Resolution 2014-03 Resolution No . 2014(
A RESOLUTION APPROVING A COMMERCIAL CARD AGREEMENT WITH
FIRST NATIONAL BANK OF OMAHA AND AUTHORIZE OFFICIALS WHO
MAY ISSUE CREDIT CARDS
Whereas , the United City of Yorkville (the "City") is a duly organized and
validly existing non home-rule municipality created in accordance with the Constitution
of the State of Illinois of 1970 and the laws of the State; and,
Whereas , the City desires to enter into an agreement for a commercial card
account and related account services from First National Bank of Omaha; and,
Whereas , the City must designate those officials who are authorized to instruct
First National Bank of Omaha to issue credit cards to employees of the City.
NOW, THEREFORE, BE IT RESOLVED, by the Mayor and City Council of
the United City of Yorkville, Kendall County, Illinois, as follows :
Section 1 : That the FIRST NATIONAL BANK OF OMAHA COMMERCIAL
CARD AGREEMENT, between First National Bank of Omaha and the United City of
Yorkville, attached hereto and made a part hereof by reference as Exhibit A, is hereby
approved and Rob Fredrickson, Finance Director, be and is hereby authorized to execute
said Agreement on behalf of the City.
Section 2 : That the officials designated below ("Authorized Officials") are duly
holding the office shown and authorized to name the individuals at the City who shall be
authorized to instruct First National Bank of Omaha to issue credit cards to one or more
employees of the City, and the signatures below are genuine signatures of such persons .
Authorized Officials :
Gary Golinski , Mayor
Bart Olson, City Administrator
Rob Fredrickson, Finance Director w
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Section 3 : This resolution shall continue to be in full force and effect until
express written notice of its rescission, modification or termination has been received by
First National Bank of Omaha.
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Section 4 : This Resolution shall be in full force and effect upon its passage and j
approval as provided by law .
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Resolution No. 2014- o �
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Passed by the City Council of the United City of Yorkville, Kendall County,
Illinois this day of V' , A . D . 2014 ,
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CITY CLERK
CARLO COLOSIMO KEN KOCH
JACKIE MILSCHEWSKI LARRY KOT
CHRIS FUNKHOUSER JOEL FRIEDERS
ROSE ANN SPEARS DIANE TEELING 1
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Approved by me, as Mayor of the United City of Yorkville, Kendall County,
Illinois, this aq day of JAr.Iu '4'e y , A . D . 2014 .
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MAYOR
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Resolution No . 2014- 0 3
Page 2
Exhibit A
FIRST NATIONAL BANK OF OMAHA COMMERCIAL CARD AGREEMENT j
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This Commercial Card Agreement (the "Agreement") is made as of November 1 , 2013 (the "Effective Date") between First National
Bank of Omalia (the "Batik") and the undersigned business or governmental entity (the "Company") (each, a "Party" individually, and j
the "Parties" collectively). References to an article, section or sub-section below refer to the designated segments of this Agreement, j
unless otherwise indicated.
RECITALS
A. The Bank is a member of network organizations that process transactions for credit cards and charge cards (each, a
"Card Association"), including those cards the Bank issues for commercial use by its customers.
B . The Company has requested a commercial card account from the Bank and has directed the Bank to issue ten (10) or
more cards and provide related account services for the Company and its employees and agents.
C. The Bank is willing to issue commercial cards and provide accounts and related services on the terms and conditions
set forth in this Agreement and its attached Schedules, Exhibits and Addendums, which are incorporated in the Agreement by this
reference.
In consideration of the premises and mutual agreements set forth in this Agreement, the Company and the Batik agree as follows :
ARTICLE 1
DEFINITIONS
Section 1.1 For purposes of this Agreement, the following terms shall have the meanings indicated below:
(a) "Account" means the master account the Bank establishes in the Company ' s name, associated with Cards
the Bank issues to the Company, Employees and Cardholders, and reflecting all Transactions made with Card Accounts of
Employees and Cardholders.
(b) "Application" means an application, submitted in the form and manner specified by the Bank, requesting
that the Bank open the Account or requesting that the Bank issue a Card and open a related Card Account for an Employee or
Cardholder,
(c) `Bank Affiliate" means all entities that are Controlling, Controlled by or under common Control with the
Bank, its parent First National of Nebraska, Inc., the Lauritzen Corporation or any financial services entities controlled by the
Lauritzen family.
(d) `Browser" means an Internet browser that complies with specifications set forth in the User Guide, used by
the Company in connection with the Online Services and the Online Services System . j
(e) "Card" means any plastic card branded with a Card Association brand that the Batik issues to the Company,
an Employee or a Cardholder under the Program. Any reference to use of a Card in the Agreement shall also mean use of its
related Card Account.
(f) "Card Account" means each sub-account the Batik establishes for Employees and Cardholders under the
Account, including those associated with use of a particular Card, those for which the Bank has not issued a Card , and
Guaranteed Accounts.
(g) "Card Account Statement" means an individual periodic statement the Bank prepares to disclose the
applicable balances, Transactions, and Program Fees and Charges for a Card Account at the end of each billing cycle.
(h) "Card Association Liability Program" means liability protection insurance coverage a third-party insurer or
Card Association may separately agree to provide the Company, to limit the Company's liability for Unauthorized
Transactions.
0) "Cardholder" means an Employee designated by the Company or its Program Administrator to receive a
Card and who is authorized to use a Card and Card Account, including any person using an Unassigned Card for any reason
from time to time.
Q) "Cardliolder Agreement" means any agreement between the Bank and a Cardholder that governs a
Cardholder's use of a Card and Card Account, as amended from thne to time, consistent with this Agreement.
(k) "Cash Advance" means the use of a Card or any check, instrument, certificate, device or method the Batik
permits for access to the Card Account, when used to obtain a cash advance or a Cash Equivalent Transaction or to initiate
any Transaction other than one designated as a Purchase by the Batik. Any such Cash Advance can result from transactions
made through the Batik, participating financial institutions, ATMs, point of sale terminals, or otherwise, regardless of
whether a Card was presented, the Cardholder's signature was obtained, or a personal identification number was assigned to
or used by a Cardholder.
(1) "Cash Equivalent Transaction" means a Cash Advance obtained through a merchant or set-vice provider
that the Card Association has identified as a seller of travelers checks, foreign currency, money orders, wire transfers, lottery
tickets, funds used for wagers or gambling, or similar products or services.
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(m) "Charge Limit" applies to both the Account and each related Card Account, and means the maximum
aggregate unpaid balance of all Transactions and Program Fees and Charges that may be outstanding on the Account or the
Card Account at any time, as determined by the Bank. I
(n) "Claim" means: (a) any pre-existing, present or future claim, dispute or controversy that arises from or in
any way relates to this Agreement, any Cardholder Agreement, the Account, any Card Account, any Card, the credit the Batik
offers or denies to Company, Cardholders and Employees in accordance with this Agreement, any Application, or the
benefits, rewards or other products or services that are offered in connection with this Agreement, the Account, any Card
Account or any Card; or (b) the acts or omissions of any Party, Bank Affiliate, Company Affiliate, Cardholder and Employee
if those acts or omissions affect or relate to this Agreement, the Account, any Card Account, any Card or any benefits,
rewards or other products or services related thereto. Claims include, but are not limited to, claims based on contract and tort
(including intentional torts), claims made in law or in equity, claims based on constitutional, statutory, regulatory and
common law rights, and claims for damages, penalties and injunctive, declaratory or equitable relief.
(o) "Class Proceeding" means any Claim or Claims brought by or on behalf of a class, brought in a
representative capacity or otherwise on a class basis, or brought in the form of a private attorney general action, regardless of
whether they are commenced in court or in arbitration.
(p) "Company Affiliate" means all entities that are Controlling, Controlled by or under common Control with
the Company.
(q) "Company Marks" shall mean the trademarks, service marks, trade names, names, logos, copyrights and
other proprietary materials and information owned by Company or a Company Affiliate.
(r) "Confidential Information" of the Bank shall have the meaning assigned in Section 16. 1 and "Confidential
Information" of the Company shall have the meaning assigned in Section 16.2.
(s) "Consolidated Billing Statement" means a periodic statement the Bank prepares to disclose the applicable
balances, Transactions, and Program Fees and Charges due from the Company for the Account and all applicable Card
Accounts at the end of each billing cycle.
(t) "Control" means possessing, directly or indirectly, the power to direct or cause the direction of the
management policies or operations of any entity, whether through ownership of voting securities, by contract, or otherwise.
(u) "Devices" mean the security codes, passwords, and other security materials required for access to the j
Online Services System, as further described in the User Guide, j
(v) `Employee" means an employee, agent, contractor, director, or officer of the Company or a Company
Affiliate.
(w) "Guarantee" shall have the meaning assigned in Section 2.2.
(x) "Guaranteed Account" shall have the meaning assigned in Section 2 .2 .
(y) "Initial Term" shall have the meaning assigned in Section 19. 1 .
(z) "Merchant Category Code" means a code that a Card Association has assigned to identify the principal
business of a vendor, merchant or other third party that accepts payments from customers made with Cards and Card
Accounts.
(aa) "Online Account Information" means information about the Program, Account, Card Accounts,
Cardholders, Employees, and pending and posted Transactions, which the Bank provides and makes available to the
Company in connection with its use of the Online Services System.
(bb) "Online Services" shall have the meaning assigned in Section 21 . 1 .
(cc) "Online Services Materials" means the User Guide and all other documents and materials the Bank
provides or makes available to the Company in connection with its rise of the Online Services, the Online Services Software,
and the Online Services System.
(dd) "Online Services Software" means the software accessible to the Company through the Online Services �-
System, in connection with its use of Online Services.
(cc) "Online Services Software license" means the personal, nonexclusive and nontransferable license the Bank
grants to the Company, and the Company accepts from the Bank, to use software accessible to the Company through the
Online Services System.
W) "Online Services System" means one or more operating systems, applications, and platforms through
which the Bank provides or makes available Online Services to the Company, as described more specifically through the
User Guide.
(gg) "Operating Rules" mean the operating rules and regulations of a Card Association, the Bank, or both, as
amended from time to time.
(hh) "Payment Due Date" means the date after each Statement Date for the Account and each Card Account by
which payment to the Bank is due from the Company and/or its Cardholders.
(ii) "Pricing Schedule" means terms, conditions, and limitations set forth in Schedule A to this Agreement, as
amended by the Bank from time to time in accordance with Section 17.2, including all Program Fees and Charges the
Company, Employees and Cardholders must pay the Bank and any compensation or incentive payments the Bank must pay
the Company.
