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Customer Agreement

Effective Date: June 6, 2023

This Modern Treasury Customer Agreement (“Agreement”) is entered into by and between Modern Treasury (“Modern Treasury”) and the entity or person placing an Order for or accessing any Product (“Customer” or “you”). If you are accessing or using the Products on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.

The “Effective Date” of this Agreement is the effective date of the first Order (defined below) referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement. If your Order references a different agreement entered into by Customer and Modern Treasury, that agreement will govern the Order or Orders that reference it.

ATTENTION: PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 18 BELOW. THESE GOVERN THE MANNER IN WHICH CLAIMS WILL BE ADDRESSED BETWEEN YOU AND MODERN TREASURY. THESE PROVISIONS INCLUDE INFORMAL DISPUTE RESOLUTION, MANDATORY PRE-ARBITRATION MEDIATION, AN ARBITRATION AGREEMENT AND ADDITIONAL PROCEDURES FOR MASS ARBITRATION FILINGS THAT AFFECT YOUR RIGHTS.

By indicating your acceptance of this Agreement or accessing or using any Modern Treasury Product you are agreeing to be bound by all terms, conditions, and notices contained or referenced in this Agreement.  If you do not agree to this Agreement, please do not use any Modern Treasury Products. For clarity, each party expressly agrees that this Agreement is legally binding upon it.

Modern Treasury may modify this Agreement from time to time as described in Section 18.14 (Modifications).

1. Modern Treasury Products. Modern Treasury provides a suite of Products designed to enable efficient payment workflows, data observability and integrations with Banks and other Third-Party Platforms. The Products are described in the Documentation and each Order will identify the Products that Customer will receive. Though certain Products allow Customer to connect to its Bank Account(s), Modern Treasury is not a bank and does not hold funds on Customer’s behalf.

2. Using the Products.

2.1. Registration. To use the Products, Customer must complete Modern Treasury’s registration process. Customer will ensure that its Registration Data is accurate and current and will inform Modern Treasury of any changes to its Registration Data. Modern Treasury may use Registration Data to verify Customer’s identity with third party databases or other sources and for the purposes described in its Privacy Policy.

2.2. Permitted Use. During the applicable Order Term, Customer may access and use the Products only for its own business purposes in accordance with the Documentation and this Agreement, including any usage limits in an Order.

2.3. SLA and Support. Modern Treasury will adhere to the SLA and Support Policy during the applicable Order Term.

2.4. Users. The Products allow Customer to provision Users and manage its Users’ access levels and permissions. Customer is responsible for its Users, their compliance with this Agreement (including Section 5 (Customer Obligations)) and all actions taken through its User accounts. Customer will maintain the security and confidentiality of its User accounts and credentials and is responsible for any losses due to lost or stolen credentials or unauthorized use or modification of its User accounts. Customer will promptly notify Modern Treasury of any compromise of its User accounts or credentials.

2.5. Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to the Products to anyone other than its Users or distribute, sell or sublicense the Products to a third party, (b) unless separately permitted in writing by Modern Treasury, use the Products on behalf of third parties or in a time-sharing or service bureau arrangement, (c) use the Products to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Products, except to the extent this prohibition is restricted by Law (and then only with prior notice to Modern Treasury), (e) copy, modify, create derivative works of the Products, (f) remove or obscure any proprietary notices in the Products, (g) publish benchmarks or performance information about the Products, (h) interfere with the Products’ operation, circumvent the Products’ access restrictions or conduct any security or vulnerability test of the Products, or (i) use any means not authorized by Modern Treasury to access the Products, including any spiders, robots, scripts, crawlers, data mining tools, scrapers, or other automated means, or access or use the Products in an attempt to avoid incurring or paying fees that would otherwise be payable.

3. Professional Services. If Customer receives Professional Services from Modern Treasury, the Professional Services Terms apply in addition to the rest of this Agreement.

4. Use and Protection of Customer Data

4.1. Data Use. Subject to this Agreement, Customer controls the Customer Data it uses with the Products and Modern Treasury will collect and process Customer Data solely to provide the Products, Support and Professional Services or as required by Laws. Providing the Products includes, subject to Laws, Modern Treasury’s internal use of Customer Data for security, product improvement and maintenance purposes.

4.2. Data Export. During the Order Term, Customer may export its Customer Data from the Products using the export features described in the Documentation.

