Part I: MASTER AGREEMENT
THIS MASTER AGREEMENT (“Master Agreement”) is a part of the Treasury Management Agreement (“Agreement”) entered into between Client and Bank and applies to each Service in which Client enrolls. The Business Online Banking Service Terms that immediately follow this Master Agreement apply to all Services accessed through the online website and they include the terms for Mobile Banking. Each Treasury Management Service also has Service Terms & Conditions included herewith that apply specifically to it. This Master Agreement, together with the appropriate Service Terms & Conditions, and the appropriate Set-up Schedules, operating instructions and user guides, comprise the entire Agreement between Client and Bank regarding the Services. With respect to a Service being provided to Client at the time this Agreement is entered into, unless otherwise agreed, this Agreement will prevail over any conflicting provision of any prior agreement relating to that Service. In the event of any conflict between this Master Agreement and any Service Terms & Conditions, the Service Terms & Conditions will prevail with respect to the particular Service.
The following terms have the meanings provided below in the Agreement and, unless otherwise provided, in each Service Terms & Conditions:
“ACH”: Monetary transactions processed via the Automated Clearing House.
“Account”: each deposit account of Client at Bank that Client has designated as being covered by a Treasury Management Service.
“Account Agreement”: Bank’s Rules and Regulations Governing Deposit Accounts, which were made available to Client in connection with deposit account-opening, and are available on Bank’s website.
“Administrator”: Client’s employee(s) who will be responsible for coordinating and monitoring Users’ use of certain Treasury Management Services as provided in the applicable Service Terms & Conditions.
“Authorized Signer”: An officer of Client authorized by resolution to authenticate the Agreement and any required Set-up Schedules.
“Available Funds”: The total of the collected funds in an Account as of the close of business on any Business Day, determined in accordance with the manner in which Bank generally provides credit for deposited Items.
“Business Day”: Any day on which Bank is open to the public for carrying on substantially all of its business, excluding Saturdays, Sundays and legal holidays.
“Business Online Banking”: Bank’s online banking product for business customers.
“Check”: A draft, payable on demand and drawn on or payable through or at an office of a bank, whether or not negotiable, that is handled for forward collection, and does not include a non-cash Item payable in a medium other than United States dollars
“Check Image”: An electronic Check image of the front and the back of the Check and associated information provided to Bank in lieu of the original Check from which such Check Image was obtained.
“Check Information”: The Account number, serial number, issue date and dollar amount of any Check. “Credit”: A payment or transfer of money to an account.
“Cut-off Time”: The deadline for Service availability, as it may be changed from time to time. The Cut-off Time for the particular Service will be posted on the Business Online Banking Site, will be disclosed in the Set-up Schedules, and/or will appear in a service message.
“Debit”: an entry that requires collection from an account and includes returned Items.
“Dual Control”: when a Service requires an Entry or request to be made by one User’s security device and approved by means of another User’s security device.
“End of Day”: The processing deadlines for certain Services provided on Bank’s website, which may be changed from time to time.
“Entry/Entries”: With regard to ACH, an order or request complying with the requirements of Appendix Two (ACH Record Format Specifications) of the NACHA Rules (i) for the transfer of money to the account of a Receiver (a “Credit Entry”) and (ii) for the withdrawal of money from the transaction account or general ledger account of a Receiver (a “Debit Entry”).
“Equipment”: Any hardware, communication devices or other equipment required to use a Service.
“Exception Item”: An Item that does meet the requirements of, or match a File specification for, the applicable Service.
“Item”: A Check, money order, travelers’ check and cashier’s check and, unless otherwise noted in a Service Terms & Conditions, excludes any Item drawn on foreign institutions outside of the United States or Territories of the United States.
“MICR”: The Magnetic Ink Character Recognition line of numbers and letters on the bottom of the front of the Check that facilitates processing.
“Mobile Device”: A smart phone or tablet enrolled in Business Online Banking for access to one or more Services.
“Mobile Service”: A Service that accesses Accounts via a Mobile Device, including Mobile Banking and Mobile Deposit.
“NACHA”: National Automated Clearing House Association – the Electronic Payments Association, the organization responsible for the ACH system.
