2017-128 FIFTH THIRD BANK
Amendment to Master Treasury Management Agreement and Online Channel Access Agreement
Between
THE CITY OF CLERMONT AND
FIFTH THIRD BANK
This Amendment is entered into between Fifth Third Bank, hereinafter called "Bank", and the City of
Clermont, hereinafter called "City" and sets forth the terms and conditions pursuant to which Bank will
provide service the City the banking services as set forth in the Master Treasury Management
Agreement dated October 31, 2016 ("MTMA"), Online Channel Access Agreement dated November 28,
2016 ("OCAA"), Bank's response to the City's Banking RFP dated May 12, 2016"collectively,the
"Agreements").
1. In the case of any conflict between this agreement and the MTMA that cannot be reasonably
reconciled,the provisions of the MTMA shall prevail except that Section 8 of this agreement
controls over the governing law section of the MTMA and OCAA. Bank and City will honor the
terms of this Contract for a five(5) year term beginning on October 1,2017,subject to annual
compliance and service evaluations for continuance into ensuing years. The parties further
agree that upon mutual consent the Agreements may be extended for two (2) additional years.
2. Bank prior written approval is required for any entities wishing to join in this Amendment or
these Agreements.
3. The City will have the option to either a) Maximize non-interest bearing balances to receive
Earnings Credit that mitigates all banking charges and earn interest 35bps on excess balances, or
b) Earn interest on all balances at the rate of 35 basis points and pay banking charges directly
from the City's account. Banking charges will be billed quarterly and based on the volume of
services utilized in accordance with the Pricing Statement attached to this agreement. Any
additional services added will increase the quarterly bill by that service's monthly fee as agreed
upon by the Bank and the City at the time of implementation. If option b) above is chosen, then
the Bank will automatically debit the City's account for service charges. In addition, the Bank
agrees to provide the City a one-time credit of$5,000.00 (five thousand)towards banking
charges.
4. On non-interest bearing balances,the City will receive a minimum earnings credit rate (ECR)of
forty five (45bps) basis points. Deposit Administration Fee (DAF)will be 7 basis points. This is a
flat rate. The Bank agrees to review the ECR on an annual basis to ensure the rate remains
competitive and if not competitive,the Bank will adjust upward.
5. This Amendment and its enforcement shall be governed by the laws of the State of Florida. This
agreement shall inure to the benefit of the Bank and its successors (whether by merger,
consolidation of otherwise)and assigns, and shall be binding upon the City and its
administrators, successors and assigns.
Updated version:August 2016
FIFTH THIRD BANK
6. If any provision or condition of this Amendment shall be held to be invalid or unenforceable by
any court, regulator or self-regulatory agency or body,such invalidity and unenforceability shall
apply only to that provision or condition. The validity of the remaining provisions shall not be
affected,and this Agreement shall be carried out as if such invalid or unenforceable provision or
condition were not contained herein.
7. Either party may terminate this Agreement and all subsequent obligations with respect to such
services upon one-hundred twenty(120)days prior written notice to the other party. No such
termination shall affect any obligations previously incurred by either party under this
Agreement.
S14 t9C14
Executed this day of • , 2017
Fifth Third Bank (North Florida) , - Q Witnesses '41
By: ditiAZt • X"N.�«La�••G�/I"" t�G1
Dauri A.Sandison
Treasury Management Sales Officer
Vice President
City of Clermo , Florida Witn sses
By: /L /
Name: -4 L. Pi tGk{ f. 14bWC
Title: VC\NA -
Updated version:August 2016
FIFTH THIRD BANK Exhibit A Banking RFP Pricing
43pdated vecsion:August 2.016
SECTION — K
FEE SCHEDULE
Listed below is a summary of the average monthly volumes for the various types of
services currently being utilized by the City. Volumes are estimates and not guaranteed
as minimums or maximums. Based on the information contained in this proposal, provide
unit charges for the new services. The respondent shall use this format, adding any other
service fees that will be charged. In addition, respondents are requested to provide the
information below electronically (Excel format is preferred) to the City. Fees not included
on the following table should be included at the bottom of each section as applicable.
OPTION: 45BPS AND .07 DAF WITH $5,000 RETENTION BONUS
Description AFP Current Unit Price Monthly Cost
Code Volume
Standard Services
DISB CHECKS PAID 15 01 00 269 .0550 $14.80
ELECTRONIC DEBITS 15 01 00 45 .0550 $2.48
TRANSACTIONS
COMPOSITE GROUP 01 99 99 1 .0000 $0.00
CHK RETURNED ITEM OR
CHARGEBACK 10 04 00 17 1.5000 $25.50
DISB CHECK PAID MICR 15 03 00 1 .3550 $0.36
REJECT & REPAID
PAPER ANALYSIS 01 04 11 6 4.0000 $24.00
STATEMENT FEE
MONTHLY MAINTENANCE 01 00 00 5 $5.0000 $25.00
PAPER ACCOUNT 01 03 10 5 $5.0000 $25.00
STATEMENT FEE
CHK PAPER CHECK ADMIN 10 10 30 3,126 $0.0000 $0.00
FEE
WIRE INCOMING 35 03 00 4 $6.3000 $25.20
STRUCTURED
SECTION — K
FEE SCHEDULE
RFP No: 16-034
DEPOSIT ADMINISTRATION 00 02 30 43,657,000 .0700
FEE
NEGATIVE COLLECTED FEE 00 02 30 0 .180000 $0.00
ZBA PARENT ACCOUNT 01 00 20 1 15.0000 $15.00
ZBA SUB-ACCOUNT 01 02 21 3 10.0000 $30.00
ZBA NOTIONAL BALANCE 01 99 99 2 .0000 $0.00
STATEMENT
ZBA MULTI-TIER 01 00 21 1 40.0000 $40.00
ACH Processing
ACH CREDIT RECEIVED 25 02 01 220 .0550 $12.10
ACH DEBIT RECEIVED 25 02 00 31 .1900 $5.89
ACH ADDENDA RECEIVED 25 02 02 174 .0850 $14.79
ACH POSITIVE PAY FILTER 25 10 50 3 .0500 $0.15
ACH POSITIVE PAY 25 10 50 4 .0000 $0.00
MO MAINT
ACH POSITIVE PAY 25 99 99 17 .0500 $0.85
PAID ITEM
ACH RETURNED 25 03 02 8 3.5000 $28.00
TRANSACTION
ACH NOTIFICATION OF 25 03 02 6 3.5000 $21.00
CHANGE
ACH DIRECT SEND 25 00 00 2 30.0000 $60.00
MONTHLY MAINT
ACH DIRECT SEND 25 01 01 848 .1500 $127.20
ORIGINATED CR
SECTION - K
FEE SCHEDULE
RFP No: 16-034
ACH DIRECT SEND 25 01 01 3,474 .1500 $521 .10
ORIGINATED DR
ACH DIRECT SEND FILE 25 01 01 7 .3000 $2.10
PROCESS
ACH ONLINE MONTHLY FEE 99 99 99 1 25.0000 $25.00
ACH RETURN/NOC RPT VIA 25 04 00 3 15.0000 $45.00
WEB
Deposit Processing
COMMERCIAL DEPOSITS 01 01 01 2 .2000 $0.40
CHK ENCODED ITEMS 10 02 1Z 3,126 .0505 $157.86
DEPOSITED
CASH VLT NTWK MONTHLY 10 01 53 2 .0000 $0.00
BASE CHARGE
CASH VLT NTWK DEPOSIT 10 01 02 2 3.0500 $6.10
CASH VLT NTWK DEPOSIT 10 01 01 2 .8450 $1.69
COIN LOOSE
CASH VLT NTWK DEPOSIT 10 01 48 75 .0012 $0.09
CURRENCY
Electronic Deposit— EDM Standard
EDM MONTHLY
SERVICE FEE 99 99 99 7 25.0000 $175.00
EDM DEPOSIT 99 99 99 137 .7000 $95.90
EDM BEFORE 4:00 PM EST 99 99 99 2,177 .0500 $108.85
EDM AFTER 4:00 PM EST 99 99 99 3,499 .0650 $227.44
EDM ON-US CLEARING 99 99 99 95 .0000 $0.00
SECTION — K
FEE SCHEDULE
RFP No: 16-034
EDM IMAGE EXCHANGE
CLEARING 99 99 99 5,494 .0000 $0.00
Electronic Deposit— Scanner
EDM MEDIUM VOLUME 99 99 99 1 .0000 $0.00
SCANNER MONTHLY
Disbursements — ARP / Positive Pay
ARP MONTHLY BASE 20 01 10 2 .0000 $0.00
CHARGE
ARP CHECKS PAID 20 01 00 269 .0600 $16.14
ARP CHECKS ISSUED 20 01 10 245 .0450 $11.03
ARP PAID ITEM 20 03 01 269 .0152 $4.09
TRANSMISSION
POSITIVE PAY MONTHLY 15 00 30 2 25.0000 $50.00
BASE CHARGE
BANK MAINTAIN POS PAY 15 07 24 1 .0384 $0.04
EXCPTN
ARP RETURN ITEM 20 99 99 1 16.2500 $16.25
Disbursements — Check Block
CHECK BLOCK MONTHLY 20 99 99 1 10.0000 $10.00
BASE FEE
Disbursements — Check Clearing / Returns Standard
PAPER REPRESENTMENT 10 04 02 9 .0000 $0.00
RETURNED ITEM SPECIAL 10 04 15 2 1.5000 $1.50
INSTRUCTIONS
SECTION — K
FEE SCHEDULE
RFP No: 16-034
RETURNS MGMT MODULE 10 04 16 2 20.0000 $40.00
RETURNS ITEMS PER IMAGE 10 01 16 34 .0000 $0.00
Disbursements - Image Services / Paid Check Imaging
CHECK IMAGING PER 15 13 53 3 .0000 $0.00
ACCOUNT
CHECK IMAGING PER ITEM 15 13 51 279 .0000 $0.00
ONLINE IMAGE RETRIEVAL 15 13 55 3 .0000 $0.00
BASE
ONLINE RETRIEVAL PER 15 13 52 3 .0000 $0.00
IMAGE
Information Reporting AMP - Prior Day Reporting
ONLINE STOP
PAYMENT PER 15 04 20 3 6.0000 $18.00
ITEM
Information Reporting AMP - Portal / Standard
ONLINE WIRE MODULE 35 06 10 1 8.0000 $8.00
ONLINE ACH MODULE 25 11 00 1 20.0000 $20.00
Information Reporting AMP - Portal / Prior Day
ONLINE PRIOR DAY BASE 40 00 52 1 50.0000 $50.00
ONLINE PRIOR DAY ACCOUNT 40 02 72 5 .0000 $0.00
ONLINE PRIOR DAY DETAIL 40 02 72 806 .0900 $72.54
SECTION - K
FEE SCHEDULE
RFP No: 16-034
ONLINE STOP 15 04 20 1 .0000 $0.00
PAYMENT BASE FEE
Information Reporting AMP — Portal / Intra Day
ONLINE INTRADAY BASE 40 00 55 1 .0000 $0.00
ONLINE INTRADAY PER 40 00 55 4 .0000 $0.00
ACCOUNT
ONLINE INTRA DAY DETAIL 40 02 74 329 .0900 $29.61
Remote Currency Manager— RCM 1000
CPS 1000 RENTAL 10 01 41 1 52.0000 $52.00
Remote Currency Manager— Recycler
CPS 1000 EVERY OTHER
WEEK— T 10 01 41 1 251.0000 $251.00
Remote Currency Manager— Standard
RCM STD MON BASE FEE 10 01 41 1 201.0000 $201.00
1DAY
Retail Lockbox — Standard
RLBX MONTHLY 05 00 10 1 160.7500 $160.75
MAINTENANCE
RBLX TRANSMISSION 05 04 01 7 8.5000 $59.50
Retail Lockbox — EDM
RFP No. 16-034
SECTION - K
FEE SCHEDULE
RLBX EDM ITEMS
PROCESSED 05 02 00 3,243 .1500 $486.45
TOTAL MONTHLY TREASURY FEES _ $3,243.83
ADDITIONAL RECOMMENDATIONS
ACH TRANS CONTROL MTHLY 99 99 99 15.0000
BASE
TRANSACTION VIEW INQUIRY 99 99 99 1.0000
RETURN ITEM IMAGE 99 99 99 18.75000
TRANSMISSION
RLBX LONG PER IMAGE 05 50 15 .0157
RLBX LONG TERM STORAGE 99 99 99 .0157
10 YEAR ARCHIVE
EARNINGS CREDIT 45BPS 45 BPS
DEPOSIT ADMINISTRATION
FEE .0700
PARTNERSHIP RETENTION $5,000
BONUS
RFP No: 16-034
END OF SECTION K
T
' ..°Nlimurniumirrn...""mm.'----
FIFTH THIRD BANK
ONLINE CHANNEL ACCESS AGREEMENT
This Online Channel Access Agreement("Agreement") is between "Channel Services"means,collectively,the Access Channels
the undersigned"Customer"and Fifth Third Bank("we"or"us")and and the services,functionality,content and features available
is effective as of the date set forth on the Signature Page. for use with or through the Access Channels as more
particularly set forth in this Agreement and the applicable
1. Channel Services Channel Service Schedule or Bank Agreement (but not
including the Bank Services themselves).
1.1 Definitions. As used in this Agreement,the
following terms have the indicated meanings: "Credentials" means the user name, passwords and other
identifying and authentication inputs and/or procedures that
the Mobile the Channel Administrator and Users use or apply in order to
Access Channels" means Fifth Third Direct,
access the Channel Services.
Apps and other websites or portals,and direct access we make
available to our commercial,business and financial institution "Mobile Apps" means the applications or "apps" we make
customers. Our Access Channels do not include portals or available and authorize for downloading by Customer and
other means of access that may be provided by or available Users on Mobile Devices.
through a third party and clearly marked as such.
"Security Procedures" means use of Credentials, call back
"Affiliate"means,with respect to Customer,any entity that is protocols,tokens,software and other systems or procedures to
directly or indirectly controlled by the Customer indicated on verify the authenticity of the use of a Channel Service.
the Signature Page through ownership of at least a majority of
the equity interests of,or voting control over such entity. "Related Account"means a demand deposit,savings, lease,
loan,commercial card,transaction or investment account with
"Bank Agreements" means each of the separate written Fifth Third Bank or other provider of the applicable Bank
agreements,account documentation,notes,related agreements Service in Customer's name or to which Customer or any of
and other documents and instruments in effect between its subsidiaries or affiliates has been granted access by express
Customer and us or one of our affiliates by which we or our authority of the account owner that has been authorized by
affiliate provides and which govern the applicable Bank Customer for access through a Channel Service.
Service.
"Bank Services" means and includes our treasury "Users" means personnel, or sets or types of personnel
including the Channel Administrator, whose right to use the
management,currency processing,equipment finance,credit, Channel Service have been established in accordance with a
letters of credit and documentation, commercial card, Channel Service Schedule or this Agreement.
correspondent banking, capital markets, wealth management
and other services and products we or one of our affiliates "User Rights" means the entitlements and other rights
provide to our business and commercial customers that can be provisioned by the Channel Administrator or us to a User,
accessed through the Channel Services. subject to any restrictions imposed by the Channel
Administrator or us (including rights to certain types of
"Channel Service Schedule"means a schedule or addendum Channel Services,dollar amount,account and transaction type
executed by us and Customer that expressly refers to or limitations, Channel Services and approval processes) with
incorporates this Agreement and sets forth the features, respect to some,all or a defined set of the Channel Services.
functionality and other aspects of the Channel Service
available to Customer for a particular Bank Service. 1.2 Description. Our Channel Services enable
"Channel Administrator" means (a) the individual or access to,and online management of,the Bank Services we and
other subsidiaries of Fifth Third Bancorp provide,all as further
individuals initially appointed by Customer as Administrator described in this Agreement.This Agreement,together with the
for the Channel Service and so provisioned by us in the set up applicable Channel Service Schedule and applicable provisions of
and implementation process, (b) individuals appointed by the Bank Agreement relating to the use of the Channel Services,if
Customer to replace a Channel Administrator pursuant to any,govern Customer's use of our Access Channels and Channel
change forms we require,and(c)each person appointed as a Services.
Channel Administrator for one or more Bank Services or
functions within a Bank Service or Channel Service by an
existing Channel Administrator through the Channel 1.3 Bank Services. Each of the Bank Services
Services,each of whom shall have the authority of a Channel is governed by the applicable Bank Agreement. Nothing in this
Administrator as set forth in this Agreement. Agreement expands, changes, limits or restricts any of the
respective obligations or rights of the parties under the applicable
"Channel Documentation"means the online or text manual Bank Agreement. It is the intention of the parties that this
and user guides we provide to Customer that contain technical Agreement (together with the applicable Channel Service
specifications, instructions and guides for using a Channel Schedule or Channel Services provisions of the applicable Bank
Service. Agreement) and each Bank Agreement be construed and
September 2016
interpreted to give effect to the respective provision of each to the 2.5 Restrictions. Customer agrees that it will
greatest extent practical. In the case of any conflict between this not, and will not allow its employees, contractors, agents or
Agreement and a Bank Agreement that cannot be reconciled,the vendors to,directly or indirectly: (a)decompile,reverse engineer,
provisions of the Bank Agreement control to the extent necessary disassemble or otherwise attempt to derive source code or trade
to resolve the conflict. In the case of an irreconcilable conflict secrets relating to the Channel Services;(b)copy(except in the
between any provision of a Channel Service Schedule and this case of normal backups and archival copies), reproduce, or
Agreement,the provisions of this Agreement shall control to the incorporate any portion of the Channel Services, or seek to
extent necessary to resolve the conflict. If Fifth Third Bank is not circumvent any restrictions or measures controlling access to the
a party to the Bank Agreement, Customer acknowledges and Channel Services;(c)license,lease,encumber,distribute,resell,
agrees that Fifth Third Bank is providing the Channel Services in or otherwise transfer,co-brand,frame,or link any portion of the
conjunction with the provider of the Bank Services under that Channel Services; or (d) adapt, modify, transform or create
Bank Agreement and consents to all access to the Bank Services derivative works of,any aspect of the Channel Services(including
provided through this Agreement. the removal or alteration of any copyright, trademark or
proprietary rights notice).
1.4 Use and Enhancements. Use of an Access
Channel is subject to the terms of use, if any, disclosed to 3. Channel Administration
Customer through the applicable portal or Channel Service. We
reserve the right to add Channel Services, enhance the 3.1 Channel Administrator. Our Channel
functionality and features of the Channel Services and extend the Services include administrative features for the management of the
application of the Channel Services to other Bank Services at any Channel Services. The administrative features are controlled and
time without notice. We also reserve the right to materially managed for Customer by a Channel Administrator. The Channel
change the functionality of the Channel Services but will provide Administrator has broad authority to manage the Channel Services
at least thirty(30)days'notice to affected Customers before doing including the authority and responsibility to appoint additional
so. Channel Administrators with the Channel Administrator authority
for one or more Bank Services, each of which Channel
2. Process Administrator has the authority to:
2.1 Set Un and Implementation. Customer may • select and configure features and Channel
elect to enable Channel Services for one or more Bank Services Services for Customer's specific requirements;
through the corresponding Bank Agreement or Channel Service
Schedule. In the set up process for a new or added Channel • designate and delete Users, and assign and
Service, we require that Customer provide us with information administer User Rights (except where Bank
necessary to establish the Channel Service and establish the specifically reserves this right to itself in a
authority of the Customer representatives executing this Channel Schedule or Bank Agreement);
Agreement and the Channel Schedule, and providing set up • select and administer Security Procedures and
information to us.We will rely on the information provided to us User controls related to the Channel Services;
by Customer in this process in establishing and providing the •
Channel Services to Customer. Any changes by Customer to the enable use of Mobile Apps for Users for
information provided to us must be made in writing. certain Bank Services;
• accept and act on all communications from us
2.2 Limited Use. We grant Customer, for regarding the Channel Services; and,
Customer's intemal business purposes solely in connection with a • designate itself as a User with rights to the
Bank Service, a non-exclusive, non-transferable, limited and Channel Services for some or all of the linked
revocable right to use and access the Channel Services. Customer Bank Services.
agrees to use the Channel Services only in connection with the
Bank Services for legitimate business purposes and only in Customer understands that Customer may, at its option, enable
accordance and compliance with Applicable Law (as defined multiple or separate Channel Administrators for each Bank Service.
below). We provide the Channel Services for the sole and If Customer has included Affiliates (as defined below) under this
exclusive benefit of Customer and Customer's Affiliates (as Agreement, Customer may designate separate Channel
defined below)who become a party to this Agreement. Customer Administrators for each Affiliate and the Affiliate's Bank Services or
agrees not to access or allow Users to access the Channel Services may have a common Channel Administrator for one or more
from any country where such use or access is prohibited by United Affiliates. The Channel Administrators(set up by us on Customer's
States sanctions regulations, Applicable Law or local law. If instruction in the implementation process)may also have authority
access to any software is provided through the Channel Services, for Channel Services over all Affiliates.
Customer agrees not to download the software outside the United
States. 3.2 Authority.
2.3 Fees. Fees associated with the Channel (a) The Channel Administrator has complete
Services,if any,are specified in the applicable Channel Service authority to manage Customer's use of the
Schedule or Bank Agreement, or as separately agreed by the Channel Services including enabling rights to
parties in writing.Customer is,however,subject to fees,interest Channel Services and Bank Services. As part
and other charges as required under the applicable Bank of the set up and implementation process,we
Agreement. Customer and Users may be responsible for any will provide the Channel Administrator
intemet access or telecommunications charges they incur in designated by Customer with its initial sign-on
connection with the use of the Channel Services credentials and establish the Bank Services to
which he or she shall have access. The
2.4 Technical Requirements. Our Channel Channel Administrator must then establish its
Documentation includes the technical requirements for the use of own password.Customer is solely responsible
our Channel Services. for maintaining the privacy and security of the
1
2
Credentials once established and for any use of longer authorized, employed or engaged by Customer, Customer
the Channel Services and Bank Services is responsible for terminating that User's User Rights. We may
associated with those Credentials. suspend the Channel Services if we believe the security of the
Channel Services has been compromised.
(b) The Channel Services allow the Channel
Administrator to set transaction limitations, 4.4 Customer Responsibilities. In addition to
establish controls,develop templates, manage using and protecting the Security Procedures, it is Customer's
Credentials(other than User IDs provided by responsibility to: (a) institute and use current and reasonable
us) and utilize security features for the measures to mitigate the risks associated with the access to and
Channel Services. Failure to properly use of the Channel Services and Bank Services;(b)institute and
implement and manage limitations, controls, enforce effective policies and procedures to control the use of the
and security features increases the risks of,and Channel Services,and ensure that its personnel use the Channel
Customer's exposure to, unauthorized Services only as authorized and within the limits of their
transactions. permission or authority;and(c)carefully monitor the activities of
the Channel Administrator and Users using the Channel Services
(c) Customer will have the option to require for compliance with this Agreement and Customer's internal
"Dual Control Administration,"meaning that control policies and require Users to maintain the safety and
the approval of a second Channel confidentiality of their Credentials including by regularly
Administrator is required to verify the changing their passwords. In addition to taking these measures,
designation and authorization of a User. We Customer acknowledges that we offer certain tools designed to
recommend that Customer elect to require assist Customer in controlling the incidence of unauthorized use of
Dual Control Administration. We will rely on the Channel Services. To the extent Customer chooses not to use
the authority of the Channel Administrator and one of these tools or implement reasonable security measures on
Users designated by the Channel its own,and that tool or those measures could have prevented the
Administrator until we receive written notice fraud,unauthorized activity or loss,Customer will be deemed to
have assumed the risk of such fraud, unauthorized activity and
of a change from an authorized representative
of Customer and we have had a reasonable resulting losses and will be precluded from asserting that we are
opportunity to act on the notice. responsible for such fraud,unauthorized activity or loss.
3.3 Designation of Channel Administrator. In 4.5 Customer Systems.Customer is responsible
the implementation process,Customer will appoint on a form we for having and maintaining functioning hardware, software,
require a person or persons to serve as the initial Channel infrastructure,mobile and other communication devices, Internet
Administrator(s). Customer agrees to not permit the sharing of access and service and information technology systems including
Credentials or the use any Credentials except by the person reasonable and current security features and protections
authorized by Customer or the Channel Administrator. (collectively "Customer Systems") necessary for use with the
Access Channels and for meeting the technical specifications set
4. Security sad Security Procedures forth in the Channel Documentation.Customer is responsible any
malfunction, compromise, security breach or other misuse or
problems with the Customer Systems and for the information
4.1 Effect. Access to our Channel Services is transmitted and received through the Customer Systems.
subject to Security Procedures that we establish with Customer.
