| 1. DEFINITIONS
1.1 Account means Client's designated deposit account at
their Financial Institution.
1.2 Business Day means any calendar day that the Federal
Reserve of the United States of America transacts business.
1.3 Check means a draft, payable on demand and drawn on
or payable through or at an office of a bank, whether or not negotiable, that
is handled for forward collection, including a Substitute Check and a
traveler's check; and does not include a non-cash item payable in a medium
other than United States dollars.
1.4 Customer means a debtor obligated on one or more
Checks.
1.5 Check 21 Service means all information, Web-based
services, technological infrastructure, and installed software on Client's
computers, which allow Client to submit Checks for deposit through the
Internet.
1.6 Security Procedures means the use of identification
codes, encryption, passwords, logon identifications, personal or location
identification numbers, repetitive codes, and other security devices, systems,
and software used by Client to communicate through the Internet for the Check
21 Service.
1.7 Services means all duties to be performed by
ReliaFund regarding the Check 21 Service.
1.8 Substitute Check means a paper reproduction of the
original check that:
a) contains an image of the front and back of the original
check;
b) bears a MICR line containing all the information on the MICR
line of the original check, except as provided under generally applicable
industry standards for Substitute Checks to facilitate the processing of
Substitute Checks;
c) conforms, in paper stock, dimension, and otherwise, with
generally applicable industry standards for Substitute Checks and
d) is suitable for automated processing in the same manner as
the original check.
2. DUTIES AND RESPONSIBILITIES OF RELIAFUND
2.1 Use of Service. Under the terms and conditions of
this Agreement, ReliaFund hereby grants to Client a non-exclusive ability to
utilize the Check 21 Service through the Internet or by creating information to
deposit checks through ReliaFund software, and to use ReliaFund proprietary
documentation for the term of this Agreement.
2.2 Processing. ReliaFund will process Checks submitted
by Client through the Check 21 Service in accordance with ReliaFund internal
procedures and all state and federal laws during any Business Day, subject to
the Cutoff Time as stated. ReliaFund will not examine Checks to verify any data
or dates. ReliaFund will process the Check according to the amount entered by
Client, if applicable, or by the numeric amount shown. If the numeric amount is
unclear, ReliaFund may process the Check according to the written amount, and
ReliaFund may correct the amount entered by Client. If the Check is ambiguous,
ReliaFund will return the check as an exception. Checks made payable to Client
or any reasonable derivation thereof are acceptable for deposit. If a Check
does not have the necessary information to be processed by ReliaFund, then
ReliaFund will treat the Check as an exception. If a Check is treated as an
exception, it will be forwarded by ReliaFund to Client, and not deposited or
otherwise reflected in the Client account. ReliaFund will disregard any
notation on a Check containing "paid in full" or other restrictive notation,
whether preprinted or handwritten, and treat any such Check as though such
notation did not appear thereon.
2.3 Reporting. ReliaFund will make reports regarding the
Check 21 Service available through a ReliaFund-designated Web page, which
Client may access through the Internet. Specifically, ReliaFund shall make
available from time to time a report stating the total amount deposited to the
Account, as well as a listing of individual items deposited, which Client may
access through the Internet.
3. DUTIES AND RESPONSIBILITIES OF CLIENT
3.1 Use of Remote Deposit. Client shall submit valid
Checks payable to Client by using the Check 21 Service. In using the Check 21
Service, Client shall create an image of the Check or Checks and the associated
MICR data using approved hardware as listed on the Terms of Use and Procedures.
If applicable, Client agrees to enter the amount of the Check, using the
written amount on the Check, into the Check 21 Service data field provided.
Client agrees to abide by all Terms of Use and Procedures for using the Check
21 Service. The Terms of Use and Procedure shall be updated from time to time
by ReliaFund and are available to Client upon request.
3.2 Software, Internet, and Hardware. Client will comply
with all software, Internet, and hardware requirements of the Terms of Use and
Procedures as updated from time to time by ReliaFund.