4.3. Security. Modern Treasury uses industry-standard technical and organizational measures designed to protect the Products and Customer Data as described in the Security Policy.

4.4. California Privacy. To the extent the CCPA applies to Customer Data, the California Privacy Terms will apply.

4.5. European and UK Privacy. If applicable, Modern Treasury agrees to enter a Data Protection Addendum with Customer (“DPA”) for Customer Data that contains personal data of individuals from the European Economic Association or the United Kingdom. Customer may enter the DPA here.

5. Customer Obligations.

5.1. Customer’s Business. In using the Products, Customer will comply with all applicable Laws and Nacha Rules, including as applicable Laws related to financial services, consumer protection, money transmission, money services businesses, record retention, know your customer (KYC), anti-money laundering (AML) and economic sanctions (including regulations of the Office of Foreign Asset Control). Customer is solely responsible for obtaining and maintaining any governmental licenses, registrations or approvals required for Customer’s use of the Products with its business. Customer will also comply with the Acceptable Use Policy.

5.2. Bank Accounts. This Section 5.2 applies if Customer uses the Products with Customer’s Bank Accounts.

a. Customer authorizes Modern Treasury to access Customer’s designated Bank Account(s) on Customer’s behalf solely for the purposes described in this Agreement. Customer represents and warrants that it is legally authorized to access and issue payment instructions to any Bank Account that it uses with the Products. Customer is solely responsible for (1) meeting any Bank Requirements necessary to use the Products with its Bank Accounts and (2) its own Bank Accounts, agreements and relationships with Banks, even if Modern Treasury provides Professional Services or assists Customer in transmitting application information to a Bank. Modern Treasury provides the warranty related to Bank integrations in Section 7.1(c). Otherwise, Customer’s failure to meet Bank Requirements or inability to use the Products (or delay in using the Products) with any Bank does not limit its payment or other obligations in this Agreement.

b. In certain cases, as agreed with Modern Treasury (including as to fees), Customer may directly integrate the Products with a Bank Account owned by Customer's own direct or indirect customer (an "End Customer"). In this case, Customer will remain directly responsible for End Customers, its End Customer relationships and any transactions or activities it enables by or on behalf of End Customers. Modern Treasury direct any inquiries or complaints received from End Customers regarding the Products to Customer. Modern Treasury has no obligation or liability to End Customers, including any support, warranty or indemnity obligations and Customer will disclaim any such obligation or liability on Modern Treasury's behalf in its End Customer agreements (for clarity, this does not limit Modern Treasury's express obligations to Customer in this Agreement).

5.3. Representations and Warranties. Customer represents and warrants that it has made all disclosures and has all rights, licenses, and permissions necessary to use any of its Customer Data with the Products and grant Modern Treasury the rights in this Agreement, all without violating or infringing Laws, Nacha Rules (if applicable), third-party rights (including intellectual property, privacy, or other rights) or Customer’s agreements with third parties.

5.4. Prohibited Uses. Customer may not use the Products with Prohibited Data or for High Risk Activities. The Products are not intended to meet any legal or security obligations for such uses and, notwithstanding anything else in this Agreement, Modern Treasury has no liability for Prohibited Data or use of the Products for High Risk Activities.

5.5. Cooperation. Customer will designate a primary contact to manage its relationship with Modern Treasury, whom it may change upon notice to Modern Treasury. Customer will reasonably cooperate with Modern Treasury by making available personnel and information reasonably needed for Modern Treasury’s performance (and if Customer fails to do so, Modern Treasury’s performance may be delayed).

6. Third-Party Platforms. Customer may choose to use the Products with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Modern Treasury does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability or how the Third-Party Platforms or their providers use Customer Data. If Customer enables a Third-Party Platform with the Products, Modern Treasury may access Customer’s Third-Party Platform account and exchange Customer Data with the Third-Party Platform for the purposes in Section 4.1.

7. Modern Treasury Warranties.

7.1. Limited Warranties. Modern Treasury warrants to Customer that:

  1. during an Order Term: (1) the Products will operate materially as described in the Documentation and (2) Modern Treasury will not materially reduce the overall functionality of the Products,
  2. Modern Treasury will use commercially reasonable efforts to avoid introducing viruses into the Products as provided by Modern Treasury, and
  3. if Customer uses the Payments Product, Modern Treasury will use reasonable efforts to maintain availability of Modern Treasury’s Bank integration(s) used by Customer during an Order Term.