All use of the Channel Services through the Security Procedures 4.6 Additional Authentication.We have no duty
will be considered to have been authorized by Customer. The to monitor Customer's use of the Channel Services. We may,
Security Procedures are not designed to detect errors in any however, in our discretion, apply a variety of techniques and
communications to us or other use of the Channel Services. Use programs that may trigger a requirement for a User to respond to
of the Bank Services themselves may be subject to the same or an email or message from us to provide additional authentication
additional Security Procedures as required by the Bank Agreement before permitting certain actions of the User including a change in
or Channel Service Schedule. We may update our requirements User's profile and certain transactions. Users will not be able to
with respect to Credentials by giving Customer notice through the complete the desired actions until additional authentication is
applicable Users or Channel Administrator. provided. Customer is not entitled to rely on these programs or
techniques as a substitute for its own internal control of the
4.2 Authority. The Security Procedures are in activities of its Users.
addition to and do not limit,revoke or affect the authority of any
person(whether by course of dealing,under the Bank Agreement,
separate instrument or process, or otherwise)to use the Channel 5 Mobile Apps
Services, access the Bank Services and communicate with us in
Customer's name. 5.1 Description. Our Mobile Apps enable
access to certain Channel Services through the use of a supported
4.3 Safeguarding the Security Procedures. electronic wireless device,such as a smartphone or tablet device
Customer agrees to maintain the complete security and ("Mobile Device")that operates through a supported carrier and
provides Internet capability. Unless we provide Customer written
confidentiality of the Security Procedures and Credentials. notice to the contrary,no fees are assessed for use of our Mobile
Customer's failure to protect the confidentiality and integrity of Apps. Customer may,however,be subject to fees for use of the
the Security Procedures may enable an unauthorized person to use underlying Channel Services or Bank Services accessed through
the Channel Services and access Customer's accounts and data, Mobile Apps and may incur charges from its telecommunications
and transfer funds from those accounts. Customer must notify us carrier.We are not responsible for any such charges that Customer
as soon as reasonably possible if there has been a breach of its or Users may incur. Technical specifications and requirements
security,or any Security Procedure or Credentials have been lost, for the implementation and downloading of a Mobile App are
stolen, misused or compromised. Customer should contact its found in the Channel Documentation.
relationship manager, our customer support services or contact
person indicated in the Channel Documentation. If a User is no
3
5.2 fig. The Mobile App for Fifth Third 7.2 Intellectual Property. We and our
Direct is available to all Users.Other Mobile Apps may only be Processors(as defined below)or other third parties involved in
enabled in the set-up and implementation process. Customer providing the Channel Services (if any) own and exclusively
agrees that,where required,the acceptance by Users of software retain any and all patent, trademark, copyright or trade secret
and terms of use associated with the acquisition of a Mobile App rights(collectively referred to as"Intellectual Property Rights")
is authorized by Customer,and shall be binding upon Customer and any related rights associated with the Channel Services and
and each User. Customer consents to receiving electronic notices the software,design,functionality,processes,procedures,systems,
and disclosures to Customer or Users relating to the Mobile App know-how, inventions, sales materials, technical materials,
through the Mobile App.Customer authorizes us to transmit the Channel Documentation and other materials provided in
banking and other information available in an Notifications (as connection with the Channel Services as well as the content and
defined below)to Users via their Mobile Devices. other works of authorship provided, displayed or published in
connection with the Channel Services. Customer further
5.3 Precautions. The use of Mobile Apps acknowledges and agrees that we or our Processors or such other
presents unique risks in addition to those associated with the use third parties, as the case may be, shall exclusively own all
of the Internet generally. Those risks include the potential loss or Intellectual Property Rights in and to any and all improvements,
compromise of a Mobile Device with a Mobile App,the increased enhancements,derivative works,modifications,or developments
exposure to potential unauthorized access to communications and made to or resulting from any of the foregoing, including those
to malware and similar invasive software.Customer and the Users developed, worked on, learned, or conceived by us or our
assume all risks of using the Mobile Apps for mobile banking,and Processors in connection with providing the Channel Services to
are responsible for managing the use and security of the Mobile Customer, and Customer assigns any such rights to us or our
Devices to combat these and other risks associated with mobile designee. Customer's sole right is to use the Channel Services as
banking. provided in this Agreement.
6. Ekctronic(oinmunicadons 7.3 Availability. While we will use
commercially reasonable efforts to have our Channel Services
available at all times,one or more of our Channel Services may be
6.1 Consent. Customer agrees and consents
that we may,at our option,send to Customer any record,notice, maintenanceteainc unavailablerraddue to curorine or unscheduled
disclosure,account statements and other information via electronic or upgrades, or the occurrence of unauthorized
means (including through a Channel Service), including activity or other events or circumstances beyond our control
including economic and political events,periods of high volume,
information that we are required by law to provide to Customer in and system attacks and our response to such events or
writing. Electronic communications include commercially circumstances. We shall not be liable if a Channel Service is not
reasonable electronic communications methods we employ that available for use at any time.
deliver visual text or images to be displayed on a computer or
mobile device screen(such as e-mail,SMS or other mobile phone
text,and posting through a Channel Service). This is Customer's 7.4 Third Party Software. The Channel
consent to receive account statements and other notices from us Services may provide the opportunity to use or access software or
electronically. services that are not part of the Channel Services or Bank Services
("Third--Parry Software")but are provided by a third party other
than one of our Processors ("Third-Party Provider"). Use of
6.2 Digital Signature. Any authenticated
at
communication received from Customer via approved electronic Third-Party Software throughalinks . Customer
is solely le
means will serve as Customer's"digital signature"and may bind Customer's eleand risk and expense. Third-PartyiomPr s resProvider'sponsible
Customer to additional terms and conditions relating to the for obtaining and ofcomplying with the d
license or terms use. Except where we explicitly provide
Channel Services or Bank Services. Any communication otherwise in a Bank Agreement or Channel Service Schedule,we
Customer sends to us will not be effective until we actually do not endorse or assume any responsibility for any such Third-
receive it and have had a reasonable opportunity to act upon it. Party Software or for any obligation of the Third-Party Provider to
Customer. Customer agrees that the Third-Party Provider(and not
6.3 Instructions. Each direction, message or us)is solely liable and responsible to Customer for any problems
other instruction sent to us through the Channel Services by a User or claims with respect to the Third-Party Software including any
using the User's Credentials and applicable Security Procedures security or data breach.
will be treated by us as authorized and shall bind Customer.
Customer is responsible for the accuracy, completeness and 7.5 Linked Sites. The Channel Services may
timeliness of all such instructions sent through the Channel provide links or other availability on our website through an
Services Access Channel to the websites("Linked Sires")of independent
third-party service providers(other than our Processors)that are
7. Use of the Channel Services not part of the Channel Services or Bank Services("Linked Site
Providers").When Customer leaves the Access Channel to access
7.1 Account Information. The Channel or use a Linked Site,we are not responsible for Customer's use of
Services will enable Customer to obtain and manage account and the Linked Site. The Linked Site and any related content,services
transaction information for the Related Account. Information or products are solely the responsibility of the Linked Site
related to the applicable Related Account is provided "as is," Provider and we assume no responsibility for any Linked Site
changes frequently and is subject to updating, verification and even if cobranded. Customer's use of any Linked Site may be
correction. Information Customer obtains through a Channel subject to the terms of use for that Linked Site. Customer
Service is not the official record of the Related Account unless understands and agrees that we do not supply or control, and
otherwise specified. We assume no responsibility for Customer's agrees that we have no liability or responsibility for the content,
reliance on any Related Account or Bank Service information products and services or any other matter offered on a Linked Site
subsequently updated,verified or corrected. and that we make no promises or representations relating to any
Linked Site or its content,products or services. Customer agrees
that the Linked Site Provider (and not us) is solely liable and
responsible for any problems or claims with respect to the Linked
4
Site including any security or data breach. Consistent with our banking standards prevailing for the provision of online access for
Privacy Policy,we may share information with Linked Sites similarly situated financial institutions.
Since the Internet is inherently unsecure and since there is a risk 9.3 Limitations. Except as expressed elsewhere
that data communications and transfers through the Channel in this Agreement, we make no other representations or
Services may be subject to interruption, interception, failure. warranties,either express or implied,of any kind with respect to
unavailability, delay or unauthorized access or dissemination the Channel Services, including, without limitation, those of
("Failure Events"), we agree to take commercial)} reasonable merchantability and fitness for a particular purpose. No
steps to maintain the security of such data communications and descriptions or specifications constitute representations or
transfers, including using encryption and other industry warranties of any kind. We are acting as an independent
standard security features. Except where we fail to take such contractor in providing the Channel Service and not as Customer's
commercially reasonable steps, we shall not be liable for any agent or as a fiduciary.
Failure Events that occur,including any loss of privacy or data,
or use by others of such data communications or 10. Customer Representations and Warranties
transfers. Under no circumstances, shall we be liable for any
Failure Events that occur prior to Customer or the )'ser
establishing a secure connection to our authorized portal or after Customer represents and warrants to us that: (a)Customer is duly
proper) terminating that connection. organized,validly existing,and in good standing in the jurisdiction in
which Customer is organized,and is validly qualified in any other
8. Notifications jurisdiction where Customer does business and is required to be
qualified except where the failure to be so qualified would not have a
material adverse effect on Customer;(b)the execution,delivery and
8.1 Establishment. Users are required to accept performance by Customer of this Agreement and each Channel
certain administrative emails and text notifications and may elect Service Schedule has been authorized by all necessary entity and
to receive certain other email or text notifications relating to an governmental action; (c) the person or persons signing this
activity, status or action relating to their provisioned Channel Agreement and each Channel Service Schedule on Customer's behalf
Services including for additional authentication we may require is (are) duly authorized to do so; (d) this Agreement and each
(all such emails and texts, "Notifications"). The Notification Channel Service Schedule represents Customer's legal, valid and
feature is set up by each User and depends on the User specifying binding obligation; (e) the execution and performance of this
a valid and current email address or phone number. Customer Agreement and each Channel Service Schedule,and the use of the
consents to the sending of email and text notifications to Users Channel Services do not and will not violate in any material respect
and understands that such messages could result in charges to the any Applicable Law,Customer's entity governing documents,or any
Users or Customer for such messages from the carriers of such material agreement by which Customer is bound; and (f) each
messages. transaction Customer conducts,and each account Customer has with
us is conducted or maintained for a business or commercial purpose
8.2 Informational Use. Notifications are and not a personal,family or household purpose. Customer reaffirms
provided for Customer's and User's information and convenience these representations and warranties each time it executes a Channel
only. Notifications do not constitute a bank record and are not Service Schedule uses a Channel Service and agrees to promptly
intended as a substitute for proper account management or regular notify us if any representation or warranty made by Customer is no
use of our account management or other information related Bank longer true.
Services.
11. Confidentiality and Privacy
8.3 Delivery Risks. Notifications may be
delayed or prevented by a variety of circumstances beyond our 11.1 Customer. Subject to Customer's duties
control. We do not guarantee the delivery of any Notifications. under Applicable Law,Customer agrees to keep confidential and
Notifications are sent via the Internet or wireless networks without not disclose to any third party(other than its agents)our fees and
being encrypted or otherwise coded in any way. We will not be charges, terms of Service, User Guides, software, non-public
liable in any way for non-delivery,delayed or wrong delivery of Service features and other proprietary information and systems we
Notifications,the content in Notifications,or Customer's use of, or our Processors provide and disclose in connection with the
or reliance on,the absence of any Notification for any purpose. Services.Customer acknowledges the exclusive ownership by us
Replies to a Notification are not permitted and will not be read or or our Processors of such information, and agrees to use such
acted upon. information solely for purposes of using the Services.
9. Our Representations and Warranties 11.2 Bank. We acknowledge that non-public
information we obtain from Customer in connection with
9.1 General. We represent and warrant to providing a Service to Customer may be confidential. We will
Customer that:(a)we are duly organized,validly existing,and in maintain the confidentiality of such information in accordance
good standing in the jurisdiction in which we are organized;(b) with our normal procedures for safeguarding customer
the execution,delivery and performance by us of this Agreement information and Applicable Law. Notwithstanding the foregoing,
has been authorized by all necessary corporate and governmental we may disclose Customer's information as provided in the Fifth
action;(c)the persons signing this Agreement on our behalf are Third Bank Privacy Policy for Commercial Customers available
duly authorized to do so;(d)this Agreement represents our legal, through an Access Channel.
valid and binding obligation; and (e) our execution and
performance of this Agreement and our provision of the Channel 12. Compliance
Services do not and will not violate any Applicable Law, our
articles of association or bylaws or any material agreement by This Agreement and the use and provision of our Channel Services
which we are bound. are subject to all applicable state, federal, local and foreign laws,
rules,regulations and other laws including data security and privacy
9.2 Channel Services. We agree to provide the laws and regulations(collectively,"Applicable Law"). Each party
Channel Services in accordance with reasonable commercial agrees to comply with Applicable Law in using or providing the
5
Channel Services,as the case may be. Customer agrees to comply admission of liability or agreed to any senlement or other material
with the requirements of the Channel Documentation we provide for issue relating to such claim;(c)reasonably cooperates with us at
the Channel Services. our expense in the defense or settlement;and(d)at our request,
gives us sole control and authority over all aspects of the defense
13. Limitation of Liability or settlement of such claim.
CUSTOMER AGREES TO THE MAXIMUM EXTENT 15. Term and Termination
PERMITTED BY LAW THAT IN ADDITION TO ANY OTHER
LIMITATION ON OUR LIABILITY IN THIS AGREEMENT, 15.1 Tenn. This Agreement is effective as of the
ANY CHANNEL SERVICE SCHEDULE OR BANK date set forth on the Signature Page shall remain in effect until
AGREEMENT,IN NO EVENT WILL WE(OR OUR OFFICERS, terminated by either party as provided in this Agreement. This
DIRECTORS, SHAREHOLDERS, AFFILIATES, EMPLOYEES Agreement shall terminate with respect to a Channel Service or
OR AGENTS) BE LIABLE OR RESPONSIBLE FOR ANY Bank Agreement upon termination or expiration of the
CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, corresponding Channel Service Schedule or Bank Agreement.
SPECIAL OR SPECULATIVE LOSSES, EXPENSES, INJURY, This Agreement or any Channel Service Schedule may,however,
COSTS OR DAMAGES(INCLUDING,BUT NOT LIMITED TO, be terminated by either party with respect to one or more Bank
LOST PROFITS, REVENUE, SAVINGS, TIME, DATA, Services at any time by giving 30 days' prior written notice of
GOODWILL AND OPPORTUNITIES,ATTORNEYS'FEES,AND termination to the other party.
COURT AND OTHER DISPUTE RESOLUTION COSTS)THAT
CUSTOMER OR ANY OTHER PERSON MAY INCUR OR
SUFFER IN CONNECTION WITH THIS AGREEMENT OR ANY 15.2 Bank Termination. We may terminate this
CHANNEL SERVICE PROVIDED BY US,EVEN IF WE HAVE Agreement or terminate or suspend any or all of the Channel
BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS,COST Services immediately if(a) Customer has breached a material
OR DAMAGE AND REGARDLESS OF THE TYPE OF CLAIM. obligation under this Agreement or violated any Applicable Law
IN THE CASE OF ANY CONFLICT BETWEEN ANY in connection with the Channel Services; or (b) the continued
LIMITATIONS OF LIABILITY IN MIS AGREEMENT, A provision of any of the Channel Services in accordance with the
CHANNEL SERVICE SCHEDULE,OR A BANK AGREEMENT, terms of this Agreement would,in our good faith opinion,cause
THE BROADER LIMITATION SHALL CONTROL TO THE us to violate Applicable Law or any requirement, policy or
MAXIMUM EXTENT PERMITTED BY LAW. directive of any regulatory authority, or would subject us to an
unacceptable risk of loss or material security risk.
Customer further agrees,to the maximum extent permitted by law,
that our liability to Customer arising from any Channel Service will 15.3 Effect. Upon any termination of this
be limited to actual monetary damages that are the direct result of our Agreement,Customer shall: (a)securely destroy(or return to us if
failure to exercise reasonable care in providing the Channel Service. we so request)at Customer's expense all Channel Documentation
We shall not be responsible for any act or omission of Customer's and related materials, and all copies and reproductions thereof,
officers,employees or agents,or of any third party(other than our whether written or in magnetic media and whether received from
Processors and subcontractors),or for any failure to act by us if we us or otherwise;and(b)have no further right to make use of the
reasonably believed taking the omitted action would have violated Channel Services.
Applicable Law.Customer is also subject to any further limitations
of liability set forth in an applicable Channel Service Schedule or 15.4 Survival. Termination of the Channel
Bank Agreement Service or this Agreement does not relieve or release Customer or
us from any of our respective obligations that arose or became
14. Indemnification Obligations effective prior to such termination. In addition,all provisions of
this Agreement relating to the parties'warranties,representations,
14.1 Customer. To the fullest extent not confidentiality or non-disclosure obligations, proprietary rights,
prohibited by Applicable Law,Customer agrees to indemnify and limitation of liability and indemnification shall survive the
hold us and our officers, directors, employees, affiliates, termination of the Channel Services or this Agreement.
shareholders and agents harmless from and against any and all
losses,liabilities,damages,actions,claims and expenses including 16. Force Majeure
court costs and reasonable attorneys'fees and expenses("losses")
resulting directly or indirectly from,or arising in connection with: Neither party shall be responsible, and neither shall incur
(a) Customer's breach of any of Customer's agreements, any
liability to the other,for any failure,error,malfunction or any delay
representations,warranties or covenants in this Agreement or any
Channel Service Schedule;(b)Customer's violation of Applicable in carrying out any of its obligations under this Agreement directly
Law in connection with any Channel Service or this Agreement; resulting from causes beyond such party's reasonable control,
or(c)Customer's use of the Channel Services and our complyingincluding without limitation, fire, casualty, lockout strike,
unavoidable accident, failure of the Internet or telecommunications
with or carrying out any instruction or other direction given to usystems, act of God, act of terrorism, riot, war or the enactment,
in accordance with this Agreement or a Channel Service Schedule.
Customer is not,however,obligated to indemnify us or hold us issuance or operation of any adverse governmental law, ruling,
regulation,order or decree,or an emergency that prevents such party
harmless for any Loss directly resulting from our gross negligence
or willful misconduct. from operating normally.
17. Mutual Waiver of Jury Trial
14.2 Bank. To the fullest extent not prohibited
by Applicable Law,we agree to indemnify and defend or settle at
our own expense any action brought against Customer to the Each party agrees that any suit,action or proceeding,whether as part
of a claim or counterclaim,brought or instituted by either party on or
extent that it is based on a claim that a Channel Service as used by
with respect to this Agreement or the Channel Services or any event,
Customer in accordance with this Agreement directly infringes a
transaction or occurrence arising out of or in any way connected with
copyright,trademark or patent or constitutes misappropriation of a
third-party trade secret, provided, however, that Customer: (a) this Agreement or the Channel Services shall be tried only by a court
promptly notifies us in writing of such claim;(b)has not made any and not by a jury. EACH PARTY EXPRESSLY, KNOWINGLY
6
AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY Ohio,without regard to Ohio's conflict of law principles,and with
JURY IN ANY SUCH SUIT,ACTION OR PROCEEDING. applicable federal laws and regulations. Customer irrevocably
submits to the nonexclusive jurisdiction of the state and federal
18. Processors courts in Ohio and agrees that any legal action or proceeding with
respect to this Agreement may be commenced in such courts.
Customer acknowledges and agrees that we may arrange for certain
or all of the aspects of the Channel Services including software and 19.5 Notices. All notices and other
processing to be performed or provided by third-party processors communications by either party relating to this Agreement or the
expressly engaged by us ("Processors"). To the extent we have Channel Services shall be given promptly in writing or electronic
engaged a Processor, we are responsible for the aspects of the medium and shall be effective either on the date it is actually
Channel Service provided by such Processor. received or five (5) days after it is mailed, sent by courier,
transmitted or posted,whichever is earlier. The address to which
19, Miscellaneous all notices(other than notices given electronically as permitted in
this Agreement and notices to the Channel Administrator)
19.1 Entire Agreement. This Agreement concerning this Agreement or the Channel Services shall be sent
together with the applicable Channel Service Schedule and to Customer is that address we have in our records with respect to
Channel Services provisions of the Bank Agreement(if any) , this Agreement. The address for notice to us will be as we specify
applicable terms of use (if any) constitutes the complete and to Customer in writing.
exclusive statement of the agreement between the parties with
respect to the Channel Services and supersedes any prior or 19.6 Counterparts. The Agreement may be
contemporaneous agreements between the parties with respect to executed in counterparts, each of which shall be deemed an
such Channel Services. Nothing in this Agreement confers a right original and all of which shall constitute a single instrument.
or benefit on any person or entity other than us and Customer,
except for our Processors. If Customer and Bank are already 19.7 Severability. If performance of the Channel
subject to a Master Treasury Management Agreement or interne Services in accordance with the terms of this Agreement would
access agreement for Fifth Third Direct upon execution of this result in a violation of any Applicable Law or governmental policy
Agreement, the provisions of this Agreement supersede and to which we are subject, then this Agreement shall be deemed
replace in their entirety the provisions of such agreement relating amended to the degree necessary to comply with such Applicable
to the access and use of Fifth Third Direct or any other Channel Law,and we shall incur no liability to Customer as a result of such
Seryice. violation or amendment. If any provision of this Agreement is
held to be invalid,illegal or unenforceable,such provision shall be
19.2 Amendment. This Agreement and any valid,legal and enforceable to the maximum extent permitted by
Channel Service Schedule may be modified by a written such holding and the validity, legality, or enforceability of the
agreement executed and signed by the parties. We may,however, other provisions of this Agreement will not be affected or
modify this Agreement or any Channel Service Schedule by impaired by such holding.
giving Customer written notice or posting the modification on the
Access Channel; if Customer or a User uses or accesses the 19.8 Headings. Headings are for reference
applicable Channel Services after the expiration of thirty(30)days purposes only and are not part of this Agreement.
of the giving or posting of such notice(or a later effective date
specified in such notice or posting),Customer is bound by this 19.9 Waiver. No party's failure or delay in
Agreement and Channel Service Schedule as so modified. exercising any right or remedy under this Agreement will operate
Notwithstanding the foregoing, if a modification to this as a waiver of such right or remedy,nor shall any waiver by either
Agreement or any Service Schedule is required by or under party of any breach of the other party's obligations under this
Applicable Law or by a regulatory authority with jurisdiction over Agreement operate as a waiver of any prior,current or subsequent
us or is, in our good faith opinion, necessary to preserve or breach. No waiver will be effective unless made in writing.
enhance the security of the Channel Services,we may modify this
Agreement or Channel Service Schedule by giving Customer
notice of the modification by any means permitted by Applicable 19.10 Electronic Copies. The parties agree that
Law,and the modification will be effective immediately upon us this Agreement and Channel Service Schedules may be executed
giving such notice, and delivered by facsimile or electronic mail in PDF or similar
format and that the copies or counterpart signature pages so sent
shall be treated and have the same force and effect as delivery of
19.3 Assignment. Customer may not sell,assign an original with a manual signature. Our records as to the
or transfer any of its rights or obligations under this Agreement executed Agreement shall be controlling. We may, however,
without our prior written consent. We may assign our rights and require that Customer deliver an original of this Agreement with a
obligations under this Agreement in whole or in part without manual original signature.
Customer's consent (a) pursuant to, or in connection with any
merger,consolidation or amalgamation involving us or our parent
company,or the sale or transfer of all or substantially all of our 20. Affiliates
assets or stock, or (b) in connection with the sale or other
disposition involving a line of our business to which this 20.1 Joinder. By executing this Agreement,
Agreement relates. We will use reasonable efforts to notify Customer,each Affiliate of Customer listed on the Signature Page
Customer of any such assignment. Customer expressly reserves (if any),and we agree that each such Affiliate shall have all of the
its right to terminate any or all Services in the event of any such rights and obligations of, and shall for all purposes be a party
transaction. under this Agreement as, "Customer." Each Affiliate will be
deemed to make to us all representations and warranties of,and
19.4 Governing Law: Venue. This Agreement will be subject to and undertake all obligations as "Customer"
and any claims or disputes relating to or arising out of this under this Agreement. Additional Affiliates can be added through
Agreement or the Channel Services shall exclusively be governed an addendum to this Agreement in the form required by us and
by, and construed in accordance with, the laws of the State of executed by Customer,that Affiliate and us.
•
7
20.2 Representation. Customer represents and prompt payment and performance by each Affiliate of all •
warrants to us that each entity signing this Agreement as an obligations they or any of them may incur under this Agreement,
Affiliate meets the definition of Affiliate. including in any case that any payment to us by an Affiliate is set
aside, rescinded or otherwise required to be returned in any
20.3 Guarantee. The Customer first indicated on bankruptcy or similar proceeding.
the Signature Page unconditionally guarantees to us the full and
WITNESS,the parties have caused this Agreement to be executed by their respective duly authorized representatives.
CUSTOMER NAME: FIFTH THIRD BANK
G1T�I OF GLER 4oNT .t ffL.
Tax ID: 5`^ . " ► 2 ' D, ��` ,�
Print name: u~,, 4. `S'`Q,,c)i.tgal
By: ►` ', A , v/0
/� L S I�
Print title:
Print name: C-r�/ /' / r 7 —/ 7
Print title:
a ya r DATE:
NOTE: If required by resolution,second officer of Customer must (Second Bank Officer
sign below
By:
By:
Print name: X)/ / / XA70 0
Print name: //
Print title: VI C— — r[�., /r7e/`t 7--
Print title:
DATE: /0 —/7—/
Signing as a duly authorized officer or agent of each of the
Affiliates listed below:
By:
Print name:
Print title:
This Agreement includes the following Affiliates:
Affiliate Name: Tax ID No.:
TM Legal 09.2016
4314080.1
8
FIFTH THIRD BANK
Pricing Amendment
This Pricing Amendment ("Amendment") is an amendment to the Master Treasury Management
Agreement (the "Master Agreement") currently in effect between the "Customer" identified on
the Signature Page below ("you") and Fifth Third Bank ("we" or "us). All capitalized terms not
otherwise defined in this Pricing Amendment have the meaning provided in the Master
Agreement.
1. Account Fees. This Pricing Amendment establishes the Account Fees for the Services
we provide you pursuant to the Master Agreement or otherwise. The Fee Schedule attached to
this Amendment shall govern for the term commencing on the "Effective Date" specified below
and ending on the "Expiration Date" specified below. This Amendment is not valid unless the
Fee Schedule is attached at the time of signing this Amendment. On the day following the
Expiration Date, the Account Fees shall adjust to the then rates offered by us to customers with
similar credit and relationship characteristics unless you and we have otherwise expressly agreed
in writing.
2. Effect. This Amendment amends the Master Agreement solely for purposes of
establishing the Account Fees for you during the Term. All provisions of the Master Agreement
not inconsistent with this Amendment remain unchanged and in full force and effect, and are
ratified and confirmed. In the case of any conflict between the provisions in the Master
Agreement and this Amendment, the provisions of this Amendment shall prevail.
3. Miscellaneous. We represent and warrant to each other that this Amendment has been
authorized by all necessary corporate or other entity action, and that the person signing this
Amendment on our behalf is duly authorized to do so. This Amendment evidences the entire
agreement and understanding between us with respect to the subject matter of this Amendment
and supersedes all prior agreements and discussions between us with respect to that subject
matter.