3.3 Fee for Services. Client shall compensate ReliaFund
for the performance of the Service in accordance with the pricing established
by ReliaFund, which is attached as Schedule of Fees. Amounts payable by Client
to ReliaFund shall be collected on a monthly basis by ReliaFund. ReliaFund may
collect any of the foregoing amounts and any other amounts due by Client to
ReliaFund hereunder or in connection with the provision of the Service to
Client by debiting of Client's accounts, billing Client, and/or setting off
against any amounts ReliaFund owes Client, without any obligation to give prior
notice thereof to Client. ReliaFund may change pricing from to time to time by
providing Client with written notice of a pricing change. Client shall also pay
any sales, use, or similar tax applicable to the Service. If ReliaFund is
required to pay any such taxes, Client shall reimburse ReliaFund upon demand.
Client shall also pay all attorneys' fees and other costs and expenses
ReliaFund may incur in collecting any fees or other sums Client may owe to
ReliaFund in connection with the Service. ReliaFund shall also have the right
to credit or debit any accounts of Client to correct any processing
irregularity in connection with the Service.
4. REPRESENTATIONS, WARRANTIES,COVENANTS, AND LIABILITY
4.1 Representations and Warranties. Client and ReliaFund
each represents and warrants to the other, as of the date this Agreement is
entered into and at the time the Service is used or performed, that: (a) it is
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) it has all requisite power and authority to execute and
deliver, and to perform its obligations under, this Agreement and the Service
used or performed by it; (c) this Agreement has been duly authorized and
executed by it and constitutes its legal, valid, and binding obligation; and
(d) any consent or authorization of any governmental authority or third party
required to be obtained by it in connection with this Agreement or the Service
used or performed by it has been obtained. ReliaFund makes no representation or
warranty, express or implied, and disclaims all warranties as to the
merchantability, fitness for a particular purpose, or suitability of the
Services for Client, or as to the compatibility of ReliaFund's software,
equipment, or communication interfaces with those of Client. Client represents
and warrants that: (a) it is fully authorized to enter into and perform under
this Agreement, and that this Agreement constitutes its legal, valid, and
binding obligation; (b) Client is solvent and in good standing in the State of
its organization; (c) it is not the present intent of Client to seek protection
under any bankruptcy laws; (d) its Checks are currently and were at the time of
their creation, bona fide and existing obligations of Customers of Client, free
and clear of all security interests, liens, and claims whatsoever of third
parties and are not now nor have they ever been declared in default; (e) the
documentation under which the Checks are payable authorize the payee to charge
and collect the monies owed; and (f) all Checks and all documents and practices
related to them comply with all applicable federal and state laws.
4.2 Covenants. Client covenants that: (a) it will allow
ReliaFund to review and inspect during reasonable business hours, and Client
will supply, all financial information, financial records, and documentation of
Client regarding the Checks that ReliaFund may request; (b) the Checks
submitted by Client are valid Checks, and Client will reimburse and indemnify
ReliaFund for all loss, damage, and expenses, including reasonable attorneys'
fees, incurred in defending such transactions as invalid or fraudulent Checks;
and (c) in the event of the commencement of any proceeding under any bankruptcy
or insolvency laws by or against Client, Client will not oppose or object to
any motion by ReliaFund seeking relief from the automatic stay provisions of
such laws.
