Table of Contents
- Customer Agreement
- SLA & Support Policy
- Professional Services
- Security Policy
- Compliance Terms
- California Privacy
- Acceptable Use Policy
- Subprocessors List
Modern Treasury Customer Agreement
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.
2.2. 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 and is liable for any losses incurred by Modern Treasury as a result of User action or inaction. 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, (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 or (j) transmit viruses or other harmful materials to the Products.
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. Payments. This Section 5.2 applies if Customer uses the Payments Product, which subject to this Agreement may be used 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 use 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 addition, if Customer integrates the Products with a Bank Account of Customer’s own direct or indirect customer (an “End Customer”), Customer will ensure that each End Customer complies with all provisions of this Agreement applicable to Users (including Section 2 (Using the Products) and this Section 5) and will remain fully responsible for End Customers as if they were Users, regardless of whether End Customers access the Products. In its discretion, Modern Treasury may require End Customers to enter into terms with Modern Treasury.
5.3. Compliance. If Customer uses the Compliance Features of the Payments Product, the Compliance Terms apply in addition to the rest of this Agreement.
5.4. 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.
5.5. 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.
5.6. 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 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:
- 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,
- Modern Treasury will use commercially reasonable efforts to avoid introducing viruses into the Products as provided by Modern Treasury, and
- 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 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), these remedies only apply if Modern Treasury’s failure results in Customer being substantially deprived of the use of the Payments Product with its Bank, and prior to termination, Customer will cooperate in good faith with Modern Treasury 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) Trials and Betas or other free or evaluation use.
7.3. 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 directly or indirectly enables or directs through the Products, including 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. 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 Trials and Betas 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), 7.3 (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 (Trials and Betas) (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 prevent or respond to Serious Harm. When practicable, Modern Treasury will provide Customer with notice and an opportunity to cure the Serious Harm before such suspension or removal. 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.
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, 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.
13.1. 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 Trials and Betas 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. Trials and Betas. This Section applies if Customer receives access to any Products on a free, trial, pilot, beta, or sandbox basis (“Trials and Betas”). Use of Trials and Betas is permitted only during the Order Term that Modern Treasury designates or, for sandbox accounts, until access is terminated in accordance with this Agreement (and if otherwise not designated, the Order Term for Trials and Betas is 30 days). Unless expressly permitted by Modern Treasury, Customer may use only fabricated data (“dummy data”) with Trials and Betas. Trials and Betas are optional and either party may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that Modern Treasury may never release, and their features and performance information are Modern Treasury’s Confidential Information. Notwithstanding anything else in this Agreement, Modern Treasury provides no warranty, indemnity, SLA or Support for Trials and Betas and its liability for Trials and Betas will not 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.
18.1. 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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).
18.4. 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.
18.5. 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.
18.6. 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, (b) the applicable Exhibit, (c) the Order (to the extent it expressly overrides a Section of the Agreement) and (d) the main body of this Agreement.
18.7. 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.
18.8. 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.
18.9. 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.
18.10. 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.
18.11. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
18.12. 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.
18.13. 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.
- 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.
- 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.
“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.
“Compliance Terms” means the terms for use of the Payment Product’s Compliance Features available here.
“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, Trials and Betas 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.
“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.
“Serious Harm” means Customer’s account is 30 or more days overdue, Customer has reached or exceeded its usage limits in an Order or Modern Treasury determines that Customer has breached Section 2.5 (Restrictions) or 5 (Customer Obligations) or Customer’s actions violate Laws or risk harm to others or to the integrity, security or availability of the Products.
“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.
SLA and Support Policy
Modern Treasury maintains a status page at https://status.moderntreasury.com/ to provide transparency into Product availability and performance. Customer should subscribe to the status page for updates.
I. Service Level Agreement.
The Products will be available 99.9%, measured monthly (the “Availability Standard”). Product downtime due to scheduled maintenance, Customer-requested maintenance or the exclusions in Section III below will be excluded from any availability calculations for the purposes of this SLA. Modern Treasury will provide Customer with at least 1 week’s advance notice (via ) of scheduled maintenance that will result in Product downtime. A Product’s downtime due to scheduled maintenance will not exceed 4 hours per calendar month.