EXECUTED THIS OGTVg>Ct l 2 7
Term of this Amendment: From Off- -r g 1, 20/7 ("Effective Date")to
S1err t-i;tett 30, 2bL2 ("Expiration Date")
FIFTH THIRD BANK CUSTOMER C17/ dfekr rnd
•
By: dao-4" By,
Print name: �c4". - %. •=x'', 11/..419".1 Print name: (;at/ AS I7
Print title: v P Print title: /"6 d r
190315.1
Fifth Third and Fifth Third Bank are registered service marks of Fifth Third Bancorp. Member FDIC
FEE SCHEDULE
(Attached)
This Amendment is NOT valid unless the Account Fee information is attached
TM Legal 11 2014
751928.2
190315.1
SECTION — K
FEE SCHEDULE
Listed below is a summary of the average monthly volumes for the various types of
services currently being utilized by the City. Volumes are estimates and not guaranteed
as minimums or maximums. Based on the information contained in this proposal, provide
unit charges for the new services. The respondent shall use this format, adding any other
service fees that will be charged. In addition, respondents are requested to provide the
information below electronically (Excel format is preferred) to the City. Fees not included
on the following table should be included at the bottom of each section as applicable.
OPTION: 45BPS AND .07 DAF WITH $5,000 RETENTION BONUS
Description AFP Current Unit Price Monthly Cost
Code Volume
Standard Services
DISB CHECKS PAID 15 01 00 269 .0550 $14.80
ELECTRONIC DEBITS 15 01 00 45 .0550 $2.48
TRANSACTIONS
COMPOSITE GROUP 01 99 99 1 .0000 $0.00
CHK RETURNED ITEM OR 10 04 00 17 1.5000 $25.50
CHARGEBACK
DISB CHECK PAID MICR 15 03 00 1 .3550 $0.36
REJECT & REPAID
PAPER ANALYSIS 01 04 11 6 4.0000 $24.00
STATEMENT FEE
MONTHLY MAINTENANCE 01 00 00 5 $5.0000 $25.00
PAPER ACCOUNT 01 03 10 5 $5.0000 $25.00
STATEMENT FEE
CHK PAPER CHECK ADMIN 10 10 30 3,126 $0.0000 $0.00
FEE
WIRE INCOMING 35 03 00 4 $6.3000 $25.20
STRUCTURED
SECTION — K
FEE SCHEDULE
RFP No: 16-034
DEPOSIT ADMINISTRATION 00 02 30 43,657,000 .0700
FEE
NEGATIVE COLLECTED FEE 00 02 30 0 .180000 $0.00
ZBA PARENT ACCOUNT 01 00 20 1 15.0000 $15.00
ZBA SUB-ACCOUNT 01 02 21 3 10.0000 $30.00
ZBA NOTIONAL BALANCE 01 99 99 2 .0000 $0.00
STATEMENT
ZBA MULTI-TIER 01 00 21 1 40.0000 $40.00
ACH Processing
ACH CREDIT RECEIVED 25 02 01 220 .0550 $12.10
ACH DEBIT RECEIVED 25 02 00 31 .1900 $5.89
ACH ADDENDA RECEIVED 25 02 02 174 .0850 $14.79
ACH POSITIVE PAY FILTER 25 10 50 3 .0500 $0.15
ACH POSITIVE PAY 25 10 50 4 .0000 $0.00
MO MAINT
ACH POSITIVE PAY 25 99 99 17 .0500 $0.85
PAID ITEM
ACH RETURNED 25 03 02 8 3.5000 $28.00
TRANSACTION
ACH NOTIFICATION OF 25 03 02 6 3.5000 $21.00
CHANGE
ACH DIRECT SEND 25 00 00 2 30.0000 $60.00
MONTHLY MAINT
ACH DIRECT SEND 25 01 01 848 .1500 $127.20
ORIGINATED CR
SECTION - K
FEE SCHEDULE
RFP No: 16-034
ACH DIRECT SEND 25 01 01 3,474 .1500 $521.10
ORIGINATED DR
ACH DIRECT SEND FILE 25 01 01 7 .3000 $2.10
PROCESS
ACH ONLINE MONTHLY FEE 99 99 99 1 25.0000 $25.00
ACH RETURN/NOC RPT VIA 25 04 00 3 15.0000 $45.00
WEB
Deposit Processing
COMMERCIAL DEPOSITS 01 01 01 2 .2000 $0.40
CHK ENCODED ITEMS
DEPOSITED 10 02 1Z 3,126 .0505 $157.86
CASH VLT NTWK MONTHLY 10 01 53 2 .0000 $0.00
BASE CHARGE
CASH VLT NTWK DEPOSIT 10 01 02 2 3.0500 $6.10
CASH VLT NTWK DEPOSIT 10 01 01 2 .8450 $1.69
COIN LOOSE
CASH VLT NTWK DEPOSIT 10 01 48 75 .0012 $0.09
CURRENCY
Electronic Deposit— EDM Standard
EDM MONTHLY 99 99 99 7 25.0000 $175.00
SERVICE FEE
EDM DEPOSIT 99 99 99 137 .7000 $95.90
EDM BEFORE 4:00 PM EST 99 99 99 2,177 .0500 $108.85
EDM AFTER 4:00 PM EST 99 99 99 3,499 .0650 $227.44
EDM ON-US CLEARING 99 99 99 95 .0000 $0.00
SECTION — K
FEE SCHEDULE
RFP No: 16-034
EDM IMAGE EXCHANGE
CLEARING 99 99 99 5,494 .0000 $0.00
Electronic Deposit— Scanner
EDM MEDIUM VOLUME 99 99 99 1 .0000 $0.00
SCANNER MONTHLY
Disbursements — ARP / Positive Pay
ARP MONTHLY BASE 20 01 10 2 .0000 $0.00
CHARGE
ARP CHECKS PAID 20 01 00 269 .0600 $16.14
ARP CHECKS ISSUED 20 01 10 245 .0450 $11.03
ARP PAID ITEM 20 03 01 269 .0152 $4.09
TRANSMISSION
POSITIVE PAY MONTHLY 15 00 30 2 25.0000 $50.00
BASE CHARGE
BANK MAINTAIN POS PAY 15 07 24 1 .0384 $0.04
EXCPTN
ARP RETURN ITEM 20 99 99 1 16.2500 $16.25
Disbursements — Check Block
CHECK BLOCK MONTHLY 20 99 99 1 10.0000 $10.00
BASE FEE
Disbursements — Check Clearing / Returns Standard
PAPER REPRESENTMENT 10 04 02 9 .0000 $0.00
RETURNED ITEM SPECIAL 10 04 15 2 1.5000 $1.50
INSTRUCTIONS
SECTION — K
FEE SCHEDULE
RFP No: 16-034
RETURNS MGMT MODULE 10 04 16 2 20.0000 $40.00
RETURNS ITEMS PER IMAGE 10 01 16 34 .0000 $0.00
Disbursements — Image Services / Paid Check Imaging
CHECK IMAGING PER 15 13 53 3 .0000 $0.00
ACCOUNT
CHECK IMAGING PER ITEM 15 13 51 279 .0000 $0.00
ONLINE IMAGE RETRIEVAL 15 13 55 3 .0000 $0.00
BASE
ONLINE RETRIEVAL PER 15 13 52 3 .0000 $0.00
IMAGE
Information Reporting AMP — Prior Day Reporting
ONLINE STOP
PAYMENT PER 15 04 20 3 6.0000 $18.00
ITEM
Information Reporting AMP — Portal / Standard
ONLINE WIRE MODULE 35 06 10 1 8.0000 $8.00
ONLINE ACH MODULE 25 11 00 1 20.0000 $20.00
Information Reporting AMP — Portal / Prior Day
ONLINE PRIOR DAY BASE 40 00 52 1 50.0000 $50.00
ONLINE PRIOR DAY ACCOUNT 40 02 72 5 .0000 $0.00
ONLINE PRIOR DAY DETAIL 40 02 72 806 .0900 $72.54
SECTION — K
FEE SCHEDULE
RFP No. 16-034
ONLINE STOP 15 04 20 1 .0000 $0.00
PAYMENT BASE FEE
Information Reporting AMP — Portal / Intra Day
ONLINE INTRADAY BASE 40 00 55 1 .0000 $0.00
ONLINE INTRADAY PER 40 00 55 4 .0000 $0.00
ACCOUNT
ONLINE INTRA DAY DETAIL 40 02 74 329 .0900 $29.61
Remote Currency Manager— RCM 1000
CPS 1000 RENTAL 10 01 41 1 52.0000 $52.00
Remote Currency Manager— Recycler
CPS 1000 EVERY OTHER 10 01 41 1 251.0000 $251 .00
WEEK — T
Remote Currency Manager— Standard
RCM STD MON BASE FEE 10 01 41 1 201.0000 $201.00
1DAY
Retail Lockbox — Standard
RLBX MONTHLY
MAINTENANCE 05 00 10 1 160.7500 $160.75
RBLX TRANSMISSION 05 04 01 7 8.5000 $59.50
Retail Lockbox — EDM
RFP No: 16-034
SECTION - K
FEE SCHEDULE
RLBX EDM ITEMS
PROCESSED 05 02 00 3,243 .1500 $486.45
TOTAL MONTHLY TREASURY FEES $3,243.83
ADDITIONAL RECOMMENDATIONS
ACH TRANS CONTROL MTHLY 99 99 99 15.0000
BASE
TRANSACTION VIEW INQUIRY 99 99 99 1 .0000
RETURN ITEM IMAGE 99 99 99 18.75000
TRANSMISSION
RLBX LONG PER IMAGE 05 50 15 .0157
RLBX LONG TERM STORAGE 99 99 99 .0157
10 YEAR ARCHIVE
EARNINGS CREDIT 45BPS 45 BPS
DEPOSIT ADMINISTRATION
FEE .0700
PARTNERSHIP RETENTION
BONUS $5,000
RFP No: 16-034
END OF SECTION K
1.4
User Guide. For some of our Services,
sw"t211.. • we may provide in hard copy or make available
online an operating manual or user guide("User
FIFTH THIRD BANK Guide")to assist Customer in using that Service.
1.5 Accounts. Customer shall at all times
MASTER TREASURY have and maintain with Fifth Third Bank one or
MANAGEMENT AGREEMENT more accounts (individually an "Account" and
collectively the "Accounts") for use in
This Master Treasury Management Agreement connection with a Service and maintain in such
("MTMA" or, in this document, this Account sufficient collected balance to cover
"Agreement") is between the undersigned Customer's use of, and transactions in, such
"Customer"and Fifth Third Bank("we"or"us") Accounts including fees and expenses payable to
and is effective when and as of the later date us.
executed by us as indicated on the Signature
Page to this Agreement. 2. Online Channel Access Agreement
1. Bank Services 2.1 OCAA. This Agreement is one of the
"Bank Agreements" referred to in the Online
1.1 Use. Customer desires to obtain, and Channel Access Agreement in effect between
we agree to provide the Treasury Management Customer and us (as it may be amended from
services ("TM Services" or "Services") as time to time, the "OCAA"). The TM Services
provided in this Agreement and the applicable provided under this Agreement are "Bank
Terms and Conditions (found in our Terms and Services" for purposes of the OCAA. The
Conditions Book or separate addendum to this OCAA governs the Access Channels and
Agreement, collectively the "Terms and Channel Services(each as defined in the OCAA)
Conditions"or"Service Terms"). Customer may used to access the Bank Services where
request a Service by any means we approve applicable and together with this Agreement
("Service Request"). If we accept and approve a govern the TM Services provided to Customer
Service Request,we and Customer are subject to contemplated by this Agreement. If Customer
the Terms and Conditions for that Service. If uses the Channel Services without having
Customer uses a Service before the Service executed an OCAA, Customer will be
Request is approved by us, Customer's first use nevertheless be bound by the OCAA in the form
of the Service shall be deemed to be Customer's provided or made available to Customer.
agreement to the Terms and Conditions for that
Service. 2.2 Channel Services. The Channel
Services available in connection with these
1.2 Service Terms.Customer acknowledges Services include the ability to view and manage
receiving a copy of the Terms and Conditions for Account information, transmit Instructions (as
the Services it desires. Once a Service Request defined below) and other directions and
is approved by us or Customer is deemed to have decisions to us and other online features as
accepted the Terms and Conditions for a described in this Agreement, the Service Terms
particular Service, the applicable Terms and or the User Guide.
Conditions are incorporated into, and made a
part of, this Agreement. Neither party is bound 3. Customer Information
by or subject to the Terms and Conditions for
any Service Customer does not use. 3.1 Service Information. Customer agrees
to provide all information we reasonably require
1.3 Customer Use. We provide the Services in order to set up and provide the Services to
for the sole and exclusive benefit of Customer, Customer. Customer(a)represents and warrants
and if we approve in writing, Customer's that all information provided or to be provided to
Affiliates(as defined below). The Services may us by Customer's representatives is true and
only be used for business purposes and not for correct, and (b) agrees to provide any additional
personal,household or consumer purposes. information that we reasonably require to enable
us to provide the requested Services to
September 2016
Customer. Any changes by Customer to the for the accuracy and completeness of each
information provided to us must be made in Instruction or communication sent to us.
writing and will be effective after we have had a
reasonable opportunity to act on the changed 6. Our Representations and Warranties
information.
6.1 General. We represent and warrant to
3.2 Personnel. We are entitled to rely upon Customer that:(a)we are duly organized,validly
the accuracy of all information and existing,and in good standing in the jurisdiction
authorizations received from an officer or in which we are organized; (b) the execution,
authorized employee or representative of delivery and performance by us of this
Customer (an "Authorized Agent"), and on the Agreement has been authorized by all necessary
authenticity of any signatures purporting to be of corporate and governmental action; (c) the
an Authorized Agent. Customer agrees to notify persons signing this Agreement on our behalf are
us immediately of any change in the status of an duly authorized to do so; (d) this Agreement
Authorized Agent. Customer acknowledges that represents our legal, valid and binding
we may require a reasonable time period before obligation; and (e) our execution and
we act upon any such change. Customer agrees performance of this Agreement and our
that we may refuse to comply with requests from provision of the Services do not and will not
any individual until we receive documentation violate any Applicable Law (as defined below),
reasonably satisfactory to us confirming the our articles of association or bylaws or any
individual's authority. material agreement by which we are bound.
4. Fees and Taxes 6.2 Service. We agree to provide the
Services in accordance with reasonable
Except as expressly provided in a written commercial banking standards prevailing for the
pricing agreement or amendment referring to this applicable Service for similarly situated financial
Agreement and executed by us ("Pricing institutions.
Amendment"), Customer agrees to pay our
standard Account and Service fees and charges 6.3 Limitations. Except as expressed
in effect from time to time as billed by us. In elsewhere in this Agreement or in the applicable
addition, Customer agrees to pay our standard Terms and Conditions, we make no other
fees and charges for any requested or required representations or warranties, either express or
special service or handling. Customer is implied, of any kind with respect to any Service
responsible for all taxes attributable to its use of or our performance of the Services, including,
the Services or this Agreement (excluding taxes without limitation, those of merchantability and
based on our employees, property or net fitness for a particular purpose. No descriptions
income). or specifications constitute representations or
warranties of any kind.
5. Instructions
7. Customer Representations and
Each payment order, wire transfer instruction, Warranties
ACH entry, file,batch release and other message
or instruction to us(an"Instruction")that is sent Customer represents and warrants to us that: (a)
to us electronically in accordance with this Customer is duly organized,validly existing,and
Agreement or the applicable Terms and in good standing in the jurisdiction in which
Conditions shall be considered to be an original Customer is organized,and is validly qualified in
writing and to have been signed by an any other jurisdiction where Customer does
Authorized Agent. Neither party will contest the business and is required to be qualified except
validity or enforceability of such an Instruction where the failure to be so qualified would not
on the ground that it was not in writing, not have a material adverse effect on Customer; (b)
signed by an Authorized Agent or not an the execution, delivery and performance by
original. A valid digital signature shall, at all Customer of this Agreement and the Related
times, be deemed to be conclusive proof of due Agreements (as defined below) and the use of
authorization by Customer of the the Services have been authorized by all
communication, Instruction or document to necessary entity and governmental action; (c)the
which it relates. Customer is solely responsible persons signing this Agreement and the Related
2
Agreements on Customer's behalf are duly 8.3 Funds Transfers. In connection with the
authorized to do so; (d) this Agreement use of our wire transfer, ACH and other funds
represents Customer's legal, valid and binding transfer Services, we recommend that Customer
obligation; (e) the execution and performance of establish an approval protocol appropriate for
this Agreement and the use of the Services do Customer's particular circumstances to prevent
not and will not violate in any material respect unauthorized transactions. If Customer does not
any Applicable Law, Customer's entity establish and require adherence to an approval
governing documents,or any material agreement protocol for such funds transfers or if Customer
by which Customer is bound; and (f) each selects a "no approval" option, Customer
Account Customer maintains with us,and all use assumes the risks of all transactions that could
of the Services,is maintained or used solely for a have been prevented by requiring such protocol
legitimate business or commercial purpose and or approval. Funds transfers involving only
not a personal, family or household purpose. internal Account transfers may not be subject to
Customer reaffirms these representations and all of the Security Procedures for external funds
warranties each time it uses a Service and agrees transfers.
to promptly notify us if any representation or
warranty made by Customer is no longer true. 8.4 Access Devices. Access to some
Services may require the use of a security token
8. Security Procedures;Operating in physical, software or virtual form or other
Procedures authentication device or process and related
software(an"Access Device"). Proper use of the
8.1 Establishment. Access to some of our Access Device is part of the Security Procedure
Services is subject to Security Procedures for these Services. The use of the Access Device
("Security Procedures"). Our Security is subject to any terms of use or license
Procedures include the Security Procedures for accompanying the Access Device, and may only
the Access Channel and other use of be used as and where delivered to Customer and
identification codes, personal identification only for the purpose of accessing our Services.
numbers and passwords("Identification Codes"), Each Access Device and the related technology,
call back protocols, tokens and other systems or documentation and materials at all times remain
procedures. The Security Procedures verify the our or the provider's property.
origin of Instructions and communications sent
to us. We and Customer will agree on the 8.5 Authority. The Security Procedures are
Security Procedures for a particular Service in in addition to and do not limit, revoke or affect
the set up process for that Service and to changes the authority of any person(whether by course of
as needed.Customer agrees to select the Security dealing or otherwise) to transmit Instructions in
Procedure that is suitable for Customer in light Customer's name. We may continue to rely
of its intended use of the applicable Service or upon such authority and we are authorized to act
Services. The Security Procedures are not upon Instructions received from persons acting
designed to detect errors in any Instruction to us. pursuant to such authority.Customer is bound by
any authorized payment order or other
8.2 Verification. If we accept and act in Instruction, and by use of the Channel Services
good faith on a payment order issued to us in by authorized personnel.
Customer's name and in accordance with the
Security Procedures and any written agreement 8.6 Other Applications. As part of to the
between Customer and us, the payment order is Security Procedures, we apply software and
effective as Customer's payment order whether other programs and processes ("Additional
or not it is authorized,and Customer is bound by Programs") to select certain Instructions for
it in accordance with Applicable Law Any other further review and verification by Customer.The
Instruction communicated to us in Customer's application of these Additional Programs may
name in compliance with the Security delay the processing of your Instructions or other
Procedures and all access to and use of Services transaction until we obtain such verification. We
and Channel Services using the Security will use reasonable efforts to obtain such
Procedures are considered authorized by verification. Customer agrees that these
Customer. additional procedures are NOT a substitute for
proper Account controls and management on its
part.
3
8.7 Certain Potential Effects. We are not address standards for security, confidentiality
responsible for our refusal to act upon or delay in and integrity of customer information. We are
processing any Instruction that does not comply subject to periodic reviews by our federal
with this Agreement or the applicable Terms and banking regulators.
Conditions, or as a result of our properly
following the Security Procedures or applying 10.2 Breach Incidents. We will notify
Additional Programs. Customer of security breach incidents involving
Customer's information as required by and in
8.8 Safeguarding the Security Procedures. accordance with Applicable Law.
Customer agrees to (a) maintain the complete
security and confidentiality of the Security 11. Limitation of Liability
Procedures, and (b) institute and use prudent
procedures and practices to control access to the CUSTOMER AGREES TO THE MAXIMUM
Services and use of the Security Procedures. EXTENT PERMITTED BY LAW THAT IN
Customer's failure to protect the confidentiality ADDTION TO ANY OTHER LIMITATION
of the Security Procedures may enable an ON OUR LIABILITY IN THIS AGREEMENT
unauthorized person to use the Services and OR THE OCAA, IN NO EVENT WILL WE
access Customer's Accounts and data. Customer (OR OUR OFFICERS, DIRECTORS,
must notify us immediately if there has been a SHAREHOLDERS, AFFILIATES,
breach of its security,or any Security Procedure EMPLOYEES OR AGENTS) BE LIABLE OR
has been lost,stolen,misused or compromised. RESPONSIBLE FOR ANY
CONSEQUENTIAL, INCIDENTAL,
9. Compliance. INDIRECT, PUNITIVE, SPECIAL OR
SPECULATIVE LOSSES, EXPENSES,
This Agreement, the Terms and Conditions and INJURY, COSTS OR DAMAGES
the use and provision of our Services are subject (INCLUDING,BUT NOT LIMITED TO,LOST
to all applicable state, federal, local and foreign PROFITS, REVENUE, SAVINGS, TIME,
laws,rules,regulations and other laws, including DATA, GOODWILL AND OPPORTUNITIES,
without limitation, the Uniform Commercial ATTORNEYS' FEES, AND COURT AND
Code in effect in the State of Ohio,the NACHA OTHER DISPUTE RESOLUTION COSTS)
Operating Rules & Guidelines ("Operating THAT CUSTOMER OR ANY OTHER
Rules"), rules and regulations of any money PERSON MAY INCUR OR SUFFER IN
transfer system, check clearing or payment CONNECTION WITH THIS AGREEMENT,
clearing house, association or network used by EVEN IF WE HAVE BEEN ADVISED OF
us in providing the Services to Customer, the THE POSSIBILITY OF SUCH LOSS, COST
regulations and operating circulars of the Federal OR DAMAGE AND REGARDLESS OF THE
Reserve Board and all applicable privacy and TYPE OF CLAIM.
data security laws (collectively, "Applicable
Law"). Both parties agree to be bound by the Our liability to Customer arising from any
Operating Rules where applicable and to comply Service or this Agreement will be limited to
with Applicable Law in using or providing the actual monetary damages that are the direct
Services, as the case may be, including any result of our failure to exercise reasonable care in
control or sanction administered by the Office of providing the Service. Notwithstanding the
Foreign Asset Control. Customer will not make foregoing, for Instructions which are subject to
or accept any payments through or in any UCC Article 4A,we are liable only for damages
Accounts with us in connection with unlawful required to be paid under UCC Article 4A.
internes gambling.
We shall not be responsible or liable for any act
10. Security or omission of Customer's officers, employees
or agents, or of any third party (other than our
10.1 System Security. We have implemented Processors and subcontractors),or for any failure
policies, procedures, and controls to safeguard to act by us if we reasonably believed taking the
Customer information in accordance with omitted action would have violated Applicable
Applicable Law including the Interagency Law.
Guidelines Establishing Standards for
Safeguarding Customer Information which 12. Indemnification Obligations
4
12.1 Customer. To the fullest extent not terms of Service, User Guides, software, non-
prohibited by Applicable Law, Customer agrees public Service features and other proprietary
to indemnify and hold us and our officers, information and systems we or our Processors
directors, employees, affiliates, shareholders and provide and disclose in connection with the
agents harmless from and against any and all Services. Customer acknowledges the exclusive
losses, liabilities, damages, actions, claims and ownership by us or our Processors of such
expenses including court costs and reasonable information, and agrees to use such information
attorneys' fees and expenses("Losses")resulting solely for purposes of using the Services.
directly or indirectly from, or arising in
connection with: (a)Customer's breach of any of 14.2 Bank. We acknowledge that non-public
Customer's agreements, representations, information we obtain from Customer in
warranties or covenants in this Agreement, the connection with providing a Service to Customer
Terms and Conditions or any other agreement may be confidential. We will maintain the
with us relating to the Services; (b) Customer's confidentiality of such information in accordance
violation of Applicable Law; or, (c) Customer's with our normal procedures for safeguarding
use of the Services and our complying with or customer information and Applicable Law
carrying out any Instruction or other direction subject to our right to disclose information as
given to us in accordance with this Agreement. required in connection with providing the
Customer is not, however, obligated to Services or as required by government
indemnify us for any Loss directly resulting from authorities.
our gross negligence or bad faith.
14.3 Privacy. We agree to comply with
12.2 Bank. To the fullest extent not Applicable Law relating to privacy.
prohibited by Applicable Law, we agree to Notwithstanding the foregoing in this Section 14,
indemnify and defend at our own expense or we may disclose Customer's information as
settle any action brought against Customer to the provided in the Fifth Third Bank Privacy Notice
extent that it is based on a claim that Customer's for Commercial Customers available on our
use of a Service directly infringes a copyright, website.
trademark or patent or constitutes
misappropriation of a third-party trade secret, 15. Account Management
provided, however, that Customer: (a) promptly
notifies us in writing of such claim; (b) has not 15.1 Information Review. Information
made any admission of liability or agreed to any regarding transactions with the Services is
settlement or other material issue relating to such reported on Customer's periodic Account
claim; (c) reasonably cooperates with us at our statement and is also available with one or more
expense in the defense or settlement; and (d) of our reporting Services. Customer is
gives us sole control and authority over all responsible for monitoring its use of our Services
aspects of the defense or settlement of such and all activity in its Accounts with us including
claim. individual transactions. Customer agrees to: (a)
regularly review the Account information we
13. Recordings; Imaging Records make available to Customer;(b)promptly review
the Account statements we send to Customer;
Customer authorizes us (but we are not and (c) notify us as soon as reasonably possible
obligated) to record electronically and retain of any error, unauthorized transaction or other
telephone conversations between Customer and similar matter but, in any case, not more than
us. Imaging and electronic records will be thirty (30) calendar days after the information is
retained by us in accordance with our policies so made available or sent to Customer(90 days
and procedures and copies of such records will in the case of information relating to our fees).
be available at Customer's request and expense.
15.2 Prevention. Customer agrees to
14. Confidentiality and Privacy institute, maintain and enforce commercially
reasonable procedures to prevent fraud, and
14.1 Customer. Subject to Customer's duties misuse and unauthorized use of the Services
under Applicable Law, Customer agrees to keep ("Customer Measures"). In addition to the
confidential and not disclose to any third party Customer Measures, we offer a variety of
(other than its agents) our fees and charges, Services and other tools designed to assist
5
Customer in reducing or stopping the incidence Overdraft, or any fees, charges or interest
of fraud and unauthorized activity in Customer's relating to it.
