Blackbaud Merchant and Payment Services
Intended Beneficiary Disclosures
“Agreement” shall mean the Trust Account Agreement dated as of June 29, 2011 between the Company and the Trustee, as supplemented and amended from time to time.
"Company" shall mean Blackbaud, Inc., together with its successors and assigns.
"Trustee" shall mean Wells Fargo Bank, National Association, together with its successors and assigns.
Other terms used in this document are defined where they are used and have the meanings there indicated.
(b) Trust Account Generally. The Company has established with the Trustee under the Agreement a trust account (“Trust Account”) that shall be designated “Blackbaud BBMS Trust”. The Trustee agrees to establish and maintain the Trust Account, to be titled in the manner so designated by the Company, and that any and all cash or other property from time to time placed into the Trust Account by or on behalf of the Company shall be held and administered as provided in the Agreement. The Trustee agrees not to make disbursements from the Trust Account other than in accordance with the Agreement.
(c) Segregation of Trust Account. The Trustee agrees that all cash and other property held in the Trust Account shall be segregated from all other cash and property held by the Trustee and shall be identified as being held in a trust account pursuant to the Agreement. Segregation will be accomplished by appropriate identification of the cash or other property held in the Trust Account on the books and records of the Trustee.
(d) Purpose of Trust Account. The Company is a provider of software and services designed specifically for nonprofit organizations, including services involving online fundraising. The Trust Account is being established by the Company to support its online fundraising efforts on behalf of these organizations and to create an account separate from the assets of the Company. It is the intention of the Company that the Trust Account shall not be considered an asset of the Company in order that amounts processed by the Company on behalf of these organizations will be able to continue to flow to them in the event of the voluntary or involuntary bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts of the Company. Such organizations are intended beneficiaries of the Trust Account as provided in the Agreement. The foregoing notwithstanding, the Trustee makes no representations or warranties concerning the treatment of the Trust Account in the event of any voluntary or involuntary bankruptcy, insolvency, reorganization, wind-up or composition or adjustment of debts of the Company. The Trustee does not represent or warrant that a court will treat the assets of the Trust Account in a manner consistent with the intended purposes of the Trust Account as described in this Section or that a court will not direct the Trustee to take certain actions inconsistent with such intended purposes.
(e) Disbursements from the Trust Account. The Company is solely responsible for making or causing to be made the actual payment of funds to the intended beneficiaries. Disbursements from the Trust Account will be made as requested by the Company (the “Scheduled ACH Effective Date”) to a demand deposit account at Wells Fargo Bank, National Association (the “Disbursement Account”). Payments to the intended beneficiaries will be made from the Disbursement Account. The Trustee has no role with respect to disbursements from the Disbursement Account. The Company shall provide direction to the Trustee of the amount to be transferred from the Trust Account to the Disbursement Account no later than 4:00 p.m., Eastern time on the business day prior to the Scheduled ACH Effective Date. Upon receipt of such direction from the Company, the Trustee shall cause such amount to be transferred from the Trust Account to the Disbursement Account on the Scheduled ACH Effective Date. The Company may from time to time notify the Trustee in writing of a different Disbursement Account, which notice shall include any payment instructions required by the Trustee. The Company may direct the Trustee to disburse any part of the cash and other property held in the Trust Account for payment of fees, expenses and other charges (i) authorized by the agreement between the Company and its clients or (ii) required to be withdrawn in the normal course of business.
(f) Authorized Reliance without Inquiry; Reliance on Counsel; Agents. The Trustee shall be entitled to rely upon, and shall be protected in acting or refraining from acting upon, any written notice, electronic mail, certificate or other document or communication believed by it in good faith to be genuine and to have been signed, presented or delivered by the proper party or parties, and the Trustee may rely on statements contained therein without further inquiry or investigation; provided, however, that such instructions are submitted in compliance with the terms of the Agreement. The Trustee shall have no obligation to review or confirm that actions it is requested to take pursuant to any such notice comply with any agreement or document other than the Agreement. The Trustee shall be entitled to rely on and shall not be liable for any action taken or omitted to be taken by the Trustee in accordance with the advice of counsel or other professionals retained or consulted by the Trustee. The foregoing shall not excuse the Trustee from liability for its gross negligence, willful misconduct, or fraud. The Trustee shall be reimbursed as set forth in the Agreement for any and all compensation (fees, expenses and other costs) paid and/or reimbursed to such counsel and/or professionals. The Trustee may perform any and all of its duties through its agents, representatives, attorneys, custodians, and/or nominees.