7.2. Warranty Remedy. If Modern Treasury breaches one of its warranties in Section 7.1 and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then Modern Treasury will use reasonable efforts to correct the non-conformity. If Modern Treasury cannot do so within 30 days of Customer’s warranty claim, either party may terminate the affected Order as relates to the non-conforming Products or Bank integration(s) (as applicable) and Modern Treasury will refund to Customer any pre-paid, unused fees for the terminated portion of the affected Order Term. For the warranty in Section 7.1(c), prior to termination, the parties will cooperate in good faith when practicable, to enable an alternative Bank integration and avoid termination. These procedures are Customer’s exclusive remedy and Modern Treasury’s entire liability for any acts or omissions that constitute a breach of the warranties in Section 7.1. Such warranties do not apply to (a) issues caused by Customer’s misuse or unauthorized modifications of the Products or breach of this Agreement, (b) issues or delays in or caused by Banks, other Third-Party Platforms or other third-party systems or (c) Limited Releases or other free or evaluation use.

7.3. Compliance with Laws. Modern Treasury will comply with applicable Laws in its provision of the Products and performance of this Agreement (but for clarity, Modern Treasury's responsibilities under Data Protection Laws are as set out in the DPA).

7.4. Disclaimers. Except as expressly provided in Section 7.1 (Limited Warranties), the Products, Support, Professional Services, and any related deliverables are provided “AS IS” and Modern Treasury and its suppliers make no warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in the SLA and Support Policy, Modern Treasury does not warrant that Customer’s use of the Products will be uninterrupted or error-free, that Modern Treasury will review Customer Data for accuracy or that it will maintain Customer Data without loss. Modern Treasury is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Modern Treasury’s control. The Products, Support, Professional Services and any related deliverables or output do not constitute legal or financial advice. Customer is solely responsible for (a) ensuring that the Products and any results of the Products and any Professional Services are adequate for Customer’s own purposes, including any of its accounting, record retention, financial reporting, and compliance obligations and (b) any payment instructions, payments, or transactions that Customer (including its Users) directly or indirectly enables or directs through the Products, including any loss or risk of fraud or reversal. Modern Treasury is not liable for the accuracy, completeness or timeliness of payment instructions, payments or transactions provided or initiated by Customer or on Customer’s behalf through the Products. Modern Treasury may, through the Products, provide optional suggestions related to payment reconciliation or other uses of the Products; Customer is responsible for evaluating such suggestions, including which suggestions, if any, to accept, and whether or not to take any action related to such suggestions. If Customer uses any Product interfaces to interact with payment counterparties or allow counterparties or end Users to interact with third parties (e.g., invoicing or counterparty onboarding), Customer remains responsible for any goods, services or transactions it sells or enables through these interfaces and for its own authentication of the counterparties. In providing the Products, Modern Treasury does not act as a bank, payment processor, money transmitter or money services business and does not receive, hold, or transmit funds on Customer’s behalf. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

8. Fees and Taxes. Customer will pay the fees specified in each Order on the payment schedule in the Order. Unless the Order provides otherwise, all amounts are due within 30 days of the invoice date. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees are non-refundable and non-creditable except as set out in Section 7.2 (Warranty Remedy), Section 13.4 (Mitigation and Exceptions) and the SLA. Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Modern Treasury’s income tax. Fees and expenses are exclusive of Taxes.

9. Term and Termination.

9.1. Term of Agreement. This Agreement starts on the Effective Date and continues until expiration or termination of all Orders.

9.2. Order Terms. Each Order will identify the term for Customer’s use of the applicable Product (“Order Term”). Different Products may have different Order Terms. Unless the Order provides otherwise, each Order Term will automatically renew for successive 12-month periods unless either party gives the other party notice of non-renewal at least 30 days before the current Order Term ends. Fees for renewals are at Modern Treasury’s then-current rates, regardless of any discounted pricing in a prior Order. Notwithstanding the above, Order Terms for Limited Releases are subject to Section 16.

9.3. Termination. Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against such party and not dismissed within 60 days. In addition, Modern Treasury may terminate this Agreement upon notice to Customer if required by Laws or a governmental authority, if Customer violates Laws or if Customer becomes subject to a government enforcement action related to violation of Laws.