Customer's sole and exclusive remedy, and Modern Treasury's entire liability, in connection with Product availability will be a service credit equal to a percentage of the Product subscription fees attributable to that calendar month, as set forth below:
|< Availability Standard - ≥ 99.0%||5%|
|< 99.0% - ≥ 90.0%||10%|
In order to receive a service credit, Customer will notify Modern Treasury in writing within 15 days from the time of service interruption, and failure to provide such notice will forfeit the right to receive service credit. Modern Treasury will apply each credit to Customer’s next invoice. Credits may not be redeemed for cash.
Modern Treasury will use commercially reasonable efforts to provide Support for errors or abnormal behavior of the Products (“Incidents”) according to this Section II. Modern Treasury provides Support (including the response and update targets below) during its regular business hours, Monday through Friday 6am - 6pm PT.
- If Customer detects an Incident, Customer will notify Modern Treasury and provide information and cooperation to Modern Treasury as reasonably required for Modern Treasury to provide Support. This includes providing the following information to Modern Treasury regarding the Incident:
- Aspects of the Products that are unavailable or not functioning correctly
- Incident’s impact on Users
- Start time of Incident
- List of steps to reproduce Incident
- Relevant log files or data
- Wording of any error message
- Incident ID# (when specified by Modern Treasury)
- Modern Treasury will use commercially reasonable efforts to respond according to the severity of Incident as shown in the table below. Following its initial response, Modern Treasury will provide regular updates at reasonable intervals while an Incident is ongoing.
|Severity Level||Description||Sample Incident Types||Target Response Time||Target Update Frequency|
|P0: Urgent||Operation of the Products is critically affected (not responding to requests or serving content) for a large number of Users; no workaround available.||Inability to initiate a payment, inability of Modern Treasury to submit a NACHA file for ACH payments to the applicable bank for an appropriate processing window, inability for an applicable bank to approve payments caused by Modern Treasury (bank errors or delays excluded), erroneous or duplicate payments, inability to approve POs or approval rules being ignored.||< 2 business hours||Every 6 business hours|
|P1: High||Products are responding and functional but performance is degraded, and/or Incident has potentially severe impact on operation of Products for multiple Users.||Delayed payments, counterparty invites not being sent as expected, unreconciled transactions.||< 4 business hours||Every 12 business hours|
|P2: Normal||Non-critical issue; no significant impact on performance of Products but User experience may be affected.||Transactional inquiries on processing timing, batch queries, payment types. Questions about managing users or transactions, SOC 2 / Pen Test requests.||< 8 business hours||Weekly|
|P3: Low||All other questions or purely cosmetic issues.||< 2 business day||As updates are available|
III. Exclusions. Modern Treasury’s obligations in this Exhibit do not apply to Incidents or downtime to the extent arising from: (a) misuse or unauthorized modifications to the Products, (b) Third-Party Platforms or other third-party systems, connections or utilities, (c) Trials and Betas or other free or evaluation use, (d) any Professional Services or related deliverables or (e) reasons beyond Modern Treasury’s control or suspensions or removals under Section 10 (Serious Harm).
- Orders. Modern Treasury will provide the Professional Services as indicated on an Order based on the services selected by Customer (see Section 5 below). Fees and payment for Professional Services will be as set out in the Order and Section 8 (Fees and Taxes) of the Agreement, and payment is required prior to commencement of Professional Services. Any changes to the scope of Professional Services or related fees must be mutually agreed by the parties in writing.
- Customer Materials. Customer will give Modern Treasury timely access to materials, systems and resources as described below or otherwise reasonably requested by Modern Treasury to provide the Professional Services (“Customer Materials”). Failure to do so may result in delays or scope changes, and Modern Treasury’s obligations to provide Professional Services will be excused until access is provided. Modern Treasury will use Customer Materials only for purposes of providing Professional Services.
- Deliverables. Any Professional Services deliverables relate to the configuration or use of the Products or Services. Modern Treasury owns such deliverables in accordance with Section 11 of the Agreement and Customer may use the deliverables only as part of its authorized use of the Products, subject to the same terms as for the Products in Section 2 (Using the Products) and Section 5 (Customer Obligations).