Accounts including positive pay, ACH
transaction control, disbursement control, 17. Transaction Limits
information reporting and Account management
Services. To the extent Customer chooses not to If we in good faith determine that: (a) providing
use one of these Services or features or any Service to Customer could reasonably be
implement Customer Measures, and the proper expected to result in a violation of any
use of that Service or Customer Measure could Applicable Law or a material loss to us; (b) we
reasonably have prevented the incidence of would be entitled to terminate the applicable
fraud, unauthorized activity or loss suffered by Service under the second paragraph of the
Customer, Customer will be deemed to have "Termination" section of this Agreement (with
assumed the risk of such fraud, unauthorized or without the lapse of time or notice); or (c)
activity or loss so suffered and will be precluded Customer is in default under this Agreement or
from asserting that we are responsible for such any Related Agreement, we may limit
fraud,unauthorized activity or loss. Customer's transaction volume or dollar
amounts, refuse to execute transactions, or
15.3 Account Information. Depending upon terminate that Service to Customer. In addition,
the Service features Customer selects, Customer we may restrict or limit the types of Instructions
will have access to Account and transaction Customer may send to us for processing or
information on a prior day or intraday basis, or execution. We will, to the extent not restricted
both. Account information changes frequently by law, promptly communicate our decisions
and is subject to updating, verification and regarding such restrictions to Customer. We
correction. We assume no responsibility for reserve the right to limit transaction volume or
Customer's reliance on any Account or Service dollar amounts in circumstances not described in
information subsequently updated, verified or the first sentence of this section, provided we
corrected. give Customer prior notice of any material
limitation or decrease in previously
16. Overdrafts communicated limitations. Customer agrees to
provide us, upon our request from time to time,
We may delay or refuse to process any item, with such financial information and statements
transaction or Instruction that exceeds the and other documentation as we reasonably
amount of available funds in the Account on determine to be necessary or appropriate to
which it is drawn or presented or would reduce enable us to evaluate our exposure or risk.
the balance in such Account below any required
minimum balance (i.e., the item, transaction or 18. Processors
Instruction would create an "Overdraft"). We
process Items and other debits to Customer's Customer acknowledges and agrees that we may
Account in the order described in the arrange for certain or all of the aspects of the
Commercial Account Rules(or,for our Business Services including software and processing to be
Banking Customers, the Rules and Regulations performed or provided by third-party processors
Applicable to all Fifth Third Accounts) or expressly engaged by us ("Processors"). To the
similarly named agreement provided to extent we have engaged a Processor, we are
Customer governing Customer's Accounts with responsible for the aspects of the Service
us ("Account Rules"). If we decide in our provided by them.
discretion to process an item, transaction or
Instruction despite the Overdraft, Customer 19. Vendors
agrees to reimburse us upon demand for: (a) the
full amount of any Overdraft or shortfall created Any third party servicer or vendor used by
by that item, transaction or Instruction; (b) all Customer in connection with the Services or to
Overdraft fees and charges; (c) interest on the whom Customer gives access to any Service,
amount of the Overdraft or shortfall for the day through the Channel Services or otherwise
the Overdraft or shortfall was created and for ("Vendor") is Customer's agent and not ours,
each following day until the Overdraft or and Customer will be liable and solely
shortfall has been paid or restored; and (d) all responsible for: (a) any Vendor's failure to
Losses we incur in collecting from Customer the comply with this Agreement, the Terms and
6
Conditions or any Security Procedures or Customer becomes subject to any voluntary or
operating requirements relating to the Services; involuntary bankruptcy proceeding or any
and(b)all fees,costs and expenses owed to each assignment for the benefit of its creditors; (c)
Vendor for its services. Customer's financial condition has become
materially impaired in our good faith opinion
20. Bank Right based on reasonable evidence such that we
believe Customer is likely to be unable to
We have the right to obtain payment of any perform its material obligations to us; (d) any
unpaid amount owed to us under this Agreement person or group acting in concert that is not a
or any Related Agreement by debiting any of controlling stockholder of Customer on the date
Customer's Accounts or accounts with any of of this Agreement acquires, directly or indirectly
our affiliates at any time(excluding any Account (whether by merger, stock purchase or issuance,
expressly titled to clearly demonstrate that the recapitalization, reorganization or otherwise), a
Account is held by Customer in a fiduciary or majority of Customer's outstanding equity
representative capacity for a third party such as, interests; or (e) the continued provision of
for example,a custodial Account)for the amount Services in accordance with the terms of this
owed. Our rights are limited to the extent of Agreement would, in our good faith opinion,
limitations and restrictions imposed by violate Applicable Law or any requirement of
Applicable Law. any regulatory authority or subject us to an
unacceptable risk of loss.
21. Force Majeure
22.3 Effect. Upon any termination of this
Neither party shall be responsible, and neither Agreement, Customer shall: (a) promptly pay to
shall incur any liability to the other, for any us all sums due or to become due under this
failure, error, malfunction or any delay in Agreement; (b) return immediately to us at
carrying out any of its obligations under this Customer's expense, the System (if applicable),
Agreement directly resulting from causes beyond and all related materials, and all copies and
such party's reasonable control, including reproductions thereof, whether written or in
without limitation, fire,casualty, lockout,strike, magnetic media and whether received from us or
unavoidable accident, failure of networks, the otherwise and shall pay us for any damages to
Internet or telecommunications systems, act of any such materials (ordinary wear and tear
God, act of terrorism,riot, war or the enactment, excepted); and (c) have no further right to make
issuance or operation of any adverse use of the System or the Services.
governmental law, ruling, regulation, order or
decree,or an emergency that prevents such party 22.4 Survival. Termination of a Service or
from operating normally; provided, however, this Agreement does not relieve or excuse
that Customer shall not be relieved of its Customer's payment obligations for any Services
responsibility for timely performance of any of that we provide to Customer before or after the
its payment obligations to us. Service or this Agreement is terminated, nor
does it release Customer or us from any of our
22. Termination respective obligations that arose or became
effective prior to such termination. In addition,
22.1 Mutual. Either party may terminate this all provisions of this Agreement relating to the
Agreement or any Service at any time by giving parties' warranties, representations,
30 days' prior written notice of termination to confidentiality or non-disclosure obligations,
the other party. proprietary rights, limitation of liability and
indemnification shall survive the termination of a
22.2 Bank. We may terminate this Service or this Agreement.
Agreement or terminate or suspend any Service
immediately upon notice to Customer if: (a) 23. Entire Agreement
Customer breaches a material obligation under
this Agreement or Related Agreement, any This Agreement, together with the OCAA,
Applicable Law in connection with the Services Terms and Conditions, any applicable User
or any other material agreement with us; (b) Guide, the Service Requests, Account Rules,the
Customer becomes insolvent, is placed in signature card, Pricing Amendment, Account
receivership or is adjudicated bankrupt or fees, terms of use and any resolution or other
7
document establishing Customer's authority to our parent company,or the sale or transfer of all
engage in the Services and open Accounts with or substantially all of our assets or stock, or (b)
us (collectively, the "Related Agreements") in connection with the sale or other disposition
constitutes the complete and exclusive statement involving a line of our business to which this
of the agreement between the parties with respect Agreement relates. We will use reasonable
to the Services and supersedes any prior or efforts to notify Customer of any such
contemporaneous agreements between the assignment. Customer expressly reserves its
parties with respect to such Services. If there is a right to terminate any or all Services in the event
conflict between this Agreement and the Terms of any such transaction.
and Conditions, the Terms and Conditions shall
control to the extent necessary to resolve the 26. Governing Law;Venue
conflict. If there is a conflict between this
Agreement and the Account Rules, the This Agreement and any claims or disputes
provisions of this Agreement prevail to the relating to or arising out of this Agreement or the
extent necessary to resolve the conflict. Nothing Service shall exclusively be governed by, and
in this Agreement confers a right or benefit on construed in accordance with, the laws of the
any person or entity other than us and Customer, State of Ohio, without regard to Ohio's conflict
except for our Processors. of law principles, and with applicable federal
laws and regulations. Customer irrevocably
24. Amendment submits to the nonexclusive jurisdiction of the
courts of the state and federal courts in Ohio and
24.1 Generally. This Agreement and the agrees that any legal action or proceeding with
Terms and Conditions may be modified by a respect to this Agreement may be commenced in
written agreement executed and signed by the such courts.
parties. We may, however, modify this
Agreement or the Terms and Conditions by 27. Mutual Waiver of Jury Trial
giving Customer thirty (30) calendar days' prior
written notice. If Customer continues to use any Each party agrees that any suit, action or
Service or the affected Service, as the case may proceeding, whether as part of a claim or
be,after the expiration of the thirty-day period or counterclaim, brought or instituted by either
a later effective date specified in such notice, party on or with respect to this Agreement or any
Customer is bound by the Agreement or Terms event, transaction or occurrence arising out of or
and Conditions, as the case may be, as so in any way connected with this Agreement shall
modified. be tried only by a court and not by a jury. EACH
PARTY EXPRESSLY, KNOWINGLY AND
24.2 Regulatory. Notwithstanding the VOLUNTARILY WAIVES ANY RIGHT TO A
foregoing, if a modification to this Agreement or TRIAL BY JURY IN ANY SUCH SUIT,
the Terms and Conditions is required by or under ACTION OR PROCEEDING.
Applicable Law or by a regulatory authority with
jurisdiction over us, we may modify this 28. Miscellaneous
Agreement or the Terms and Conditions by
giving Customer notice of the modification by 28.1 No Extension of Credit. Except as
any means permitted by Applicable Law,and the expressly provided in the applicable Terms and
modification will be effective immediately upon Conditions, nothing in this Agreement or any
us giving such notice. Related Agreement requires us to extend any
credit of any type,even if we have done so in the
25. Assignment past.
Customer may not sell, assign or transfer, or 28.2 Notices. Except as otherwise
grant a security interest in any of its rights or specifically provided in the Terms and
obligations under this Agreement without our Conditions or User Guide with respect to a
prior written consent. We may assign our rights particular Service, all notices and other
and obligations under this Agreement in whole communications by either party relating to this
or in part without Customer's consent (a) Agreement or the Services shall be given
pursuant to, or in connection with any merger, promptly in writing or electronic medium and
consolidation or amalgamation involving us or shall be effective either on the date it is actually
8
received or five (5) days after it is mailed, sent Agreement and Related Agreements shall be
by courier, transmitted or posted, whichever is controlling. We may, however, require that
earlier. The address to which all notices (other Customer deliver an original of this Agreement
than notices given electronically as permitted in and any Related Agreement with a manual
this Agreement) concerning this Agreement or a original signature.
Service shall be sent to Customer is that address
we have in our records with respect to this 29. Affiliates
Agreement or that Service, respectively. The
address for notice to us will be as we specify to 29.1 Joinder. By executing this Agreement,
Customer in writing. Customer, each "Affiliate" of Customer listed
below (if any), and we agree that each such
28.3 Counterparts. The Agreement may be Affiliate shall have all of the rights and
executed in counterparts, each of which shall be obligations of, and shall for all purposes be a
deemed an original and all of which shall party under this Agreement as "Customer."
constitute a single instrument. Additional Affiliates can be added through an
addendum to this Agreement in the form
28.4 Severability. If performance of required by us and executed by Customer and us.
Services in accordance with the terms of this
Agreement would result in a violation of any 29.2 Representation. An "Affiliate" of
Applicable Law or governmental policy or Customer is any entity that is directly or
directive to which we are subject, then this indirectly controlled by the Customer indicated
Agreement and any Related Agreement shall be on the Signature Page ("Initial Customer")
deemed amended to the degree necessary to through ownership of at least a majority of the
comply with such Applicable Law policy or equity interests of, or holding voting control
directive, and we shall incur no liability to over, such entity. Initial Customer represents
Customer as a result of such violation or and warrants to us that each entity signing this
amendment. If any provision of this Agreement Agreement as an Affiliate meets the definition of
is held to be invalid, illegal or unenforceable, Affiliate and is duly authorized to execute this
such provision shall be valid, legal and Agreement.
enforceable to the maximum extent permitted by
such holding and the validity, legality, or 29.3 Responsibility. Each Affiliate agrees
enforceability of the other provisions of this that it is responsible for the payment of fees or
Agreement will not be affected or impaired by maintenance of required balances for the
such holding. Services that it receives from us, and for all
obligations and liabilities it incurs.
28.5 Headings. Headings are for reference
purposes only and are not part of this 29.4 Guarantee. Initial Customer
Agreement. unconditionally guarantees to us the full and
prompt payment and performance by each
28.6 Waiver. No party's failure or delay in Affiliate of all obligations they or any of them
exercising any right or remedy under this may incur under this Agreement, including in
Agreement will operate as a waiver of such right any case that any payment to us by an Affiliate is
or remedy, nor shall any waiver by either party set aside, rescinded or otherwise required to be
of any breach of the other party's obligations returned in any bankruptcy or similar
under this Agreement operate as a waiver of any proceeding.
prior, current or subsequent breach. No waiver
will be effective unless made in writing.
28.7 Electronic Copies. The parties agree
[Signature Page Immediately Follows]
that this Agreement and the Related Agreements
may be executed and delivered by facsimile or
electronic mail in PDF or similar format and that
the copies or counterpart signature pages so sent
shall be treated and have the same force and
effect as delivery of an original with a manual
signature. Our records as to the executed
9
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: FIFTH THIRD BANK
CITY flF GLSR1•4oN7 ogrze4Z >#t-
By:
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NOTE: If required by resolution,second officer of Second Bank 0 er
Customer must sign below
By:
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Print name:
Print name:
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Print title:
DATE: / U — /2 f2
Signing as a duly authorized officer or agent of each
of the Affiliates listed below:
By:
Print name:
Print title:
This Agreement includes the following Affiliates:
Affiliate Name: Tax ID No.:
TM Legal 09.2016
3726150.6
10
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FIFTH THIRD BANK'
COMMERCIAL ACCOUNT RULES
These Commercial Account Rules ("Rules") govern all commercial deposit
accounts at Fifth Third Bank ("Accounts") and constitute an agreement between our
customer, the entity (or entities) that has established the Account ("you" in these Rules)
and Fifth Third Bank, an Ohio banking corporation ("we" or "us" in these Rules). By
opening an Account and either signing the signature card for the Account or using the
Account in any way, you accept and agree to these Rules.
Account Documentation
Customer Identification Program. To help the government fight the funding of
terrorism and money laundering activities, federal law requires all financial
institutions to obtain, verify, and record information that identifies each person or
business entity that opens an Account. When you open an Account with us, you
must provide us with your business entity name, principal and local (if different)
address, date of establishment, employer identification number and other
information. We may also seek additional information or documents. You agree
that we may seek information about you from third parties to confirm your identity
and for other Account related purposes. We are required to follow these procedures
even if you are already a customer of ours.
Authorizations Forms. The forms we require when you open your Account include
account resolutions, a commercial signature card and other documents that establish the
authority of the person or persons authorized to access your Accounts and conduct
banking business with us. An "Authorized Person" is any person identified to us as such
or as an agent of yours in the account resolutions you give us or in the signature card or
other account implementation forms we require, and any other person or agent acting for
you with actual or apparent authority to transact business on your behalf. We may require
additional information and documents for these purposes at any time. You agree to keep
the information you provide us current and up-to-date including for any change in your
business name, address, Authorized Persons and contact information. You authorize us
to recognize the authority of each Authorized Persons until we receive authorized written
notice that the existing authorization is changed or terminated and we have had a
reasonable opportunity to act on that notice. We are not responsible for any losses if you
fail to timely and properly notify us of changes in your information, authorizations or
Authorized Persons. We are not obligated to honor checks or process transactions until
we receive properly completed authorization forms.
Compliance With Law. You agree that you will use your Account only for lawful
business purposes and in compliance with Applicable Law(as defined below).
August 2016
Master Treasury Management Agreement. Our Master Treasury Management Agreement
and the Terms and Conditions for Services(collectively,the"Master Agreement") govern
the treasury management Services (as defined in the Master Agreement) we provide to
our customers. If we have executed a Master Agreement with you, the Master
Agreement governs the Service and these Rules continue to govern your Accounts.
Should there be any conflict between the provisions of these Rules and the provisions of
the Master Agreement, the provisions of the Master Agreement will prevail as necessary
to resolve the conflict. If you have not executed a Master Agreement but use one of these
Services, you will be deemed to have accepted and agreed to be bound by the Master
Agreement and the Terms and Conditions for the Services you use in each case, in the
form provided to you.
Additional Documentation. We may, from time to time, require that you provide us with
additional documentation to verify your identity, the authority of individuals acting on
your behalf and other matters relating to your Account.
Deposits
Collection. When you deposit or cash a check, draft or other item with us (in whatever
medium including a substitute or imaged check, an "Item")by any means, we act as your
agent in collecting the Item. You have the risk of loss for each Item throughout the
collection process and are solely responsible for the return, rejection and collectability of
each Item. We may charge your Account for, or otherwise obtain a refund of the amount
of any credit we gave you for the deposited Item (including interest and earnings credits),
if we are unable to collect the Item for any reason including loss or destruction of the
Item, regardless of when the Item is returned. You agree to assist us in any case in
collecting lost, destroyed or returned Items. We are not responsible for the insolvency or
any act or failure to act of any other bank, processor or intermediary in the collection
process. We reserve the right to process an Item on a collection basis only. We are not
required to examine Items for, and have no responsibility for any legends or restrictions
appearing on any Item deposited to your Account.
Verification. All deposits and credits to your Account (even those for which we have
provided a receipt) are subject to final verification by us. We recommend that you
maintain thorough records of all deposits. Credit for any deposit is always provisional
and subject to verification and correction at any time without notice if we determine it to
be incorrect for any reason. We may refuse to accept deposits or specific Items for
deposit and may limit the minimum or maximum balance that you may maintain in any
Account. We reserve the right to produce images of deposit documents including Items
and destroy the original, subject to our retention policy.
Preauthorized Drafts. If you deposit a preauthorized draft, you represent and warrant to
us that you have legal, valid and binding authorization from the maker of the draft to
create a draft against the maker's account. You agree to furnish valid proof of such
authorization upon request and that we may reverse any credit we gave you (and related
interest) if the draft is returned at any time. We reserve the right to refuse to accept
preauthorized drafts at any time.
2
Returned Items. Items you deposit in an Account are subject to collection. If any Item is
returned to us unpaid by any means(including electronically)or form at any time for any
reason, we will reverse the credit to, or otherwise debit your Account or any other
Account of yours with us for the amount of the credit and any applicable fees, service
charges and other damages we suffer. If there are not sufficient funds in the Account,we
may obtain a refund of the amount of any credit we gave you for the Item by any legal
means(and reverse or recover any associated interest or earnings credit) regardless of any
applicable midnight deadline or other circumstances. We may, in our discretion present
an unpaid Item for payment or collection again without notice to you including
electronically. You understand that an Item drawn on a financial institution in a foreign
country may be returned at any time and your obligation with respect to the returned Item
could arise at anytime. If a deposited Item is returned unpaid, and resubmitted for
payment, we reserve the right to charge a re-presentment fee. If a deposited Item is
returned unpaid and charged back to your Account, we reserve the right to charge a
returned item fee. If an Item is returned as a counterfeit item, altered item, or for any
other reason, you are liable to us for any loss we suffer regardless of any confirmation of
availability of funds we may have provided to you. You may not receive an original of a
deposit item that is returned unpaid; instead you may receive an image or other record of
the item.
Endorsements. We may accept for deposit any Item last endorsed by you (including as
you instruct us). We have adopted specific endorsement requirements that are set forth in
our Funds Availability Policy included with these Rules. You agree to abide by the
endorsement requirements and acknowledge that we have no responsibility for any
improper endorsement or marks by you. You understand that we may refuse to accept
Items not properly endorsed by you. We may, however, supply a missing endorsement
on an Item we cash or take for collection,and you authorize us to do so.
Encoding. If you encode any information on a check you deposit with us, you are solely
responsible for the accuracy and completeness of the encoding.
Foreign Currencies. We may accept deposits of Items payable in foreign currencies that
are convertible to U.S. dollars. We will credit your Account when we receive proceeds in
U.S. dollars, and you will bear exchange rate exposure until that time. We will convert
foreign currencies to U.S. dollars in accordance with our customary practices. The
processing and collection of foreign checks may be subject to foreign law and regulations
including with respect to collection and review periods that are different than U.S.
periods. We may accept a foreign check on a collection basis only.
Funds Availability. Funds from your deposits will be available for withdrawal as
provided in our Funds Availability Policy. Deposits to your Account are subject to our
published cut-off times and policies. The availability of funds as provided in the Funds
Availability Policy does not mean the funds have been collected, that the applicable Item
or other credit or deposit is "good" or has been finally paid or settled, or that the deposit
is not subject to chargeback or reversal. We may reverse or chargeback any deposit or
other credit to your Account if it is reversed or returned to us for any reason at any time,
or was otherwise the subject of an error.
3
Substitute Checks. To make check processing faster, federal law permits banks to replace
original checks with "substitute checks." These checks are similar in size to original
checks with a slightly reduced image of the front and back of the original check. The
front of a substitute check states "this is a legal copy of your check. You can use it the
same way you would use the original check." You may use a substitute check as proof of
payment just like the original check. Some or all of the checks you receive back from us
may be substitute checks. We reserve the right to refuse to accept a substitute check
created by a person other than a bank that has not yet been transferred by another bank
unless otherwise agreed to by us in writing. We may limit or impose conditions on your
right to deposit a substitute check at any time. In no event are you authorized to identify
us as a reconverting or truncating bank.
Withdrawals and Transfers
Presentment. We may charge your Account on the day the Item is presented to us by any
means. We may charge your Account or place a hold on funds if we receive an electronic
or other notice that your Item has been deposited for collection at another bank. We have
no obligation to honor any Item drawn on,or any withdrawal or transfer from an Account
if an Overdraft (as defined below) would be created or increased. We make the decision
to pay or return an Item in a single determination between the time the Item is presented
to us by any means or we receive notice of it, and the time we are required to honor or
refuse an Item.
Overdraft. If the Available Balance (as defined below) in an Account plus available
credit in an overdraft protection plan you have in place with us is insufficient, at any
time, to pay all Items, debits, fees and other transactions presented for payment from the
Account, that Account is in an overdraft position (an "Overdraft"). If an Overdraft is
created, we may, at our option and in our discretion pay or return any Item or debits
regardless of the order of presentment, or whether payment creates an Overdraft. You
understand that such payment does not constitute an application for credit and that the
amount of deficiency, whether from the amount of the Overdraft or any fees assessed, in
the Account is immediately due and payable without further demand. In case of any
Overdraft, whether by error, mistake, inadvertence, or otherwise, you agree to
immediately pay the amount of such Overdraft to us, plus any fees or charges we assess.
We may assess an Overdraft fee whether we pay the Item or debit.
Available Balance. The"Available Balance" is an Account's balance as of the end of the
previous business day's processing, plus or minus any pending transactions, direct
deposits that have not posted or holds (including deposited funds being held for
verification). If multiple Items are presented against the Account for payment and the
Available Balance of the Account is insufficient to pay all of those Items, we (not you)
have the right to decide whether to pay any or all of those items or not. We will post
Items and other debits to your Account and pay them as follows: we will first post all
deposits made prior to the end of day cutoff time; next, we will post all fees, including
but not limited to, any overdraft fees; next, the Bank will post ATM and debit card
purchases in the order they took place; finally, we will post all other debits, including
checks, electronic bill payments, wire transfer and ACH debits in the order of highest
4
amount to lowest amount. This posting order may change due to circumstance beyond
our control, for example, changes or disruptions in network processing or processing
delays by a third party. If we decide to change the order, we will notify you as and to the
extent required by Applicable Law.
Electronic Presentment and Representment. In certain cases, your check may be
converted to electronic information and presented to us electronically. If we return a
check you wrote, it may be represented to us electronically. You authorize us in our sole
discretion to return any Item drawn on your Account by any legally permissible means
including returning an Image or other electronic return.
Dates and Restrictions. We may, without inquiry or liability honor or refuse to honor
any Item drawn on your Account that is (a) is post-dated or contrary to special
instructions or restrictive legend identified on the Item, or(b) undated or has a date on the
Item more than six months old. If you do not want us to honor these Items, you must
give us a stop payment order.
Processing Requirements. You understand that we, like most other financial institutions,
process Items using high speed automated equipment based on the Magnetic Ink
Character Recognition (MICR) line information encoded on such Items. While we select
some Items for physical review based on our internal criteria that changes from time to
time, we do not visually inspect each Item. You agree that we may disregard any
information on an Item other than the MICR data amount, signature of drawer and
identity of payee.
Signature Requirements. If you establish an Account that purports to require two or more
signatures on an Item or impose any conditions or restrictions in any way,you understand
that such signature requirements, conditions, and restrictions are solely for your own
internal control purposes. We will not be liable for paying any Item lacking the required
number of signatures, or otherwise not in compliance with any such conditions or
restrictions. In addition, if you use an ink or form that is not recognized by imaging
equipment, it may not be processed properly or at all and we may return it unpaid without
liability.
Facsimile or Mechanical Signatures. If you use a stamp, computer printer or software,
facsimile or other mechanical or electronic device or method (collectively, "Mechanical
Signatures") to sign or endorse Items, we are authorized to conclusively rely on that
signature as your authorized signature regardless of the person or means by which such
signature may have been made, or the color or combination of colors of the signature or
any other marking, legend, identifier or code. We will treat the Item that has such
signature (or any signature that reasonably resembles the specimen you provide to us) as
authorized by you and properly payable,and we will honor it. You acknowledge that you
understand and appreciate the risks associated with using Mechanical Signatures, and
agree that you assume sole responsibility for maintaining the security of the device or
computer that operates the Mechanical Signature. We are not liable to you or any other
person for any unauthorized use or misuse of a Mechanical Signature or if we dishonor
an Item when we believe in good faith that the signature is not genuine or authorized.
5
Checks Presented Over the Counter. If anyone who is not one of our customers presents
your check to us "over-the-counter," we may require proper identification and may
charge a fee. We may dishonor the check if the person refuses to pay the required fee or
provide proper identification.
Savings Deposits. We specifically reserve the right to require seven (7) days written
notice before funds deposited into savings accounts may be withdrawn.