“NACHA Rules”: The operating rules of NACHA, a copy of which may be obtained from NACHA at 13665 Dulles Technology Drive, Suite 300, Herndon, VA 20171. Instructions for obtaining a copy of the NACHA Rules are also available at www.nacha.org.
“OFAC”: the U.S. Office of Foreign Assets Control, which issues the list of Specially Designated Nationals and Blocked Persons. OFAC information may be obtained at 1-800-540-OFAC or at http://www.Cash.gov/resource- center/sanctions/Programs/Pages/Programs.aspx.
“On Us”: An entry designated to an account held by Bank.
“Periodic Statement”: For the applicable Account, Client’s written or electronic periodic statement issued by Bank with respect to the Account pursuant to the Account Agreement.
“Security Procedures”: The use of identification codes, encryption, Security Tokens, passcodes, logon identifications, personal or location identification numbers, repetitive codes, USB devices, out-of-band authentication, Dual Control, call- backs, dedicated devices and other security devices, systems and Software that Client uses in connection with a Treasury Management Service.
“Security Token”: An electronic device that may be tangible or electronic and will permit Users to generate a one-time use numeric code to provide authentication to effect transactions in connection with certain Treasury Management Services. Electronic or “soft” Security Tokens will be accessed through an application on the User’s Mobile Device.
“Service Provider”: An agent, licensor, independent contractor or subcontractor that Bank may involve in the provision of a Treasury Management Service.
“Service Terms & Conditions”: Those additional contractual terms relating to a particular Treasury Management Service requested by Client included in Part II of the Agreement for Business Online Banking and in Part III for all other Services.
“Set-up Schedule”: Bank’s form that Client will complete to designate the Accounts, Administrator and other parameters established by Bank.
“SFTP”: Secure File Transfer Protocol, used in certain Treasury Management Services. “Software”: Any software needed to operate the Services
“Template”: A defined set of instructions that Client may use for repeated payments or collections.
“User(s)”: Those employees whom Client authorizes to access one or more Accounts through one or more Treasury Management Services. This Agreement acts as Client’s authorization to allow the Users to access and process transactions, which may directly affect Client’s Accounts.
“Wire Transfer”: The series of transactions beginning with a payment order made for the purpose of electronically transferring funds to a beneficiary.
2. Compliance with Applicable Law
Bank and Client will comply with all applicable laws, rules and regulations in connection with Treasury Management Services. This includes, but is not limited to, as applicable, the sanctions laws, regulations and orders administered by OFAC; laws, regulations, and orders administered by the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN), including the Bank Secrecy Act, the U.S.A. PATRIOT Act and the requirements for customer identification required thereby; to the extent applicable to business transactions, the Electronic Funds Transfer Act and Regulation E promulgated thereunder; Articles 4 and 4A of the Uniform Commercial Code and any other applicable state laws; Check 21 and Regulation CC promulgated thereunder; and restrictions imposed under the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA). It shall be the responsibility of Client to obtain information regarding OFAC enforced sanctions. Client may choose Treasury Management Services to which the NACHA Rules are applicable. Client agrees to be bound by such NACHA Rules, and agrees that no communications that violate United States law may be initiated. Client will be responsible for and will fully indemnify Bank for any and all fines and assessments imposed on Bank as a result of any infraction or violation of laws, rules or regulations caused by or attributable to Client.
3. Business Use
CLIENT EXPRESSLY REPRESENTS AND WARRANTS TO BANK THAT NONE OF THE ACCOUNTS THAT ARE OR WILL BE SUBJECT TO A TREASURY MANAGEMENT SERVICE PURSUANT TO THE AGREEMENT HAVE BEEN ESTABLISHED, OR ARE BEING OR WILL BE USED, FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
Client understands and agrees that Client’s transactions are not governed by Regulation E or any other consumer financial protection law.
