|
1. THIS AGREEMENT is for Cash Management Software Services provided by Gulfstream
Business Bank ("Gulfstream Business Bank"), to Company name ("Customer"). By using
this product the customer has accepted the terms and conditions of this
Agreement, and agree to be bound by its terms and conditions set forth below:
2. General. The Cash
Management services to be provided by Gulfstream Business Bank to Customer,
consists of a software program (the "Program") that permits Customer
to obtain certain account information reporting, electronic funds transfer
services, and other account maintenance functions, by means of a computer.
These services shall collectively be known as e-biz™ and is provided by Gulfstream
Business Bank for access and use by Customer. Fiserv Solutions, Inc. is the
sole owner and licenser for the Program and has granted Gulfstream Business
Bank the right to sublicense the Program to Customers.
3. Use of
Program/Limited Sublicense. Gulfstream Business Bank hereby grants to the Customer a sublicense for use of the Program on a
computer, subject to the terms and conditions set forth in this Agreement.
Customer acknowledges and agrees that the Program and Program documentation is
valuable, confidential, and proprietary property and agrees not to transfer,
distribute, copy, reverse compile, modify or alter the Program or the Program
documentation.
4. Term. This
Agreement is effective from the date the Program is received by Customer and
shall remain in force until termination. The Agreement shall be terminated (i)
upon thirty (30) days prior written notice by either party to the other, (ii)
upon termination of the relationship between the parties, (iii) if the Customer
fails to comply with the terms and conditions of this Agreement, or (iv) upon
termination of the software license agreement between Gulfstream Business
Bank and Fiserv Solutions. The Customer agrees to return the Program and
all written and electronic documentation related to the Program to Gulfstream
Business Bank upon termination. The Customer shall retain no copies in any
form. The provisions of this Agreement that protect the proprietary rights of
Fiserv Solutions and Gulfstream Business Bank will continue in force
after termination.
5. Disclaimer
of Warranty. No warranties with respect to the Program are made by Gulfstream
Business Bank nor does it warrant that the Program will meet specific
requirements of the Company. Neither Gulfstream Business Bank or Fiserv
Solutions makes any warranty of any kind, either express or implied, with
respect to the use of the Program. Gulfstream Business Bank and Fiserv
Solutions disclaim any and all implied warranties of merchantability and
fitness for a particular purpose. The Customer assumes the entire risks as to
the quality and performance of the Program and documentation.
6. Limitation
of Liability.
a) The Gulfstream Business Bank's entire liability and the Customer's exclusive
remedy with respect to Gulfstream Business Bank's disclaimer of warranty
is limited to the replacement of any diskette that is returned to Gulfstream
Business Bank.
b) Notwithstanding
any provision in this Agreement, no event shall Gulfstream Business Bank or Fiserv Solutions be liable to Customer for any damages, including lost
profits, lost savings or other direct, indirect, incidental, special or
consequential damages arising out of the use or inability to use the Program
and documentation, or for any claim by another party.
c) The Customer
shall be solely responsible for protecting against unauthorized access to the
Program through the use of physical security, passwords and other security
procedures. The Gulfstream Business Bank will be held harmless for
processing any request received by Customer.
d) Where
the Customer has access to funds transfer features of e-biz™, which include
Wire Transfer, ACH Transfer or Book Transfer, Gulfstream Business Bank will only accept transfer requests upon proper execution of security procedures
that are entirely within Customer's control. The Customer agrees to follow the
security procedure set forth in any other agreement the Customer has with Gulfstream
Business Bank with regard to the type of funds transfer requested by the
Customer. Gulfstream Business Bank may consider funds transfer requests
received from Customer as having been authorized by the Customer, and Gulfstream
Business Bank shall be held harmless for executing any transfer.
e) Where
the Customer elects to execute stop payment requests and notices of postdated
checks through the Program, the Gulfstream Business Bank agrees to enter
the stop payment or notice of postdated check to its main computer system
within a reasonable period of time after receiving the request or
notification. Prior to requesting a stop payment or sending notice of
postdated check, the Customer should first verify that the item has not already
been posted to their account. If a stopped or postdated item has already been
paid prior to Gulfstream Business Bank's entry of the request, or if Gulfstream
Business Bank did not have a reasonable time to act on the request or
notice or was not given adequate information, then Gulfstream Business Bank shall not be liable for any loss incurred by the Customer arising from the
event.
7. Fees. Fees payable
by Customer for access to and use of the Program shall be at a rate specified
by the Gulfstream Business Bank's fee schedule, as amended from time to
time. Gulfstream Business Bank may change fees upon thirty (30) days
prior written notice.
8. Funds
Transfer Services. In addition to account information reporting, the
Customer may request access to certain Funds Transfer Services as described
below. If the Customer requests the ability to use the Funds Transfer Services
described, the Funds Transfer Service and the use of the software module for
that service are subject to the terms of this Agreement. The following
conditions shall also apply:
a) ACH
Transfers » The Customer acknowledges that the ACH feature of e-biz™ is an
alternate entry system for issuing funds transfer requests to the Automated
Clearing House Network. A separate ACH Agreement between the Customer and Gulfstream
Business Bank is required.
b) Wire
Transfers » The Customer acknowledges that the Funds Transfer feature of
e-biz™ is an alternate entry system for issuing wire transfer and book entry
transfer orders between the Customer and Gulfstream Business Bank. A
separate Funds Transfer Agreement between the Customer and Gulfstream
Business Bank is required.
c) Stop
Payments and Notices of Postdated Checks » The Customer acknowledges that
the Stop Payment and Postdated Check feature of e-biz™ is an alternate entry
system for issuing stop payment orders and notices of postdated checks between
the Customer and Gulfstream Business Bank. A separate Stop Payment
Agreement between the Customer and Gulfstream Business Bank is required.
9. Miscellaneous.
a) This
Agreement, together with other written agreements relating to particular
features of e-biz™ and applicable Gulfstream Business Bank Deposit
Account Contracts, represent the entire understanding of the parties. If any
portion of this Agreement is found to be unenforceable, all remaining portions
shall remain in full force and effect.
b) Customer agrees not to sublicense, assign or transfer this license or
the Program except as expressly provided in this Agreement.
c) During any statement period for your money
market account (non-transactional) you may not make more than six withdrawals
or transfers to another financial Institution account of yours or to a third
party by means of preauthorized or automatic transfer or telephone order or
instruction from your accounts. No more than three of the six transfers may be
made by check, draft, debit card or similar third party. If you exceed these
transfer limitations, your account will be subjected to closure by Gulfstream
Business Bank or transferred to a transaction account. There is no limit on
the number of transactions you may make in the following manner: (a) transfers
to any loan account with Gulfstream Business Bank; and (b) transfers to
another financial institution account of yours or withdrawals when such
transfer or withdrawal is initiated in person, by mail or at an ATM.
d) This
Agreement is governed by the laws of the State of Florida (except Federal law
governs the copyrights and trademarks of Fiserv Solutions and its successors
and assigns). The sole and exclusive venue for any action arising out of this
Agreement shall be a state court located in Martin County, Florida. It may not
be amended or modified except by a written instrument signed by both the
Customer and the Gulfstream Business Bank. |
