2001-31
SUNTRUST
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ONLINE TREASURY MANAGER ACCESS AGREEMENT
This Online Treasury Manager Access Agreement (this "Agreement") dated as of þll/f /l)ð/~ /1
, 20 01 ,between CJ~ öf c.1e..rmDn+
m lJ,,~ Li ~ (the "Chent") and SunTrust Bank (the "Bank").
WHEREAS, Client uses or will use certain treasury management banking services (collectively, the "Banking
Services"), Bank has agreed to provide to Client pursuant to that certain Treasury Management Master Services
Agreement and related Service Schedules and certain other banking service agreements, each between Client and Bank
(each a "Banking Service Agreement"), and/or certain banking service implementation schedules or documents (each an
"Implementation Schedule");
a
WHEREAS, Client desires to transact or conduct the Banking Services online through or by use of Bank's
internet-based Online Treasury Manager services ("Online Treasury Manager"); and
WHEREAS, Bank is willing to grant Client a license to access Online Treasury Manager to transact and conduct
such Banking Services pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of fair and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
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1. General. This Agreement applies to all Banking Services obtained, transacted or conducted through, or by
use of, Online Treasury Manager.
2. Access Throue:h Online Treasury Manae:er: Security Administrator.
(a) Client requests that Bank provide Client with access to and use of Online Treasury Manager to transact or
conduct certain Banking Services specified on Exhibit A attached hereto and incorporated herein by reference
(Banking Services specified on Exhibit A are hereinafter collectively referred to as the "Services"). Client will
only be granted access to, and agrees only to access, Online Treasury Manager to transact or conduct the Services,
and only Services which Bank has agreed to provide and has implemented for Client may be transacted or
conducted through Online Treasury Manager.
(b) Client will name on Exhibit A a representative to serve as its security administrator for all Services (the
"Security Administrator"). The Security Administrator is authorized to and responsible for granting authority to
each of Client's employees and agents who are permitted to transact or conduct Services through or by use of
Online Treasury Manager. If Client desires to change the specification of Services or its Security Administrator
or Contact designated on Exhibit A, Client shall execute and deliver to Bank a revised Exhibit A, which will
supercede and replace its prior Exhibit A. Any new Exhibit A shall not be effective until accepted by Bank and
Bank has had a reasonable opportunity to implement the new Exhibit A.
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(c) Bank shall provide Client with the web address and company and Security Administrator passwords and ID
numbers necessary to access Online Treasury Manager and transact or conduct the Services through use thereof
(collectively, the "Online Codes"). Bank will forward the company and Security Administrator passwords to the
Security Administrator and will forward the company and Security Administrator ID numbers to the Client's
Contact listed on Exhibit A. Client agrees that if it is unable to access Online Treasury Manager or transact or
conduct any Service through Online Treasury Manager Client will transact or conduct such Service through other
means available to Client.
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3. Authorized Transactions. Bank may rely upon any Service transacted or conducted through or by use of
Online Treasury Manager as properly authorized by Client, including without limitation, any transfer of funds or
any instructions or information related thereto it receives from Client through Online Treasury Manager. Client
shall be solely responsible for granting access to Online Treasury Manager to its employees and agents, and
maintaining the confidentiality of Online Codes and other security procedures and shall promptly report to Bank
any breach of confidentiality. Each Security Administrator and each person authorized by the Security
Administrator or to whom the Security Administrator has provided access to Client's Online Codes or who has
otherwise obtained access to Client's Online Codes and Online Treasury Manager is deemed an authorized
representative of Client for purposes of all Services transacted or conducted through or by use of Online Treasury
Manager, whether or not such person is named as an "authorized representative" or "authorized sender" or
similarly authorized in any Banking Service Agreement or Implementation Schedule. Client hereby
acknowledges and agrees that, notwithstanding the terms of any Banking Service Agreement, Implementation
Schedule or any other agreement between Client and Bank, once Client accesses Online Treasury Manager to
transact or conduct any Service, Bank will not verify that the transaction is authorized and Client is solely
responsible for the accuracy and completeness of any data or information received by Bank. Bank shall have no
liability for losses resulting from or related to Client's failure to limit access to Online Treasury Manager or
maintain the confidentiality of the Online Codes or other Security Procedures. At Sun Trust's sole discretion,
SunTrust may also require the use of a PIN, other identifying information or other security procedures for certain
Services.