- Limited Warranty. Modern Treasury warrants that it will perform the Professional Services in a professional and workmanlike manner. If Modern Treasury breaches this warranty and Customer makes a reasonably detailed warranty claim within 30 days of Modern Treasury’s delivery of the affected Professional Services, then Modern Treasury will use reasonable efforts to re-perform the non-conforming Professional Services at no additional cost to Customer. If Modern Treasury determines such remedies to be impracticable within 30 days, either party may terminate the applicable Statement of Work and Modern Treasury will refund the portion of fees attributable to such non-conforming Professional Services. These procedures are Customer’s exclusive remedy and Modern Treasury’s entire liability for breach of the warranty in this Section 4. Except for the foregoing warranty, without limiting the disclaimers in the main Agreement, all Professional Services and deliverables are provided “as is'' and Modern Treasury expressly disclaims any and all other warranties of any kind or nature, whether express, implied or statutory, including the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose.
- Professional Services. Modern Treasury offers the following standardized Professional Services:
#1: Bank Integration (Payments Product)
Description. Modern Treasury works directly with Customer’s Bank(s) to connect its account(s) to its Modern Treasury organization. Depending on Customer need, this typically consists of the following activities which are led by Modern Treasury’s bank operations team:
- Requirements Gathering. Collect banking and money movement requirements and confirm with Bank(s).
- Direct Transmission. Work with Bank(s) to enable direct transmission for Customer’s Bank Account(s).
- Technical Integration. Set up Customer’s Modern Treasury organization and integrate it with the Bank Account(s) to enable programmatic money movement for Customer’s specific payment rails.
- Connection Testing. Validate the Bank connection within the Products via test transactions consisting of credits, debits and returns.
Deliverable. Live Bank connection between Customer’s Bank Account and its organization in the Products.
Customer Materials. Modern Treasury’s provision of Professional Services is conditioned on Customer providing Modern Treasury with timely access to the following Customer Materials:
- Bank name
- Customer legal name and address at Bank
- Full bank account numbers
- Routing numbers
- Payment rails
- Cooperation as reasonably requested by Modern Treasury
Bank Requirements and Cooperation. Customer remains responsible for its own Bank Requirements as set out in the main Agreement and Modern Treasury is not liable for issues or delays resulting from Customer’s failure to meet Bank Requirements. Modern Treasury’s provision of Professional Services may be contingent upon the timely cooperation of Customer’s Bank. Failure by Customer’s Bank to timely respond to requests may result in delays or require scope changes.
#2: Ledgers Solution Architecture
Description. The Ledgers solution document is scoped to each customer’s ledgering needs. It consists of a design overview and implementation details (T-account, ledger object definitions, best practices for integrating with non-Modern Treasury systems).
Deliverable. A Ledgers Solution Document. Customer is responsible for validating that the deliverable satisfies its purposes.
Customer Materials. Modern Treasury’s provision of Professional Services is conditioned on Customer providing Modern Treasury with timely access to the following Customer Materials:
- A completed scoping document provided by the Modern Treasury team containing questions on:
- Customer’s intended use-case and ledger reporting needs
- Where in the user application will balances and transactions be displayed?
- What are Customer’s internal ledgering needs?
- Does Ledger transaction data need to be imported or exported from/to third-parties?
- Outline of accounts that require tracked balances
- Description of fund flows between accounts to be tracked
- Customer’s intended use-case and ledger reporting needs
- Cooperation as reasonably requested by Modern Treasury
- Scope. As described in this Security Policy, Modern Treasury uses commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data stored on Modern Treasury systems. This Security Policy applies to Modern Treasury systems and personnel. The Products include security options that Customer may use (see Section 5 below), and Customer is responsible for its own configurations and the security of its own systems. While certain Products may enable Customer to connect with its accounts at Banks or other Third-Party Platforms, Modern Treasury does not control how such third parties secure or process data.
- Encryption & Customer Data.
- Customer Data is encrypted in transit (TLSv1.2) and at rest in Modern Treasury production environments (AES-256).
- Modern Treasury personnel credentials for Product production environments are encrypted.