Account Information
Availability. We will send to you by mail at the address we have in our files or send or
make available to you by other agreed or permitted means periodic statements, notices
and other information regarding the Accounts and transactions in the Accounts("Account
Information"). If you are subject to a Master Agreement, you may elect to not receive
periodic statements. You may also access and view your Account Information by a
variety of internes based and electronic reporting or Account management Services.
Your Obligations. You acknowledge that you are in the best position to discover an error
or problem with your Account including, for example: the payment of an unauthorized
(including counterfeit) check, Item or other activity charged to your Account;
unauthorized access; an unauthorized or incorrect debit or other charge to your Account;
an altered check charged to your Account; a check with a missing or unauthorized
signature; erroneous fee charges, credits, debits or other entries, including ACH entries;
missing or incorrect deposits and other credits; and other problems with your Account or
activity in your Account (an "Account Problem"). You agree to promptly and carefully
examine and reconcile all Account Information available to you and to notify of us of any
Account Problem as soon as possible so that we will be in a better position to address it.
Your failure to exercise reasonable care in examining your Account Information or
provide reasonably prompt notice to us may affect any rights you may have against us
with respect to the Account Problem. You must notify us of, and assert any claim you
may have with respect to any Account Problem within a reasonable time under the
circumstances (not to exceed 30 days) after the date we sent or otherwise made available
to you the Account Information indicating the Account Problem. If you fail to notify us
promptly within this timeframe: (a) you will be deemed to have failed to exercise
reasonable care and promptness in examining your Account Information; (b) any Item
charged to your Account will be deemed fully enforceable against you; (c) we will not be
obligated to recredit or refund the amount of the Account Problem; and (d) you will be
precluded from asserting the Account Problem against us.
Account Problems. If you timely assert an Account Problem, we may require you to
provide us with information and evidence relating to the Account Problem. You agree to
cooperate with us at your expense in any investigation of an Account Problem, including
providing an appropriate affidavit or filing a police report as we may reasonably request.
We may delay taking action on the Account Problem until we complete our investigation.
If you fail to cooperate with us, we will be relieved of any liability for the Account
Problem.
6
Time Limitation. Without regard to care or lack of care by you or us, you agree that you
cannot commence any legal action or proceeding against us regarding any Account
Problem unless you do so within one year after we mail or otherwise make available to
you the first statement or other information on which the Account Problem appeared (or
would have appeared in the case of missing debts or credits)or was otherwise indicated.
Imaging. We typically do not retain paper copies or originals of deposit tickets, checks
or other paper transaction documents except as required by law. We will make and store
images of these documents in accordance with our internal policies and procedures. You
acknowledge that these images will be treated as originals for all purposes.
Wire Transfers and Electronic Credits. We will give you notice of the receipt of wire
transfers, ACH credits and other electronic transfers to your Account through your
Account Information.
Compliance
These Rules, your Account and use of the Account and activity in the Accounts are
subject to all applicable state, federal, local and foreign laws, rules, regulations and other
laws including, without limitation, rules, regulations and operating rules and operating
guidelines established by NACHA - the Electronic Payment Association ("Operating
Rules") and any money transfer system, check clearing organization and payment
clearinghouse used by us in connection with your transactions and the regulations and
operating circulars of Federal Reserve Board (collectively, "Applicable Law"). Both
parties agree to be bound by the Operating Rules where applicable, and to comply with
Applicable Law including any control or sanction administered by the Office of Foreign
Asset Control.
Remittance Transfer Rule
Application. The provisions of this Section apply to you to the extent you are or may be
classified as a "Remittance Transfer Provider" under Regulation E and the regulations
and related interpretations adopted by The Bureau of Consumer Financial Protection
amending Regulation E, which implements the Electronic Fund Transfer Act set forth in
12 CFR 1005 (collectively, the "Remittance Transfer Rule"). If you use any of our funds
transfer Services or otherwise make a payment through us in connection with making a
Remittance Transfer (as defined below), we will be acting as your agent (within the
meaning of the Remittance Transfer Rule) and not a Remittance Transfer Provider in
carrying out your Remittance Transfer.
Definitions. As used in this Section,the following terms have the indicated meanings:
(a) "Designated Recipient" means any person specified by the Sender as
the authorized recipient of a Remittance Transfer to be received at a
location in a foreign country;
(b) "Remittance Transfer" means the electronic transfer of funds
requested by a Sender to a Designated Recipient that is sent by a
7
Remittance Transfer Provider. The term applies regardless of whether
the Sender holds an account with the Remittance Transfer Provider,
and regardless of whether the transaction is also an electronic fund
transfer, as defined in Regulation E;
(c) "Remittance Transfer Provider" means any person that provides
Remittance Transfers for a consumer in the normal course of its
business, regardless of whether the consumer holds an account with
such person; and,
(d) "Sender" means a consumer in a state, territory or possession of the
United States (including the District of Columbia and Puerto Rico)
who primarily for personal, family, or household purposes requests a
Remittance Transfer Provider to send a Remittance Transfer to a
Designated Recipient.
The foregoing terms shall be used and construed as provided in the Remittance Transfer
Rule.
Customer Undertakings. You represent and warrant to us that you have implemented
reasonable and effective policies and procedures to comply, and each funds transfer sent
to or through us using one of our Services complies, with the Remittance Transfer Rule.
Without limiting the generality of the foregoing, you agree to provide the disclosures to
each Sender, obtain required Sender consents, be responsible for error resolution
procedures and providing remedies to the Sender, and be responsible for the cancellation
and refund of Remittance Transfers, all as required of Remittance Transfer Providers by
the Remittance Transfer Rule.
Fifth Third Bank. You acknowledge that our Services do not include complying with, or
monitoring your compliance with, the Remittance Transfer Rule with respect to your
Remittance Transfers. You agree that we are not responsible or liable for your
compliance with Applicable Law including the Remittance Transfer Rule.
Funds Transfers
Application. This Section applies to payment orders to the extent we and you have not
entered into a separate written agreement for you to use our one of our funds transfer
Services or Global Cash Services.
System Rules. All funds transfers including payment orders, wire transfers, ACH entries
and other instructions to make payments or transfers (including amendments and
cancellations, "payment orders") to or from your Account are subject to the rules then in
effect for the funds transfer system through which the transfers are made, including, for
ACH transactions, the Operating Rules and any local clearing house used in the process,
and for transfers through the funds transfer system of the Federal Reserve Banks, the
applicable laws and regulations of the Board of Governors of the Federal Reserve System
and related operating circulars.
8
Legal Compliance. Without limiting your obligation to comply with Applicable Law
generally, you agree to comply with regulations and requirements administered by the
Office of Foreign Assets Control (OFAC) and the U.S. Department of the Treasury's
Financial Crimes Enforcement Network including screening your transactions and
payment orders for OFAC compliance and to maintain an effective education program
within your organization to insure compliance with such regulations and requirements.
Credits. Your Account Information will notify you of funds transfer payments and other
credits to your Account. We are not required to provide any other notice of the receipt of
funds transfers. All credits to your Accounts for funds transfers are provisional until we
receive final settlement. If we do not receive final settlement, we are entitled to a refund
(through reversal debit or otherwise) of the amount credited to your Account for that
transfer,together with any associated interest or credit.
Funds Processing. You are solely responsible for the contents and accuracy of each
payment order sent to us by you or on your behalf by your representatives. In the
absence of specific written instruction, we will choose the funds transfer system
processor and intermediary banks as necessary to carry out your instructions. In any
payment order, we and any bank or intermediary are entitled to rely on the Account
number and bank identification number provided to us without any obligation to look at
the name of the receiving customer or bank that may also appear on the payment order.
If we are given written notice of an error, we will advise you promptly.
ACH Entries. You authorize us to debit or credit your Account for ACH entries to or
from your Account. ACH entries must be transmitted to us by you or on your behalf in
accordance with the NACHA rules and our policies and procedures. You are responsible
for all entries that are authorized by you or submitted by authorized person on your
behalf.
Payment. Unless otherwise agreed to by us in writing, you must pay us the amount of the
payment order, plus any applicable fees, before we will execute your payment order.
Interest. If we are responsible for interest under Applicable Law for our failure to
execute, or a delayed or improper execution of a payment order, our liability for interest
is limited to the payment of interest at the applicable Federal Funds rate for that period.
Fees and Charges
Subject to any separate written agreement between you and us that has been signed by
one of our authorized officers, you agree to pay our standard fees and other charges in
connection with your Accounts as established by us from time to time. A copy of the
fees and charges applicable to you may be obtained from our relationship officer for your
Accounts. You also agree to pay us our costs and hourly fees for complying with
subpoenas or other legal orders and your requests. Unless we have agreed to allow you
to pay fees through account analysis or compensating balances, you authorize us to debit
or otherwise deduct the fees and other charges, and costs from your Accounts, even if it
9
creates an overdraft. For electronic transfers, we may deduct our fees from the proceeds
of such transfers. Unpaid amounts due to us may be subject to a finance charge.
Stop Payment Instructions
Checks. You may, through an authorized person instruct us in writing to stop payment on
an Item that has not been paid, accepted or certified by us or converted to an electronic
payment. A stop payment instruction is only effective if you have given us the proper
account name, account number, check number and corresponding amount of the Item and
we have had a reasonable opportunity to take action prior to us paying, accepting,
certifying or otherwise acting with respect to or, becoming obligated on the check. A
stop payment instruction is valid for six months. We reserve the right to require
additional information. All of the required information must be exactly correct for the
stop payment instruction to be effective. Oral stop payment orders, if we accept them,
must be confirmed in writing or they become void after fourteen days. We may pay a
check after the stop payment instruction expires or if required by law. Stop payment
orders will not be accepted for cashiers checks, certified checks or other bank obligations.
By placing a stop payment instruction, you agree to indemnify us and hold us harmless
for all expenses, costs, and reasonable attorneys' fees incurred by us due to our refusal to
pay the Item. If we recredit your Account after payment over a valid stop payment
instruction, you agree to assign to us your rights against the payee of the Item and to
assist us in enforcing those rights. Our liability with respect to any stop payment
instruction is limited in all cases to the face amount of the applicable Item.
Preauthorized Payments. If you have told us in advance to make regular payments from
your Account, you can stop any of these payments by calling Customer Service at 1-800-
972-3030 or call the Banking Center where your account is located or write to:
Customer Service Department
Fifth Third Bank
Madisonville Operations Center
MD 1 MOC3A
Cincinnati, Ohio 45263
in time for us to receive your request three (3) business days or more before the payment
is scheduled to be made. If you call, we may also require that you put your request in
writing and send it to us so we receive it within fourteen (14) days after your telephone
call. We will charge you a fee for each stop payment order you give. Once you have
placed a stop payment order on a pre-authorized transfer, we will not make any more
preauthorized transfers to the person you were going to pay until we receive a new
written authorization from you. We will honor only the exact information given to us and
we are not responsible if the information is not correct. Once you have placed a stop
payment order on a preauthorized transfer, we will not make any more preauthorized
transfers to the person whom you were going to pay until we receive a new written
authorization from you.
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Protecting Your Accounts
You acknowledge that your Accounts are subject to growing and constantly changing
risks of unauthorized or fraudulent activity from sources inside and outside your
company, and that you have responsibility for addressing these risks and working to
prevent fraudulent or unauthorized use of your Accounts. In addition to the following,
we offer useful information about protecting your accounts on our website, and we
encourage you to review that information.
Internal Controls. You agree to institute and maintain reasonable and effective
procedures to prevent fraud, misuse and unauthorized use of your Accounts and to ensure
the security of your checks and check stock, account numbers, security procedures,
access devices, access to the Accounts and your internal procedures Including those anti-
fraud measures we provide or make available on our website or through customer
communications ("Anti-Fraud Measures"). You represent and warrant that you have in
place and will enforce effective internal controls including Anti-Fraud Measures to
ensure that the Accounts are used by your personnel only if authorized by you.
Bank Services. In addition to the Anti-Fraud Measures you can implement on your own,
we offer a variety of Services designed to assist you in reducing or stopping the incidence
of check, ACH and other fraud and unauthorized activity in your Accounts including
positive pay, ACH transaction control, disbursement control and information reporting
and Account management Services. To the extent you choose not to use one of these
Services or fail to implement or take Anti-Fraud Measures reasonable for your Accounts,
and the use of that Service or Anti-Fraud Measure could reasonably have prevented the
incidence of fraud, unauthorized activity or loss suffered by you, you will be deemed to
have assumed the risk of such fraud, unauthorized activity or loss so suffered and you
will be precluded from asserting that we are responsible for such fraud, unauthorized
activity or loss.
Lost Checks or Devices. You must notify us as soon as possible of any known or
suspected loss, theft, or unauthorized use of your checks or any card, code, or access
device. Until we have received and had a reasonable opportunity to act on such notice,
we may maintain debits and honor transactions effected in your Account (except as
otherwise provided by law)through the use of any such checks, card,code or device. We
may close the Account, permit withdrawals by you or issue new evidence of an Account
on such conditions as we may require.
Account Access. We offer for your convenience and protection various methods and
procedures (including cards, access devices, ID's and passwords) by which you can use,
access and obtain information about your Accounts. While these methods embody or
require security procedures, we cannot absolutely ensure against"unauthorized" inquiries
or transactions using these procedures. You agree that you are fully responsible for, and
release us from all liability for, the release of Account or balance information to, and
transactions by, any person who uses any access device or your Account access
information to execute transactions or gain such information.
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Account Holds. If we suspect or are alerted to a security breach, fraud or other apparently
unauthorized activity in or affecting your Account, you agree that we may suspend or
freeze the Account or place a hold on some or all of the funds in the affected Account.
You understand that such actions may mean that valid transactions in the affected
Account are returned or not processed, and release us from any and all for our actions.
FDIC Insurance
The FDIC protects the depositors of insured banks against loss of their deposits due to a
bank failure. The basic amount of deposit insurance is $250,000 per depositor.
Insurance coverage is dependent upon account ownership categories and is subject to
FDIC requirements.
Certificate of Deposits(CD)
CD Terms range from seven days to seven years. No additional deposits or withdrawals
are accepted. Penalty for early withdrawal is based on the term of the CD (see below).
CDs are FDIC-insured up to the maximum amount permitted by law.
CD Interest Rates and Yields. Current interest rates and annual percentage yields are
available at all Fifth Third Banking Centers. The interest rate will remain the same until
the maturity date of the CDs. The annual percentage yield assumes interest remains on
deposit until maturity. A withdrawal of interest will reduce earnings. Interest begins to
accrue on the business day of deposit. Interest will be calculated using the daily balance
method. This method applies a periodic rate to the balance in the account each day. For
CDs issued in an amount less than $100,000, interest is compounded continuously. For
CDs issued in an amount of$100,000 or more and with a term greater than one month,
interest is compounded if"Capitalized" is selected as the interest payment method. All
CDs issued in the amount of $100,000 or more will compound and credit interest
monthly if"capitalized" is selected. For CDs with a term of one month or less,the simple
interest method is used, interest is not compounded and interest is paid at maturity.
Interest Credit. Depending upon the account term, interest may be credited to the CD,
credited to a Fifth Third checking or savings Account, or received in the form of a check.
If the interest payment method is by "Transfer," "Check" or "Capitalized," interest may
be credited monthly (with a principal balance of $5,000 or more), quarterly, semi-
annually, annually or at maturity. For variable rate CDs, the interest rate and annual
percentage yield may change. Interest will not be paid after the maturity date unless the
Account is renewed. If the CD is closed before accrued interest is credited, interest will
not be paid.
CD Renewals. If you choose the automatic renewal feature for your Certificate of
Deposit, there is a one-day grace period (for terms of less than 32 days) or a ten-day
grace period (for terms of 32 days or more) after the maturity date to redeem it without
penalty. Interest will not be paid after the maturity date unless the Account is renewed. If
you do not choose the automatic renewal feature for your Certificate of Deposit, interest
will not be paid after the maturity date unless the Account is renewed.
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CD Penalties for Early Withdrawal.
For CD's with a term of 7 days to 89 days, the Penalty for early withdrawal is 1/2 stated
interest for the remaining term, 7 days interest or all interest earned, whichever is greater,
and the minimum deposit is $5,000.
For CD's with a term of 90 days to 364 days, the penalty for early withdrawal is 1/2
stated interest for the remaining term, three months interest or all interest earned,
whichever is greater, and the minimum deposit is$500.
For CD's with a term of 365 days to 84 months the penalty for early withdrawal is 1/2
stated interest for the remaining term, six months interest or all interest earned, whichever
is greater, and the minimum deposit is $500.
We may from time to time offer promotional CDs. Promotional CDs may require a
minimum deposit and will be subject to early withdrawal penalties stated in the
promotion.
General Account Matters
Account Forms. All checks, withdrawal slips and deposit slips (collectively, `forms")
must be obtained through us or comply with our specifications. You are responsible for
verifying the accuracy of all information on the forms you use. Our liability, if any, for
any printing errors on forms obtained through us is limited to the cost of replacement.
We are not responsible for losses you may incur attributable to your use of forms not
obtained through us or that do not strictly comply with our specifications. If you use
checks not provided by us, you must obtain our MICR specifications and provide us with
a sample of 50 checks and deposit slips for testing prior to use. You may be required to
reprint or modify your checks at your expense if we encounter rejects or problems in
testing your documents.
Account Usage. You acknowledge and agree that (a) we have no obligation to examine
or question the source of any funds deposited in your Accounts, and (b) if you establish
any Accounts for which you are acting in a fiduciary, agency, escrow or other
representative capacity, then you are solely responsible to the principals, beneficiaries
and others with an interest in connection with any such Account. We are not responsible
for monitoring your actions, verifying your compliance with any governing instruments
or other obligations you may have.
Checking Subaccounts. For regulatory and our internal accounting purposes, each
checking account will consist of a checking subaccount and a non-interest bearing
savings subaccount. Checks, debits and other items presented for payment will be posted
to the checking subaccount. We may transfer funds between these subaccounts from time
to time as follows. We may establish a threshold balance for your checking subaccount
by reviewing the master account historic activity to determine the amount not routinely
needed to pay debits ("threshold balance"). If the balance in your checking subaccount
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during any calendar month exceeds this threshold balance, we may transfer the excess
funds to the savings subaccount. We may also sweep the entire balance of your checking
subaccount into the savings subaccount during the weekend when no items will post to
your account. If the balance in your checking subaccount falls below the threshold
balance during any calendar month, we will transfer funds to your checking subaccount
from your savings subaccount sufficient to restore the checking subaccount to the
threshold balance. We may not make more than six transfers out of the savings
subaccount during any calendar month. If a sixth transfer is necessary, all funds in the
savings subaccount will be transferred to the checking subaccount for the remainder of
the calendar month. In that event, at the end of the calendar month, we will transfer
funds in excess of the threshold balance from the checking subaccount to the savings
subaccount. Because the savings subaccount is used for internal purposes only, you
cannot access it directly. Our transfers of funds into and out of the savings subaccount
will be the only transactions on the savings subaccount. Transfers between subaccounts
will not appear on your statement and will not be subject to any fees. The combined
balances of both subaccounts will be used to determine the balance of your account for
any minimum balance requirement or any other reason that a balance is considered. For
interest-bearing checking accounts, the subaccounts will not affect your use of your
interest-bearing checking account, funds availability,or the interest paid on your account.
The interest rate that applies to your interest-bearing checking account will apply to both
subaccounts.
Electronic Access. If you access your Accounts through our internet portal, by telephone
or similar means, your authorization to us to carry out your instructions or enable access
to your accounts may be given by the use of codes, personal identification numbers,
passwords, private keys, and similar means. All communications and access to your
Account using such methods are deemed valid,authentic and duly authorized by you.
Disclosing Information
We will maintain the privacy of information about you, your accounts and your
transactions in accordance with Applicable Law and our Commercial Privacy Policy that
is available via the Internet at www.53.com or upon request.
Indemnity and Limitations
YOU AGREE TO THE MAXIMUM EXTENT PERMITTED BY LAW THAT IN NO
EVENT WILL WE BE LIABLE OR RESPONSIBLE FOR ANY CONSEQUENTIAL,
SPECIAL, INCIDENTAL (INCLUDING ATTORNEYS' FEES), PUNITIVE OR
INDIRECT LOSS OR DAMAGE THAT YOU OR ANY OTHER PERSON MAY
INCUR OR SUFFER IN CONNECTION WITH ANY ACCOUNT OR YOUR USE OF
ANY ACCOUNT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGES OR COULD REASONABLY FORESEE SUCH LOSS
OR DAMAGE.
You further agree,to the maximum extent permitted by law,that our liability to you
arising in any way from the Accounts and your use of the Accounts will be limited to
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actual monetary damages that are the direct result of our failure to exercise reasonable
care.
You agree to indemnify and hold us and our officers, directors, employees, affiliates,
shareholders and agents harmless from and against any and all losses, liabilities,
damages, actions, claims and expenses including court costs and reasonable attorneys'
fees and expenses ("Losses") resulting directly or indirectly from, or arising in
connection with: (a) your breach of any obligation to us; (b) your violation of Applicable
Law; (c) your use of the Account and any transaction in the Account; and (d) our
complying with or carrying out any instruction or other direction given to us in
accordance with these Rules. You are not, however, obligated to indemnify us for any
Loss directly resulting from our gross negligence or bad faith.
Termination
We reserve the right to close your Accounts, with or without cause, at any time. You
may,at any time,close the Accounts after we have received written notice and have had a
reasonable opportunity to act on it. The existence of a zero balance in an Account does
not itself terminate an Account. Our rights under these Rules will survive the closing or
termination of your Accounts.
Set Off and Security Interest
Definitions. As used in these Rules:
"Obligation(s)" means all loans, advances, indebtedness and each and every other
obligation or liability owed by you to us or a Bank Affiliate (as defined below), however
created, of every kind and description, whether now existing or hereafter arising and
whether direct or indirect, primary or as guarantor or surety, absolute or contingent,
liquidated or unliquidated,matured or unmatured,participated in whole or in part,created
by trust agreement, lease, overdraft, agreement or otherwise, whether or not secured by
additional collateral, whether originated with us or owed to others and acquired by us by
purchase, assignment or otherwise, and including, without limitation, all loans, advances,
indebtedness and each and every obligation or liability arising under any loan document,
any and all Rate Management Obligations (as defined below), letters of credit now or
hereafter issued by us or any Bank Affiliate for you benefit or at your request, all
obligations to perform or forbear from performing acts, and agreements, instruments and
documents evidencing, guarantying, securing or otherwise executed in connection with
any of the foregoing, together with any amendments, modifications and restatements
thereof, and all expenses and attorneys' fees incurred by us or any Bank Affiliate in
connection with any of the foregoing; provided, however, that all Excluded Swap
Obligations(as defined below)are specifically excluded from Obligations.
"Rate Management Obligations" means any and all of your Obligations to us or
any Bank Affiliate, whether absolute, contingent or otherwise and howsoever and
whenever (whether now or hereafter) created, arising, evidenced or acquired (including
all renewals, extensions and modifications and substitutions) under or in connection with
(i) any and all Rate Management Agreements (as defined below), and (ii) any and all
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cancellations, buy backs, reversals,terminations or assignments of any Rate Management
Agreement excluding, for avoidance of doubt, Excluded Swap Obligations.
"Rate Management Agreement" means any agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates, exchange rates,
forward rates, or equity prices, including dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options, puts and
warrants, and any agreement pertaining to equity derivative transactions (e.g., equity or
equity index swaps, options, caps, floors, collars and forwards), including without
limitation any ISDA Master Agreement between you and us or any Bank Affiliate, and
any schedules, confirmations and documents and other confirming evidence between the
parties confirming transactions thereunder, all whether now existing or hereafter arising,
and in each case as amended,modified or supplemented from time to time.
"Excluded Swap Obligation" means, with respect to any guarantor of a Swap
Obligation, including the grant of a security interest to secure the guaranty of such Swap
Obligation, any Swap Obligation if, and to the extent that, such Swap Obligation is or
becomes illegal under the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended
from time to time, and any successor statute or any rule, regulation or order of the
Commodity Futures Trading Commission (including the application or official
interpretation of any thereof, the "Commodity Exchange Act") by virtue of such
guarantor's failure for any reason to constitute an "eligible contract participant" as
defined in the Commodity Exchange Act at the time the guaranty or grant of such
security interest becomes effective with respect to such Swap Obligation. If a Swap
Obligation arises under a master agreement governing more than one swap, such
exclusion shall apply only to the portion of such Swap Obligation that is attributable to
swaps for which such Swap Obligation or security interest is or becomes illegal.
"Swap Obligation" means any Rate Management Obligation that constitutes a
"swap"within the meaning of section I a(47)of the Commodity Exchange Act.
Bank Affiliates. In these Rules,"Bank Affiliate"means any one or more direct or indirect
subsidiaries of Fifth Third Bancorp and its successors and assigns, now in existence or
created or acquired in the future. These subsidiaries include entities with a name that
includes "Fifth Third" and entities without the Fifth Third name and include the
following entities:
Fifth Third Insurance Agency, Inc.
Fifth Third Mortgage Company
Fifth Third Securities, Inc. Member FINRA/SIPC
Vista Settlement Services,LLC
Fifth Third Real Estate Capital Markets, Inc.
The Fifth Third Leasing Company
Fifth Third Asset Management, Inc.
SLK Global BPO Services Pvt. Ltd.
Fifth Third Holdings, LLC
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Home Equity of America, Inc.
Fifth Third Mortgage, MI, LLC
The Fifth Third Auto Leasing Trust
Transactive Ecommerce Solutions, Inc.
Rights. Any Obligation may be charged to any Account in your name or in your name
and the name of another or others or any account, and you hereby grant to us a security
interest in your Accounts to secure the Obligations, regardless of the amount of your
contribution to such Account. You agree that the security interest you have granted to us
is consensual and is in addition to our common law right of set off. You also grant to us
the right, on you own behalf and on behalf of any Bank Affiliate, to set off against any
and all funds in your Account to pay any Obligation owed by you to us or any Bank
Affiliate. You acknowledge that the Obligations that are secured by our security interest
and set off rights include all present and future Obligations owed by you to us or any
Bank Affiliate. You agree that we may act in accordance with instructions received from
any such Bank Affiliate regarding disposition of any funds in your Account without any
further consent or action by you. We may exercise our right of set off and our security
interest without recourse to other collateral, if any, even if such action causes you to lose
interest, have transactions drawn on your account returned, incur an early withdrawal
penalty or any other consequence. If we exercise our rights under this paragraph, we will
notify you to the extent required by Applicable Law. Our right of set off and our security
interest do not apply to any Account expressly held by you, and to which you have
access, solely in a fiduciary capacity for the express benefit of others, and such rights
may not apply to your Account to the extent expressly prohibited by Applicable Law.