4. Grant of License. Client is granted a limited, noll-exclusive, non-transferable, revocable sublicense to use
Online Treasury Manager and the software creating, maintaining and supporting Online Treasury Manager (the
"Software") and the printed user materials provided in connection therewith (the "Documentation") solely to
conduct transactions in connection with the Services, for Client's internal business purposes only. Client will not
sublicense, sell, lease, distribute or provide access to the Software or Documentation to any third parties, nor use
the Software or Docume'ntation in a service bureau, time-sharing or other similar arrangement, nor make any other
use of the Software or Documentation that is not expressly permitted hereunder.
5. Fees. Client shall pay the fees and charges Bank may, from time to time, impose for use of Online Treasury
Manager.
6. Limitation of Liability: Indemnity. Notwithstanding any other provision of any Banking Service
Agreement, Implementation Schedule or any other agreement between Bank and Client, neither Bank nor any of
its suppliers, licensors, service providers or vendors (together with Bank, the "Providers") shall have any liability
for any liabilities, losses, damages, claims, judgments, costs or expenses ("Damages") Client asserts or sustains as
a result of Client's use of Online Treasury Manager, unless such Damages result from the negligence or willful
misconduct of Bank or one or more other Providers.
The liability of Bank or any other Provider for any Damages asserted by Client arising as a result of the acts or
omissions of any Provider shall be limited to interest on the funds at issue at the "federal funds rate" paid by Bank
at the close of business on each day such act or omission remains uncorrected; provided. however. if Bank or such
other Provider is unable to recover funds from a person or entity who receives such funds as a result of such
Provider's acts or omissions and who has no claim to such funds, such Provider shall be liable for Client's actual
loss, not to exceed the amount of unrecovered funds to which such person has no claim, plus interest at the rate
described above.
Notwithstanding any other provision of this Agreement, no Provider shall have any responsibility for Damages
arising directly or indirectly. from any error, delay or failure to perform any obligation hereunder which is caused
by fire, natural disaster, strike, civil unrest, any inoperable communications facilities or any other circumstance
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beyond the reasonable control of Bank or such other Provider. In no event shall any Provider be liable to Client
or any third party for any indirect, consequential, special, punitive or exemplary damages.
Client shall indemnify, protect and hold the Providers and their rèspective officers, directors, employees,
attorneys, agents and representatives (each an "Indemni(ied Person") harmless from and against any and all
Damages imposed upon or incurred by Bank or in any way relating to this Agreement or Online Treasury
Manager, unle~s it is finally determined that the exclusive caus~ of such Damages is the negligence or willful
misconduct of an Indemnified Person. Client will, at its own expense, defend any action or proceeding brought
against any Indemnified Person in connection with such Damages. In addition to the foregoing, all disclaimers
and limitations on the Bank's liability and the obligation of Client to indemnify the Bank, whether under any
Banking Service Agreement or any other agreement between Bank and Client applicable to the Services shall
apply equally to all other Providers with respect to access to or use of, or any Service transacted through or by use
of, Online Treasury Manager.
Client acknowledges that Bank's suppliers, licensors, service providers and vendors with respect to Online
Treasury Manager are intended third party beneficiaries of the provisions ofthis Agreement.
7. DISCLAIMERS. To the maximum extent permitted by applicable law, Bank and the other Providers
disclaim all representations and warranties, express or implied, with regards to Online Treasury Manager,
the Software or the Documentation, or use of Online Treasury Manager by Client, including its fitness for a
particular purpose, its quality, merchantability or non-infringement. Bank does not warrant that the
operation of Online Treasury Manager will be uninterrupted, er.r:or free or free from any other program
limitations. Client acknowledges that it must provide all equipment and provide and maintain service
through an internet service provider suitable to access Online Treasury Manager and is solely responsible
for all fees, costs and charges associated with and maintenance of such equipment or service.