9.4. Effect of Termination. Upon expiration or termination of this Agreement or an applicable Order, Customer’s access to the Products, Support and Professional Services will cease. At the disclosing party’s request upon expiration or termination of this Agreement, Modern Treasury will delete Customer Data in accordance with its standard procedures and the receiving party will delete all of the disclosing party’s other Confidential Information. As an exception, each party may retain Confidential Information in standard backups, for record retention purposes or as required by Law, but the retained Confidential Information will remain subject to this Agreement. Except where an exclusive remedy is specified, exercising a remedy under this Agreement (including termination) does not limit a party’s other remedies. These Sections survive expiration or termination of this Agreement: 2.5 (Restrictions), 5 (Customer Obligations), 7.4 (Disclaimers), 8 (Fees and Taxes), 9.4 (Effect of Termination), 11 (Intellectual Property), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 15 (Required Disclosures), 16 (Limited Releases) (disclaimers), 18 (General) and 19 (Definitions), along with any provisions in an Exhibit that survive according to their terms.

10. Suspension. Modern Treasury may (but is not obligated to) review Customer’s use of the Products for compliance with this Agreement and may suspend Customer’s access to the Products or remove Customer Data in order to mitigate or respond to Suspension Events. Modern Treasury will provide Customer with notice and an opportunity to cure the Suspension Events before such suspension or removal except in cases of material or imminent harm. Once the issue is resolved, Modern Treasury will promptly restore Customer’s access to the Products in accordance with this Agreement. Modern Treasury will have no liability to Customer for suspensions or removals under this Section 10.

11. Intellectual Property. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Modern Treasury’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Data provided to Modern Treasury. Except for Customer’s use rights in this Agreement, Modern Treasury and its licensors retain all intellectual property and other rights in the Products, any Professional Services deliverables and related Modern Treasury technology, templates, formats and dashboards, including any modifications or improvements to such items made by Modern Treasury. Modern Treasury may collect and use Usage Data for its lawful business purposes, including product analysis and improvement, and as described in the Privacy Policy, but will not disclose Usage Data publicly unless it is de-identified and aggregated with other data.. If Customer provides Modern Treasury with feedback or suggestions regarding the Products or other Modern Treasury offerings, Modern Treasury may use the feedback or suggestions without restriction or obligation.

12. Limitations of Liability.

12.1. Consequential Damages Waiver. Except for Excluded Claims (defined below) neither party or its suppliers will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business or any indirect, special, incidental, punitive, reliance or consequential damages of any kind, even if informed of their possibility in advance.

12.2. Liability Cap. Except for Excluded Claims, a party’s and its suppliers’ entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Modern Treasury during the prior 12 months under this Agreement.

12.3. Excluded Claims. “Excluded Claims” means (1) amounts payable to third parties by the indemnifying party pursuant to Section 13 (Indemnification), (2) Customer’s breach of Section 2.5 (Restrictions), (3) either party’s breach of Section 14 (Confidentiality) (excluding claims related to Customer Data) or (4) liability that cannot be limited or excluded at law.

12.4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

13. Indemnification.

13.1. Indemnification by Modern Treasury. Modern Treasury will defend, indemnify and hold harmless Customer from and against any third-party claim (and resulting damages, settlement amounts, liabilities and costs, including reasonable attorneys’ fees) where the claim alleges that the Products, when used by Customer as authorized in this Agreement, infringe a third party’s U.S. patent or copyright, trademark or trade secret.

13.2. Indemnification by Customer. Customer will defend, indemnify and hold harmless Modern Treasury from and against any third-party claim (and resulting damages, settlement amounts, liabilities and costs, including reasonable attorneys’ fees) where the claim alleges or is based on Customer’s breach or alleged breach of this Agreement, Customer’s use of the Products, the conduct of Customer’s business or (if applicable) any End Customer acts or omissions, in each case except where such claim solely results from Modern Treasury’s breach of this Agreement.