- Modern Treasury logically separates Customer Data from that of other customers and uses measures designed to prevent Customer Data from being exposed to other customers.
- Asset Management. Modern Treasury implements asset management policies and prohibits storage of Customer Data on electronic storage devices such as thumb drives or laptops.
- Access Controls.
- Systems access by Modern Treasury personnel is determined on a need-to-use basis, as defined based on the responsibilities and duties of the position held.
- Modern Treasury requires personnel to use unique user IDs, complex passwords and multi-factor authentication to access Product production environments.
- Application Security & Customer Controls.
- The Products allow Customer to use multi-factor authentication as described in the Documentation.
- In addition, the Products allow Customer to manage its User permissioning, determine payment approval rules (for the Payment Products) and access and export audit trails, subject to the plan features available under Customer’s Order.
- Customer may export its Customer Data through the standard functionality of the Products.
- Network Security, Environmental & Physical Controls.
- The Products operate on Amazon Web Services (“AWS”) and are protected by security and environment controls of AWS. Information regarding AWS security is available at https://aws.amazon.com/security/.
- Modern Treasury’s physical offices maintain security surveillance and visitor access restrictions.
- Personnel Management.
- Modern Treasury conducts background checks of all employees with access to Customer Data.
- All Modern Treasury personnel undergo annual security awareness training. Modern Treasury personnel in developer roles undergo annual secure coding training.
- Modern Treasury immediately disables physical and logical access to Modern Treasury resources upon personnel termination.
- Organizational Policies. Modern Treasury maintains and regularly reviews internal organizational policies, including a Data Protection Policy, Encryption and Key Management Policy, Information Security Policy, Risk Assessment and Management Program, System Access Control Policy, and Vulnerability Management Policy.
- Business Continuity & Disaster Recovery
- Modern Treasury maintains a Business Continuity Plan (“BCP”) and Disaster Recovery Plan (“DRP”) to govern contingency plans for certain business interruptions and disasters affecting its business and Products.
- Modern Treasury tests the BCP and DRP annually.
- Security Assessments
- Modern Treasury engages a third-party auditor to conduct an annual SOC 2, Type II (or similar or successor) report (“SOC 2 Reports”). Modern Treasury engages a third party to conduct annual vulnerability assessments and reports (“Vulnerability Reports”). SOC 2 Reports and summary Vulnerability Reports are available to Customer on annual request, subject to confidentiality terms.
- In addition, Modern Treasury performs ongoing internal vulnerability scanning and regular external vulnerability scanning.
- Incident Response. Modern Treasury maintains an Incident Response Plan (“IRP”) to respond to potential security incidents, malware infection or intrusions to the Products or Customer Data, based on severity of impact.
- Security Breach. If Modern Treasury becomes aware of unauthorized access to or disclosure of Customer Data stored on Modern Treasury systems (“Security Breach”), then unless limited by Laws, Modern Treasury will notify Customer of the Security Breach within three (3) business days of confirmation and provide Customer with information about when and where the Security Breach may have occurred, the effect on Customer Data and Modern Treasury’s corrective action in response to the Security Breach.
- Compliance Features. Customer may have access to Modern Treasury’s compliance and anti-fraud features as described in an Order (the “Compliance Features”). The Compliance Features are part of the Payments Product, and these Compliance Terms supplement the rest of the Agreement if Customer purchases access to or uses the Compliance Features (excluding Bank Account Validation features, to which these Compliance Terms do not apply). To use the Compliance Features, Customer will cooperate with Modern Treasury to activate the Compliance Features for Customer’s organization.
- Authorized Use. The Compliance Features provide Customer with Scores related to its Counterparties and Transactions and allows Customer to manage its response to the Scores through a case management dashboard. Customer may use Scores and Compliance Features solely for identity verification, fraud detection and compliance purposes for its Counterparties and Transactions, including as part of its know your customer/know your business (“KYC/KYB”) and anti-money laundering (“AML”) programs. Customer will request Scores solely for legitimate and bona fide business reasons and, in using the Compliance Features and Scores, Customer will comply with all Laws and its applicable terms and privacy policies with Counterparties. Customer may disclose Scores solely (1) to its Users acting on its behalf as reasonably necessary for the purposes of the foregoing and (2) as required by Banks with which it has a relationship or regulators or governmental authorities having authority over Customer’s activities. Customer will not sell or resell Scores. If Customer distributes Scores to third parties (subject to these Compliance Terms and the Agreement) it must include disclaimers consistent with Section 7 (Disclaimer) below with the Scores.