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0j) "Program" means the commercial card program the Bank establishes for the Company on terms and
conditions set forth in this Agreement, through which the Bank opens the Account and permits use of Cards and Card
Accounts,
(kk) "Program Administrator" means each individual the Company designates as a representative using the
Bank 's Program Administrator designation form, each of whom is individually authorized to: (i) submit requests for Cards
and/or Applications by or on behalf of Employees and Cardholders; (ii) request Charge Limits for• individual Cards and Card
Accounts (but not au overall Charge Limit for the Account); (iii) request Transaction Limits for individual Cards and Card
Accounts; (iv) request cancellation or suspension of individual Cards and Card Accounts; and (v) perform certain
administrative duties as described in the Agreement. The Company must designate each Program Administrator in the form
and manner required by and acceptable to the Bank, in its sole discretion .
(11) "Program Fees and Charges" means the fees, charges, and interest rates established by the Pricing Schedule
in Schedule A that are payable to the Bank by the Company, Employees and Cardholders.
(mm) "Program Instructions" means the features the Company and its Program Administrator have requested or
selected in connection with the Program, the Account, the Card Accounts, and the Online Services, as detailed through Set-up
Forms and other forms that the Company and the Program Administrator provide to the Bank, in the time and manner
established by the Agreement.
(nn) "Purchase" means use of a Card or any check, instrument, certificate, device or method the Bank permits
for access to the Card Account, when used to pay for goods or services sold, leased, or otherwise provided by any person,
entity, or financial institution or initiate any transaction other than one designated as an Cash Advance by the Bank,
regardless of whether a Card was presented or a Cardholder's signature was obtained by any such person, entity, or financial
institution.
(oo) "Renewal Term" shall have the meaning assigned in Section 19 . 1 .
(pp) "Security Procedures" means the security procedures for using the Devices required for access to the
Online Services System, as described in the User Guide.
(qq) "Set-up Forms" means the forms the Company provides to the Bank to request Online Services through the
Online Services System.
(rr) "Statement Date" shall mean the closing date of the periodic billing cycle for the Account and for each
Card Account, assigned by the Bank and disclosed on Consolidated Billing Statements and Card Account Statements ,
(ss) "Term" sliall have the meaning assigned in Section 19. 1 .
(it) "Transactions" means any Purchase or Cash Advance.
(uu) "Transaction Limit" means parameters the Program Administrator and Bank establish for a Card Account,
including but not limited to limits on: (i) the number of Transactions permitted during a specified time period for a Card
Account; (ii) the dollar amount of Transactions permitted during a specified time period for a Card Account; (iii) the
Merchant Category Codes for which a Card Account may be used; and (iv) such other parameters as may be agreed by the
Bank and Program Administrator.
(vv) "Unassigned Cards" are Cards the Bank issues in the name of the Company at its request, without
designating a specific Cardholder authorized to use the Card.
(ww) "Unauthorized Transaction" means any Transaction not for the purpose of carrying ors the Company's
business and from which the Company obtains no direct or indirect benefit.
(xx) "User Guide" means the user manuals and other user materials, individually and collectively, that the Bank
furnishes to the Company in connection with its Program, the Online Services System, and any related Online Services.
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ARTICLE 2
PROGRAM EXCLUSIVITY; COMPANY GUARANTY AND FINANCIAL REPORTS
Section 2. 1 During the Term, the Company shall not, by itself or in conjunction with any Company Affiliate: (a) enter into an
agreement with any financial institution other than the Bank related to the issuance or use of commercial credit cards or commercial
charge cards by Employees and Cardholders; (b) enter into an agreement authorizing use of any Company Marks in connection with
any commercial credit cards or commercial charge cards to be used by Employees and Cardholders; or (c) directly or indirectly
endorse, support, participate in, or benefit from any commercial card program other than the Program, related to the issuance or use of
commercial credit cards or commercial charge cards by Employees and Cardholders.
Section 2.2 If the Company or a Program Administrator requests and the Bank agrees to issue a Card and establish a Card
Account for a Cardholder or Employee of a Company Affiliate identified in Exhibit 1 (each, a "Guaranteed Account"), the Company
shall be liable to the Batik for any and all Transactions and Program Fees and Charges related to or arising from use of any such
Guaranteed Account, as well as any losses and reasonable costs of collection the Bank incurs related to such Guaranteed Account (the
"Guarantee"). The Company shall execute any additional instruments in the time and manner the Batik might request in connection
with any such Guarantee. The Guarantee of each Guaranteed Account shall remain in full force and effect after termination of this
Agreement and any such Guaranteed Account, until any such Guaranteed Account has been paid in full and closed to further activity.
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Section 2.3 The Company shall provide or cause its accountants and auditors to provide the Bank with reasonably detailed
financial statements and reports about the Company, in the time and manner the Bank requests during the Term and while the
Company remains obligated to the Batik under the Agreement. The financial statements and reports the Company must provide on an
annual or more frequent basis upon the Bank's request include periodic statements of income, statements of cash flow, and balance
sheets of the Company, as well as statements regarding changes in shareholder's equity of the Company and any Company Affiliate.
Any such statements and reports must, as determined by the Bank, be audited by an independent public accountant selected by the
Company or contain a certification by the Company's chief financial officer that such reports are accurate and complete in all material
respects.
Section 2.4 The Batik is authorized to investigate and obtain information about the Company as the Bank deems appropriate.
The Bank may provide information about the Company and Cardholders to the Card Association, its member institutions and
contractors, and credit reporting agencies.
ARTICLE 3
USE OF ACCOUNT, CARDS AND CARD ACCOUNTS
Section 3.1 The Bank, from time to time and in its sole discretion, will establish and advise the Company of its Charge Limit for
the Account and the respective Charge Limits for the Card Accounts . The Bank will otherwise provide services to the Company,
Employees and Cardholders in the manner described in this Agreement and the Cardholder Agreement. The Bank shall have sole
discretion over the management, operation, content and features of the Program. The Bank may modify any aspect of the Program as
provided in this Agreement and the Cardholder Agreement.
Section 3.2 The Company understands and agrees that the Account, the Cards and the Card Accounts are for use by Employees
and Cardholders for their business-related Transactions, as provided under the terms and conditions of this Agreement, the Operating
Rules and the Cardholder Agreement, each as amended from time to time. The Company agrees to notify Employees and Cardholders
about the business purposes for which the Account, the Cards and the Card Accounts may be used. The Bank agrees that it will use
commercially reasonable efforts to notify the Company about particular requirements of the Operating Rules that may impact or affect
the Account, the Cards, and the Card Accounts.
Section 3.3 The Company, consistent with its internal policies, may instruct Employees and Cardholders to use a Card and Card
Account only for specific kinds of business-related Transactions. The Bank shall not have any duty or obligation to question or
investigate the underlying purpose or nature of any Transaction, except to the extent the Batik might be specifically required to do so
in connection with Transaction Limits or other limits specifically established by this Agreement. The Company may, in its sole
discretion, require that Employees sign a separate agreement related to their permitted use of a Card and Card Account. The Bank
shall not be liable to the Company or any Employee or Cardholder in connection with any such agreement that might exist between
those parties. The Bank's duties and obligations to the Company, Employees and Cardholders are established by this Agreement, the
Operating Rules and the Cardholder Agreement, each as amended from time to time.
ARTICLE 4
CANCELLATION OF CARDS; CARD REFUSAL BY THIRD PARTIES
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Section 4. 1 The Program Administrator or the Company may direct the Bank to cancel any Card or Card Account at any time
and for any reason whatsoever, after giving the Bank a cancellation notice in the time and manner it requires and a reasonable
opportunity to act on any such instructions. If Company cancels any Card and Card Account due to termination of any Employee's
employment, the Company must notify the Bank within two (2) business days after the earlier of the date the Employee's employment
is terminated or the date tine Employee gives or receives oral or written notice of immediate or pending termination of employment.
The Bank may cancel or suspend the right to use any Card or Card Account in its sole and absolute discretion at any time. �
Section 4.2 The Bank shall have no obligation, responsibility or liability to the Company or an Employee, Cardholder or any
user of a Card or a Card Account (including the user of an Unassigned Card) if any person, entity or financial institution refuses to
honor a Card, Card Account or the Account, or if the Bank refuses or fails to authorize the use of any Card, Card Account or Account.
ARTICLE 5
DESIGNATION AND RESPONSIBILITIES OF PROGRAM ADMINISTRATOR
Section 5.1 The Company shall provide the Batik with a written designation of one or more representative(s) as a Program
Administrator, each of whom shall be individually authorized to: (i) designate the Employees authorized to receive Cards and use
Card Accounts; (ii) establish or change the Charge Limit and Transaction Limits requested by the Company for any Cardholder, Card
and Card Account (but not the overall Charge Limit of tine Account); (iii) direct the Bank to cancel or suspend any Card or Card
Account; and (iv) otherwise act as the Company's authorized representative in administering the Program on behalf of the Company
and resolving any disputed Transactions. A Program Administrator must promptly advise the Bank in writing of any changes to be
made with respect to the Account and any Card or Card Account, using a request form acceptable to tine Batik and purportedly signed
or submitted by a Program Administrator. The Batik, without further inquiry, may rely on, deal with, and accept Program instructions
from any person who identifies himself or herself as a Program Administrator in all matters related to the operation and administration
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of the Program, The Bank shall not be liable or responsible to the Company for any Program Administrator that exceeds the limits of
his or her authority.
Section 5.2 The Bank will, except as otherwise provided in this Agreement, direct all documents and correspondence relating to
this Agreement to a Program Administrator. The Bank shall not act upon any instructions, orders, agreements or other documents
submitted by a person purporting to be a Program Administrator, unless and until the Bank has received a Program Administrator
designation form acceptable to the Bank appointing such person as a Program Administrator,
Section 5.3 The Company must notify the Bank of any change in any Program Administrator by submitting a new Program
Administrator designation form acceptable to the Bank setting forth (lie changes to be made (including the name of any new Program
Administrator), Each Program Administrator designation form acceptable to the Bank shall be effective upon receipt of such form by
the Bank.
Section 5.4 The Bank may, in its sole discretion, request separate documents, certificates, and resolutions from the Company to
establish the authority of a Program Administrator, Employee or Cardholder in connection with the Program and this Agreement. The
submission by the Company of a Program Administrator designation form shall constitute a Company 's representation that the
individuals named on the form have been granted general authority from the Company's Board of Directors or other governing body
(or have been designated by an officer who has been duly authorized by the Company's Board of Directors or other governing body)
over the transaction of the Company's Program -related business with the Bank.