Solely for purposes of this paragraph, the term "Account" as used in this paragraph
means and includes any account (as that terms is defined in Article 9 of the UCC) you
have with any Bank Affiliate.
Pledged or Assigned Accounts
You agree that we may terminate or place a hold on,and dishonor all Items drawn on any
Account that you have assigned or in which you have granted a security interest to any
third party (whether or not we consented to such assignment or security interest). Upon
receipt of oral or written notice from any party of a claim regarding an assigned or
pledged Account, we may place a hold on the Account. You agree that we will have no
liability to you or any other person for our failure or refusal to honor any Item drawn on,
or any other withdrawal instruction regarding your pledged or encumbered Account.
Legal Process
If your Account becomes subject to any claim, or legal process or proceeding ("claim"),
we may suspend payment on, freeze or take other actions regarding any Account that we
believe to be affected until final determination or appropriate resolution of the claim,
regardless of the circumstances. We are not liable to you in that event provided we acted
in good faith. You may be subject to our fees and other charges in connection with a
claim on or against your Accounts.
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If we are brought into or must initiate any legal proceedings regarding you or your
Account, including for the collection of overdrafts, you agree to reimburse us, to the
extent allowed by law, for any reasonable attorneys' fees and costs that we may incur.
We may also, at our option,pay the funds subject to a claim to the clerk of an appropriate
court, so that the court may decide who owns or controls the money.
We may also create a hold on the Account in anticipation of such fees and expenses. We
will have no liability for complying with such legal process, or if there are insufficient
funds available in or another restriction on the Account because of actions we take in
response to such legal process.
Negotiable Order of Withdrawal(NOW)Account Eligibility Restrictions
A NOW Account is an interest-bearing transaction account. NOW accounts are only
available to individuals, sole proprietorships, non-profit organizations (operated primarily
for religions, philanthropic, charitable, educational or other similar purpose), and
governmental units.
Unlawful Internet Gambling Enforcement Act Notification
"Restricted transactions" are prohibited from being processed through any Account or
relationship. A "restricted transaction" includes, but is not limited to, any transaction or
transmittal involving any credit, funds, instrument, or proceeds that any person engaged
in the business of betting or wagering knowingly accepts, in connection with the
participation of another person in unlawful Internet gambling. It includes credit or the
proceeds or extension of credit (including credit extended by use of a credit card);
electronic fund transfers or funds transmitted by or through a money transmitting
business; or a check, draft or similar instrument that is drawn on or payable at or through
any financial institution.
Unlawful Internet gambling means to place, receive, or otherwise knowingly transmit a
bet or wager by any means that involves the use, at least in part, of the Internet where
such bet or wager is unlawful under any applicable Federal or State law in the State or
Tribal lands in which the bet or wager is initiated,received,or otherwise made.
Telemarketing Sales Rule
If you are subject to the requirements of the Telemarketing Sales Rule as promulgated by the
Federal Trade Commission (together with any additional or related rules and policies, the
"TSR"), you are prohibited, among other requirements, from creating and using certain
payment methods including "remotely created payment orders" (including a "remotely
created check") as defined in the TSR (collectively, the "Prohibited TSR Payments"). You
are responsible for understanding and complying with the TSR and agree that you will not
deposit with, initiate or send to,or seek to process with us any Prohibited TSR Payment.
•
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Amendment
From time to time,we may amend, add to or change (an "Amendment")these Rules. We
will give you notice of an Amendment by any reasonable means permitted by law,
including electronic notice or posting on our website. Amendments will be effective on
the date indicated in the notice. If an effective date is not indicated, the effective date
will be thirty (30) calendar days from the date the notice was sent or posted. If you do
not wish to be bound by an Amendment, you may close the Account before the effective
date of the Amendment. Your continued use of the Account after the effective date is
deemed your agreement to the Amendment. A change in our interest rates, fees or
service charges, funds availability or security or operating procedures does not constitute
an Amendment of these Rules and we may effect such changes at any time without prior
notice to you.
Subsidiaries and Affiliates
These Rules also apply to each of your subsidiaries and affiliates that have an Account
with us or have access to or use your Accounts as if they were a party to these Rules.
You represent and warrant to us that you have the authority to act for and bind such
subsidiaries and affiliates to these Rules, and agree to be responsible for any unpaid fees,
charges or other Obligations of such subsidiaries or affiliates. Otherwise, except as
expressly provided in these Rules (including with respect to Obligations) or by
Applicable Law, these Rules are not for the benefit of any other person, and no other
person will have any right against you or us in connection with these Rules.
Waiver of Jury Trial
You agree that any suit, action or proceeding, whether as part of a claim or counterclaim,
brought or instituted by you on or with respect to these Rules or any event,transaction or
occurrence arising out of or in any way connected with these Rules shall be tried only by
a court and not by a jury. YOU EXPRESSLY, KNOWINGLY AND VOLUNTARILY
WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR
PROCEEDING. You acknowledge that we would not have opened or maintained any
Account for you if this waiver of jury trial were not part these Rules.
Miscellaneous
Entire Agreement. These Rules, together with our Funds Availability Policy and Privacy
Policy, account opening forms, schedules and information specifically referred to in these
Rules, and the Master Agreement and any separate service terms or agreement in effect
between us constitutes the entire agreement between us regarding your Accounts and
supersedes any and all prior representations, understandings and proposals. There are no
oral agreements between us. These Rules are binding upon and for the benefit of you,
your successors and permitted assigns, and us and our successors and assigns. Our
internal rules and procedures are for our own internal benefit and do not create any rights
for you.
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Force Majeure. We shall not be responsible for, nor shall we incur any liability to you for
any failure, error, malfunction or any delay in carrying out any of our obligations under
these Rules if any such failure, error, malfunction or delay results from causes beyond
our reasonable control, including without limitation, fire, casualty, breakdown in
equipment or failure of telecommunications or third party data processing services,
internet disruptions, lockout, strike, accident, act of God, act of terrorism, riot, war or the
enactment, issuance or operation of any adverse governmental law, ruling, regulation,
order or decree, or an emergency that prevents us from operating normally.
Governing Law; Severability. These Rules are governed by and shall be interpreted
under the laws of the United States and of the State of Ohio (including the Uniform
Commercial Code of Ohio, as in effect from time to time), and other Applicable Law. To
the extent any Applicable Law may be modified or supplemented by agreement of the
parties and the provisions of these Rules or any other agreement or document applicable
to your Account or transactions have done so, you and we agree to such modifications
and supplements and the term "Applicable Law" shall be construed to include such laws
as so modified or supplemented. To the extent any term or provision in these Rules or
the application of such provision to any person or situation is invalid or unlawful under
Applicable Law, such provision shall be deemed modified to comply with Applicable
Law, and the remainder of these Rules and the application of such provision to other
persons or situations shall not be affected.
Notices. Except as otherwise provided in a separate agreement between you and us, or as
indicated in our brochures or materials with respect to a specific aspect of your Account,
all notices and other communications by you or us relating to your Accounts must be in
writing and,
• if to you, addressed to your primary address as shown in our records,
• if to us, at the branch office where you opened the Account, or at such other
address as we may specify in writing.
Any notice or communication to you or us will be effective no later than when actually
received, and there has been a reasonable time to act on it. We are entitled to rely on any
written notice or other communication that we believe in good faith to be genuine and to
have been authorized by you. We may give notices and communications to you in any
reasonable form or medium and by such means as are permitted by Applicable Law.
Facsimiles and E-mail. E-mail communications from you, including instructions, are not
binding on us and do not constitute notice to us as contemplated by these Rules unless we
otherwise expressly agree in writing. We may, however, rely on the content of e-mail
communications from you as being authorized if we accept the communication in good
faith and reasonably believe it was sent by an Authorized Person. We will NEVER ask
you for such information in an e-mail. You must NEVER provide your Account
number, security information or other confidential information in an e-mail to us or
any person.
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Processors. You acknowledge that we may arrange for some or all of our services to be
performed or provided by third party processors, who may or may not be affiliates. You
further agree that any such processor is a third party beneficiary of these Rules and as
such is entitled to rely on, and avail itself of,the provisions of these Rules as if it was us,
including the limits on liability and indemnities. We are responsible for the processors
we select.
Inactive Accounts. If an Account has had no withdrawal or deposit activity, and we have
had no contact from you regarding the Account for six (6) months, we may consider the
Account inactive and stop sending Account statements. Service fees and other terms
applicable to active Accounts will apply to the Account while it is inactive except where
prohibited by law. Inactive Accounts may be subject to additional fees. You understand
that under state abandoned property laws, we must turn over to the state your Account if
it has been inactive for a specified period of time as prescribed by Applicable Law.
Relationship. The relationship created by any deposit is that of debtor and creditor and
otherwise the relationship between us is that of independent contractor. No fiduciary or
other special relationship exists except as required by law.
Recording. You authorize us to monitor, record and retain telephone calls, electronic
messages and other data transmissions at any time without notice for any reason
including to provide a record of instructions with respect to your Accounts, but we are
not obligated to do so.
Transfer and Assignment Restrictions. You may not transfer or assign any of your rights
to, or grant a security interest in any Account or right to use the Account without our
prior written consent.
Other Agreements. To the extent that terms of these Rules directly conflict with the
terms of any other written agreement between you and us relating to any Accounts or
services provided by us, the specific terms of such other agreement shall control. Even if
a provision of these Rules is held to be invalid, illegal, or unenforceable, the validity,
legality, or enforceability of the other provisions of these Rules will not be affected or
impaired by such holding.
Waiver. We may waive, but only in writing, any provision of these Rules, but the waiver
will apply only to that provision and on that occasion. In no event is any waiver or series
of waivers to be construed as creating or requiring a waiver of any provision in the future.
Time Limitation. Except as otherwise specifically provided in these Rules, any
claim by you under these Rules or to recover a loss or damages related to your
account must be commenced within one year from the date that the event giving rise
to the claim first occurred.
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FUNDS AVAILABILITY POLICY FOR TRANSACTION ACCOUNTS
Fifth Third Bank is continually working to improve the collection of checks and the
availability of funds. The Expedited Funds Availability Act gives the Federal Reserve
Board powers to increase the speed of check clearings. As a result, Fifth Third Bank is
required to notify you of the details of this regulation which affect the availability of
funds deposited to your checking Account.
For deposits made on Saturday, Sunday or a Federal Holiday, the day of your deposit is
the next business day. "Business Day" is defined for purposes of this Availability Policy
as Monday through Friday, excluding federal holidays or as otherwise posted in the
Banking Center.
If you make a deposit at any affiliate banking center on a Business Day that the affiliate
banking center is open and prior to closing, we will consider that day to be the day of
deposit. However, if you make a deposit on a day that we are not open or after the
banking center is closed, we will consider that the deposit was made on the next Business
Day that we are open. Contact your local banking center or www.53.com for additional
information on your banking center's hours of business. Funds received after certain cut-
off times for certain channels and products may be credited as of the next business day.
The earliest cut-off time for funds transferred to your checking Account using Fifth Third
Direct is 7:00 PM EST. To determine if later cut-off times are available, please contact
your local banking center.
The "day of deposit" for deposits made at an Automated Teller Machine (ATM) at or
after 2:00 PM (7:00 PM in Western Pennsylvania, Georgia and North Carolina, St. Louis,
Tampa, Central Ohio, South Florida, Central Florida or Chicago) local time is the next
Business Day.
Funds from cash, wire transfer and electronic direct deposits to your Account will be
available on the day we receive the deposit.
The types of deposits available on the first business day after the day your deposit is
received by a Fifth Third Bank employee are:
• U.S. Treasury checks that are payable to you,
• Federal Reserve Bank checks that are payable to you,
• Federal Home Loan Bank checks that are payable to you,
• Postal money orders that are payable to you.
• State and local government checks *
• Cashier's checks *
• Certified checks *
* A special deposit slip must be obtained from a Fifth Third Bank customer service
representative in order to process these types of deposits for next day availability,
provided the Item(s) are payable to you and deposited into your Account.
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If you do not make your deposit of the Items listed above in person to a Fifth Third Bank
employee (for example if you mail the deposit), funds will be available no later than the
second business day after the day your deposit is received.
If you present an item to be cashed, we may place a hold on a corresponding amount of
available funds in your Account for the same amount of time the funds would not have
been available had the item been deposited into your Account.
Availability of Other Check Deposits
The availability of funds for commercial and business accounts, in most cases, is as
follows:
1. The first $200 from a deposit of a check(s) will be available on the first
business day after the day of your deposit. The remaining funds will be available no later
than the second business day after the day of your deposit.
2. In the case of some credit union drafts that are payable through another bank,
the determining factor will be the location of the credit union, not the payable through
bank whose routing number may appear on the check.
Deposits Made At Automated Teller Machines (ATM)
Deposits, including deposits made from a transfer between Accounts, made before 2:00
PM, 7:00 PM in Western Pennsylvania, Georgia and North Carolina, St. Louis, Tampa,
Central Ohio, South Florida, Central Florida or Chicago) local time on a regular business
day, at a Fifth Third Bank ATM will be treated as deposited that day. Deposits made at
and after 2:00 PM (7:00 PM in Western Pennsylvania, Georgia and North Carolina, St.
Louis, Tampa, Central Ohio, South Florida, Central Florida or Chicago) local time on a
regular business day or on a non-business day at a Fifth Third Bank ATM, will be treated
as deposited on the next business day. You will receive the first $100 from ATM non-
cash deposits received after 2:00 PM EST, but before 9:00 PM EST, on the day we
receive the deposit. Cash deposits received prior to 9 PM EST into an ATM with image
capabilities, where the deposit does not require an envelope or deposit slip, will be
available on the day we receive the deposit. Deposits made at a non Fifth Third Bank
ATM will be treated as deposited when received and credited by your Bank. Any item
deposited through an ATM may not, at our discretion, be considered a deposit until it is
accepted by us. For purposes of determining the applicable ATM cut-off time, the
location where the deposit account was opened will determine which ATM cut-off time
applies. Acceptance will occur when we place the item in the collection process. An
unprocessable item, including but not limited to unendorsed items, non-processable
items, etc, will not be considered a deposit. Deposits at an ATM may not be permitted
prior to Account opening. In all other respects, ATM deposits will be accorded the
availability described herein for the type of items deposited. ATM deposits are limited to
$50,000 for Fifth Third ATMs and $10,000 for all non-Fifth Third ATMs.
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Extraordinary Circumstances
In some cases, funds that you deposit by check will not be available according to the
schedule defined herein.
If all the funds from your non-ATM deposit will not be available according to the
scenarios described herein, a customer service representative will notify you when your
funds will be available at the time you make your deposit. If we decide to take this action
after you leave the premises, we will mail you notice of when the funds will be available
by the business day after we receive your deposit (or the Business Day following the day
the facts upon which a determination to hold your funds become known to us).
If your deposit is not made directly to a bank employee, and if we decide to take this
action, we will mail you notice when the funds will be available by the business day after
we receive your deposit.
If you want to be sure when a particular deposit will be available for withdrawal, you
should ask us when the funds will be available. It's important to know that, even though
your Account may show available funds, the check you deposited may not be authentic or
may not have cleared the bank it was drawn on.
Extraordinary circumstances, which may delay the availability of funds deposited for a
longer period include, but are not limited to:
• Reason to believe the check deposited will not be paid.
• Checks totaling more than $5,000 that are deposited on the same day.
• A check is redeposited that has been returned unpaid.
• The deposit Account has been repeatedly overdrawn in the last six months.
• An emergency, such as failure of communications or computer equipment,
occurs.
• An operational issue has occurred, such as failure of an ATM owning
financial institution to timely balance or reconcile the ATM and/or the
ATM deposits.
Availability of funds will generally be no later than the seventh business day after the day
of your deposit.
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The Following Applies To New Accounts During The First 30 Days
Funds from deposits of cash and the first $5,000 of a day's total deposits of cashier's,
certified, traveler's and state and local government checks will be available on the first
business day after the day your deposit is received by us provided all checks are payable
to you and you use a special deposit slip, if required. If you do not make this deposit in
person to one of our employees, the first $5,000 will be available on the second business
day after the day your deposit is received by us. The excess over $5,000 will be available
no later than the ninth business day after the day of your deposit.
The first $5,000 from a deposit of U.S. Treasury checks, U.S. Postal money orders,
Federal Reserve Bank checks and Federal Home Loan checks payable to you and
deposited in person to one of our employees will be available on the first business day
after the day of your deposit. The excess over $5,000 will be available no later than the
ninth business day after the day of your deposit.
Funds from electronic direct deposits to your Account will be available on the day we
receive the deposit.
Funds from wire transfers into your Account will be available on the first Business Day
after the day we receive the transfer.
Funds from all other check deposits will be available no later than the ninth Business Day
after the day of your deposit.
An Account is not considered a new Account if you have had, within 30 calendar days
before the Account is established, another transaction Account with us for at least 30
calendar days.
Endorsements
The Expedited Funds Availability Act includes provisions to standardize check
endorsements.
As a depositor of checks,the regulation limits the location of your endorsement to the top
1.5 inches at the trailing edge of the check. The trailing edge is directly behind where the
"Pay to the Order" is printed. This is where most endorsements are usually placed.
Any marks below the 1.5 inches on the back of the check may obscure the bank's
information and ultimately result in a delay in returning the check, and could result in the
forfeiture of your right to the recovery of those funds.
Transfer Limitations
The following limitations apply:
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• For security reasons, there are limits on the amount of cash withdrawals
from the Account that may be made from Fifth Third ATMs or other
ATMs.
• There are limits on the amount of cash you may withdraw or transfer
immediately after you make a deposit.
• No deposits or withdrawals may be made on a dormant Account through
Fifth Third ATMs or other ATMs.
• For security reasons, there may be other limits on the number and amount
of transactions you can make using Fifth Third Bank ATMs or other ATM
terminal systems.
Savings/MMDA Account Transaction Policies
Unlimited Transactions:
• You may make an unlimited number of payments from your
savings/mmda Account(s) to repay your Fifth Third loan or credit card
Accounts.
• Withdrawals/Transfers made in person or at an ATM are unlimited.
Limitations:
You are limited to six of the following transactions from your savings accounts each
month:
• Preauthorized or automatic withdrawals/transfers including but not limited
to:
• Automatic transfers from your savings account to cover an
overdraft.
• Internet Banking - transfer of funds or bill payment from your
savings account to third parties or to other deposit accounts at Fifth
Third.
• Preauthorized ACH or Electronic Transfers.
• Fifth Third Telephone Banking or any money management payment
from your savings account.
• Point-of-sale transactions with a debit card.
• Checks or drafts payable to third parties.
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Notification of Excessive Transfers:
We will send you notice after the first and second month of excessive withdrawals or
transfers. After three instances of exceeding the allowable number of withdrawals or
transfers, your savings/MMDA Account may be closed and funds placed in a checking
Account, or you may be offered other options to eliminate future excessive transfers,
including but not limited to, removal of the savings/MMDA Account's transfer and draft
capabilities.
Fees:
A fee may be assessed for each preauthorized or automatic withdrawal of transfer over
six per month.
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FIFTH THIRD PRIVACY NOTICE FOR COMMERCIAL CUSTOMERS
I. Introduction
This Privacy Notice for Commercial Customers (the "Notice") applies to Company
Information (as defined below) about individuals and business or other entities that
seek or obtain financial products and services from Fifth Third for business or
commercial purposes ("Commercial Customers"). This Notice does not apply to
information received from individuals who seek or obtain financial products or services
from us for personal, family or household purposes; such consumer information is
governed by the Fifth Third Privacy Notice for Consumer Information. For purposes of
this Notice, "Company Information" means any information about a Commercial
Customer from which the Commercial Customer could be identified, whether obtained
directly from the Commercial Customer or from another source. Company Information
may include, but is not limited to: (a) Company name; (b) physical address, including
street name and name of city or town; (c) an e-mail address or other electronic contact
information; (d)a telephone number; (e)a tax identification number; (f)a credit history;
(g) a bank or credit card account number; (h) financial statements; (i) information about
officers, directors, and other control persons; and (j)any other information from or about
a Commercial Customer. However, the following is not considered Company
Information: (a) aggregated or anonymous information that does not identify a customer
and (b) information that Fifth Third obtains from a public source (or knows to be
available from a public source).
Fifth Third may make changes to this Notice from time to time. It is available to you at
https://www.53.com/site/global/privacy-security/.
II.How We Gather Company Information
We may gather and retain Company Information about Commercial Customers from the
following sources:
• Applications or other forms that you provide to us;
• Financial account activity and transactions(such as payment history, account
balances and usage);
• Credit-related information from credit reporting agencies;
• Information from website visits(such as cookies,usage and transaction history,
and other technical data that we use for security purposes and to enhance the
online experience);
• Information we receive from third parties such as data providers or independent
researchers.
III. How We Share Company Information
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Fifth Third shares Company Information among and between all of its affiliates. You may
not opt-out of this sharing. Fifth Third may share Company Information with non-
affiliated third parties and with Vantiv, LLC ("Vantiv") in order to offer you additional
products and services. Fifth Third has an ownership interest in Vantiv. You have the right
to opt-out of such sharing, as described below in "How To Change Your Privacy
Options."
Fifth Third may also disclose Company Information to non-affiliated third parties for
routine business reasons. For example, Fifth Third may disclose Company Information
to service providers and other third parties as necessary to facilitate a transaction
requested by a Commercial Customer. You may not opt-out of this sharing.
Each of the above third parties with which we share Company Information as
described above is obligated to keep the information we provide to them confidential.
In addition to the above, Fifth Third may also disclose Company Information to non-
affiliated third parties in response to a subpoena, warrant, or court order, or as otherwise
required or advisable considering applicable law or regulation.
Fifth Third may collect certain financial information about individuals —such as business
owners or loan guarantors - that Fifth Third receives in connection with providing
products or services to a Commercial Customer. Fifth Third will not use or transfer
such information for any purpose other than facilitating the commercial transaction
for which the information as originally provided, except with the consent of the
individual.
Please note that Fifth Third does sell loans and other obligations to third parties for a
variety of reasons. Consent of the individual, guarantors or borrowers is not required
and notice will not be provided in the event of a sale of any loan or other obligation to a
third party.
IV.How To Change Your Privacy Options
We will share Company Information as described in Section III above unless you direct
us otherwise by taking one of the below steps. Note that based on the sharing practices
above,there are certain instances that you may not opt out of.
• Write to us at Fifth Third, Customer Service, Privacy Administration, Post
Office Box 4444, Cincinnati, Ohio 45263-4444. Requests must include
Company name, address, contact telephone number, relation Tax Identification
Number ("TIN") for all business entities that will opt out and account
number(s) (if applicable). Incomplete information will delay or possibly prevent
our ability to honor your request.
• Call a Fifth Third Customer Service Professional at 1-800-889-5269.
• Visit any Fifth Third Banking Center.
29
Our system will be updated to reflect your privacy preferences within 30 days following
receipt of the request with complete information. You can verify the update by calling the
Customer Service number listed above or visiting any Fifth Third Banking Center.
If you have already shared with us your privacy preferences under this Notice, it is not
necessary to contact us again. We will continue to honor the preferences you have
provided.
V.Security
To protect Company Information from unauthorized access and use, we use appropriate
physical, procedural and technical safeguards as required by law.
VI. Fifth Third Companies Covered by this Notice
This notice will apply to all affiliates of Fifth Third, now existing or hereafter arising.
This list is available to you at https://www.53.com/affiliatedcompanies.
FTB Legal 8.2016
1826142.16
30
FIRST AMENDMENT TO AGREEMENT FOR
BANKING SERVICES
Ml rC l
THIS AMENDMENT is entered into as of this day of afi4 2017
and is to that certain Agreement Number 2017-128 dated October 1St, 2017, hereinafter "the
Agreement", by and between the CITY OF CLERMONT, FLORIDA, a municipal corporation
under the laws of the State of Florida whose address is: 685 W. Montrose Street, Clermont,
Florida, hereinafter referred to as "CITY" and FIFTH THIRD BANK, 200 E. Robinson Street,
Orlando, FL 32801 hereinafter referred to as"CONTRACTOR". The parties, in exchange for the
mutual covenants contained herein and in the Agreement, agree as follows:
1. This Amendment expressly modifies the Agreement and in the event of a conflict,
the terms and conditions of this Amendment shall prevail.
2. The Commercial Card Agreement and Commercial Card Rebate Amendment
referred to and incorporated into the Agreement is hereby amended to include the addition of
commercial card services program as more particularly described in Attachment "A" attached
hereto and incorporated herein.
3. All other terms and conditions set forth in the Agreement shall remain in full force
and effect and unchanged as agreed to by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
dates set forth below.
City of Clermont Attest:
Gail L. Ash, Mayor Tracy Ackroyd Howe, City Clerk
Date: `J d
Fifth Third Bank Attest:
By: V21441(it.
Dauri A. Sandison Corporate Secretary
Treasury Management Sales Officer
Vice President
ATTACHMENT A
'-'1°11°11.11.14211111"111.161
FIFTH THIRD BANK'
COMMERCIAL CARD SERVICE
AGREEMENT
This Commercial Card Service Agreement("Agreement")is entered into by and between Fifth Third Bank,an Ohio
banking corporation ("Bank"or"we") and the undersigned Customer("Customer" or"you") effective as of the
date accepted by Bank as written on the signature page to this Agreement under its signature.
1. Introduction
Card Programs. The Fifth Third Commercial Card is designed to handle all of an organization's purchasing,travel,
and fleet spending needs through a single card platform. Our Card programs offer a wide array of features and
control options including merchant category and velocity controls that limit your Cardholders to or from a particular
category of spend.Certain features of our Card programs including Fifth Third ePay®may be accessed pursuant to
the Access Channels described below
The Card Service. At your request, we have agreed to provide to you our Commercial Card Service on the terms
and subject to the conditions set forth in this Agreement (the "Card Service"). The Card Service consists of the
Account, the Cards and the related services described in this Agreement. The Card Service may only be used for
business or commercial purposes and not for personal, family, household or other consumer purposes. This
Agreement is not binding on us until one of our authorized officers has executed it and delivered the signed copy to
you.