- Users. Customer agrees not to provide access to the Compliance Features to anyone other than its internal employees and contractors acting on its behalf or to use the Compliance Features except as expressly permitted in the Agreement (including this Exhibit). Using the case management dashboard, Customer will notate any inaccurate Scores it observes (e.g., false positives/negatives, missed fraud) within 30 days of delivery of the Score.
- Geographic Scope. Some KYC checks are limited to data coverage within the US. As coverage expands, prices may vary per country.
- Use of Customer Data. Due to the nature of the Compliance Features, Customer agrees to the following uses of Customer Data in addition to those permitted in the Agreement. Modern Treasury and its suppliers may use, host, perform, display and create derivative works of the Customer Data and Scores (1) to provide, operate, analyze and improve the Compliance Features, (2) for fraud detection, security, machine learning and artificial intelligence purposes, including in manners that benefit other customers, (3) to comply with Laws and (4) to create anonymized and aggregated data (“Anonymized Data”). Modern Treasury and its suppliers may use the Anonymized Data for their lawful business purposes, including for promotion and benchmarking purposes during and after the Term, but for clarity will not disclose the Anonymized Data in a manner that identifies Customer or any Counterparty. For Counterparty email addresses in Customer Data (“Email Addresses”) Modern Treasury and its suppliers (as independent controllers) may retain such email addresses to use for anti-fraud purposes during and after the Term.
- FCRA. Modern Treasury is not a “consumer reporting agency” and neither the Compliance Features nor Scores constitute “consumer reports” as those terms are defined in the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq., (“FCRA”) or any similar state statute. Customer is prohibited from using the Compliance Features or Scores, in whole or in part, for the purpose of serving as a factor in establishing a person’s eligibility for credit, insurance, employment, or another purpose in connection with which a consumer report may be used under the FCRA, or for offering the Compliance Features or Scores to anyone else for any such purpose. Specifically, Customer hereby certifies that it will not, and it will not permit anyone else to, use the Compliance Features or Scores to determine, in whole or in part, an individual’s eligibility for any of the following products, services or transactions: (i) credit or insurance to be used primarily for personal, family or household purposes; (ii) employment purposes; (iii) benefits, tenancy (including deciding whether to lease a commercial or residential property) or educational admission considerations; (iv) in connection with a business transaction initiated by an individual consumer for personal, family or household purposes, including whether an individual meets the terms of a customer account or (v) any other product, service or transaction in connection with which a consumer report may be used under the FCRA, including, without limitation, check-cashing or the opening of a deposit or transaction account. Modern Treasury makes no representation or warranty as to the credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living of any person. Customer will not use the Compliance Features or any Scores in order to take any “adverse action” as that term is defined in the FCRA.
- Disclaimer. Scores are provided based on algorithmic results to assist Customer in performing fraud and anomaly detection, but Scores are not legal determinations. While the Compliance Features may be used to support Customer’s compliance programs, the Compliance Features are not a substitute for those programs. Scores may be derived from multiple sources or be modified before delivery. Scores are furnished based on data available at the time of delivery and their accuracy may be subject to change over time. Modern Treasury does not guarantee that Scores will be provided on an uninterrupted basis or that Scores will be accurate or complete or satisfy Customer’s legal, compliance or contractual obligations or that the Compliance Features will identify all potential issues or risks. Customer (not Modern Treasury) is solely responsible for (a) its use or reliance on Scores, (b) all decisions and actions taken using or based on the Scores, such as whether to block, freeze or proceed with any Counterparty or Transaction (even if the Compliance Features provide default rules or logic for such decisions and actions), and (c) any reporting or other action required by Laws related to any Score, Counterparty or Transaction, including pursuant to the Bank Secrecy Act, regulations of the United States Department of the Treasury’s Office of Foreign Asset Control (OFAC), other sanctions or any other Laws or financial institution requirements related to KYC, AML, customer identification or customer due diligence. These disclaimers apply in addition to those in the main Agreement and notwithstanding anything else in the Agreement.