(g) Duties Expressly Provided. The Trustee shall
not be liable for the performance of any duties or obligations other
than those expressly set forth in the Agreement, and no implied
covenants, duties, or obligations shall be read into the Agreement
against the Trustee. Without limiting the foregoing, the Trustee shall
have no investment responsibility with respect to the cash or other
property held in the Trust Account except as specifically set forth in
the Agreement; and shall have no responsibility for taking any steps to
preserve rights against any parties with respect to any property held in
the Trust Account; except that, upon receiving reasonable written
instructions from the Company, the Trustee will cooperate with the
Company in preserving such rights. The permissive rights of the Trustee
to do things enumerated in the Agreement shall not be construed as
duties. No provision of the Agreement shall require the Trustee to risk
or advance its own funds or otherwise incur any financial liability or
potential financial liability in the performance of its duties or the
exercise of its rights under the Agreement.
(h) Limitation on Trustee Liability. Subject to the exercise of reasonable care in the performance of its duties under the Agreement, the Trustee shall have no liability for any loss occasioned by delay in the actual receipt of notice or other instructions to the Trustee of any payment, disbursement or any other transaction regarding the Trust Account, nor shall the Trustee be liable for any claims, losses, damages, expenses or other liabilities, other than to the extent the same may be caused by the gross negligence, willful misconduct or fraud of the Trustee. THE TRUSTEE SHALL NOT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (I) DAMAGES, LOSSES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED UNDER THE AGREEMENT, OTHER THAN DAMAGES, LOSSES OR EXPENSES WHICH DIRECTLY RESULTED FROM THE TRUSTEE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (II) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE TRUSTEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION.
(i) Right to Stay Further Action. If the Company becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, or if the Trustee is otherwise served with legal process which the Trustee in good faith believes affects the cash or other property deposited in the Trust Account, or if at any time the Trustee receives conflicting instructions with respect to action it is requested to take under the Agreement, the Trustee shall have the right to place a hold on the Trust Account until such time as the Trustee receives an appropriate court order or other assurances satisfactory to the Trustee establishing that the cash or other property may continue to be disbursed or withdrawn in accordance with the Agreement.
(j) Escheat. The Company is aware that under applicable state law, property which is presumed abandoned may under certain circumstances escheat to the applicable state. The Trustee shall have no liability to the Company, its heirs, legal representatives, successors and assigns, or any other party, should any or all of the trust assets escheat by operation of law.
(k) Attachment of Trust Account; Compliance with Legal Orders. In the event that any trust assets shall be attached, garnished or levied upon by any court order, or the delivery thereof shall be stayed or enjoined by an order of a court, or any order, judgment or decree shall be made or entered by any court order affecting the Trust Account, the Trustee is expressly authorized, in its sole discretion, to respond as it deems appropriate or to comply with all writs, orders or decrees so entered or issued, or which it is advised by legal counsel of its own choosing is binding upon it, whether with or without jurisdiction. In the event that the Trustee obeys or complies with any such writ, order or decree it shall not be liable to the Company or to any other person, firm or corporation, should, by reason of such compliance notwithstanding, such writ, order or decree be subsequently reversed, modified, annulled, set aside or vacated.
(l) Force Majeure. The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under the Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; wars; acts of terrorism; civil or military disturbances; sabotage; epidemic; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications services; accidents; labor disputes; acts of civil or military authority or governmental action; it being understood that the Trustee shall use commercially reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as reasonably practicable under the circumstances.