ARTICLE 6
ISSUANCE OF CARDS; IDENTIFICATION OF CARDHOLDERS
Section 6.1 Promptly after execution and the Effective Date of this Agreement:
(a) The Bank and the Company shall agree on the date when the Bank shall begin issuance of Cards;
(b) The Company shall advise the Batik where and to whom it should send the Cards and Consolidated Billing
Statements, Card Account Statements, invoices and reports with respect to the Program, Account, Card Accounts and Cards;
and
(c) The Company shall provide the Bank with written notice of any Transaction Limits and Merchant Category
Codes it should use to prevent particular Transactions pursuant to the provisions of Article 6 and such other information as
the Batik may reasonably request.
Section 6.2 A Program Administrator or the Company shall provide the Batik with a completed Application or consent for each
Employee who shall be issued a Card for use under this Agreement. In all circumstances where an Employee or Cardholder will be
jointly and severally liable with the Company for use of a Card or Card Account, the Program Administrator or the Company must
provide the Bank with an Application for that Card or Card Account. An Application or authorization requesting issuance of a Card
must be signed by a Program Administrator and, if requested by the Bank, also signed by the Employee and prospective Cardholder,
The Program Administrator must keep copies of such Applications in a secure area under the Company's control , Tire Company must
provide the Batik with any identification information it might request for each Cardholder in an Application, including his or her
address (business and home), telephone numbers (business and home), social security number, and date of birth, and update such j
information as requested by the Bank from time to time during the term of this Agreement.
Section 6.3 The Bank will issue a Card to each Employee identified in an Application that has been completed and signed by a
Program Administrator, Where emergency issuance is reasonably requested by the Company, the Bank will use commercially
reasonable efforts to issue Cards within seventy-two (72) hours. The Bank shall issue a new Card to replace each outstanding Card
before its scheduled expiration date, unless the Bank receives written notice from the Company not to issue a renewal Card at least
thirty (30) calendar days before its scheduled expiration date.
Section 6.4 The Bank shall send the Cards to Employees by first class mail to the address designated on an Application or, at the
election of the Program Administrator, to the Program Administrator. Each Card shall be accompanied by any disclosures or other
materials the Bank deems necessary or appropriate. The Bank may also institute any security procedures regarding the issuance and
activation of Cards that the Bank may deem necessary or desirable.
Section 6.5 Upon the Company' s request, the Bank may, in its sole discretion, agree to issue one or more Unassigned Cards,
The Bank will not issue a personal identification number in connection with Unassigned Cards and the Company understands that
Cardholders may be unable to obtain Cash Advances using an Unassigned Card, Section 9 .2 describes where and how the Bank will
provide the Company with Card Account Statements for an Unassigned Card, and Section 11 .3 describes the increased liability and
indemnity obligations the Company will incur in connection with any such Unassigned Cards.
ARTICLE 7
TRANSACTION LIMITS AND CHARGE LIMITS; COMPANY LIABILITY FOR TRANSACTIONS ABOVE
ESTABLISHED LIMITS
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Section 7.1 The Bank will establish and advise the Company of its Charge Limit for the Account. The Bank will assign
Transaction Limits and Charge Limits designated by the Company or a Program Administrator to each Card and Card Account,
Promptly upon the request of a Program Administrator, but no later than five (5) business days following receipt of written notice
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from the Program Administrator, the Bank shall increase or decrease the Transaction Limits or Charge Limits of a Card and Card
Account in accordance with such request. If the Company or a Program Administrator does not establish a Charge Limit for any Card
Account for which the Company is solely liable, the Company acknowledges and agrees that the Bank may: (i) establish a Charge
Limit for each such Card Account up to the aggregate Charge Limit of the Company 's Account; and (ii) disclose an amount on Card
Account Statements, up to the aggregate Charge Limit of the Company 's Account, as the applicable Charge Limit of each such Card
Account (which may not accurately reflect the actual Charge Limit available for the Company 's Account) . The Bank reserves the
right, in its sole discretion, to modify the Charge Limit of the Account or any individual Card Account at any time.
Section 7.2 The Company acknowledges that the Account and Card Accounts may exceed Transaction Limits and Charge
Limits established under the Agreement and agrees that the Bank may, in its sole discretion, allow or reject Transactions that would I
cause the Account or a Card Account to exceed a Charge Limit or a Transaction Limit. The Company and its Cardholders shall remain
liable and must promptly remit payment to the Bank for any and all Transactions that would cause the Account or a Card Account to
exceed a Charge Limit or Transaction Limit, as well as any related Program Fees and Charges, as provided by this Agreement and any
related Cardholder Agreement.
Section 7.3 The Bank or any person, entity or financial institution presented with a Card may refuse to authorize any
Transaction referred to it if
(a) The Transaction is not permitted under the Transaction Limits established for Card Accounts by this
Agreement;
(b) Permitting the Transaction would cause the Charge Limit for the Account to be exceeded, when the
Transaction is included with other Transactions authorized for the Account (including those Transactions that are authorized
but not yet posted); j
(c) Permitting the Transaction would cause the Transaction Limits or Charge Limit for a Card Account to be j
exceeded, when the Transaction is included with other Transactions authorized for that Card Account (including those
Transactions that are authorized but not yet posted);
(d) The Batik believes that it is an Unauthorized Transaction; or
(e) The Batik has not received any payment required by this Agreement or a Cardliolder Agreement by its
Payment Due Date.
ARTICLE 8
CARD REQUIREMENTS AND MARK USE
Section 8.1 Each Card the Batik issues under the Program shall be branded as a Card Association card, in compliance with the
applicable requirements and specifications for such commercial cards established in the Operating Rules, Each Card may bear other
language and symbols the Bank deems necessary or appropriate, subject to the applicable requirements and specifications of the
Operating Rules. j
Section 8.2 The Company, upon the Batik' s request, must provide the Bank with copies of any materials accompanying or
relating to the use of the Card and Card Accounts that the Company may provide its Employees from time to time. All such materials
shall identify the Bank as the Card issuer and prominently indicate that the Card is a Card Association card. The Company
acknowledges that the Card Association marks) are owned by the Card Association and the Company agrees not to do anything
inconsistent with such ownership . The Company shall not provide materials to its Employees or Cardholders that contradict or are
inconsistent in any way with this Agreement or the Cardholder Agreement. This Agreement and the Cardholder Agreement shall
prevail over any inconsistent or contradictory statements made by the Company to its Employees or Cardholders about the Program.
Section 8.3 The Company shall not use any trademark, service mark, logo, or other intellectual property right of the Bank or a
Bank Affiliate without the express prior written consent of the Bank.
Section 8.4 The Bank may use all Company Marks provided to Bank by Company in connection with the Program. The
Company grants the Bank a non-exclusive, non-transferable, non-sublicenseable, royalty-free, paid-up limited license to use those
Company Marks, as they now exist and as they may be modified during the Term, solely in connection with the Program (including,
without limitation, use of any such Company Marks on Cards, periodic statements, Applications, and marketing materials intended for
distribution to Employees and Cardholders) . Notwithstanding the preceding sentence, the Bank shall not be required, in connection
with the Program, to use the Company Marks on marketing materials generally used across the Bank's portfolio of cards for account j
activation and retention activities, Cardholder agreement, and related disclosures.
Section 8.5 Company Marks may be updated and amended from time-to-time by the Company providing the Bank with
reasonable notice thereof. If the Company wishes to change any of the Company Marks then in use by the Bank, the Company shall
promptly reimburse the Bank for any reasonable incremental expenses incurred because the Cards or Program materials used to
maintain the Accounts can no longer be used as a result of any such change.
Section 8.6 The Bank acknowledges that the Company is the sole and exclusive owner of the Company Marks and all rights,
title and interest therein and any copyright relating thereto. The Bank acknowledges that the value of the goodwill associated with the
Company Marks, and all rights therein and pertaining thereto, belong exclusively to the Company. The Bank shall not authorize any
third party to use the Company Marks, except for subcontractors and affiliates of the Bank, engaged by the Bank solely in connection
with the Program .
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Section 8.7 The Bank shall comply with the standards reasonably established by the Company with respect to the form of the j
Company Marks, and the Bank shall submit to the Company sample materials evidencing the proposed use of the form of Company
Marks. Within five (5) business days after receiving any such materials by the Company, the Company must provide its written
approval of or reasonable objections to such materials. If the Company does not respond within that five (5) business day period, the
Company shall be deemed to have approved use of those materials by the Batik. The Company agrees that once the Batik has obtained
approval for a given use of the Company Marks, the Bank is not obligated to obtain approval from the Company again for the same
general use.
Section 8.8 On termination of this Agreement for any reason whatsoever, all Cards in the possession of Cardholders that have
not expired may continue to bear the Company Marks until the expiration of such Cards. The Bank, however, shall have no further i
right to market the Program or any products or services using the Company Marks or further use or distribute promotional materials
containing the Company Marks. i
ARTICLE 9
PROGRAM STATEMENTS AND REPORTS
Section 9. 1 The Bank shall send or make available to a Program Administrator, or any Company representative designated by a
Program Administrator, a Consolidated Billing Statement for each billing cycle. Each such Consolidated Billing Statement will
disclose the applicable balances, Transaction activity, Program Fees and Charges, and other disclosures and information the Bank
considers necessary or appropriate for the Account and all related Card Accounts during the billing cycle. The Bank may send or make
available any such Consolidated Billing Statement using the physical address, electronic mail address, and/or website designated for j
this purpose in Schedule B to this Agreement.