- “Counterparties” means any user for which Customer uses the Compliance Features to request a Score.
- “Customer Data” is as defined in the Agreement and includes (a) any data collected by Customer using the Compliance Features’ onboarding flow for Counterparties and (b) Scores, subject to the usage limitations and disclaimers in this Exhibit. Scores are sourced from public and third-party sources and Customer acknowledges that Modern Treasury may provide similar or identical scores or data to others in connection with providing its Products. Customer does not obtain ownership of any public or third party-provided data reflected in Scores.
- “Scores” means risk scores, reports, signals, and any related data provided to Customer through the Compliance Features in response to Customer Data.
“Transaction” means any transaction or information related to a transaction for which Customer uses the Compliance Features to request a Score.
This Exhibit supplements the Agreement and includes additional information required by the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100 et seq.) as amended by the California Privacy Rights Act (“CCPA”) as updated, amended or replaced from time to time. Any terms not defined in this Exhibit will have the meanings set out in the Agreement.
- For purposes of this Exhibit the terms “Business,” “Business Purpose,” “Commercial Purpose,” “Consumer,” “Personal Information,” “Processing,” “Sell,” “Service Provider,” “Share,” and “Verifiable Consumer Request” will have the meanings set out in the CCPA. “Customer Personal Information” means Personal Information contained in the Customer Data.
- For purposes of this Exhibit the terms “Business,” “Business Purpose,” “Commercial Purpose,” “Consumer,” “Personal Information,” “Processing,” “Sell,” “Service Provider,” “Share,” and “Verifiable Consumer Request” will have the meanings set out in the CCPA. “Customer Personal Information” means Personal Information contained in the Customer Data.
- With respect to Customer Personal Information, Modern Treasury is a Service Provider for the purposes of the CCPA (to the extent it applies) and Modern Treasury is receiving Customer Personal Information from Customer in order to provide the Products pursuant to the Agreement, which constitutes a Business Purpose.
- Customer will disclose Customer Personal Information to Modern Treasury only for the following limited and specified purposes:
- Nature and Purpose of Processing: Modern Treasury will process Customer Personal Information as necessary to provide the Products under the Agreement, for the purposes specified in the Agreement, and in accordance with Customer’s instructions as set out in the Agreement.
- Duration of Processing: Modern Treasury will process Customer Personal Information as long as required (i) to provide the Products or as permitted under the Agreement; (ii) for Modern Treasury’s legitimate business needs or (iii) by Laws.
- Categories of Consumers: Customer’s end users, customers, counterparties and/or personnel.
- Categories of Personal Information: Categories of Customer Personal Information include name and location, email address, phone number, address, occupation, and title and data relating to payments, bank accounts and transactions.
- Modern Treasury will not Sell or Share Customer Personal Information under the Agreement.
- Modern Treasury will not retain, use, or disclose Customer Personal Information pursuant to the Agreement outside of the direct business relationship with Customer or for any purpose, including a Commercial Purpose, other than as necessary for the specific purpose of providing the Products for Customer pursuant to the Agreement, or as otherwise set out in the Agreement or as permitted by the CCPA.
- Modern Treasury will notify Customer if Modern Treasury makes a determination that it can no longer meet its obligations under the CCPA.
- Modern Treasury will comply with all obligations applicable to Service Providers under the CCPA, including by providing Customer Personal Information the level of privacy protection required by the CCPA.
- Modern Treasury will not combine Customer Personal Information received from, or on behalf of, Modern Treasury with other Personal Information except to the extent a Service Provider is permitted to do so under the CCPA.
- Customer will promptly notify Modern Treasury upon receipt of any consumer request made pursuant to the CCPA that requires Modern Treasury to take any action with respect to a consumer’s Personal Information contained within the Customer Personal Information.