4.3 Liability. ReliaFund will exercise ordinary care in
providing the Service and will be responsible for any loss sustained by Client
only to the extent such loss is caused by ReliaFund's reckless or willful
misconduct. In no event shall clerical errors or mistakes in judgments
constitute failure to exercise ordinary care, nor shall ReliaFund have any
liability for any indirect, incidental, consequential (including lost profits),
special, or punitive damages, whether arising in contract or in tort, and
whether or not the possibility of such damages was disclosed to or could have
been reasonably foreseen by ReliaFund. Under no circumstances shall ReliaFund
be responsible for any liability, loss, or damage resulting from any delay in
performance of or failure to perform in connection with the Service which is
caused by except to employees or agents authorized to act for Client in
connection with the Service. Client shall implement such interruption of
telephone, telefacsimile, or communication facilities; delay in transportation,
equipment breakdown, or mechanical malfunction; electrical, power, or computer
failure; accidents, fire, flood, explosion, theft, natural disaster, or other
catastrophe; acts or failure to act by Client or any third party; strikes or
lockouts; emergency conditions; or riots, war, acts of government, or other
circumstances which are unavoidable or beyond ReliaFund's control. ReliaFund
shall not be liable for failure to perform any of its obligations in connection
with the Service if such performance would result in it being in breach of any
law, regulation, or requirement of any governmental authority. If ReliaFund
fails to credit any of Client's accounts utilized in connection with the
Service, upon discovery or notification of such error, ReliaFund will properly
credit such account, but ReliaFund shall not incur any liability therefore,
including any loss resulting from failure by Client to invest the amount of
funds not properly credited to the account.
5. INDEMNIFICATION
Client shall indemnify and hold harmless ReliaFund and each of its directors,
officers, employees, agents, successors, and assigns (Indemnitees) from and
against all liability, loss, and damage of any kind (including attorneys' fees
and other costs incurred in connection therewith) incurred by or asserted
against such Indemnitee in any way relating to or arising out of the Service,
by reason of any acts or omissions of Client or any third party or otherwise,
except to the extent such liability, loss, or damage is caused by the gross
negligence or willful misconduct of such Indemnitee (provided that reliance,
without further investigation, on any oral, telephonic, electronic, written, or
other request, notice, or instruction believed in good faith to have been given
by Client will in no event constitute gross negligence or willful misconduct on
the part of such Indemnitee).
6. SECURITY PROCEDURES AND COMMUNICATIONS
Certain Security Procedures designed to verify the origination (but not errors
in transmission or content) of instructions, orders, and other communications
sent by ReliaFund and Client might be used in connection with the Service.
Client agrees that any such mutually agreed-upon Security Procedures shall be
deemed commercially reasonable. ReliaFund shall not be obligated to act on a
communication not transmitted in accordance with the Security Procedures and
may refuse to act on any communication where ReliaFund reasonably doubts its
authorization, contents, origination, or compliance with the Security
Procedures. ReliaFund shall have no duty to discover, and shall not be liable
for, errors or omissions by Client.
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If ReliaFund complies with the Security Procedures in respect of a
communication, ReliaFund shall be entitled to act on that communication and
shall not be obligated to verify the content of such communication, establish
the identity of the person giving it, or await any confirmation thereof, and
ReliaFund shall not be liable for acting on, and Client shall be bound by, any
communication sent in the name of Client, whether or not authorized. ReliaFund
reserves the right to issue new Security Procedures and/or to cancel or change
any Security Procedures from time to time. Whenever the Security Procedures
include the assigning to Client of any confidential password, logon
identification, identification code, personal or location identification
number, repetitive code, or similar security device, Client shall not disclose
such security device safeguards as are reasonably necessary to ensure the
confidentiality and integrity of such security devices, and shall immediately
notify ReliaFund if the confidentiality or integrity of any such security
device is breached or threatened. Client shall be solely responsible for the
safekeeping of such security devices and assumes all risk of accidental
disclosure or inadvertent use of such security devices by any party whatsoever,
whether such disclosure or use is on account of Client's negligence or
deliberate acts or otherwise. ReliaFund shall not be liable for any loss or
damage resulting from fraudulent, unauthorized, or otherwise improper use of
any security devices.
7. CONFIDENTIALITY
All user guides, manuals, data, software, processes, and other
information provided to Client in connection with the Service and all fee and
pricing information with respect to the Service ("Information") is the
proprietary and confidential property of ReliaFund and/or its relevant
licensors or suppliers. Client agrees to use the Information only in the manner
specified by ReliaFund and in the ordinary course of Client's business, to
return it to ReliaFund upon termination of the relevant Service, and to keep
the Information confidential and limit access thereto only to its agents and
employees who require access in the normal course of their duties, except to
the extent the Information is already in the public domain or Client is
required to disclose the Information by law.