13.3. Procedures. The indemnifying party’s obligations in this Section 13 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Products when Modern Treasury is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

13.4. Mitigation and Exceptions. In response to an infringement claim, if required by settlement or injunction or as Modern Treasury determines necessary to avoid material liability, Modern Treasury may at its option: (a) procure rights for Customer’s continued use of the Products, (b) replace or modify the allegedly infringing portion of the Products to avoid infringement without reducing the Products’ overall functionality or (c) terminate the Order with respect to the affected Products and refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Order Term. Modern Treasury’s obligations in this Section 13 do not apply (1) to infringement resulting from Customer’s modification of the Products or use of the Products in combination with items not provided by Modern Treasury (including Third-Party Platforms), (2) to unauthorized use of the Products, (3) if Customer settles or makes any admissions about a claim without Modern Treasury’s prior consent or (4) to Limited Releases or other free or evaluation use. This Section 13 sets out Customer’s exclusive remedy and Modern Treasury’s entire liability regarding infringement of third-party intellectual property rights.

14. Confidentiality. As the receiving party, each party will (a) hold Confidential Information in confidence, using at least reasonable care, and not disclose it to third parties except as permitted in this Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, subcontractors and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 14 and they are bound to confidentiality obligations no less protective than this Section 14. These confidentiality obligations do not apply to information that the receiving party can document (1) is or becomes public knowledge through no fault of the receiving party, (2) it rightfully knew or possessed prior to receipt under this Agreement, (3) it rightfully received from a third party without breach of confidentiality obligations or (4) it independently developed without using the disclosing party’s Confidential Information. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 14.

15. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

16. Limited Releases. "Limited Releases" means any Products or Product features that Modern Treasury provides on a sandbox, trial, early access, or beta basis. Limited Releases may be used only for purposes of testing or evaluation as part of Customer's authorized use of the Products under this Agreement. For sandbox accounts, Customer may use the sandbox provided by Modern Treasury throughout its Order Term. Any other Limited Releases may only be used during the Order Term specified by Modern Treasury (if not specified, then 30 days) and either party may terminate Customer's use of Limited Release at any time. Modern Treasury has no data retention or storage obligation for Customer Data used with Limited Releases. Limited Releases are subject to change and may be inoperable, incomplete or include features that Modern Treasury may never make generally available. The features and performance information of Limited Releases are Modern Treasury's Confidential Information. Nothwithstanding anything else in this Agreement, Modern Treasury provides no warranty, indemnity, SLA or Support for Limited Releases and its liability for Limited Releases will no exceed US$50.

17. Publicity. Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, Modern Treasury may include Customer’s name and logo in Modern Treasury’s customer lists and promotional materials but will promptly cease further use at Customer’s written request.

18. General.

18.1. Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement with notice to the other party in connection with a merger, reorganization, acquisition, or transfer of all or substantially all its assets or voting securities. However, if Customer assigns this Agreement pursuant to the preceding sentence, Customer understands that a Bank may require the assignee to complete additional Bank Requirements in order to continue using the Products with its applicable Bank Account(s). Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

18.2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of such courts.

18.3. Dispute Resolution.

  1. Executive Escalation. The parties will use reasonable efforts to negotiate in good faith and settle amicably any controversy or claim of any kind or nature arising under or in connection with this Agreement (a “Dispute”). If a Dispute cannot be settled through negotiations by appropriate representatives of each of the parties, either party may give to the other a notice in writing (a “Dispute Notice”). Within 7 days of the Dispute Notice, the parties will each refer the Dispute to their designated senior representatives who will meet in order to attempt to resolve the Dispute. If the Dispute is not resolved in writing between the parties within 30 days of the Dispute Notice, it may be resolved in accordance with Section 18.3(b).
  2. Mediation and Arbitration. If a Dispute arises and cannot be settled as set forth in Section 18.3, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any Dispute that cannot be settled as set forth in Section 18.3 shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
  3. Procedures. Claims shall be heard by a single arbitrator. The place of arbitration shall be San Francisco, California and the arbitration shall be governed by the laws of the State of California. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The fees and costs of the mediator, arbitrator, and other costs of conducting the arbitration, shall be borne by the parties equally, except that each shall bear the costs of its own witnesses and legal representation. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witnesses. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above. An arbitrator shall have no authority to award punitive damages or other damages not measured by the prevailing party's actual damages subject to Section 12, above.
  4. Mass Filings. If, at any time, 30 or more similar demands for arbitration are asserted against Modern Treasury by the same or coordinated counsel or entities (“Mass Filing”), AAA will randomly assign sequential numbers to each of the Mass Filings. Claims numbered 1-10 will be the “Initial Test Cases” and will proceed to arbitration first. The arbitrators will render a final award for the Initial Test Cases within 120 days of the initial pre-hearing conference, unless the claims are resolved in advance, or the parties agree to extend the deadline. The parties will then have 90 days (the “Mediation Period”) to resolve the remaining cases in mediation based on the awards from the Initial Test Cases. If the parties are unable to resolve the outstanding claims during this time, either party may choose to opt out of the arbitration process and proceed in court by providing written notice to the other party within 60 days after the Mediation Period. Otherwise, the remaining cases will be arbitrated in their assigned order. Any statute of limitations will be tolled from the time the Initial Test Cases are chosen until your case is chosen as described above.
  5. Class Action and Jury Trial Waiver. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, the parties waive any right to a jury trial.