Information. Before we can make the Card Service available to you, you are required to complete a set up and
implementation process and complete related forms. This process includes the selection of important features and
options available with the Card Service and the designation of persons with authority to act for you("Authorized
Persons"). Some of this information will be entered into forms by one of our representatives. In addition, we may
require information or the execution of documents at various times throughout the duration of this Agreement. You
agree to provide any information and to execute documents that we reasonably require in connection with the Card
Service. Additional information about, and requirements for the Card Service and various features of the Card
Service may be included in reference guides and other information we provide to you in the set up process and
throughout your use of the Card Service in hard copy or online(as updated from time to time, "User Guides").
Representatives. We rely on the information provided to us by an Authorized Person or agents,officers,employees
and representatives of you or your subsidiaries ("Representatives") in providing the Card Service to you. Any
changes in Representatives or to the information you provide us must be promptly communicated to us and given or
promptly confirmed in writing although we may, in our sole discretion, act on oral requests for changes. A change
shall be effective only after we receive the proper request for such change and we have had a reasonable opportunity
to act on the request. Until then, we may rely on status of your Representatives as previously given to us,and on
information that purports to have been authorized by individuals you previously authorized. You agree that we may
refuse to comply with requests from any person until we receive documentation reasonably satisfactory to us
confirming the person's authority.
OCAA. This Agreement is one of the Bank Agreements referred to in the Online Channel Access Agreement in
effect between Customer and us (as it may be amended from time to time, the "OCAA"). The Card Services
provided under this Agreement are"Bank Services" for purposes of the OCAA and this Agreement. The OCAA
governs the Access Channel and Channel Services(each as defined in the OCAA)used to access the Card Services
and together with this Agreement govern the Card Services provided to Customer contemplated by this Agreement.
October 20I6
If Customer uses the Channel Services without having executed an OCAA, Customer will be nevertheless be bound
by the OCAA in the form provided or made available to Customer.
Channel Services. The Channel Services available in connection with the Card Services include the Admin
Applications described in Section 17 of this Agreement.
2. Establishment of Account and Issuance of Cards
The Account. Upon completion of the set up process, we will establish for you a commercial credit account
("Account") subject to the credit limit we impose, and issue one or more cards (or similar devices) and account
numbers associated with your Account("Card"or"Cards")to your Representatives as designated by you from time
to time ("Cardholders") in accordance with this Agreement and our Card Service procedures. At your request,
Cards may be issued in the name of a group or department,or as a Nameless Card(as described below),and we can
enable you to effect transactions solely with a Card or Account number without a physical card or device. All use of
such Cards or Account number and transaction are considered as effected by a Card on the Account for purposes of
this Agreement. We will issue each Card for the original term indicated on the Card. Unless and until a Card has
been properly cancelled,the Card is valid and may be used for transactions,and a renewal or replacement Card will
be issued for it. Once issued as requested by you and subject to the provisions of this Agreement, you are solely
responsible for the use of the Card and for imposing and enforcing any limits or restraints you wish to impose on a
Cardholder's use of the Card.
Cardholders. As part of your responsibility for your Cardholders,you agree to:(a)limit use of all Cards to business
or commercial purposes on your behalf; (b)review,or cause each Cardholder to review,the Cards upon receipt to
confirm that all information relating to you or the Cardholder on the Card is correct,and to notify us immediately if
the information is not correct;(c)impose internal controls and procedures to prevent fraud and unauthorized use of a
Card;and,(d)timely review and reconcile all Account activity and transactions as further described below.
Transactions. Cards and the Account may be used to effect the purchase or reservation of goods or services and
cash advances by all generally recognized means unless otherwise restricted by us including swipe, virtual card
numbers (if you select this feature of the Card Service), signed seller drafts, telephone, internet entry, use of an
account number or otherwise. We are not responsible for the failure or refusal of anyone to honor a Card. Subject
to the express limitations set forth in this Agreement, you are responsible for all uses of a Card and Card number
regardless of the means by which the transaction is effected and regardless of whether it is authorized by you or
violates your internal policies, controls or restrictions. Merchant category and velocity controls, when properly
implemented and used by you and reported by the merchant,can be effective in controlling transaction activity.
Card Administrator. In the set up process for the Card Service, you will appoint an individual to serve as your
administrator("Card Administrator") with the authority to administer and manage the use of the Card Service on
your behalf as further described in this Agreement and the User Guide including the authority to issue,impose limits
on and cancel Cards and accept and act on communications from us regarding the Card Service.
Customer Identification Program. To help the government fight the funding of terrorism and money
laundering activities, federal law requires all financial institutions to obtain,verify, and record information
that identifies each person or business entity that establishes an Account. When you establish an Account
with us,you must provide us with your business entity name,principal and local(if different)address,date of
establishment, employer identification number and other information. We may also seek additional
information or documents. You agree that we may seek information about you from third parties to confirm
your identity and for other Account related purposes. We are required to follow these procedures even if you
are already a customer of ours.
2
3. Promise to Pay
Obligation. You promise to pay us all Obligations without deduction or setoff in accordance with this Agreement.
Subject to the limitation under"Fifth Third Use Liability Policy"in the following paragraph,you are required to pay
us whether or not the use of the Account,Card,account numbers or other incurrence of indebtedness was authorized
by you. Cancellation of a Card or termination of the Account does not in any way excuse your obligation to pay for
all purchases or other charges incurred against or in connection with the Account or with any Card or account
number through the effective time of the cancellation or termination. As used in this Agreement, the term
"Obligations" means (a) the aggregate outstanding principal amount of, and all interest, fees and charges on
advances made by us on or in connection with the Account, through the use of a Card, an account number or
otherwise (including any interest accruing after the commencement of any proceeding by or against you under the
federal or state bankruptcy, insolvency or other similar laws,and any other interest that would have accrued but for
the commencement of such proceeding),(b)all of your obligations and liabilities for the indemnification of us under
this Agreement,and(c)all fees,costs,charges,expenses,reimbursements and other similar obligations from time to
time owing to us under this Agreement. Payment of the Account balance is due in full monthly on the due date
specified by us in the set up process unless otherwise expressly agreed by you and us in the set up process as
evidenced by our implementation records("Payment Due Date").
Fifth Third Use Liability Policy. if you believe that a transaction on your Account was unauthorized, you must
notify us as soon as possible but not more than sixty (60) days after the transaction in question appears on your
Account Statement(as defined below). You will be required to provide us with reasonable information about the
transaction to enable us to investigate the matter,and to reasonably cooperate with us in any investigation. If you do
that, and the following conditions are met, you will not be responsible for the unauthorized transaction: (a) the
transaction was not effected by a current or former employee or other Cardholder designated by you;(b)there are no
past due obligations on the Account; and, (c) you have exercised reasonable care in safeguarding your Cards and
Account from unauthorized use including that you did not provide,directly, by implication or otherwise, the right to
use a Card or the Account to the person effecting the transaction, or receive any tangible benefit from the
transaction. If the conditions in this paragraph are satisfied, we will credit your Account for the amount of the
transaction in question and any fees and interest that may have been applied or accrued as a result of that transaction.
In addition, MasterCard or other payment network associated with the Cards, if any(a"Payment Network") may
offer a liability protection program; contact the Payment Network for additional information. We will provide a
copy of the Payment Network's program literature upon request. If we have issued fewer than ten Cards in
connection with the Account,your liability for a series of unauthorized uses cannot exceed either$50 or the value
obtained through the unauthorized use before the card issuer is notified,whichever is less. The term"unauthorized
use" means the use of a credit card by a person, other than the Cardholder, who does not have actual, implied, or
apparent authority for such use,and from which the Cardholder and you receive no benefit.
4. Periodic Account Statements
Effect. After the close of each billing cycle,we will mail or transmit to you an Account Statement,with transactions
on each Card or Account number during the billing cycle itemized separately as subaccounts on the main Account
("Account Statement"). You may also request in writing that we mail or transmit individual statement memos to
each Cardholder at a specified address. The Account Statement will show transactions that have been posted to the
Account in connection with any Card since the last Account Statement, any payments and adjustments to the
Account,any fees charged to any Card or the Account,any finance charges,the outstanding balances on each Card
and on the Account and the Payment Due Date.
Discrepancies. Except for matters subject to Section 3, if there is a discrepancy between your records and the
information shown on any Account Statement or other confirmation,or you discover any other error in an Account
Statement or confirmation, you must notify us within thirty (30) calendar days after you receive such Account
Statement or confirmation, or within such greater amount of time as may be required by applicable law. You must
also follow the procedures described in the User Guide. if you fail to notify us within such 30-day period or fail to
follow the prescribed procedures,you may be precluded from asserting the discrepancy against us and you will be
obligated to us as provided on the applicable Account Statement. All entries in our books, records and accounts
shall constitute conclusive evidence of transactions unless you furnish proof of manifest error.
Foreign Currency Transactions. To convert transactions made in foreign currencies into U.S. dollars, the relevant
Payment Network will use its then-current currency conversion rates and the procedures established by such
3
Payment Network in its sole discretion. Currently, the currency conversion rate used to determine the transaction
amount in U.S. dollars is generally either a wholesale market rate or a government-mandated rate in effect on the
date of the conversion, increased by the applicable conversion charge determined by the Payment Network,if any.
The currency conversion rate used on the conversion date may differ from the rate in effect on the date the
transaction occurred.
5. Making Payments
Payment Due Date. Payment of the full amount of the Account as shown on the Account Statement is always due
on or before the Payment Due Date shown on the Account Statement. The Card Service is a full pay Account -you
must pay in full the amount specified on the Account Statement. Any amount of the Account balance not timely
paid is subject to a finance charge as calculated by us based on the finance charge specified in the Fee Schedule.
Payments. Payments must be made in U.S. dollars. Except for payments made by Auto Debit as described below,
you are responsible for timely making payments in the form we accept for receipt at the destination we specify to
you on or before the date due. Payments not delivered or transmitted in that form to that destination will not be
treated as timely received. Payments received after 3:00 p.m.,Eastern Time,on any business day or on a day which
is not a business day will be credited on the next business day. Credit to any Card or the Account may be delayed
for up to five days if the payment is not(a)made in U.S.dollars drawn on or from a U.S.financial institution located
in the U.S.or by money order,or(b)accompanied by the proper account number and if not made electronically,not
accompanied by the top portion of the Account Statement. Delayed crediting may cause you to incur additional fees
and finance charges.
Debit Authorization. Unless you and we have agreed in writing to payment by another method,all payments on the
Account shall be made by direct automated clearinghouse(ACH)debits to your banking account with us or another
financial institution("Auto Debit"). You agree to complete an authorization form required by us and you authorize
us to initiate debit entries to the account with the financial institution you designate for the amount due on the
Account Statement until you have properly revoked the authorization. You agree to be bound by the NACHA
Operating Rules with respect to these ACH transactions. We agree to timely initiate Auto Debits for payments on
the Account subject to access to and availability of funds in,your bank account.
Application. We reserve the right to apply payments and other credits to the Account in any manner that we may
choose in our sole discretion. All credits for payments to the Account are subject to final payment or settlement by
the institution on which the item of payment was drawn or from which the electronic payment was made. Although
we may post payments as of the date we receive them,the available credit limit associated with the Account may not
be restored for up to five days after we receive the payment.
Credit Balances. Credit balances will be applied to the next Account Statement unless you and we expressly agree
otherwise.
6. Fee Schedule
Except as we may expressly agree in a written agreement executed by our authorized representative and delivered to
you by us,you agree to pay all fees,interest and charges associated with the Account including those set forth in the
Account Fees Schedule(the"Fee Schedule")attached to,or accompanying the executed version of this Agreement
which is incorporated into this Agreement by this reference; if a Fee Schedule is not so attached or accompanying
the executed version of this Agreement,you agree to pay our standard account fees, interest,penalties and charges.
The Fee Schedule may be revised by us as provided in Section 19 of this Agreement.If there is any conflict between
this Agreement and the Fee Schedule, this Agreement shall govern, but only to the extent reasonably necessary to
resolve the conflict. Any finance charges,fees and other amounts,including penalties,assessed against the Account
will be posted as direct charges to the Account and will count against the applicable credit limit until paid.
7. Account Controls
Monitoring Obligation. You are responsible for monitoring the use of the Cards,account numbers and the Account,
and detecting unauthorized or improper use. We offer online account management tools through the Channel
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Services to assist you in carrying out this responsibility, including access to transaction information and the means
to cancel a Card or impose limits on the use of a Card.
Lost or Stolen Cards; Unauthorized Use. You are responsible for cancelling any lost, misused or stolen Cards,
Cards or the Account that you suspect may have been the subject of fraud,unauthorized use or misuse,and the Card
(and associated authorization)of any Cardholder no longer authorized by you to use a Card, whether as a result of
termination of employment or otherwise. You are responsible for retrieving the cancelled Card and destroying it to
prevent further use. You may also cancel a Card or terminate a Cardholder's use of a Card by calling our customer
service center. All telephone communications by you to us must be made by calling our customer service
center at 1-800-375-1747 as soon as the need arises. You understand that we will require a reasonable amount of
time to act on any request made by telephone. You will not be liable for unauthorized use that occurs after you
notify us of the loss, theft, or possible unauthorized use in writing at Madisonville Operations Center, Issuer
Disputes Dept.,Mail Drop IMO2G,Cincinnati,Ohio 45263 or by telephone at the number given above.
Our Programs. We may(but are not obligated to)apply software programs and other techniques to detect patterns
and other indications of potential fraud and unauthorized use of the Account. These programs and techniques are
not a substitute for proper Account management and the implementation and enforcement of Card controls by you,
and cannot be relied upon to prevent fraud or unauthorized use. Our techniques may, however,result in the denial
of a transaction,reduction of limits or other actions by us as indicated by such programs and techniques.
0 8. Credit Limit
Establishment. We will establish an aggregate credit limit for the Account and communicate the limit to you prior
to or during the set up process. You are responsible for specifying a credit limit for each individual Card or class of
Cards you request for Cardholders. You understand that you can impose and change Card limits through the
Channel Services. We may refuse to authorize any transaction against a Card that would bring the total amount
outstanding against the Card or against the Account as a whole to a level that would exceed the relevant credit limit.
Over-limit Transactions. If we determine in our sole discretion to authorize or accept a transaction on the Account
or a Card that would exceed the credit limit for the Account or that Card,we shall not be liable for doing so. If we
authorize or accept a transaction which exceeds the relevant credit limit,you shall,at our request immediately pay in
full the entire amount of the excess,together with any applicable over-limit charges and related fees.
Changes. We may from time to time and in our sole discretion (a) change the Account's or any Card's credit
limit(s),(b)reduce the Account or Card credit limit to$0,(c)cancel one or more Cards or close the Account,or(d)
limit the number and amount of transactions on the Card or the Account. We will notify you promptly in the event
we decide to take such action on the Account or a Card. While we expressly reserve the discretion described in this
paragraph, except for cases of known or suspected fraud,changes resulting from regulatory requirements or where
we believe there exists a risk of loss to us, we will use commercially reasonable efforts to consult with you in
advance prior to reducing credit limits for the Account or any Card.
9. Representations, Warranties and Undertakings
Ours. We represent and warrant to you that: (a) we have the legal right to execute and perform our obligations
under this Agreement;(b) we are duly organized,validly existing and in good standing under the laws of Ohio; (c)
the execution and delivery by us of this Agreement has been authorized by all necessary corporate and required
governmental action; (d)the person signing this Agreement on our behalf is duly authorized to do so; and, (e) our
execution,delivery and performance of this Agreement do not violate any laws,rules or regulations affecting us or
the provision of the Card Service,our articles of association or bylaws,or any material agreement that is binding on
us.
Yours. You represent and warrant to us that: (a)the financial statements you have delivered or made available to us
at any time have been prepared in accordance with US Generally Accepted Accounting Principles, and fully and
fairly present your financial condition as of the dates of the statements and results of operations for the periods
covered by the statements; all other financial information you have provided is true and correct; you have not
suffered or incurred a material adverse change in your business, financial condition or operating results since the
date of the most recent financial statements you provided to us;and,you are not subject to any material undisclosed
liability;(b)you have the legal right to execute and perform your obligations under this Agreement;(c)you arc duly
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organized,validly existing and in good standing in the jurisdiction in which you were organized; (d)the execution
and delivery by you of this Agreement and the incurrence of the Obligations have been authorized by all necessary
corporate and required governmental action;(e)each person signing this Agreement on your behalf is an Authorized
Person and is duly authorized to do so;and,(f)your execution,delivery and performance of this Agreement do not
violate any laws,rules or regulations affecting you or your use of the Card Service,your articles of incorporation,
bylaws or similar governing documents,or any material agreement that is binding on you.
Regulation GG. You agree not to use the Account in connection with any business of placing, receiving or
otherwise knowingly transmitting bets or wagers by any means which involves the use, at least in part, of the
Internet, or for any other transaction which is prohibited by Federal Reserve Regulation GG - Unlawful Internet
Gambling Enforcement Act of 2006.
Financial Statements. Except to the extent your current financial statements are timely filed with, and publicly
available from the Securities and Exchange Commission, you agree to furnish us upon request with your current
financial statements and other information pertaining to your business or financial condition,and operating results.
10. Confidentiality,Security and Privacy
Your Obligations. You represent that you have in place,and covenant that you will maintain in effect and enforce
reasonable policies and measures to reduce the incidence of fraud and other unauthorized use of,and access to Cards
and your Account and to preserve the confidentiality of your Account numbers and account access procedures. In
addition,you agree to safeguard,keep confidential and not disclose to any third party the payment,pricing terms or
fees for the Card Service and any Security Procedures,and to limit the internal disclosure and distribution of such
information to your Representatives who have a need to know such information. You must notify us immediately if
there has been a breach of your security,or any Security Procedures have been have been lost,stolen,compromised
or misused.Notwithstanding the foregoing,the confidentiality obligations set forth in this Section 10 do not apply to
the extent you are subject to freedom of information,open government or similar laws or regulations requiring you
to disclose any such information.
Our Obligations. We acknowledge that all non-public information we obtain from you in providing the Card
Service may be confidential. We will maintain the confidentiality of such information in accordance with our
normal procedures for safeguarding customer information. We may,however,share your information in accordance
with the Fifth Third Privacy Notice for Commercial Customers("Privacy Policy")which is available on our website
at www.53.com.
System Security. We have implemented policies, procedures, and controls to safeguard Customer information in
accordance with Applicable Law including the Interagency Guidelines Establishing Standards for Safeguarding
Customer Information which address standards for security, confidentiality and integrity of customer information.
We are subject to periodic reviews by our federal banldng regulators.
Breach Incidents. We will notify Customer of security breach incidents involving Customer's information as
required by and in accordance with Applicable Law.
11. Disclaimer of Warranties
We disclaim all warranties expressed or implied in connection with the Card Service,and any such warranties are
hereby expressly excluded. We do not warrant that the Card Service shall be error free or that the use of the Card
Service shall be uninterrupted. YOU WAIVE ALL WARRANTIES,EXPRESS,IMPLIED OR STATUTORY,
INCLUDING,BUT NOT LIMITED TO,ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
12. Limitation of Liability
YOU AGREE TO THE MAXIMUM EXTENT PERMITTED BY LAW THAT: IN NO EVENT WILL WE BE
LIABLE UNDER ANY THEORY AT LAW OR IN EQUITY FOR ANY DAMAGES THAT YOU OR ANY
OTHER PERSON MAY INCUR OR SUFFER IN CONNECTION WITH THE CARD SERVICE OR THIS
AGREEMENT THAT ARE NOT DIRECT, ACTUAL DAMAGES RESULTING FROM OUR BAD FAITH,
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GROSS NEGLIGENCE OR WILFULL MISCONDUCT IN PROVIDING THE CARD SERVICE; AND, WE
WILL NOT IN ANY EVENT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT,
PUNITIVE, SPECIAL OR SPECULATIVE LOSSES OR DAMAGES (INCLUDING LOST PROFITS, GOOD
WILL AND OPPORTUNITIES) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITIES OF SUCH
DAMAGES AND REGARDLESS OF THE TYPE OF CLAIM. Except for our subcontractors,we shall not in any
event be liable for(a)any loss,damage or injury caused by any act or omission of any third party, whether or not
such third party was chosen by us, (b) any charges imposed by any third party, or (c) any loss, damage or injury
caused by any failure of the hardware or software used by a third party to provide the Card Service to you. In
addition, we shall not be responsible for,or incur any liability to you for any failure or delay in carrying out any of
our obligations under this Agreement,if such failure or delay was caused by any third party.
13. Your Indemnification Obligations
Except to the extent prohibited by applicable law, you agree to indemnify and hold us and our officers, directors,
employees, shareholders and agents harmless from and against any and all losses, liabilities, actions, claims,
judgments, settlements, damages, costs and expenses, including reasonable fees, expenses and costs of outside and
in-house legal counsel(collectively,"Losses")resulting directly or indirectly from,or arising in connection with(a)
our providing the Account or Cards,extending credit to you or otherwise providing the Card Service to you (other
than Losses that result from our bad faith,gross negligence or willful misconduct),(h)your violation of any of your
representations, warranties or covenants under this Agreement and (c)Individual Billing or the issuance by us, or
use by you, of Nameless Cards (each as defined below) other than Losses that result from our bad faith, gross
negligence or willful misconduct.
14. Special Situations
Nameless Cards. If you request that we issue Cards without the individual Cardholder's name embossed or
otherwise noted on the Card (a"Nameless Card"),you acknowledge that we strongly recommend against the use of
Nameless Cards. Nameless Cards present, among other risks, the increased risk of loss to you from fraud and
unauthorized or improper use. If you nevertheless request that we issue Nameless Cards,you assume all known and
unforeseeable risks associated with the use of a Nameless Card and release us and our Representatives from any and
all liability for issuing and the use of a Nameless Card.
Individual Billing. If you request that we bill any Cardholder individually (a practice sometimes referred to as
"Individual Billing"),you acknowledge that we recommend against the practice. If you nevertheless request,and
we agree to send individual Account Statements to one or more individual Cardholders,you acknowledge that you
arc in no way relieved of any of your Obligations under this Agreement whatsoever including the obligation to
timely pay the full amount due for that Card and all other Cards by the applicable Payment Due Date, as well as all
applicable fees, interest and charges. You assume all known and unforeseeable risks associated with Individual
Billing and release us and our Representatives from any and all liability for Individual Billing.
License of Your Marks. For some of our Card programs,we offer you the ability to affix a Mark(as defined below)
to a physical Card. If you wish to use this feature of our Card Service,you grant to us a non-transferable,non-sub-
licensable, non-exclusive, royalty-free, worldwide license to use the trademark, trade name or service mark and
related design or logo that you specify(collectively, "Marks") for the sole purposes of affixing it to Cards issued
under this Agreement. The use and display of the Mark on a Card is subject to our requirements and approval,and
the approval of the Payment Network. You represent and warrant to us that you have the right to use and license to
us the Mark as contemplated by this Agreement and that the Mark,your license of the Mark and the use of the Mark
on a Card do not infringe or violate the intellectual property or other rights of any third party. We agree that we will
use the Marks only in the manner you authorize, and that you retain all rights in and to the Marks not expressly
granted under this Agreement. Once you approve the model of the Mark for impression on a Card, you may be
responsible for the costs we have incurred in producing the Card and Mark design should you not use that model.
15. Default
Events. Subject to applicable law,you shall be in default under this Agreement upon the occurrence of any one of
the following: (a)you fail to make any payment of any Obligation when due in accordance with provisions of this
Agreement; (b)you become generally unable to pay your debts as they become due; (c)any other creditor tries by
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legal process to take or foreclose upon any of your assets; (d)you or any guarantor of the Obligations: becomes
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insolvent,is placed in receivership,is adjudicated bankrupt,or is subject to any voluntary or involuntary bankruptcy
or insolvency proceeding or any assignment for the benefit of your creditors; (e)you provide us with any false or
misleading material information; (f) any representation or warranty made by you in this Agreement is untrue or
incorrect in any material respect or you breach in any material respect any covenant or undertaking under this
Agreement;(g)you are in default of any other credit,loan, leasing or similar agreement for the extension of credit
you have with us or any of our affiliates;(h)you violate any applicable law in connection with the Account or use of
the Cards; (i) any guarantor or other third party that has guaranteed or assumed any responsibility for the
Obligations is in default of any guaranty or similar agreement with us; or (j) we believe in good faith that your
ability to pay or perform the Obligations under this Agreement has been materially impaired.You may incur fees or
other charges in connection with a default. The payment of any fee or other charge will not cure the default that
triggered the fee or charge.
Remedies. If you are in default under this Agreement,we may in our sole discretion,subject to applicable law take
any one or more of the following actions:(i)declare all or any portion of the Obligations to be immediately due and
payable; (ii) allow you to repay the Obligations according to the terms of this Agreement; (iii) immediately
terminate this Agreement,the Account and any and all Cards and authorizations relating to the Account;(iv)revoke
or suspend the use of the Account,reduce the Account credit limit or otherwise limit your ability to use any Cards;
and,(v)enforce any applicable guaranty of the Obligation,(vi) liquidate any collateral securing the Obligations or
any guaranty; and (vii) commence an action against you to collect all amounts owed in connection with this
Agreement. You are liable for any court costs and reasonable attorneys' fees incurred by us in the collection of the
Obligations.
16. Term and Termination
Term. The term of this Agreement commences on the date it is accepted and executed by us and continues until
terminated by us under this Section 16 or by us or you upon thirty(30)days written notice to the other party.
Termination Rights. We may terminate this Agreement or terminate or suspend the Card Service if; (a)you are in
default as provided in Section 15; (b) any person or group acting in concert that does not on the date of this
Agreement control a majority of your outstanding stock acquires, directly or indirectly(whether by merger, stock
purchase or issuance,recapitalization,reorganization or otherwise),a majority of your outstanding stock;or(c)the
continued provision of the Card Service in accordance with the terms of this Agreement would, in the good faith
opinion of our legal counsel,violate federal,state or local law or any regulation applicable to our business. We will
provide notice of the exercise of our termination rights as soon as practical.