8. INTERMEDIARIES
ReliaFund may act on any communication and provide the Service
using any payment system or intermediary organization it reasonably selects.ReliaFund's
performance of the Service is subject to the rules and regulations of any such
system or organization. ReliaFund may engage third parties to provide the
Service. ReliaFund shall have no obligation to disclose arrangements with third
parties to Client or obtain Client's consent thereto. Client authorizes the
transfer of information relating to Client to agents of ReliaFund or Client for
use in connection with the Service or as required by law.
9. RECORDINGS AND RECORDS
Either Client or ReliaFund may produce telephonic or electronic
recordings or computer records, including email and telefacsimile
transmissions, as evidence in any proceedings brought in connection with the
Service. Client agrees to ReliaFund's telephonic or electronic recording for
security and quality of service purposes.
10. NOTICES
Any notice or other communication may be sent by ReliaFund to
Client at Client's postal, email, telefacsimile, or other address provided by
Client to ReliaFund, and ReliaFund may assume that any notice or communication
sent to Client at any such address has been received by Client, until Client
notifies ReliaFund in writing of another address.
12. DISCREPANCIES
Client shall promptly notify ReliaFund in writing of any error
in connection with the Service and any discrepancies between any records
maintained by Client and any notice Client receives from ReliaFund with respect
to the Service, and Client shall provide ReliaFund with any information it may
reasonably request in connection therewith. Client agrees that fourteen (14)
days is a reasonable time for Client to notify ReliaFund of errors or
discrepancies, unless any other agreements, laws, rules, or regulations provide
for a shorter period. ReliaFund shall have the right to correct the amount in
the data field for any Check that has an incorrect amount to be consistent with
the image of the Check. Notwithstanding the foregoing, if ReliaFund at any time
discovers that the legal amount of the Check is different than the amount that
has been credited to Client's Account, ReliaFund will make the necessary
adjustment to the Account to correct the discrepancy.
13. COMPLIANCE
Client shall comply with all laws, rules, and regulations in
connection with the Service. Client agrees to be bound by such rules and agrees
that no entries that violate United States law may be initiated. Client shall
be responsible for and shall fully indemnify ReliaFund for any and all fines
and assessments imposed on ReliaFund as a result of any infraction or violation
of such rules caused by or attributable to Client.
14. DISCLOSURE
Client acknowledges that ReliaFund may have certain legal record
keeping and reporting requirements with respect to the Service and consents to
ReliaFund's disclosure to governmental authorities of information concerning
Client and the Service provided to Client which ReliaFund believes to be
appropriate or necessary to fulfill such legal requirements.
15. FIDUCIARY STATUS
Nothing contained herein shall be deemed to create fiduciary
status on the part of ReliaFund in connection with the provision of the
Service. The foregoing notwithstanding, to the extent, if any, that ReliaFund
is deemed to be a fiduciary of Client in providing the Service, this Agreement
is not intended to, nor shall, relieve ReliaFund of any fiduciary
responsibility otherwise imposed on it by law.
16. TERMINATION
Either party may terminate the Service by providing sixty (60)
days' prior written notice to the other party. ReliaFund may also terminate or
suspend the Service without notice to Client if any of the following occurs:
(a) Client becomes insolvent or files, or has filed against it, any bankruptcy
or other insolvency, reorganization, liquidation, or dissolution proceeding of
any kind; (b) a material adverse change occurs in Client's business or
financial condition; (c) ReliaFund has reason to believe that Client has
engaged in fraudulent or illegal activity; (d) Client fails to maintain
balances in accounts sufficient to cover overdrafts; (e) Client violates the
terms of this Agreement or any financing arrangement with ReliaFund; (f) Client
fails to provide financial information reasonably requested by ReliaFund; (g)
ReliaFund determines it is impractical or illegal to provide the Service
because of changes in laws, regulations, or rules; or (h) ReliaFund, in good
faith, is unable to satisfy itself that the Services have been properly
authorized by Client. Notwithstanding any termination, the terms of this
Agreement shall apply to all transactions, which have been initiated prior to
termination.