18.4. Equitable Relief. Nothing in this Section 18.3 limits a party’s rights under Sections 9 (Term and Termination) or 10 (Suspension) or its right to seek interlocutory or injunctive relief in emergent circumstances or to prevent irreparable harm (including related to its intellectual property or Confidential Information).

18.5. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

18.6. Notices. Except as set out in this Agreement, any notice or consent under this Agreement will be in writing to the addresses on the first page and is deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), (c) one day after dispatch if by a commercial overnight delivery service or (d) upon delivery if by email. Either party may update its address with notice to the other party. Modern Treasury may also send operational notices to Customer by email, through shared Slack channels with Customer or via the Products.

18.7. Entire Agreement. This Agreement (which includes all Orders, attached Exhibits, the Policies and any DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement. In case of any conflict among the documents that make up this Agreement, the following order of precedence will apply: (a) the DPA, (with respect to its subject matter), (b) the applicable Exhibit or Policy (with respect to its subject matter), (c) the Order (to the extent it expressly overrides a Section of the Agreement) and (d) the main body of this Agreement.

18.8. Amendments. Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Modern Treasury. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Modern Treasury; any such Customer documents are for administrative purposes only and have no legal effect.

18.9. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.

18.10. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

18.11. Subcontractors. Modern Treasury may use subcontractors to fulfill its obligations and exercise its rights, but Modern Treasury remains responsible for their compliance with this Agreement and for its overall performance under this Agreement. Modern Treasury maintains a list of subprocessors at https://www.moderntreasury.com/terms#subprocessor-list.

18.12. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.

18.13. Insurance. Modern Treasury will maintain at its own expense during the term of this Agreement, the following insurance coverages: (a) commercial general liability insurance of at least $1,000,000 per occurrence, $2,000,000 aggregate; (b) automobile liability insurance with coverage limits of at least $1,000,000; and (c) technology errors and omissions/cyber insurance with coverage limits of at least $5,000,000. At Customer’s reasonable written request, and not more than once annually, Modern Treasury will provide Customer with a Certificate of Insurance evidencing that all coverage required under this Agreement is maintained in force. Nothing in this Section will be construed as limiting or expanding Modern Treasury’s liability to Customer or any third party

18.14. Export. Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Products. Notwithstanding anything to the contrary in this Agreement: (a) Customer may not provide to any person or export or re-export or allow the export or re-export of the Products or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority, (b) Customer acknowledges and agrees that the Controlled Subject Matter may not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains comprehensive trade sanctions or an embargo (“Embargoed Countries”) or to or by a national or resident thereof, or any person or entity on an applicable list of restricted parties including the U.S. Department of Treasury’s List of Specially Designated Nationals and Blocked Persons or the U.S. Department of Commerce’s Entity List, Denied Persons List or Unverified List (“Prohibited Persons”), and represents and warrants that neither Customer nor any of its Users is located in, under the control of or a national of or resident of an Embargoed Country or Prohibited Person and (c) Customer will  not submit to the Products any information controlled under the U.S. International Traffic in Arms Regulations. The lists of Embargoed Countries and Prohibited Persons are subject to change without notice. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations or other similar foreign controls.

18.15. Government End-Users. Elements of the Products are commercial computer software. If the user or licensee of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.

18.14. Modification:

  1. Agreement. Modern Treasury may modify this Agreement from time to time by giving notice to Customer by email or through the Product. Unless a shorter period is specified by Modern Treasury (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer’s current Order Term or entry into a new Order. If Modern Treasury specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies Modern Treasury in writing of its objection to the modifications within thirty (30) days after the date of such notice, Modern Treasury (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Order Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid fees allocable to the terminated portion of the applicable Order Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Products, and, in any event, continued use of the Products after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If you are using Trials and Betas, you must accept the modifications to continue using the Trials and Betas. If you object to the modifications, your exclusive remedy is to cease using the Trials and Betas.
  2. Policies. For the Policies, this paragraph applies instead of Section 18.4(a). Modern Treasury may modify the Policies to reflect new features or changing practices from time to time by giving notice to Customer by email or through the Product, but the modifications will not materially decrease Modern Treasury’s overall obligations during an Order Term.