(m) Disagreements. If any conflict, disagreement or dispute arises concerning the meaning or validity of any provision under the Agreement or concerning any other matter relating to the Agreement, or the Trustee is in doubt as to the action to be taken thereunder, the Trustee is authorized to retain the Trust Account until the Trustee (i) receives a final non-appealable order of a court of competent jurisdiction or a final non-appealable arbitration decision directing delivery of the Trust Account, (ii) receives a written agreement executed by each of the parties involved in such disagreement or dispute directing delivery of the Trust Account, in which event the Trustee shall be authorized to disburse the Trust Account in accordance with such final court order, arbitration decision, or agreement, or (iii) files an interpleader action in any court of competent jurisdiction, and upon the filing thereof, the Trustee shall be relieved of all liability as to the Trust Account and shall be entitled to recover attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action. The Trustee shall be entitled to act on any such agreement, court order, or arbitration decision without further question, inquiry, or consent.
(n) Termination of the Agreement; Resignation of Trustee. Upon termination of the Agreement for any reason, all cash and other property then held in the Trust Account (less any fees, costs, and expenses which the Trustee is permitted to retain in accordance with the Agreement) shall be paid by the Trustee in accordance with the written instructions of the Company. The Trustee may resign by furnishing written notice of its resignation to the Company. Such resignation shall be effective thirty (30) days after the delivery of such notice or upon the earlier appointment of a successor, and the Trustee’s sole responsibility thereafter shall be to safely keep the Trust Account and to deliver the same to a successor Trustee as shall be appointed by the Company, as evidenced by a written notice filed with the Trustee or in accordance with a court order. If the Company has failed to appoint a successor Trustee prior to the expiration of thirty (30) days following the delivery of such notice of resignation, the Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee or for other appropriate relief, and any such resulting appointment shall be binding upon the Company. The Trustee shall be entitled to recover attorneys’ fees, expenses and any and all other costs from the Company or the Trust Account incurred in connection with any such petition.
(o) Segregation of Trust Account. The Trustee agrees that all cash and other property held in the Trust Account shall be segregated from all other cash and property held by the Trustee and shall be identified as being held in a trust account pursuant to the Agreement. Segregation will be accomplished by appropriate identification of the cash or other property held in the Trust Account on the books and records of the Trustee.
(p) Intended Beneficiaries; No Third Party Beneficiaries. It is intended that the organizations for which the Company provides online fundraising services are intended beneficiaries of the Agreement. The foregoing notwithstanding, the Company has certain rights with respect to the Trust Account as provided herein, including the right to request the disbursement of funds from the Trust Account.
(q) Monthly Report of Intended Beneficiaries. The Company agrees in the Agreement to deliver to the Trustee a monthly report of all intended beneficiaries of the Trust Account that have processed transactions during the monthly period covered by the report, which report shall specifically identify any new intended beneficiaries that have been added during the monthly period covered by the report. Such monthly reports shall be delivered to the Trustee no later than the fifteenth (15th) day of the following month and shall include the name, address and taxpayer identification number of each intended beneficiary, to allow the Trustee to comply with legal and regulatory requirements concerning bank customers. The Trustee shall be entitled to conclusively rely on the accuracy and completeness of the monthly report and shall have no duty to independently determine or verify the names, addresses or taxpayer identification numbers of the intended beneficiaries. In the event that the Trustee determines that any intended beneficiary should no longer be a recipient of funds from the Trust Account, it shall request that the Company take action to ensure that no further funds intended for such intended beneficiary are deposited in the Trust Account. To the extent permitted by law, rules and regulations, the Trustee will indicate to the Company why it has requested that any intended beneficiary not be a recipient of funds from the Trust Account. The Company agrees to take such actions as are necessary to cause no funds intended for such intended beneficiary to be deposited in the Trust Account.