17. GOVERNING LAW; SEVERABILITY
Except to the extent superseded by Federal law, the provision of
Services shall be governed by the laws of the state of Minnesota. Client agrees
that the courts of Minnesota shall have jurisdiction to hear any dispute
arising out of the Service and submits to the jurisdiction of such courts. Any
provision of these ReliaFund Terms and Conditions for Check 21 Transactions
that is unenforceable shall be ineffective to the extent of such provision,
without invalidating the remaining provisions. If performance of the Services
would result in violation of any law, regulation, or governmental policy, this
Agreement shall be deemed amended to the extent necessary to comply therewith.
18. FINANCIAL ACCOMMODATION
Client and ReliaFund agree that this Agreement and the Service
constitute an agreement to provide a "financial accommodation" as defined in 11
U.S.C. §365.
19. ARBITRATION
All disputes, controversies, or differences which may arise
between the parties out of or in connection with the Agreement, which cannot be
settled by negotiation within thirty (30) days of the matter first being
notified in writing to the other by the complaining party, shall be finally
settled by binding arbitration in accordance with the commercial arbitration
rules. The arbitration of all matters shall be conducted by three (3)
arbitrators ("Panel of Three") with each party selecting one (1) arbitrator,
and the third to be selected from the panel of arbitrators, who shall serve as
the chair of the Panel of Three. If either party refuses or neglects to appoint
an arbitrator within thirty (30) days after receipt of written notice from the
other party requesting it to do so, the requesting party may appoint two (2)
arbitrators. The place of the arbitration shall be in the same city as the
principal office that ReliaFund is located. The arbitration award shall be
final and binding upon the parties. Any judgment upon such award may be
enforced in any court having jurisdiction, or application may be made to such
court for a judicial confirmation of such award and judgment or order of
enforcement, as the case may be. The cost of the arbitration shall be borne
equally by the parties unless otherwise provided in the arbitration award. The
parties hereto agree that the arbitration award will be the sole and exclusive
remedy between them regarding any and all claims, counterclaims, or issues. In
order to have arbitration as the sole and exclusive remedy the parties hereto
exclude the right of appeal to courts of the United States, or any other
courts, in connection with any question of law arising in the course of the
reference to arbitration or out of the arbitration award.
20. WAIVER OF JURY TRIAL.
CLIENT AND RELIAFUND WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY
LITIGATION OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE SERVICES USED BY CLIENT.
21. GENERAL.
This Agreement manifests the entire agreement between the
parties regarding the subject matter hereof and supersedes all prior
understandings, writings, proposals, representations, or communications, oral
or written, of either party. Neither party relied on any representation or
promise by other party that is not set forth in this Agreement. This Agreement
may not be assigned by Client without ReliaFund's prior written consent.
ReliaFund may assign this Agreement without Client's consent. Neither Client
nor ReliaFund shall display any name, trademark, or service mark of the other
without the prior written consent of the other. Client shall not advertise or
promote the Service without ReliaFund's prior written consent. This Agreement
shall bind and benefit the parties and their successors and assigns. None of
the terms of this Agreement may be waived except as ReliaFund may consent in
writing, and no agreement with or representation made by any employee of
ReliaFund that is in conflict with this Agreement will be binding on ReliaFund
unless contained in a written modification of this Agreement signed by an
authorized officer of ReliaFund. No delay on the part of ReliaFund in
exercising any right or power under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or power under
this Agreement preclude further exercise thereof or the exercise of any other
right or power. The rights and remedies under this Agreement are cumulative and
not exclusive of any rights or remedies which ReliaFund would otherwise have.
Section headings in this Agreement are for convenience of reference only and do
not constitute a part thereof. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
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