Section 9.2 Unless the Company requests and the Batik otherwise agrees, the Bank shall also send or make available an
individual Card Account Statement for each Card Account at the end of each billing cycle, in an electronic or paper form acceptable to
both Parties. Any such Card Account Statement will disclose the applicable balances, Transaction activity, Program Fees and Charges,
and other disclosures and information the Bank considers necessary or appropriate for that Card Account, For Unassigned Cards, the
Batik will send or make available a Card Account Statement to a Program Administrator, using the physical address, electronic mail
address and/or website the Parties have established for this purpose in Schedule B to this Agreement. For all other Cards, the Bank
will send or make available a Card Account Statement to a Program Administrator, a Company representative designated by a
Program Administrator, or the Cardholder, using the physical address, electronic mail address and/or website the Parties have
established for this purpose in Schedule B to this Agreement or as designated on the Application for the Cardholder holding any such
Card Account. If the Cardholder is not responsible for payment of his or her own Transactions and Program Fees and Charges, the
Bank will only provide a Card Account Statement for purposes of informing the Cardholder about his or her use of the Card and Card
Account,
Section 9.3 Each Program Administrator, designated Company representative, and/or Cardholder must promptly examine each
Consolidated Billing Statement or Card Account Statement as soon as it is received from or made available by the Bank. The
provisions of Articles 11 and 12 describe the time and manner in which the Company must provide notice to the Bank of any
suspected errors or Unauthorized Transactions shown on a Consolidated Billing Statement and Card Account Statement, and the
liability of the Company, Employees and Cardholders for any such suspected errors or Unauthorized Transactions,
Section 9.4 At the Company's request, the Bank may compile certain information provided by the sellers of goods and services
that accept the Cards (such as Merchant Category Codes and information identifying such sellers as unincorporated business
enterprises or business enterprises owned by certain minorities or women). The Bank cannot guaranty the accuracy of any such
information and , by conveying such information to the Company, the Bank does not agree to perform or satisfy any reporting or
compliance obligations required of the Company by any applicable law or contract.
ARTICLE 10 I
MERCHANT DISPUTES ; TRANSACTIONS MADE IN FOREIGN CURRENCIES
Section 10. 1 If the Company has any questions, problems or disputes concerning the quality of goods or services purchased from
any seller by means of any Card, Card Account or an Account, the Company agrees to pay the Bank the amount of the related
Purchase and contact the seller directly to resolve such question, problem or dispute. If the Company cannot directly settle its dispute
with a seller, then the Company can request the Batik to process a chargeback subject to the limits of the Operating Rules. The Batik
agrees that it will use commercially reasonable efforts to notify the Company about particular chargeback procedures and
requirements of the Operating Rules that may impact or affect the Account, the Cards, and the Card Accounts . The Company
acknowledges that the Batik is not liable for the quality of any such goods or services and that any dispute between the Company and
any seller shall not affect the Company 's obligation to pay the Bank in full for all Transactions and related Program Fees and Charges
in accordance with the terms of this Agreement
Section 10.2 In the event that any Transaction is made in a currency other than U. S . dollars outside of the United States, the
charges incurred in a foreign currency will be converted by the Card Association into a U.S. dollar amount in accordance with the
procedures set forth in its Operating Rules. The Bank agrees that it will use commercially reasonable efforts to notify the Company
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about particular currency conversion procedures established by the Operating Rules that may impact or affect the Account, the Cards,
and the Card Accounts. The currency conversion rate in effect on the transaction processing date may differ from the rate in effect on
the transaction date or statement posting date. The Company and Cardholders shall remain liable to the Bank as provided in this
Agreement and any related Cardholder Agreement for all transaction and conversion fees and charges associated with any such
Transactions, as detailed in Schedule A.
ARTICLE 11
LIABILITY FOR TRANSACTIONS, FEES AND OTHER CHARGES ; BANK LIABILITY FOR INCENTIVES
PAYMENTS
Section 11 . 1 The Company authorizes and directs the Bank to extend credit to the Company or for its Account from time to time
by paying the amount of Transactions arising from use of each Card and Card Account,
Section 11.2 The Company shall be liable and pay the Bank for all Transactions and all applicable Program Fees and Charges as
established by the Agreement and its attached Pricing Schedule in Schedule A, even tliose that might exceed a Charge Limit or
Transaction Limit established for the Account or a Card Account. Each Cardholder may also be jointly and severally liable with the
Company for the Cardholder's Transactions and for his or her Program Fees and Charges under the Program and any applicable
Cardholder Agreement, if such Cardholder liability has been established through an Application, Cardholder Agreement, Schedule B,
and/or other schedules and addendums to this Agreement. The Company shall immediately pay the Bank for any Transactions and
Program Fees and Charges incurred by a Cardholder, even one jointly and severally liable with the Company, after the Bank notifies C
the Company about any Cardholder's failure to pay all amounts due and owing under a Cardholder Agreement. The Company's j
payment and other obligations to the Bank shall be enforceable against the Company in accordance with the terms of this Agreement,
regardless of the validity and enforceability of the Cardholder's obligations to the Bank-under any Cardholder Agreement,
Section 11 .3 The Company understands the increased risks associated with issuance and use of Unassigned Cards. Despite
anything stated to the contrary in the Agreement, the Company agrees that it is fully liable to the Bank for any and all Program Fees
and Charges and all Transactions resulting from use of any Unassigned Card and its related Card Account, regardless of whether any
such Transactions were Unauthorized Transactions. In addition to its other indemnification obligations under the Agreement, the
Company agrees to indemnify the Bank from and against any and all liability, judgments, claims, demands, judgments, or other
disputes, regardless of merit, together with all costs, charges and expenses imposed in any manner upon or accruing against the Bank,
arising out of or associated in any way with the issuance of Unassigned Cards by the Bank and the use of those Unassigned Cards by
any individual.
Section 11 .4 The Bank will establish a monthly periodic billing cycle for the Account and each Card Account. The exact number
of days within each periodic billing cycle may vary slightly from month to month and the first billing cycle may be more or less than
one month. The Bank shall, in its sole discretion, assign the Statement Date disclosed on Consolidated Billing Statements and Card
Account Statements. Where the Company and its Cardholders have joint and several liability for Card Accounts, the Bank may assign
different dates as the Statement Dates for each Card Account and the Account. As established by Schedule B to this Agreement or
other schedules and addendums to this Agreement, the Batik and the Company shall mutually agree upon: (i) the number of days used
to determine the Payment Due Date that will follow each Statement Date; and (ii) the method of payment, which may be by check or
pre-authorized debit to a deposit account the Company maintains at the Bank, any Bank Affiliate, or any other depository institution j
used by the Company and acceptable to the Bank. Any and all amounts (including the amount of all Transactions) shall be due to the
Bank and payable in full on or before the applicable Payment Due Date that follows each Statement Date for the Account or Card
Account. All payments by the Company must be remitted to the Bank in U.S. dollars. The Company agrees that payments on the
Account and Card Accounts may be applied in the order the Banlc selects from time to time. The Bank may apply payments first to
any Program Fees and Charges, then finally to principal balances . Payments to principal balances may be applied starting with the
lowest interest rate, before principal balances with higher interest rates. Until the Bank determines a payment is unlikely to be returned
for insufficient funds or sonic other reason, the credit available in the Account and Card Accounts may not reflect a payment.
Section 11.5 The Company may not deduct or withhold, without the prior written approval of the Bank, any credit, chargeback,
disputed or questioned amount from the aggregate amount due when making payment. If the Company reasonably believes any
Transaction shown on a Consolidated Billing Statement is in error, the Company must notify the Bank and the Bank will make any
appropriate adjustment on the Company 's next Consolidated Billing Statement.
Section 11.6 Tine Bank shall charge interest on Transactions at the rates and in the time and manner shown on the Pricing
Schedule attached as Schedule A to this Agreement. Cash Advances and their related Transaction fees shall be charged interest
beginning with the date of each such Cash Advance until paid in full. Interest will not be charged on Purchases and other Program
Fees and Charges that are paid in full on or before their applicable Payment Due Date, as shown by Consolidated Billing Statements
and/or Card Account Statements. Interest will accrue on Purchases, and Program Fees and Charges added to a Card Account as
Purchases, beginning with the first day that follows the applicable Payment Due Date. If the Company fails to pay to the Bank any
amount due under this Agreement, then the Bank is authorized to, without prior notice to the Company, apply any account balances of
the Company held by the Bank or any Bank Affiliate toward any balance owed under this Agreement. Payments received at the
Bank's designated payment processing center after 5 :00 p.m. Central Time on a Bank business day (or on any day that is not a Bank
business day) will be credited to the Company's Account (and the underlying Card Accounts) on the next Bank business day. Tile
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Bank is permitted to accept late payments, partial payments or payments marked with restrictive endorsements without losing
any of its rights under this Agreement. The Company shall not send any payment marked "paid in full," "without recourse,"
or other similar language unless those payments are marked for special handling and sent to the Bank at First National Bank
of Omaha, Attu : Commercial Card Department, 1620 Dodge Street, Mailstop : 3188, Omaha, NE 68197, or such other
address as the Bank may give in the future.
Section 11.7 The Company shall be liable to the Bank for all uses of, and Transactions made using, the Account, Cards and Card
Accounts, including, without limitation, any Unauthorized Transactions (including any Transactions made using lost or stolen Cards),
that occur before the Company notifies the Bank in accordance with Section 4. 1 or Section 12 . 1 that the Card or Card Account should
be cancelled. Any Card that an individual receives from the Company, or whose use is authorized by the Company, shall not be
considered lost or stolen or in the hands of all unauthorized person, and the Company shall be liable to the Bank for the use of any i
such Card until it is returned to the Bank or the Company has provided the Bank with notice under Section 4. 1 or Section 12. 1 that
such person is no Ionger authorized by the Company to use any such Card. The Company will make reasonable efforts to recover any
Card from any person no longer employed or designated by the Company to use the Card, and prevent its use and cooperate in any
proceedings or Iegal actions against such person.
Section 11.8 The Bank may agree to pay to the Company certain compensation or incentive payments, subject to the terms, j
conditions and limitations as provided in the Pricing Schedule attached as Schedule A to this Agreement. The Company acknowledges
and agrees that under certain circumstances as provided in the Pricing Schedule attached as Schedule A to this Agreement, the
Company will be obligated to repay compensation or incentive payments previously received from the Bank and to forfeit accrued but
unpaid compensation or incentive payments.
ARTICLE 12
REPORTING UNAUTHORIZED USE; CARD ASSOCIATION LIABILITY PROGRAM
Section 12. 1 If the Company or an Employee knows of or suspects the loss, theft or possible unauthorized use of the Account Ora
Card and Card Account, the Company or Employee must promptly notify the Bank by calling the toll-free telephone number
appearing on Card Account Statements and the reverse side of the Cards, or such other telephone number as the Bank may otherwise
designate for use by the Company. Tile caller must report the respective Employee 's name, Card Account number and the last-known
address of such Employee or, if applicable, the Card Account number, and must request that such Card and Card Account be canceled.
The Bank will then place a hold to cancel and prevent further use of the Card and Card Account, and the Company shall not be liable
for further use of such Card or Card Account after the Bank has received any such telephone call . The Program Administrator must
promptly send the Bank written confirmation of any such notice.