Your Actions. Upon any termination of the Card Service or this Agreement,you shall: (a)promptly pay to us all
sums due or to become due under this Agreement; (b) have no further right to make use of the Card Service,
Account or any Card;and(c)surrender to us or destroy all Cards that have been issued to you or to any Cardholder.
Effect. Termination of this Agreement, the Account or any Card does not release you or us from any of our
respective obligations that arose or became effective prior to such termination; you remain fully obligated to repay
all amounts owed to us under this Agreement or in connection with the Account, the use of the Cards or account
numbers or otherwise. In addition, all provisions of this Agreement relating to the parties' respective warranties,
representations, limitation of liability, confidentiality, proprietary rights, and indemnification shall survive the
termination of the Card Service,the Account and this Agreement.
17. Channel Services
Options. We offer several management and administrative applications ("Admin Applications") as part of the
Channel Services associated with our Card Service. Some or all of these applications may be hosted or provided by
the Payment Network or another third party and may be subject the terms of use posted through that application.
You may,at your option and where available,access the Admin Applications with a single sign on from Fifth Third
Direct,without additional log in requirements for that Channel Service. Updates to,and new features of,the Admin
Applications and other Channel Services may be described in updates to the User Guide,and any related terms of
use will be posted through the applicable Admin Applications. Updates and features offered by us,and the related
terms of use will become part of the Card Service and this Agreement upon first use by you.
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Administration. Use of any Admin Application is optional on your part. The Card Administrator has full authority
to use all of the Admin Applications. Users are provisioned for the Admin Applications by the Channel
Administrator or Card Administrator. For the sake of clarity, the term User as used in this Agreement does not
include a Cardholder except as expressly noted to the contrary.
Card Management. Card Management is your general Admin Application for the overall administration of your
Card program. The Card Administrator and authorized Users have the ability to: designate persons who will be
issued Cards and become Cardholders and establish their individual Card credit limit and spending controls;cancel a
Card and change the credit limit associated with a Card; issue replacement Cards for damaged or lost Cards or to
effect a name change on an existing Card; select, create and maintain templates through the Channel Services that
implement available spending controls; and, obtain information and reports about, and monitor Account and Card
use.
Payment Platform. The Payment Platform enables the Channel Administrator and authorized Users to make
payments on the Account and enables Cardholders to make payment of their respective Card balances.Payments are
effected through ACH transactions authorized through the platform. Each payer making a payment through the
Payment Platform is responsible for the accuracy, timeliness and completeness of the data they input into the
platform and for the availability of funds in the payment account.
Cardholder Portal.The Cardholder Portal gives your Cardholders who register to use this application the ability to
access and manage information about their Card usage. The Cardholder Portal can also be accessed through the
Commercial Card Mobile App which is available for download by any Cardholder on a recognized,enabled mobile
device through an approved app location. Each Cardholder is responsible for establishing and safeguarding its
Credentials to access the app.
Smart Data. Smart Data(or SDG2) is an Admin Application provided by MasterCard that facilitates the reporting
and management of account activity for Users and Cardholders(including their managers).
Security Procedures. Access to the Channel Services for the Card Service is subject to "Security Procedures" as
further described in the OCAA. You understand that all access to, and use of the Channel Services using such
Security Procedures will be considered by us and the providers of the Channel Services for all purposes and without
further investigation to be authorized by you and your Users and Cardholders,as the case may be,and that we and
the other providers may act and rely upon all instructions or data transmitted to us or them using the Security
Procedures.
Additions and Changes. We may in the future add or change features of these Admin Applications, add new or
withdraw existing Admin Applications at any time. We will provide notice of the addition or change together with
any change to this Agreement related to the addition or change,through the applicable Admin Application,update to
the User Guide or notice to your Channel or Card Administrator. Your first use of the Admin Application after
notice of the addition or change constitutes your acceptance of the addition or change.
18. Fifth Third ePay
The Solution. Fifth Third ePay is an Admin Application that provides you the ability to pay your vendors through
an integrated preapproval process and virtual card numbers, and includes features to integrate transaction data into
your existing accounting and reporting infrastructure. Fifth Third ePay includes two solutions: "Fifth Third ePay
Online"and"Fifth Third ePay Batch." These solutions are described in greater detail in the Fifth Third ePay User
Guide. The use of virtual card numbers in connection with Fifth Third ePay is considered for all purposes of this
Agreement to be the authorized use of a Card and the Account.
MasterCard inControl. Fifth Third ePay is based upon a license from MasterCard International of the MasterCard
inControlTM platform and is accessed through an Access Channel. MasterCard also offers a direct interface to the
inControlTM Platform that is not part of our Card Service;we may,however,upon request,assist in enabling a direct
connection through an API-based solution to the inControl Platform. Any such connection may be subject to
additional agreements between you and MasterCard. The inControl trademark is owned by MasterCard
International.
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Online. Fifth Third ePay Online enables you to make payments using the Account to vendors and others to whom
you wish to make payment ("Vendors") on an individual basis. Fifth Third ePay Online generates authorized,
virtual card numbers through the platform that you give to your Vendor to enable them to authorize a payment to
their account.
Batch. Fifth Third ePay Batch enables you to manage your accounts payable by enrolling one or more Vendors in
an automated platform to receive payment information from you. When you desire to make a payment to an
enrolled Vendor,you will transmit to us a payment file that includes the name of each Vendor you wish to pay by
Card and the payment amount. You can communicate payment,vendor and confirmation information to us through
an Access Channel or direct transmission as established with us in the set up process. Based on the payment and
Vendor information and your confirmation,we create a payment data sheet(encrypted for virtual card transactions)
that we send by email to the email account for the Vendor contact person you specify in the set up process. The
payment data sheet includes a fixed or variable (at your option)virtual card number against which the Vendor can
process your payment through MasterCard as with any other Card payment. You arc responsible for obtaining
proper authorization from your Vendor to participate in this payment process and for the accuracy of the Vendor
data,billing and payment information you send to us. We are not responsible if the payment or account information
you provide us is not accurate or timely,or if a Vendor fails to receive or act upon the email and payment data sheet
we send to the email account you give us.
Card Administrator. If you elect to use Fifth Third ePay,your Card Administrator will have the authority to manage
this Admin Application on your behalf In addition to any other authority they may have, the Card Administrator
will be able to (a) provision Users with the authority to request and generate virtual account numbers for making
payments as part of the Card Service and establish the limits, if any on the authority of such persons, (b) provision
Users with the authority to designate and enroll vendors to whom payments may be made through Fifth Third ePay
and provide us with Vendor and payment information.
Additions and Changes. We may in the future add or change features of these Admin Applications, add new or
withdraw existing Admin Applications at any time. We will provide notice of the addition or change together with
any change to this Agreement related to the addition or change,through the applicable Admin Application,update to
the User Guide or notice to your Channel or Card Administrator. Your first use of the Admin Application after
notice of the addition or change constitutes your acceptance of the addition or change.
19. General Provisions
Merchants. We have no liability or responsibility for:(a)goods or services purchased with a Card or the Account or
for any dispute you may have with a merchant or Vendor over goods or services you purchase, a merchant's or
Vendor's use of a Card or Account number you give to them; (b)a merchant's or supplier's failure to accept the
Card or the Account;or,(c)any failure of a merchant to seek authorization before honoring a Card. You are in all
events responsible for the purchases you make with the Card or Account.
Vantiv. If you are using the merchant processing services of Vantiv,LLC("Vantiv"),you understand that Vantiv is
a separate, independent legal entity. We are not responsible for the actions or obligations of Vantiv,or any agent or
vendor engaged or used by Vantiv with respect to merchant processing services.
Banking Agreements. If you are a party to our Master Treasury Management Agreement,you and we agree that the
Card Services provided under this Agreement are not subject to or part of the Master Treasury Management
Agreement.
Amendments. We may amend, supplement or change(a"revision")the terms of this Agreement including the Fee
Schedule at any time and from time to time as follows: by a written instrument signed by both parties; or, we may
give you at least thirty(30)calendar days'prior written or electronic notice(including through website posting)of a
revision and if you do not give us written notice of your termination of this Agreement before the expiration of the
thirty (30) day period or the later effective date specified in such notice, you are deemed to have accepted the
revision. If, however, a revision to this Agreement is, in our good faith opinion, required by law or a regulatory
authority with jurisdiction over us, we will provide you notice of such revision and the revision will be effective
immediately upon us giving you notice. Subject to applicable law, any revision shall apply to the outstanding
balance on the Account on the effective date of the revision and to any future balances created after that date. No
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revision to this Agreement or Fee Schedule shall affect in any manner your obligation to pay in full all Obligations
under this Agreement.
Delay in Enforcement. We may at any time and in our sole discretion delay or waive enforcing any of our rights or
remedies under this Agreement or under applicable law without losing any of such rights or any other rights or
remedies. Even if we do not enforce our rights or remedies at any specific time, we may enforce them at a later
date. For example, we may accept late payments or payments that are marked "payment in full" or with other
restrictive endorsements without losing any of our rights under this Agreement or applicable law.
Notice. Any written notice from you to us shall be effective once we have received the notice and had a reasonable
opportunity to act on it. Any written notice from us to you shall be effective and deemed delivered when mailed to
you at your address as it appears on our records.
Force Majeure. We shall not be responsible for, nor shall we incur any liability to you for any failure, error,
malfunction or any delay in carrying out any of our obligations under this Agreement if any such failure, error,
malfunction or delay results from causes beyond our reasonable control,including without limitation,fire,casualty,
breakdown in equipment or failure of telecommunications or third party data processing services, internet
disruptions,lockout,strike,accident,act of God,act of terrorism,riot,war or the enactment,issuance or operation of
any adverse governmental law,ruling,regulation,order or decree,or an emergency that prevents us from operating
normally.
Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective
permitted successors and assigns. You may not sell, assign or transfer the Account or any of your rights or
obligations under this Agreement. We may sell,assign or transfer the Account,or any balance due thereon,and our
rights and obligations under this Agreement without prior notice to,or consent from you,which notice and consent
arc knowingly waived by you.
Set-off. You agree that we may set off any and all funds in any bank account you have with us or any of our
affiliates(excluding any account expressly titled to clearly demonstrate that the account is held by you in a fiduciary
or representative capacity for a third party) against or to pay any Obligation you have to us under this Agreement.
We may exercise our right of set off by debit or other means without recourse to other rights or collateral,if any, we
may have and regardless of the effect on your bank account. You waive notice of the exercise of these rights to the
extent permitted by applicable law. Our right of set off is limited only to the extent expressly limited by applicable
law.
Entire Agreement. This Agreement,together with the Fee Schedule, User Guide and any separate pricing,rebate or
other similar agreement or amendment executed by the parties that specifically refers to this Agreement constitutes
the complete and exclusive statement of the agreement between the parties with respect to the Card Service and the
Account, and supersedes any prior or contemporaneous proposal, understandings, discussions or agreements
between the parties with respect to the Card Service and the Account. The Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall constitute a single instrument. No
person or entity other than the parties, their permitted assigns, indemnified persons, our subcontractors and
contractors,and the Payment Network shall have any rights under this Agreement.
Electronic Copies. The parties agree that this Agreement may be executed and delivered by facsimile or electronic
mail in PDF or similar format and that the copies or counterpart signature pages so sent shall be treated and have the
same force and effect as delivery of an original with a manual signature. Our records as to the executed Agreement
shall be controlling. We may,however,require that Customer deliver an original of this Agreement with a manual
original signature.
Severability. If performance of the Card Service in accordance with the terms of this Agreement would result in a
violation of any present or future statute,regulation or government policy to which we are subject,and that governs
or affects the Card Service or any transactions contemplated by this Agreement, then this Agreement shall be
deemed amended to the degree necessary to comply with such statute, regulation or policy, and we shall incur no
liability to you as a result of such violation or amendment. If any provision of this Agreement is deemed to be
illegal, invalid, void or unenforceable by a court of competent jurisdiction, or by any governmental agency with
jurisdiction in such matter,such provision shall continue enforceable to the extent permitted by that court or agency,
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and the remainder shall be deemed stricken from this Agreement. All other provisions shall remain in full force and
effect.
Compliance with Law. We and you each agree to comply with,and be responsible for all applicable state,local and
federal statutes, rules, regulations, orders, directives,policies and other laws, and the rules and regulations of any
applicable Payment Networks or payment clearing system. Without limiting the generality of your obligations,you
agree to comply with programs and regulations administered by the Office of Foreign Assets Control("OFAC")and
the U.S. Department of the Treasury's Financial Crimes Enforcement Network ("FinCen") including screening
each Cardholder to insure such Cardholder is not on the list of Specially Designated Nationals or Blocked Persons
maintained by OFAC and implementing measures to prevent use of the Account in violation of such programs and
regulations.
Governing Law;Venue.This Agreement and any claims or disputes relating to or arising out of this Agreement or
the Card Service shall exclusively be governed by,and construed in accordance with,the laws of the State of Ohio,
without regard to Ohio's conflict of law principles, and with applicable federal laws and regulations. You
irrevocably submit to the nonexclusive jurisdiction of the courts of the state and federal courts in Ohio and agree that
any legal action or proceeding with respect to this Agreement or the Card Service may be commenced by us in such
courts.
Waiver of Jury Trial. You agree that any suit, action or proceeding, whether as part of a claim or counterclaim,
brought or instituted by you on or with respect to this Agreement or any event,transaction or occurrence arising out
of or in any way connected with this Agreement shall be tried only by a court and not by a jury. YOU
EXPRESSLY,KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY
SUCH SUIT,ACTION OR PROCEEDING. You acknowledge that we would not have extended credit under this
Agreement if this waiver of jury trial were not part this Agreement.
Headings. The Section headings used in this Agreement are for convenience only,and do not in any way limit or
define your or our rights or obligations under this Agreement.
(****Signature Page Immediately Follows****)
12
I
Signature Page to Commercial Card Service Agreement
WITNESS, the parties have caused this Agreement to be executed by their respective duly authorized
representative.
City of Clermont
FIFTH THIRD BANK
(CUSTOMER'S LEGAL NAME)
By: By: � c'^-
Name:GQ I L Namc: Qi-A--4--1 .9 p�cL�•� CN.�,?L
Title: ma Title: 11 P
[Second Si ature(if require by Customer's resolutions)] [Second Ba 'epresentative Si:nature]
By: By: 11 A
Name: Pt-•1 \ _, Name: lilt/I'i/:1
Title( ,` _)V J i- Title: (NM; l.
DATED: 3 - / , 2011
13
„..................07...,.....„
FIFTH THIRD BANK”
COMMERCIAL CARD REBATE AMENDMENT
This Commercial Card Rebate Amendment ("Rebate Amendment") amends the
Commercial Card Service Agreement (as amended from time to time, the "Card Agreement")
currently in effect between the "Customer" identified on the Signature Page ("you") and Fifth
Third Bank ("we" or "us"). Capitalized Terms used but not defined in this document have the
meaning assigned to them in the Card Agreement.
In consideration of the mutual agreements of the parties set forth in this Rebate
Amendment and your commitment to use the Cards and Account,the parties agree as follows:
1. Definitions. As used in this Rebate Amendment, the following terms have the indicated
meanings:
"ATS"or "Average Transaction Size" is equal to the result of dividing Qualified Volume
for a Calendar Year by the number of transactions that generated the Qualified Volume
for that Calendar Year as calculated by us.
"Calendar Year" means the period from January 1 of a year through December 31 of the
same year; if the Effective Date is other than January 1, the first Calendar Year will be
deemed to commence on the execution date of this Rebate Amendment and end on
December 31 of the same year as the Effective Date, and the last Calendar Year shall be
deemed to end on the date of the expiration or termination of the Rebate Term (as
defined below) and to begin on the immediately preceding January 1 of the same year in
which the expiration or termination occurred.
"Card Losses" mean the amount of charge-offs and other losses we incur in connection
with your Account as a result of your failure to pay any amount owing on the Account as
principal, interest or fees or other charges, but not including amounts not chargeable to
you under the Card Agreement as a result of the Fifth Third Use Liability Policy.
"Discount Transactions" mean transactions that are subject to discount interchange
rates that are less than large ticket interchange rates as established and designated by
MasterCard International, Inc. ("MasterCard").
"Effective Date" means, if the execution date of this Rebate Amendment is the first
calendar day of a month, that date; otherwise, the first day of the first full calendar
month after the execution date.
March 2016 Standard
CONFIDENTIAL
"Large Ticket Transactions" or "LTI" mean transactions that qualify for reduced
interchange rates as established and designated by the respective association
(MasterCard or Visa).
"Qualified Volume" means the US dollar amount of transactions for the purchase of
goods and services attributable to a MasterCard Card issued under the Card Agreement
during the period of calculation excluding: (a) the principal amount of any balance
transfer, cash advances or checks, credits and returns, account fees, finance charges,
transaction fees, delinquency fees, over-the-limit fees, and any other fees imposed by
us, MasterCard or another entity; (b) Card Losses; and (c) any other amounts not
chargeable to you under the terms of the Card Agreement including by virtue of the
Fifth Third Use Liability Policy or similar protection plan provided by MasterCard or
otherwise. "Qualified Volume" may also be referred to as "Spend" or"Rebate Spend."
2. Rebate.
Determination. Subject to the fulfillment of the Rebate Conditions (as defined below),
we will pay to you for each Calendar Year during the Rebate Term a rebate ("Rebate") equal to
the sum of the following products:
(a) your Qualified Volume for such Calendar Year (excluding Large Ticket Transactions
and Discount Transactions) multiplied by the applicable payment percentage ("Rebate
Percentage") in the row corresponding to your total Qualified Volume (including Large Ticket
Transactions and Discount Transactions)and under column corresponding to your ATS for such
Calendar Year, all as set forth in the Rebate Table included on Exhibit A; plus
(b) your Qualified Volume of Large Ticket Transactions in such Calendar Year multiplied
by the lower of (1) the Rebate Percentage for Large Ticket Transactions specified on Exhibit A
and (ii)the Rebate Percentage applied under clause (a) above to your Qualified Volume; plus
(c) your Qualified Volume of Discount Transactions in such Calendar Year multiplied by
the lower of(i) the Rebate Percentage for Discount Transactions specified as Exhibit A and (ii)
the Rebate Percentage applied under clause (a)above to your Qualified Volume.
Subject to the terms of the paragraph entitled "Rebate Conditions" below, for any
Calendar Year for which a Rebate is payable that is less than twelve months, your actual
Qualified Volume for such period will be annualized to determine the applicable rebate tier and
the actual Qualified Volume for such period will be multiplied by the Rebate Percentage in the
applicable tier so determined. If you do not meet the minimum Qualified Volume level
specified in the Rebate Table for a Calendar Year, no Rebate will be payable for that Calendar
Year. This Rebate Amendment is not valid unless Exhibit A including a Rebate Table is
attached or deemed attached to this Rebate Amendment at the time of signing this Rebate
Amendment.
2
CONFIDENTIAL
Card Losses. There will be deducted from each Rebate otherwise payable to you the
amount of all Card Losses attributable to the Calendar Year in which the Rebate was earned or
any subsequent period.
Calculation. We will calculate the Qualified Volume, ATS and applicable Rebate in good
faith and our determination will be final in the absence of manifest error. Your Rebate will be
paid to you within the first quarter following the Calendar Year in which the Rebate was earned.
Rebate Conditions. To be eligible for the Rebate for a Calendar Year, you must: (a)
maintain the Account in good standing throughout such Calendar Year by timely paying all
amounts due on the Account each month in accordance with the Card Agreement and
otherwise being in compliance with, and not in default under the Card Agreement; (b) continue
to actively use the Account during the entire Calendar Year; and (c) not have reduced your
Qualified Volume due to use of, or transition to, a competing card or service, during the 90 days
following the end of the Calendar Year (other than following expiration or termination of the
Rebate Term) (the "Rebate Conditions"). In addition, if this Rebate Amendment or the Card
Agreement is terminated by you for any reason or is terminated by us as a result of a Rebate
Default (as defined in Section 3), you will be deemed to have failed to meet the Rebate
Conditions for the Calendar Year in which such termination occurs. If the Rebate Conditions
are not satisfied in or with respect to any Calendar Year, you are not entitled to a Rebate for
that Calendar Year.
Reports and Information. We will provide the calculations and supporting Qualified
Volume and ATS documentation available to us for the Rebate upon your reasonable request.
You agree to provide validation and documentation reasonably satisfactory to us of any
transaction or other information we reasonably request to verify or support the Qualified
Volume, ATS and calculation of the Rebate, and we may condition or withhold payment
pending receipt of such information.
Adjustment Events. Your Rebate terms have been established based in part on certain
assumptions relating to a number of external conditions including interest rate and market
conditions, your financial condition, and current regulatory requirements (including
interchange rates and restrictions). Should a significant change in such conditions or
requirements occur, we reserve the right to adjust your Rebate terms to reflect the effect of
such change on us as determined by us in good faith. We will give you not fess than ninety (90)
days notice of the implementation of any such adjustment.
ATS. We may, for our own internal accounting purposes, obtain from or establish with
you an estimated ATS but your Rebate will be calculated based on the actual ATS for the
Calendar Year.
3
CONFIDENTIAL
3. Rebate Term. Unless terminated sooner as provided in this Rebate Amendment, the
term of this Rebate Amendment ("Rebate Term") shall commence on the date this Rebate
Amendment is executed and shall expire on the day immediately preceding the third
anniversary of the Effective Date; provided however, that unless either party gives to the other
party written notice of non-renewal of the Rebate Term not later than sixty (60) days prior to
the expiration of the stated Rebate Term, the Rebate Term shall automatically be extended on
a month-to-month basis until such time as this Rebate Amendment is terminated by either
party upon sixty (60) days prior written notice. This Rebate Amendment and the Rebate Term
terminate automatically upon the termination of the Card Agreement. We may terminate this
Rebate Amendment immediately in our discretion at any time by giving you written notice (a)
upon the occurrence of any default under the Card Agreement or any material breach of this
Rebate Amendment by you or (b) upon any default by you in connection with any loan or
advance we or any of our affiliates have made to you, or under any other indebtedness,
obligation or liability you owe to us or any of our affiliates, whether now existing or arising in
the future (any such event in clause (a)or(b), a "Rebate Default").
4. Confidentiality. During the Rebate Term and for two (2) years after the Rebate Term,
you and we agree to keep confidential all information relating to this Rebate Amendment
including the existence, terms and conditions of this Rebate Amendment, and to not disclose
such information except to those individuals within our respective organizations with a
reasonable need to know such information. Each of us acknowledges that, in the event of a
breach of this Section 4, the non-breaching party will likely suffer irreparable damage that
cannot be fully remedied by monetary damages. Accordingly, in addition to any remedy that
the non-breaching party may possess pursuant to applicable law, the non-breaching party has
the right to seek and obtain injunctive relief against any such breach in any court of competent
jurisdiction. Notwithstanding the foregoing, the restrictions and obligations set forth in this
Section 4 do not apply to the extent you are subject to freedom of information, open
government or similar laws or regulations requiring you to disclose any such information.
5. Effect. This Rebate Amendment amends the Card Agreement solely for purposes of
establishing a rebate opportunity for you during the Rebate Term. All provisions of the Card
Agreement not inconsistent with this Rebate Amendment shall remain unchanged and in full
force and effect, and are ratified and confirmed. In the case of any irreconcilable conflict
between the various provisions in the Card Agreement and this Rebate Amendment, the
provisions of this Rebate Amendment shall prevail to the extent necessary to resolve the
conflict.
6. Miscellaneous. We and you each represent and warrant to each other that this Rebate
Amendment has been authorized by all necessary corporate or other entity action, and that the
person signing this Rebate Amendment is duly authorized to do so. This Rebate Amendment
evidences the entire agreement and understanding between us with respect to the payment of
a rebate to you, and supersedes all prior agreements and discussions between us with respect
to the payment of a rebate to you.
4
CONFIDENTIAL
******Signature Page Follows******
5
Witness: The parties have caused this Rebate Amendment to be executed by their duly
authorized representatives� as of the date set forth below.
EXECUTED THIS Il ' 1Lrntt IC h 7 1 ,20
FIFTH THIRD BANK CUSTOMER:
zug LL , C-(fr
Print name: ZGtc�✓I "S,!-.rt�
Print title: /I�
Print name:4 1 t— . 1 S/
Print title: i , lct r
By: I PAYMENT TERMS: [CUSTOMER INITIAL PAYMENT TERM
SELECTED]
Print name: 1 I L/ '»
`Y Print title: IV 8/ ' 30/15
30/25
OTHER (SPECIFY, SUBJECT To OUR WRITTEN APPROVAL)
IF NOT INITIALED,REBATE WILL BE BASED ON 30/25
Fifth Third and Fifth Third Bank are registered service marks of Fifth Third Bancorp. Member
FDIC.
March 2016—Standard
1
CONFIDENTIAL
EXHIBIT A
(Attached)
This Rebate Amendment is NOT valid unless the Rebate Table is attached. if,
however a Rebate Table is not attached to this Rebate Amendment but there is in effect and
not superseded a Rebate proposal from us set forth in a writing signed in ink by one of our
authorized representatives that has been accepted by you, signed by you in ink, returned to
us by you and appears in our records, that Rebate proposal is deemed incorporated into this
Exhibit A. If a Rebate Table is attached to this Rebate Amendment, that Rebate Table
supersedes any such proposal.
TM Legal 03.2016
1824274.5
7
INIMMommumormir
CONFIDENTIAL
EXHIBIT A
(Attached)
This Rebate Amendment is NOT valid unless the Rebate Table is attached. If, however a
Rebate Table is not attached to this Rebate Amendment but there is in effect and not
superseded a Rebate proposal from us set forth in a writing signed in ink by one of our
authorized representatives that has been accepted by you, signed by you in ink, returned to
us by you and appears in our records, that Rebate proposal is deemed incorporated into this
. Exhibit A. If a Rebate Table is attached to this Rebate Amendment, that Rebate Table
supersedes any such proposal.
REBATE SPEND LEVELS PAYMENT TERMS PAYMENT TERMS
City of Clermont 30/25 30/15 1 TV Discount
$1,000,000 $2,249,999.00 1.10% 1.20% 0.50% $.20%
$2,500,000 $9,999,999.00 1.40% 1.50% 0.50% 1.20%
$10,000,000 Or greater 1.60% 1.65% 1.50% 1.20%
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