19. Definitions.

Acceptable Use Policy” means the Modern Treasury Acceptable Use Policy, the current version of which is available here.

“Bank” means a financial institution or payments provider with which the Products integrate (current list available here) and with which Customer uses or seeks to use the Products.

Bank Account” means a Bank account that Customer enables for use with the Products, as agreed with Modern Treasury.

Bank Requirements” means any applicable requirements that may be established by a Bank from time to time, such as those related to account opening, direct transmission, underwriting, know-your customer (KYC), anti-money laundering (AML) or compliance, including any requirements to use the Bank Accounts programmatically with the Products.

Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Modern Treasury’s Confidential Information includes the terms of this Agreement and any technical or performance information about the Products. Customer’s Confidential Information includes Customer Data.

Customer Data” means any data, content, or materials that Customer (including its Users) submits or uploads to the Products or uses the Products to collect, including from Banks or other Third-Party Platforms, and including payment instructions that Customer makes through the Products. Customer Data does not include Registration Data or Usage Data.

Documentation” means Modern Treasury’s usage guidelines and standard technical documentation for the applicable Product, the current version of which is available at https://docs.moderntreasury.com/reference.

High Risk Activities” means activities where use or failure of the Products could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.

Laws” means all applicable local, state, federal and international laws, regulations, and orders, including those related to data privacy and data transfer, international communications and export of technical or personal data.

Nacha Rules” means the bylaws, operating rules, regulations, guidelines and bulletins of the National Automated Clearing House Association and its successors and assigns.

Order” means a Modern Treasury-approved order for access to the Products, Professional Services, Support, Limited Releases or related Modern Treasury offerings, which may be entered by the parties through a written order referencing this Agreement or through an online registration flow or in-product screen.

Policies” means the Acceptable Use Policy, Privacy Policy, Security Policy, SLA and Support Policy.

Privacy Policy” means the Modern Treasury Privacy Policy here.

Products” means Modern Treasury’s proprietary cloud products as identified in the relevant Order and as modified from time to time. The Products include the associated Documentation but not Professional Services deliverables or Third-Party Platforms.

Professional Services” means any bank integration, solutions architecture, technical implementation or other technical services provided by Modern Treasury related to the Products, as identified in an Order.

Professional Services Terms” means the terms for Professional Services available here.

Prohibited Data” means any (a) personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, or data concerning a natural person’s sex life or sexual orientation, (b) patient, medical or protected health information and (c) cardholder data subject to the Payment Card Industry Data Security Standards (PCI DSS).

Registration Data” means Customer’s contact and account data provided to Modern Treasury to register its account(s) on the Products, including company name and address, email addresses, first and last names of Users, tax identification number, bank account information, identity verification information and such other information as Modern Treasury may reasonably request.

Security Policy” means Modern Treasury’s Security Policy, the current version of which is available here.

SLA” means Modern Treasury’s Service Level Agreement, the current version of which is available as Section I here.

Suspension Event” means (a) Customer has breached Section 2.5 (Restrictions) or 5 (Customer Obligations) or its actions violate Laws or risk material harm to others or to the integrity, security, or availability of the Products, as reasonably determined by Modern Treasury, (b) Customer’s account is 30 or more days overdue and Modern Treasury has provided a written payment reminder to Customer for the outstanding amount or (c)r Customer has reached or exceeded its usage limits in an Order.

Support Policy” means Modern Treasury’s Support Policy, the current version of which is available as Section II at here.

Third-Party Platform” means any platform, add-on, service or product not provided by Modern Treasury that Customer elects to integrate or enable for use with the Products. Banks are considered Third-Party Platforms.

Usage Data” means Modern Treasury’s technical logs, data and learnings about use of the Products, which may include or be based on aggregated or de-identified Customer Data that cannot reasonably be linked to Customer or any individual.

User” means any employee, contractor or other individual that Customer allows to use the Products on its behalf.

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