Section 12.2 The Company, Employees and Cardholders must promptly examine all Consolidated Billing Statements and Card
Account Statements as soon as they are received or made available by the Bank. The Company or an Employee must provide written
notice to the Bank related to any suspected errors in one or more Transactions, the Account and any Card Account, within sixty (60)
calendar days after the date of the Consolidated Billing Statement or Card Account Statement on which any such error first appeared.
Each such notice must disclose the dollar amount of the suspected error, a Transaction reference number, and a description of the
suspected error. Suspected errors include any failure to receive goods or services arising from a Transaction, unauthorized use of the
Account, a Card or a Card Account by a person other than the Cardholder or authorized Employee, altered charges, incorrect amounts
and charges incurred by telephone order where the authenticity of the charge is in question. The Bank will investigate any such report
of a suspected error and make a determination. All Consolidated Billing Statements and Card Account Statements will conclusively be
deemed correct, unless the Company or an Employee has provided the Bank with written notice of a suspected error as required by
this Agreement and any applicable Cardliolder Agreement.
Section 12.3 In cases of unauthorized use of a Card or a Card Account, the Company shall, contemporaneously with the
Company's issuance of the notice of cancellation described in Section 12. 1 , use its best efforts to: (i) hand deliver or send to the
respective Employee by certified mail, return receipt requested, to the Employee's current address, a copy of such written notice of
cancellation, and (ii) retrieve and destroy such Card . The Company shall also cooperate with the Bank in its efforts to resolve any
fraudulent transactions made by means of a Card, Card Account or the Account.
Section 12.4 The Company's liability for Unauthorized Transactions by Employees may be reduced to the extent of liability
protection insurance coverage separately provided by a Card Association under its Liability Program. Tile Company ' s coverage shall
be subject to the terms, exclusions, and conditions of the Liability Program as established from time to time by the Liability Program 's
underwriters, including but not limited to the condition that the Company meet all of its then -current obligations under the Liability
Program and as set forth by the Card Association and its underwriters. The current provisions of any such Liability Program are
described in a brochure published by the Card Association, which the Bank has furnished or will furnish to the Company. If the Card
Association modifies or suspends its Liability Program, the Bank may modify or terminate this subsection at any time upon notice to j
the Company. The Bank shall not have any liability to the Company under any circumstances arising from or associated with any such
Liability Program .
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ARTICLE 13
REPRESENTATIONS, WARRANTIES, AND COVENANTS
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Section 13.1 The Company represents, warrants and covenants that: ;
(a) The Company will cause the Batik to issue and maintain ten ( 10) or more Cards at all times under this
Agreement;
(b) The Company is duty organized, existing and in good standing under the laws of the state of its
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incorporation or formation;
(c) The Company has full right, power and authority to make and perform this Agreement and to observe all of
the provisions hereof;
(d) The making and the performance by the Company of this Agreement and securing extensions of credit
from time to time through the issuance or establishment of the Company ' s Account, Cards, and Card Accounts has been
validly authorized by all necessary action of the Company and does not violate the Company's articles of incorporation,
charter, partnership agreement, by-laws or any other document or agreement pursuant to which the Company is organized, or
any provision of applicable law, regulation, order or rule of any governmental agency, or court decision;
(e) All information (including without limitation business and financial data) now or hereafter furnished to the
Batik and the information contained in each Application, notice of cancellation or other documentation submitted by a I
Program Administrator to the Bank hereunder shall be true, complete and accurate as of the date thereof and may be relied
upon by the Bank as being authorized by the Company; f
(f) The Account and all Cards and Card Accounts established or issued under or pursuant to the Agreement
shall be used only for business or commercial purposes; and
(g) The Company has and shall maintain the full right, power and authority to grant the license of Company
Marks in Section 8 .4 and doing so does not infringe upon or violate any rights or interest held in those marks by any third
party or Company Affiliate.
Section 13.2 Nothing herein contained shall impair the obligation of the Company, which shall be unconditional and absolute, to
repay all extensions of credit arising out of the use of the Account, Cards, or Cards Accounts for any purpose and to pay all of its other
obligations and liabilities as provided in this Agreement. The representations and warranties in this Article 13 are trade to induce the
Batik to issue Cards for the Company' s Account and to extend credit to it and the Employees and Cardholders from time to time. The
representations and warranties made by the Company in this Article 13 shall constitute continuing representations and warranties, until
such time as this Agreement is terminated as herein provided, all Cards have been returned to the Bank or canceled, all Card Accounts r
and Accounts have been cancelled and all amounts owing the Bank under this Agreement have been paid in full.
Section 13.3 The Bank represents, warrants and covenants that this Agreement has been authorized by all necessary action, does
not violate the Bank's charter or by-laws or any other agreement binding upon the Bank of any provision of law. THE BANK MAKES
NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM Olt
THE BANKS PERFORMANCE, OF SERVICES UNDER 'PHIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 14
INDEMNIFICATION
Section 14. 1 Tile Company will indemnify and hold harmless the Batik and its Bank Affiliates, and their respective officers,
directors, agents, subcontractors and employees, and the Card Association and its members, from and against ally and all claims,
demands, actions, proceedings, liabilities, losses, actual damages and expenses, including actual and reasonable counsel fees , arising
directly or indirectly from:
(a) The Company's breach of any of its representations, warranties, or covenants under this Agreement, or the
Batik's enforcement of any of its rights or remedies under or pursuant to this Agreement;
(b) The Bank's compliance with or carrying out any instruction or request which identifies the Company as
sender, if such instruction or request is accepted by the Bank in good faith;
(c) The Batik's actions or omissions in performing services in connection with the Program, unless such
actions or omissions are determined to result from the Bank's gross negligence or willful misconduct;
(d) Any incorrect classification of a merchant under the Card Association's Merchant Category Codes that has
the effect of allowing Transactions that the Company and the Bank intended to preclude under certain Transaction Limits; or
(e) The Batik' s good faith refusal to approve any Transactions .
Section 14.2 The provisions of Article 14 shall survive the termination of this Agreement.
ARTICLE 15
IMPOSSIBILITY OF PERFORMANCE; LIMITATION OF LIABILITY
Section 15.1 The Bank shall not incur any liability for any failure or delay in carrying out any of its obligations wider this
Agreement if such failure or delay results from the Bank acting in accordance with applicable laws or applicable Operating Rules, or
from acts of God, strike or stoppage of labor, power failure, system, network, or equipment failure, adverse weather conditions or any
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other cause beyond the Bank's control . The Bank agrees that it will use commercially reasonable efforts to notify the Company about
particular requirements of the Operating Rules that may impact or affect the Account, the Cards, and the Card Accounts.
Section 15.2 The Bank shall have no responsibility and shall incur no liability for any act or failure to act by any other financial
institution, Card Association, or any other third party, including, without limitation, the refusal of any vendor or merchant to honor
any Card or Card Account. The Company acknowledges and agrees that the functioning of some Program services depends on
equipment, software, communication lines and Program services provided by the Company or parties other than the Bank. The Bank
shall not be responsible or liable in any way for the performance of equipment, software, communication lines and Program services
provided by the Company or any party other than the Bank.
Section 15.3 The liability of the Bank to the Company for any loss or damage arising fi•om or relating to this Agreement or any
of the Bank's services in connection with the Program, regardless of the form of action, shall be limited to direct damages attributable
to the gross negligence or willful misconduct by the Bank, and in no event shall the Bank be liable for any other damages, including,
without Iimitation, indirect, exemplary, consequential, punitive or special damages. The Bank's liability to the Company for damages
under this Agreement will in no event exceed the Program Fees and Charges the Company paid the Bank during the six (6) months j
preceding the date on which the Company ' s claim accrued against the Bank. In no event will the Bank be liable for any claim asserted
against the Company by any third party, except as set forth in this Agreement.
Section 15.4 The provisions of this Article 15 shall survive termination of this Agreement.
ARTICLE 16
CONFIDENTIALITY
Section 16.1 The term "Confidential Information," with respect to the Bank and regardless of whether the Agreement is then in
effect, shall mean . (i) the terms and conditions of the Agreement; (ii) any payment and pricing terms or fees for the Program, the
Account, and Cards; (iii) the Program user guide(s); (iv) security procedures for the Program, the Account and Cards; and (v) any
other documentation with respect to the Agreement or the Program that the Bank has designated as confidential or proprietary. The
Company agrees that it, its Company Affiliates, and each Employee or Cardholder shall safeguard and not disclose any Confidential
Information of the Bank to any party other than the Bank, Bank Affiliates, or the agents or Employees of the Company or its Company
Affiliates, except to the extent any such disclosure is required by applicable law, expressly authorized by this Agreement or a
Cardholder Agreement; or expressly permitted by a written instrument signed by an authorized representative of the Bank, The
Company agrees to limit the internal access, disclosure and distribution of any and all such Confidential Information of the Bank to [ -
those Company Affiliates, Employees, Cardholders, or agents of the Company who have a need to know such information. Tire
Company shall, at all times, have appropriate written policies and procedures in effect to ensure that such Confidential Information of
the Bank remains confidential, secure, and protected from disclosure or use by any third party not affiliated with or retained by the
Company or the Batik. The Company will be responsible for the acts and omissions of the Company, its Company Affiliates,
Employees, Cardholders, and any other agents or representatives of the Company with respect to any and all Confidential Information
of the Bank.
Section 16,2 The term "Confidential Information," with respect to the Company and regardless of whether the Agreement is then
in effect, shall mean (i) nonpublic personal information or financial information about any Employee or Cardholder that the Bank
receives from the Company, an Employee, or a Cardholder, not including Card Account Statements, Consolidated Billing Statements,
or any other Card Account information resulting from or directly related to transactions or experiences between the Bank and ,tine
Company or its Employees or Cardholders; (ii) nonpublic financial information about the Company that the Batik receives from the
Company, not including Card Account Statements, Consolidated Billing Statements, or any other Account or Card Account
information resulting from or directly related to transactions or experiences between the Bank and the Company; and (iii) any other
documentation with respect to the Agreement or the Program that the Company has designated as confidential or proprietary, The
Bank agrees that it shall safeguard and not disclose any Confidential information of the Company or its Employees and Cardholders to
any party other than the Company, Company Affiliates, Employees, Cardholders, Bank Affiliates, or the employees, agents, or
subcontractors of the Bank or its Bank Affiliates, except to the extent the Batik is required or permitted to do so by applicable law,
required or permitted to do so by this Agreement or a Cardholder Agreement, or authorized to do so by the Company or its applicable
Employee or Cardholder. The Bank agrees to limit the internal access, disclosure and distribution of any and all such Confidential
Information to those employees, agents, or subcontractors of the Bank or a Bank Affiliate who have a need to know such information,
The Bank shall, at all times, have appropriate written policies and procedures in effect to ensure that such Confidential Information of
the Company, its Employees and Cardholders remains confidential, secure, and protected from disclosure or use by any third party not
affiliated with or retained by the Bank or the Company, The Bank will be responsible for the acts and omissions of the employees,
agents, or subcontractors of the Bank or Bank Affiliates with respect to any and all Confidential Information of the Company, its
Employees and Cardholders .