- Customer may, upon written notice to Modern Treasury, (1) take such reasonable and appropriate steps as may be necessary to ensure that Modern Treasury’s collection and use of Customer Personal Information is consistent with requirements under the CCPA, and (2) take reasonable and appropriate steps to stop and remediate any unauthorized use of Customer Personal Information by Modern Treasury. Any measures implemented by Customer under this Section (i) will be limited to Customer Personal Information relevant to Customer.
Modern Treasury Acceptable Use Policy
All users must comply with this Acceptable Use Policy (“AUP”) in connection with accessing or using the Platform. The “Platform” means Modern Treasury’s products, services, websites and related systems and networks.
Prohibited Conduct. You must not:
- Impersonate any person or entity or misrepresent your affiliation with any person or entity (including through spoofing or phishing).
- Transmit spam or other unsolicited communications.
- Violate your agreements with third parties, such as your banks or payment processors.
- Seek to receive duplicate compensation for a disputed payment from any bank.
- Use the Platform in connection with any transactions involving illegal, counterfeit or stolen goods, illegal or controlled substances or substances that pose a risk to consumer safety.
- Engage in any illegal or fraudulent behavior or use the Platform in connection with any illegal businesses or purposes, including fraudulent or unauthorized payments, illegal gambling, Ponzi schemes, pyramid schemes or money laundering.
- Use the Platform in a manner that may harm any person or entity.
Prohibited Content. You must not upload, send, share or store data or content that:
- Is obscene, defamatory, deceptive, fraudulent, misleading, harassing, threatening, pornographic, hateful, or discriminatory.
- Violates anyone else’s intellectual property, privacy, publicity or other rights.
- Violates applicable laws or regulations.
- Contains or links to viruses, malware, ransomware, malicious code or other harmful code or technology.
No Disruption. You must not:
- Access the Platform through means we did not authorize (for instance, scraping or crawling).
- Probe, scan or test the vulnerabilities of the Platform.
- Take any action that imposes an unreasonable or disproportionately large load on the Platform.
- Disable or interfere with the Platform (for instance, denial-of-service attacks).
- Circumvent any of our security or access controls.
- Access other users’ data or accounts without their express permission.
Third Parties. You must not permit or encourage anyone else to commit any of the actions above.
Modern Treasury may (but has no obligation) to monitor your compliance with this AUP. If we determine that you or your content violates this AUP, we may terminate or suspend your access to the Platform or delete, disable, or modify your content.
|Entity Name||Address||Description of processing|
|Amazon Web Services, Inc.||410 Terry Avenue North, Seattle, WA||Cloud infrastructure and storage|
|Carry Technologies, Inc. dba Hightouch||501 Folsom St, 3rd Floor San Francisco, CA 94105||Extract, transformation and load services|
|Datadog, Inc.||620 8th Ave 45th Floor New York, NY 10018 USA||Cloud observability services|
|dbt Labs, Inc.||915 Spring Garden St #500 Philadelphia, PA||Cloud data management and analytics|
|Flatfile, Inc.||1624 Market Street Suite 202 PMB 91384 Denver, CO 80202||Data importing services|
|Functional Software, Inc. d/b/a Sentry||45 Fremont St, San Francisco, CA 94105||Cloud monitoring services|
|Google LLC||1600 Amphitheatre Pkwy Mountain View, CA 94043 United States||Business intelligence, cloud storage and analytics services|
|Hex Technologies, Inc.||2261 Market Street, #4233, San Francisco, CA 94114||Cloud data analytics services|
|Lob||210 King St, San Francisco, CA 94107||Print and mail services|
|Middesk, Inc.||85 2nd Street, Suite 710 San Francisco, CA 94105||Fraud and compliance platform|
|Mozart Data, Inc.||250 King St., San Francisco, CA 94107||Cloud data management and analytics|
|SardineAI Corp.||382 NE 191ST St Miami, FL, 33179-3899||Fraud and compliance platform|
|Vigo Engineering Inc. dba Prequel||154 W 14th Street, New York, New York 10011||Extract, transformation and load services|
|Zendesk, Inc.||989 Market Street San Francisco, CA 94103||Cloud customer service infrastructure|
*Modern Treasury uses the subprocessors above for its Products. Subprocessing may depend on the Products and features used by you. Click this link to be notified whenever a subprocessor is added to or removed from this list.
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