lVire Trunsfers:
8 Bank can meet County ' s requirements for incoming and
outgoing wires . ✓
9 Wire transfer instructions can be stored for repetitive wires . V
10 Copy of Wire Transfer Agreement included .
ACH Transactions :
1 I Bank is a sending and receiving bank ofthe National A / nn
Automated Clearing House Association ( NACHA ) . 1A11A
12 ACH transactions can be initiated through online access . IV14
13 Bank has provided information on ACH procedures, including 1�
16
cutoff times and security measures . 411
Bank and ACCOZU7t Ancrlv.ris Statements:
14 All statements will provide information for an entire calendar /
month . V
15 Bank has the ability to allow customers to download
statements through online access .
Does
Meets not Noleet Explanation , Exception or
Requirement Requirement Additional Information
16 Bank has provided sample copies of bank and account analysis /
statements . V/
C'olleclion and Deposit Services:
17 Bank can provide same day credit of cutoff of 4 : 00pin . V
18 Bank has provided information on change order and deposit , // �1
processing . A
19 Bank can meet requirement of depositing twice an NSF check
before returning the item to the County . V
C'olloleralLation of Deposits and Overnight Investment Program :
20 Bank meets collateralization requirements for a qualified
Public depository as required under Chapter 280 of the Florida
Statutes .
21 Bank has provided investment rate calculation .
22 Bank will provided a separate investment rate calculation for // n
the Cafeteria and Blue Cross Blue Shield Accounts. IVIA
Reloil Lockbox:
23 Mailing address and physical location of the lockbox is in the /
state of Florida.
24 If a third party will be utilized by the bank for the retail
lockbox ; the ba„ k has provided all necessary information 1A11A
regarding that third party provider.
25 Bank can meet the processing requirements as set forth in the
RFP without exception .
26 Scanned images of all deposited items into the lockbox are
available .
27 Lockbox can handle change of address and payment by credit /
card . 1/
61'71olesale Lockbox:
28 Mailing address and physical location of the lockbox is in the /
state of Florida.
29 If a third party will be utilized by the bank for the wholesale
lockbox , the bank has provided all necessary information
regarding that third party provider. �1
30 Bank can meet the processing requirements as set forth in the /
RFP without exception . ✓
31 Scanned images of all deposited items into the lockbox are
availahle .
Does
N4ecls not 1icet Explanation , Exception or
Requirement Requirement Additional Information
Online Banking Services (Electronic Access) :
32 Wires may be processed through electronic access .
33 Images of cleared checks, deposits, and bank adjustments will
be available online . /V` //A
34 Same day transactions will be available to view online .
35 Information has been provided on the online site ' s security /
Features . V/
36 Information has been provided regarding support available and
the necessary training for the online access .
Account Reconciliation :
37 Full reconciliation services will be provided for the Accounts //�
Payable and Payroll accounts . IA
38 Positive Pay service will be provided for the Accounts Payable ,
and Payroll Accounts. A //n A
39 CD - Rom or electronic file of cleared checks for the Accounts /�
Payable , Payroll , and Johns Eastern accounts will be provided . MIA
40 File specifications have been provided for both positive pay //�
and the reconciliation services . /�/
A-lain Contact Person (s) :
41 All information regarding contacts for the bank have been /
provided .
Supplies and Specifrcalions :
42 MiCR specifications for checks have been provided . N/A
Overdraft Processing:
43 Daylight overdraft policy from the bank has been provided .
Stop Payment Services:
44 Stop payment services information has been provided . /✓/4
114isce &Meous:
45 Provided re ferences from two comparable public entities . ✓