Section 16.3 The provisions of this Article 16 shall survive the termination of this Agreement.
ARTICLE 17
ASSIGNMENT AND SUBCONTRACTS; AMENDMENTS
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Section 17. 1 A Party may not assign this Agreement, transfer any right or delegate any duty or performance tinder the Agreement
without the other Party's prior written consent, except as expressly provided in the Agreement. The Bank may, without the Company' s
prior written consent, assign this Agreement or delegate its rights and obligations under the Agreement to a Bank Affiliate. In
addition, the Bank may, without the Company's prior written consent, subcontract with other entities for the provisions of services
under the Agreement. Any such subcontracts shall not relieve the Bank of its obligations under this Agreement or alter the Company 's
rights against the Batik under this Agreement, although all entities entering into a subcontract with the Bank shall be entitled to rely on
and benefit from the provisions of this Agreement as if they were the Batik (including, without limitation, the limitations on liability
and indenurities in the Agreement). This Agreement shall be binding upon and inure to the benefit of both Parties and, unless j
otherwise contemplated in this Agreement, their representatives and their respective successors and assigns. Any attempted
assignment of rights or delegation of obligations contrary to the provisions of this Agreement shall be void .
Section 17.2 This Agreement, including its applicable Schedules, Exhibits and Addenda, constitutes the entire understanding
between the Parties and it supersedes all prior agreements and negotiations. j
(a) The Parties may agree to amend the Agreement through a written instrument referencing this Agreement
that has been signed by both Parties.
(b) The Bank may, at any time, in its sole discretion, and without advance notice or consent of the Company,
modify the Charge Limit of the Account or any Card Account as provided in Section 3 . 1 of the Agreement.
(c) The Bank will notify the Company as provided in Schedule A of any decrease in Program compensation
that might be received and paid by the Bank. The Company's consent for any such decrease shall not be required when it
results from a change made or required by a Card Association. f
(d) The Bank will notify the Company of any other amendments to the Agreement that the Bank might require,
including those related to: (i) any law or regulatory requirement that applies to the Bank; (ii) any change to the material
features of the services or products offered under the Program; or (iii) any change in the Program Fees and Charges received
or imposed by the Batik in connection with the Program. The Bank may amend this Agreement by sending a written notice to
the Company at least thirty (30) calendar days before the effective date of an amendment. If the Company does not wish to
accept any such amendment, the Bank must receive a written letter of rejection from the Company no later than the effective
date for the amendment specified in the Bank's notice. The Company must send any such rejection letter to the Bank using
the address" specified in its written notice to the Company or, if no address is specified for this purpose in the Bank's written
notice, using the address specified by this Agreement for Bank notices. The Company's timely rejection of an amendment
described in a written notice from the Bank shall not terminate the Agreement or either Party's rights and obligations under
the Agreement, except as otherwise provided by this Agreement.
ARTICLE 18
NOTICES
Section 18.1 Except as otherwise provided herein, any notice or other communication to be given under this Agreement shall be
in writing, delivered by hand, overnight courier service, facsimile transmission (with telephone confirmation by the sender of receipt
by the recipient) or mailed postage prepaid, addressed, as shown below the signatures of the Parties, or at such other address as either
Party may subsequently designate in writing to the other Party. All notices and other communications delivered by facsimile
transmission must also be delivered by hand, overnight courier service or U .S. mail . Notwithstanding the foregoing, the Bank may
rely on facsimile transmissions as though they are originals, and regardless of whether it has received telephone confirmation fi•om the
sender.
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Section 18.2 Electronic transmissions from the Company to an electronic mail address designated by the Bank shall constitute
written notices under this Agreement, shall be binding on the Company and may be relied upon by the Bank if accepted in good faith.
The Company understands that unenerypted electronic mail messages are inherently insecure and that all such data communications I`
and transfers can be monitored, intercepted, rerouted, copied and read by others. The Company assumes all risk for any unenerypted
electronic communications the Company chooses to send the Bank.
Section 18.3 Any notice or communication will be effective against the Company when it has actually received and has had a
reasonable time to act on such notice, but in no event later than the close of business on the second business day following receipt.
Any notice or communication will be effective against the Bank when it is actually received and the Bank has had a reasonable time to
act on such notice.
ARTICLE 19
EFFECTIVE DATE AND TERMINATION
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Section 19. 1 This Agreement shall be effective as of the Effective Date first above written and shall remain in full force and
effect for an initial term of one (1 ) year from the Effective Date (the "Initial Term") . This Agreement shall be renewed automatically
for successive renewal terms of one ( 1) year each (each, a "Renewal Tern"). Either Party may terminate the Agreement by providing
written notice of non-renewal to the other Party at least one hundred twenty (120) calendar days prior to the end of the Initial Term or
any Renewal Term, The Initial Term and all Renewal Terms are collectively referred to as the "Term!'
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Section 19.2 Upon the expiration or any cancellation or termination of this Agreement, the Account and all Cards and Card
Accounts will be canceled by the Bank, the Bank's obligation to pay the Company any incentive payments under the Pricing Schedule
shall terminate, and the Company shall use reasonable efforts to collect and destroy each Card. Upon the expiration or any
cancellation or termination of this Agreement, any Online Services Software License or other licenses the Bank has granted to the
Company for use in connection with the Program shall automatically terminate and the Company shall immediately return to the Bank
the original and all copies of such licensed materials and all other confidential Program materials or documentation the Bank provided
to the Company.
Section 19.3 Either Party may terminate this Agreement following a breach by the other Party that remains uncured thirty (30)
calendar days after the non-defaulting Party sends the other Party written notice in the manner described in this Agreement.
Notwithstanding the foregoing, the Bank may require immediate payment of the entire balance owed on the Company's Account and I
all other amounts owing under this Agreement, immediately terminate this Agreement or any Account or Card Account, refuse to f
permit farther access to any Account or Card Account, and/or without prior notice to the Company, apply any deposit account
balances of the Company held by the Batik or any Bank Affiliate toward any balance owed on the Company's Account or any other
amount owing hereunder, if j
(a) The Company fails to make payments as required by the Agreement or the Company breaches any of its
representations, warranties, covenants, or terms or conditions contained in this Agreement;
(b) The Company has made any statement to the Banc or provided the Bank with any credit information that is
false in any respect;
(c) The Company (or any guarantor of the Company's obligations under this Agreement) is in default of any
other obligation it may owe to the Bank or any Batik Affiliate; or
(d) The Company becomes insolvent, subject to a receivership, or subject to a voluntary or involuntary
bankruptcy or similar proceeding, or the Bank, in good faith, determines that the financial condition of the Company has
become impaired .
Section 19.4 The Company agrees to advise the Bank promptly of any consolidation, merger, sale or conveyance of the Company
or any principal part of its assets, or the sale or conveyance of any controlling interest in the Company, and upon any such happening
the Bank shall have the right to terminate this Agreement upon written notice to the Company.
Section 19.5 The expiration or termination of this Agreement shall not terminate, affect or impair any rights or obligations of !
either Party with respect to any Transactions or event related to this Agreement occurring prior to such expiration or termination,
including, without limitation, obligations pursuant to Articles 14, 15, 16, 17, 18, 20, 21 , and 22 and obligations pursuant to the
following Sections: 2.2; 2.3 ; 4 .2; 8 .3 ; 8 .8; 10. 1 ; 11 .2; 11 .3 ; 11 .5 ; 11 .6; 11 .7; 1148; 12. 1 ; 12 .2; 12.4 ; 13 .2; 19.2; and 19. 5 . Upon
expiration or termination of this Agreement, the Bank shall have the right to demand immediate payment of the entire balance owed
by the Company and any Cardholder and any default by a Cardholder shall be a default by the Company. The Bank shall have the
right to setoff any accounts the Company maintains with the Bank or its Bank Affiliates to recover payment of sums due under this
Agreement, and the Company waives any demands and notices that might otherwise be required to the extent permitted by law.
ARTICLE 20
LIMITATION OF CLAIMS
Section 20.1 When the term "Company" is used in this Article 20, that term means the Company and any of the following who
will be considered "Company Related Parties": any Cardholder, Company Affiliate, Employee, or guarantor or authorized user of the
Account, any Card, or any Card Account, and the heirs, successors, permitted assigns and trustee in bankruptcy of the Company and
any Company Related Parties. References to "Batik Related Parties" in Article 20 include Bank Affiliates and the officers, directors, {
agents, employees, representatives, successors and assigns of the Bank and Bank Affiliates. `Bank Related Parties" also include
unaffiliated third parties that provide products, services or benefits to the Company or to the Bank in connection with the Account, any
Card Account and any Card or that have otherwise participated in the marketing or servicing of the Account, any Card Account and
any Card .
Section 20.2 Before the Bank brings a Claim against the Company, Batik must notify the Company in writing of the Batik's
Claim, including the amount of the Claim. Before the Company brings a Claim against the Bank, the Company must notify the Bank
in writing of the Company's Claire, including the amount of the Claim. If the Bank has a Claim based on a payment obligation that the
Company may have to the Bank: ( 1 ) the Bank's notification requirement will be considered satisfied by sending the Company a billing
statement within the time required by applicable law and regulation; and (2) the Company will be afforded the period of time allowed
by this Agreement and applicable law to make the payment before Bank commences court proceedings. If the Company has a Claim
based on something the Bank or Bank Related Parties may have done or failed to do: (1) the Company agrees to provide the
Company's notification to the Bank within 90 days after the time the Company could have first learned what the Bank or Bank
Related Parties did or failed to do; and (2) the Bank will be afforded a reasonable period of time to take corrective action before
Company commences court proceedings.
Section 203 The Company and the Bank both agree, to the fullest extent allowed by law, that: (i) Claims will not under any
circumstances be pursued in Class Proceedings; (ii) the Bank waives the right to bring or to participate in Class Proceedings against
Company; and (iii) the Company waives the right to bring or to participate in . Class Proceedings against the Bank . If some other
13-1160 United City of Yorkville (V] ) Page - 13 - of 21
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person initiates a Class Proceeding against the Company, the Bank may not join that proceeding or participate as a member of that j
class . If some other person initiates a Class Proceeding against the Bank, the Company may not join that proceeding or participate as
a member of that class.