8. Proprietary Riehts. Client acknowledges that Bank or the other Providers shall retain all rights, title and
interests in and to Online Treasury Manager, the Software and Documentation, and modifications, improvements
and enhancements thereof and additions thereto, including ownership of all trade secrets, copyrights and other
associated proprietary and intellectual property rights pertaining thereto (collectively, the "Intellectual Property
Rights"), except as granted hereunder. Client agrees that it shall not take any actions or engage in any conduct
which violates the Intellectual Property Rights of Bank or any other Provider. The Software and Documentation
include trade secrets and other proprietary information of Bank and its suppliers, licensors, service providers and
vendors and are confidential property of such person(s) or legal entity(ies). Client shall treat as confidential and
shall not disclose or otherwise make available the Software, the Documentation or any trade secrets or other
proprietary information related to the Software or the Documentation (collectively the "Confidential
Information"), in any form, to any person other than Client's employees. Client will instruct its employees who
have access to the Confidential Information to keep the same confidential, by using the same care and discretion
which Client uses with respect to its own confidential property and trade secrets. Client agrees that it shall not
take any action to change or make any modification to Online Treasury Manager or the Software.
9. Termination. Bank may terminate Client's access to and its ability to transact Services through Online
Treasury Manager at any time, effective immediately, upon written notice. Bank may require Client to execute
additional documents or agreements to continue to access and transact Services through or by use of Online
Treasury Manager at any time. The terms and provisions of Sections 4, 5 and 6 of this Agreement shall survive
the termination of this Agreement and Client's right to access and submit transactions through Online Treasury
Manager.
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10. Miscellaneous.
(a) Severability. Any provision ofthé Agreement which is invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction and to'the extent of such invalidity or unenforceability, be deemed replaced with a valid and
enforceable provision as similar as possible to the one replaced and all of the remaining provisions of the
Agreement shaJI remain in full force and effect.
(b) Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective legal representatives, successors and permitted assigns.
(c) Entire Agreement. This Agreement is the complete and exclusive statement of the agreement between Bank
and Client with respect to the subject matter hereof and supersedes any prior agreements between Bank and
Client.
(d) Headings. Headings are used for reference purposes only and shall not be deemed a part of this Agreement.
(e) Assignment. Client shall not assign this Agreement or any of the rights or duties hereunder to any third party
without Bank's prior written consent.
(f) Applicable Law and Jurisdiction. This Agreement shall be governed by and interpreted in accordance with
the applicable federal laws and the laws of the state of Georgia. Client irrevocably consents and submits to the
jurisdiction and venue of any court located in such state, selected by Bank in its sole discretion.
(g) JUry Trial Waiver. Client and Bank hereby knowingly, voluntarily, intentionally and irrevocably
waive the right either of them may have to a trial by jury in respect to any litigation, whether in contract or
tort, at law or in equity, based hereon, or arising out of or relating to, the Services, this Agreement or any
other document, instrument, transaction, course of conduct, course of dealing, ~tatements (whether verbal
or written) or actions of any party hereto. Thi~ provision is a material inducement for Bank entering into
this Agreement. Further, Client héreby certifies that no representative or agent of Bank, or Bank's
counsel, has represented, expressly or othenvise, that Bank would not, in the event of such litigation, seek
to enforce this waiver of right to jury trial provision.
(h) Conflicting Terms. All other terms and conditions related to the provision of the Services shall be governed
by the Banking Service Agreement applicable to such Service. To the extent of any conflict between the terms of
this Agreement and any other Banking Service Agreement, the terms of this Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused their authorized representative to duly execute this
Agreement on the date first set forth above.
(J ~ oç C.,l e..cm 0 n+, Ç-Lo('"', d..o-
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Name _~nro\d -"(u",'\ \\e.. '!"r. ~~~~~ss 'PO ßD'f- \20z.,c¡
Title _~r . CJ ermon~ R 3~~
~~::~ne (~~i) 3q~\
Client
Authorized
Signature
SunTrust Bank
By:
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M I. ~4..L£' q~ ~
-a..~"1\s\A tL4 M' Mí oFf-, r Ø\
Name:
Title:
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