(r) Acknowledgement of Trust Intended Beneficiaries; Disclosure. The Company agrees that each organization for which it is providing online fundraising services and for which funds will be deposited in the Trust Account shall acknowledge that it has reviewed the Intended Beneficiary Disclosures. Such acknowledgment may be in the form of an online or other electronic agreement so long as the Company requires such acknowledgement before the beneficiary is considered to have agreed to be a customer of the Company for the purposes of online fundraising and initiates such fundraising. The language concerning such review and acknowledgement shall read as follows, unless and until different language is agreed to in writing by the Trustee:
Client Acknowledgement of use of Trust Account for the processing of payments with Blackbaud Merchant Services (BBMS): “The Client understands and agrees that the certain Trust Account Agreement dated as of June 29, 2011 (the “Trust Agreement”) between Blackbaud, Inc. and Wells Fargo Bank, National Association (the “Trustee”) shall govern the Trust Account that will be used for the deposit and disbursement of Client’s funds processed using Blackbaud Merchant Services. The Client hereby agrees to the terms set forth in the Intended Beneficiary Disclosures, and specifically acknowledges that Blackbaud, Inc. has the right to direct payment of funds from the Trust Account created under the Trust Agreement (and the Trustee shall be entitled to rely on such direction from Blackbaud, Inc.), including payments to the undersigned and similarly situated customers of Blackbaud, Inc., the fees and expenses of Blackbaud, Inc., and certain other fees, charges and expenses. The undersigned specifically acknowledges and agrees that (1) the Trustee has no duty to determine whether payments requested from the Trust Account by Blackbaud, Inc. are in proper amounts or for appropriate purposes, (2) the Trustee makes no representations or warranties as to the treatment of the Trust Account in the event of the any voluntary or involuntary bankruptcy, insolvency, reorganization, wind-up or composition or adjustment of debts of Blackbaud, Inc. and (3) the Trustee cannot guarantee the timely receipt of funds by the undersigned in the event that the Trustee fails to receive directions from Blackbaud, Inc. or a back-up servicer with respect to funds in the Trust Account or if there is a legal proceeding which seeks to stop or delay the disbursement of funds from the Trust Account.”
(s) Governing Law. The Agreement shall be interpreted and enforced according to the laws of the State of New York (without giving effect to its principles governing conflicts of law). To the fullest extent permitted by law, the Company and the Trustee unconditionally and irrevocably waived any claim to assert that the law of any other jurisdiction governs the Agreement, and the Agreement shall be governed by and construed in accordance with the laws of the State of New York pursuant to § 5-1401 of the New York General Obligations Law
(t) Servicing of Donations and Trust Account. The Trustee does not have access to information concerning the amounts that intended beneficiaries either individually or as a group are entitled to receive from the Trust Account. The Trustee is relying on the Company to provide accurate, complete and correct directions with respect to the disbursement of funds from the Trust Account, and has no ability or obligation to independently determine or verify that such amounts are correct or proper. The Company acknowledges and agrees that it is solely responsible to provide directions to the Trustee with respect to the disbursement of funds from the Trust Account. The Disbursement Account is not governed by the Agreement and the Trustee has no role in the actual disbursement of funds to the intended beneficiaries from the Disbursement Account. The Company agrees that if for any reason it is unable or unwilling to provide directions to the Trustee with respect to disbursement of funds from the Trust Account as described in the Agreement, it shall appoint a back-up servicer to provide such direction. Upon receipt of written notice from the Company of the appointment of a back-up servicer and delivery of a Certificate of Authority for such back-up servicer in the form attached to the Agreement, the Trustee is authorized and directed to accept the directions of such back-up servicer as if received directly from the Company. In the event that the Company is not acting as servicer and no back-up servicer is appointed, the Trustee may apply to a court of competent jurisdiction for the appointment of a back-up servicer or for other appropriate relief, including without limitation filing an interpleader motion to turn the Trust Account over to or at the direction of the court. The Trustee may agree to cooperate with any intended beneficiaries in the conduct of any proceeding or the pursuit of any remedy or the exercise of any power with respect to the Agreement and the Trust Account. However, the Trustee may refuse to follow any direction that conflicts with law or the Agreement or that the Trustee determines in its sole discretion is unduly prejudicial to the rights of any other intended beneficiaries or might involve the Trustee in personal liability.