Section 20.4 The sections of this Article 20 shall survive the termination of this Agreement.
ARTICLE 21
ONLINE SERVICES
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Section 21 .1 As specified in the Set-Up Forms the Company provides to the Bank, the Bank will provide and make available the
following services to the Company through one or more Online Services Systems, all as more specifically described in the User Guide
(the "Online Services"),
(a) The Bank will provide and make available Online Account Information to the Company; and
(b) The Bank will access the Online Services System and provide Online Services System access to the
Company in connection with the maintenance of:
(i) Card Accounts (including adding new Card Accounts based on existing ones and canceling or
modifying the applicable limitations or information related to any existing Card Account); and
(ii) the Program Instructions.
Section 21.2 The communication of Program Instructions through the Online Services System will constitute written notice of
such Program Instructions in accordance with the applicable provisions of the Agreement. The communication of Program
Instructions through the Online Services System will also comply with and satisfy any requirement in the Agreement for written
documentation, including any requirement that the Company provide a completed Application for a Card Account (except for an
Application for the Accotmt or the first Card Account requested by the Company, which must be physically completed, signed and
received by the Bank).
Section 21 .3 The Bank grants to the Company, and the Company accepts from the Bank, an Online Services Software License, j
subject to and in accordance with the terms of this Article 21 . This Online Services Software License shall be effective while such
Online Services Software is in use by the Company on the Online Services System. The Company acknowledges and agrees that :
(a) The Company will not have any ownership or other proprietary rights in the Online Services Software, the
User Guide, and any other Online Services Materials;
(b) The Online Services Software and Online Services Materials are protected by the copyright laws of the L
United States and the Bank's products and security relating the Online Services Software and Online Services Materials are
confidential and proprietary trade secrets and of substantial value to the owner of the Online Services Software and the
Online Services Materials, and their use and disclosure mast be carefully and continuously controlled by the Company and its
Employees and Cardholders;
(c) The protected Online Services Materials must include all copyright, trade secret and any other proprietary
notices and legends on the initial copy of the Online Services Materials and on each copy of the Online Services Materials
that the Company is permitted to make;
(d) The Company will not:
(i) Remove, alter or obscure any trademark, trade names, logos, copyright or other notice contained
or included in any of the Online Services Software or Online Services Materials;
(ii) Transfer or Iicense the Online Services Software or any portion of the Online Services Software; j
(iii) Change or modify the Online Services Software or the source code for the Online Services
Software;
(iv) Create derivative works from the Online Services Software or Online Services Materials;
(v) Reverse engineer or attempt to reverse engineer the Online Services Software; or
(vi) Attempt to discern the source code residing on the server on which the Online Services Software
is run;
(e) The Online Services Software will only be used by the Company and not used for or on behalf of others;
(f) The Company will not disclose, publish, release, transfer or otherwise make the Online Services Software
or Online Services Materials available in any form to, or for the use or benefit of, any other person or entity, other than its
Employees and agents having need for such disclosure and only as authorized in this Article 21 ;
(g) The Company will be fully responsible for compliance with all of the terms and conditions of this
Agreement by its Employees and agents; and
(h) The Company will not directly or indirectly copy, duplicate, or furnish to others any physical or magnetic
version of the Online Services Software or Online Services Materials or permit others to do so. I
Section 21 .4 The Bank will generate and provide the Company with the Devices required for access to the Online Services
System, as further described in the User Guide and the Security Procedures for the Devices. The Company agrees that the Security I
Procedures provide it with a commercially reasonable level of security for use of the Online Services and access to the Online
Services System. The Company and each user must safeguard the Devices and keep them confidential and secure from unauthorized I
use. The Company must promptly report any breach of security to the Bank. The Company acknowledges and agrees that the Bank
13-1160 United City of Yorkville (V I ) Page - 14 - of 21
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may rely on, and the Company will be bound by, any and all requests for Online Account Information and any and all Program
Instructions when accompanied by the applicable Devices and received in good faith by the Bank. The Bank has no duty or
responsibility to discover, audit, or report to the Company any breach of security, but the Bank will use reasonable efforts to notify a
Program Administrator if it learns about any such breach. The Bank will not incur any liability to the Company for any failure or delay
by the Bank in providing the Company with any such notice.
Section 21 .5 The Company must use a Browser that complies with specifications set forth in the User Guide, The Online Services
may be accessed by Company through the public Internet. The Company agrees to use the Online Services, as described in the User
Guide, in compliance with all applicable laws and regulations. The Company understands that Online Account Information is updated
periodically and therefore, at any point in time, may not reflect information on the Batik's records at such time, as more fully described
in the User Guide. The Company acknowledges and agrees that the Online Services do not include any recommendation, guaranty,
representation or warranty whatsoever. The Bank shall not be responsible for errors in Online Account Information provided to the
Bank by non-Bank sources.
Section 21 .6 The Bank recommends that the Company have appropriate security measures for Internet use, including, a proxy
server and/or firewalls to control and protect Internet access. The Bank shall not be responsible for (i) inability to contact the Online
Services through the Internet resulting from a problem with an Internet service provider or online service provider or (ii) unknown
hazards of Internet use. If the Company fails or is unable to access the Online Services, the Bank's sole responsibility shall be to use
its commercially reasonable efforts to correct the problem and the Bank shall not suffer or incur any other liability in connection
therewith.
Section 21.7 The Bank will not be responsible for any data that is lost or destroyed in connection with the use of the Online
Services. In addition, the Bank will not be responsible for the Company 's inability to use the Online Services due to a mechanical hard
drive failure or other system failure (including, but not limited to, a "lock-up" resulting from the Company's use of software). The
Bank recommends that the Program Administrator take the necessary measures to ensure that the Company performs daily back -ups
of data used in connection with the Online Services and the hard drives of the personal computers and/or the servers used in
connection therewith.
Section 21 .8 In no event will the Bank have any liability whatsoever in connection with .
(a) Any application errors in or security breaches of any Browser;
(b) The Company's inability to use the Online Services or access the Online Services System due to any
Internet or Browser problem or any other cause beyond the Bank's control; or f
(c) Any interception of any Online Account Information as a result of the use of the Internet.
Section 21.9 The Batik hereby reserves the right to suspend the Online Services without notice to the Company. Tine Bank may
terminate the Online Services upon notice to the Company.
Section 21 . 10Any separate Online Business Banking Services Agreement between the Company and the Bank shall supplement j
this Agreement, including the provisions of this Article 21 , with respect to the Online Services. If a provision of this Agreement
conflicts or is inconsistent with any provision of the Online Business Banking Services Agreement, then whichever provision is more
protective of or beneficial to the Bank shall control. j
Section 21.11 Tile sections of this Article 21 shall survive the termination of this Agreement.
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ARTICLE 22
MISCELLANEOUS
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Section 22. 1 This Agreement has been made, executed, and delivered in the State of Nebraska. The Company hereby consents to
the exclusive jurisdiction and venue of any local, state, or federal court located within the County of Douglas, State of Nebraska, for
any action or proceeding arising out of this Agreement, The Company hereby waives personal service of any summons, complaint, or
other process in connection with any such action or proceeding and agrees that the service of any such summons, complaint or other
process may be made by first class mail to the Company address for written notices indicated below.
Section 22.2 This Agreement is binding upon the assigns and successors of the Company. Except to the extent federal law is
applicable, the interpretation, effect and validity of this Agreement shall be governed by the laws of the State of Nebraska. If any
provision of the Agreement is held invalid, illegal, or unenforceable for any reason by a court of competent jurisdiction, the Parties
agree that all other provisions of the Agreement shall remain unimpaired and enforceable.
Section 22.3 No duty, obligation, or breach of the Company under the Agreement shalt be waived or excused by the Bank, unless
an authorized Batik representative has signed a written waiver or consent specifically related to any such duty, obligation or breach.
Any failure or delay by the Bank to exercise any right, power, privilege, or remedy wider the Agreement shall not operate as a waiver
or consent in connection with any different or subsequent breach. j
Section 22.4 The article and section titles in this Agreement are included as a matter of convenience, for reference purposes only,
and in no way define, limit, expand,. or describe the scope or intent of any provision of the Agreement.
Section 22.5 The sections of this Article 22 shall survive the termination of this Agreement.
[THE REMAINDER OF 7711S PAGE HAS BEENINTENTIOAALLPLEFT BLANK;
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THE SIGNATURE PAGE FOLLOWS THIS PAGE.]
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13- 1160 United City of Yorkville (V 1 ) Page - 15 - of 21 j
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written .
FIRST NATIONAL BANK OF OMAHA UNITED CITY OFYORKVILLE
Print Name: Print Name: 1'� (1� TPry / r t ldlPJ y}
C �' ri to e&y Dire G lo r�
Title: 1 ( e t Title:
Date: _ I � !� ��/ Date: N IR013
By:
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Print Name :
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Title: Vice President of Finance �
Date: Icy - -Zqw 13
Address for Written Notices : Address for Written Notices :
First National Bank of Omaha United City of Yorkville
1620 Dodge Street Stop 3199 800 Game Farm Rd.
Omaha, NE 68197 Yorkville, IL 60560
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Attention: First Bankcard Legal Department Attention: Accounting
Facsimile: 402-602-6720 Facsimile : 630-553 -7575
With telephone confirmation to : With telephone confirmation to:
# 402-602-6750 # 630-553 -4350
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SCHEDULE A
PRICING SCHEDULE
Bank Compensation to Company
Cards shall be eligible for the benefits and rewards available under the General Terms and Conditions established from time to time in
connection with the Maximum Rewards® for Business Program. Company has designated itself to receive any such benefits and
rewards,
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Program Fees. & Charges j
Account and Card Account Fees
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Minimum Finance A minimum finance charge of $ 1 .75 will be added to the applicable Purchase and/or Cash Advance
Charge balance of the Account or a Card Account if the finance charge earned in any billing cycle is less than
that amount.
Cash Advance The greater of $ 15.00 or 3% of each Cash Advance will be added to the Cash Advance balance of the
Transaction Fee Account or Card Account for each Cash Advance transaction .
Cash Advance The greater of $ 15 .00 or 5% of each Cash Equivalent advance will be added to the Cash Advance
Transaction Fee for Cash balance of the Account or Card Account for each Cash Advance transaction
Equivalent advances
Annual Fee $ 10.00 per Card Account
Late Fee A $250.00 late fee will be added to the Purchase balance of the Account if the Bank does not receive
the required full payment of an amount due from the Company by its applicable Payment Due Date, as
detailed on a Consolidated Billing Statement or Card Account Statement provided to the Company.
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A $35 .00 late fee will be added to the Purchase balance of a Card Account if the Bank does not
receive the required full payment of an amount due for that Card Account by its applicable Payment
_ Due Date, as detailed on a Card Account Statement,
Overlimit Fee An overlimit fee of $39.00 will be added to the Purchase balance if the outstanding balance of an
Account or Card Account, including finance charges and fees, exceeds the Charge Limit or
Transaction Limit at any time during a billing cycle,
Payment Dishonored Fee A fee of $35 .00 will be added to the Purchase balance if any payment in any form on the Account or a
Card Account is dishonored or returned unpaid to the Bank for any reason .
Stop Payment Fees A fee of $35 .00 will be added to the Purchase balance for any stop payment request made by the
Company or any Cardholder.
Document/Statement A fee of $5 .00 will be added to the Purchase balance for each sales draft copy requested by the j
Copy Fees Company or a Cardholder (unless related to an actual billing error), and for each duplicate copy of a
Consolidated Billing Statement or Card Account Statement requested by the Company or a
Cardholder,
Foreign Transaction Fee A fee equal to 3% of each foreign transaction, after conversion to U.S. Dollars, will be assessed on all
transactions made in currencies other than U. S . Dollars. Fees for foreign Cash Advances will be
added to the Cash Advance balance of the Account or Card Account. Fees for foreign Purchases will
be added to the Purchase balance of the Account or Card Account .
Expedited Payment Fee A fee of $ 15 .00 will be added to the Purchase balance of the Account or a Card Account each time the
Company or a Cardholder has the Bank initiate an expedited payment by telephone,
Expedited Delivery Fee A fee of $ 15 .00 will be added to the Purchase balance of the Account or a Card Account each time the
Company or Cardholder requires expedited delivery by the Bank of additional or replacement Cards.
Product Training Fees No charge for one train-the-trainer product training session per product, by teleconference and/or
webinar. Additional training sessions by teleconference and/or webinar, $ 150 per hour. Any on -site
training, $ 1 ,000 plus expenses, per person, per day of training.
Data Feed Fees
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"Data Feeds" include detailed Account and Card Account information that the Bank provides to the Company through a standard file
transfer protocol, for use by the Company in its internal systems (to provide detail about transactions, debit and credit adjustments,
and additional transaction-level data available through addenda records and hierarchy records).
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For purposes of the Agreement, the Account and Card Account information based on the Bank's system of record shall be shown
through Consolidated Billing Statements and Card Account Statements, not the information or data that the Company may obtain
13-1160 United City of Yorkville (V I ) Page - 17 - of 21
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through Data Feeds, The Company agrees that the Account and Card Account Information that the Bank provides through
Consolidated Billing Statements and Card Account Statements shall control over any inconsistent information the Company might
receive through Data Feeds .
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Data Feeds One-time set up fee of $300.00, plus an Annual Data Feed Fee of $360 ,00, plus a fee based on $0.016
per transaction (including each transaction, adjustment, addenda record, and hierarchy record). j
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Periodic Rates
ACCRUAL OF FINANCE CHARGES: There is no grace period before periodic rate finance charges begin to accrue on Cash
Advances or Transaction fees related to it Cash Advance. Periodic rate finance charges accrue on Cash Advances and their related
Transaction fees from the date of the Cash Advance or the first day of the billing cycle in which the Cash Advance is added to the
Account and/or Card Account, whichever is more recent. No periodic rate finance charges will apply to Purchases and other Program
Fees and Charges that are paid in full on or before their applicable Payment Due Date, as shown by the Consolidated Billing
Statements and/or Card Account Statements. Periodic rate finance charges will accrue on Purchases, and on Program Fees and
Charges added to the Account and/or Card Account as Purchases, beginning with the first day that follows the applicable Payment
Due Date for each such Purchase or Program Fee and Charge.
PERIODIC RATE FINANCE CHARGES; VARIABLE RATE INFORMATION: Periodic rate finance charges will be calculated
using daily periodic rates, which correspond to certain Annual Percentage Rates. These rates may also be different for Purchases and
Cash Advances. These rates may be variable. A variable Annual Percentage Rate is determined by adding the applicable Margin to the
applicable Index. The daily periodic rate is 1/365'h (1/366" during leap years) of the Annual Percentage Rate,
The Index is the highest U.S. Prime Rate as published 'in The J-Vall Street Journal during the 90 days immediately preceding the last
day of each calendar month (the determination date). The Index will be effective for the entire billing cycle that ends in the second
month after the determination date. For example, if the applicable Statement Date ends in July, the Bank will use the Index determined
on May 31 ". An increase in the Index will increase the applicable Annual Percentage Rate and daily periodic rate, which may increase
the payment duce on the Account and/or Card Account. E
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The rate for Purchases on the Account and Card Accounts is an Annual Percentage Rate of 19.99% (a daily periodic rate of .0548%).
The rate for Cash Advances on the Account and Card Accounts is an Annual Percentage Rate of 19.99% (a daily periodic rate of
.0548%).
FINANCE CHARGESAND BALANCE CALCULATIONS: The Account and/or Card Account will generally have monthly billing
cycles, but the first billing cycles may be more or less than one month. The Bank uses the Average Daily Balance method to compute
a portion of the Finance Charges on the Account and/or Card Account. The Bank calculates periodic rate finance charges separately
for each Transaction Category.
(A) To compute Billed Periodic Rate Finance Charges:
(1 ) For each Transaction Category, the Bank multiplies the Daily Balance (see below) by the applicable daily periodic rate
for each day of the billing cycle; then
(2) The Bank adds together all of the products calculated in (1) above.
(B) To compute the Daily Balance for each Transaction Category;
( 1 ) The Bank takes the Beginning Balance of each day;
(2) Adds any applicable new Transactions (such as Cash Advances and related Transaction fees, delinquent Purchases
and other Program Fees and Charges, and debit adjustments)* * *;
(3) Subtracts any applicable payments, credits, or credit adjustments; and
(4) The Bank treats a credit balance as a balance of zero.
* * For Card Accounts where Cardholders are jointly and severally liable with the Company or where Cardholders are not jointly
and severally liable but are required by their Company to make payments, the annual fee, credit life fee, SecureCredit® program
fee and, in certain circumstances, the overlimit fee, are not included in the Daily Balance calculation until the first day of the next
billing cycle. For Card Accounts where Cardholders are not jointly and severally liable with the Company and are not required by
their Company to make payments, the annual fee, credit life fee, SecureCredit® program fee and, in certain circumstances, the
overlimit fee are included in the Daily Balance calculation on the first day of the billing cycle in which they post to the applicable
Account and/or Card Account.
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The Bank adds the amount calculated in accordance with (A)(1) above to the Daily Balance and this amount becomes the Beginning
Balance for the next day.
On the Consolidated Billing Statement and/or Card Account Statement, the Bank will calculate an Average Daily Balance for each
Transaction Category by adding all the Daily Balances for that Transaction Category and dividing that amount by the number of days
in the billing cycle. If you multiply the Average Daily Balance for a Transaction Category by its daily periodic rate and multiply the
result by the number of days in the billing cycle, the total will equal the Billed Periodic Rate Finance Charges for that Transaction
Category, except for minor variations due to rounding.
Cash Advance and foreign Transaction fee finance charges, if any, are added to the Billed Periodic Rate Finance Charges for all
Transaction Categories and are shown on the Consolidated Billing Statement and/or Card Account Statement as Total Billed Finance
Charges, The Annual Percentage Rate shown on the front of the Consolidated Billing Statement and/or Card Account Statement is
based on the Total Billed Finance Charges. This Agreement provides for daily compounding of finance charges and fees.
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MINIMUM FINANCE CHARGE: If periodic rate finance charges are billed in any billing cycle, the minimum Billed Periodic Rate
Finance Charge will be as shown above in the Account and Card Account Fees portion of this Schedule. The Bank may allocate the
minimum Billed Periodic Rate Finance Charge among the various Transaction Categories in the manner that the Bank selects from
time to time.
PAYMENTS: Payment in full of all Transactions and Program Fees and Charges for each billing cycle shall be made on or before the
applicable Payment Due Date for each respective billing cycle. Each Payment Due Date for each respective billing cycle will be
detailed on the Consolidated Billing Statement and/or Card Account Statements,
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SCHEDULE B
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Company Address for Delivery of Consolidated Billing Statements, Card Account Statements for Unassigned Cards, and
Informational Card Account Statements (see 6§ 9. 1 and 9.2) :
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Company Name: United City of Yorkville
Attn: Accounting
Company Mailing Address: 800 Game Farm Rd., Yorkville, IL 60560
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Liability of Company and/or Cardholders :
Company is the only liable party for the Account and all Card Accounts, but will instruct some or all Cardholders to pay for
their own Card Accounts based on individual Card Account Statements : The Company will instruct some or all of its
Cardholders to make individual payments of their own Card Accounts based on Card Account Statements, The Bank, using the
delivery method requested by the Cardholder, will provide each such Cardholder with a Card Account Statement for payment of
his/her Card Account. The Company remains solely liable to the Batik for payment of all amounts due for the Account and all Card
Accounts, including any Unassigned Cards the requested by the Company. The Bank, using the delivery method the Company
requested above, will provide the Company with a Consolidated Billing Statement and/or Card Account Statements disclosing
information about the use of, and the Company's liability for, the Account and all related Card Accounts (including without limitation
the Company's liability for overdue Card Accounts and for Unassigned Cards requested by the Company).
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Payment Due Date (see 411 .4):
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For Card Accounts for which the Company is solely liable, the Payment Due Date shall be 25 days after the Statement Date disclosed
on the applicable Consolidated Billing Statement or applicable Card Account Statement(s) .
Payment Method (see 411 .4):
The Company agrees to make payment to the Bank in the time, manner and amount required by the Agreement and the Company' s
Consolidated Billing Statements and/or Card Account Statements, either by mailing a check to the Bank at the address provided on the
Company's Consolidated Billing Statements and/or Card Account Statements or by initiating individual electronic payments or wire
transfers to the Bank, with the Bank's assistance or using instructions and account information separately provided by the Bank.
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EXHIBIT 1
Company Affiliates/Guaranteed Account(s)
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Company authorizes and directs Batik to issue Cards and Card Accounts to Employees of the following Company Affiliates ;
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3 .
4,
S.
6,
7,
8 ,
9,
10.
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