4. Instructions and Communications
a) For some Treasury Management Services, Bank may choose to honor Client’s request to give Bank verbal or written instructions regarding the Treasury Management Service. Bank may in good faith rely on such verbal or written instructions that purport to come from a User of the Client without independent verification by Bank, unless a Security Procedure for such Service requires verification.
b) By utilizing the Services available under this Agreement, Client will be entitled to authorize various transactions electronically that otherwise would require written authorization. In addition, Client may have Accounts that require multiple signers to execute transactions. Client agrees that, regardless of such Account instruction, Bank is authorized to complete each transaction initiated electronically by means of the Internet in accordance with the Security Procedures, including but not limited to, transfer of funds, credit payments and issuances of Checks or electronic payments.
c) Client may elect to send or receive instructions or reports from Bank related to Treasury Management Services via electronic means, including, without limitation, facsimile transmission, voice mail, secured email, pager or other electronic or telephonic methods (“Electronic Transmission”). Client acknowledges that such Electronic Transmissions are an inherently insecure communication method due to the possibility of error, delay and observation or receipt by unauthorized personnel. Bank may rely in good faith on Client’s instructions regarding how and to what number or email address Electronic Transmissions should be sent and may rely on any Electronic Transmission that it reasonably believes to have been initiated by the Client. Should Client elect to send or receive Electronic Transmissions to or from Bank, Client assumes all risks, and Bank shall not be liable for any loss that results from the nonreceipt, disclosure or alteration of any such Electronic Transmission.
d) All Electronic Transmissions from Bank or its Service Providers will be provided by one of the following methods: (i) via secure email (any Electronic communication sent by secure email will be deemed to have been received by Client when Bank or Bank’s Service Provider send it to Client, whether or not Client receives the email); (ii) by access to a website that Bank will designate in an email notice Bank sends to Client at the time the information is available; (iii) by posting the communication to the Business Online Banking website; or (v) by requesting Client to download a PDF containing the communication.
e) Bank will never contact Client by email in order to ask for or to verify Account numbers, Security Procedures or credentials, or any sensitive or Confidential Information. In the event Client receives an email or other electronic communication that Client believes, or have reason to believe, is fraudulent, Client should not respond to the email, provide any information to the email sender, click on any links in the email, or otherwise comply with any instructions in the email.
f) In order for Bank to service Client’s Account, mitigate fraud or to collect any amounts Client owe, Bank or Bank’s Service Provider may from time to time make calls and/or send text messages to Client at any telephone number(s) associated with Client’s Account, including wireless telephone numbers that could result in charges to Client. The manner in which these calls or text messages are made to Client may include, but is not limited to, the use of prerecorded/artificial voice messages and/or an automatic telephone dialing system.
5. Electronic Disclosures and Agreements
a) Client agrees that Bank may provide Client with all legal and other disclosures, notices, and other communications with respect to Services, including Fee Schedules and amendments to this Agreement, in electronic form. Bank may notify Client of any future notices by sending an alert to the email address Client provided on the Set-up Schedule or by other electronic/online notification method. Client should print or save a copy of all disclosures delivered electronically. Client may request a paper copy of the Agreement from Bank at any time free of charge.
b) Bank may provide Client the option of entering into this Agreement or any Set-up Schedule, or an amendment thereto, with a digital signature. Client hereby agrees that Client’s use of such digital signature will represent the written signature(s) of Client’s Authorized Signer(s) and will bind Client to the terms and conditions of the applicable agreement, addendum or form.
6. Administrator and Users
Client shall appoint an Administrator for each Treasury Management Service that requires one as specified in the applicable Service Terms & Conditions, who shall in turn appoint Users. Client may revoke the authority of or change the Administrator at any time upon prior written notice and execution of additional documentation required by Bank. Such change or revocation shall not be binding upon Bank until it has received the required written notice and has had a reasonable opportunity to act thereon. In any event, Bank may act on instructions that it believes in good faith were provided by an Administrator or User, or anyone purporting to be an Administrator or User.
7. Security Procedures and Client Obligations
Security Procedures, designed to verify the origination but not errors in transmission or content of instructions, orders and other communications sent by Bank and Client, will be used in connection with certain Treasury Management Services. Bank reserves the right to issue new Security Procedures and/or to cancel or change any Security Procedure from time to time. Client agrees that the Security Procedures are commercially reasonable for its specific needs. Continued usage of the applicable Service constitutes Client’s ongoing agreement that the Security Procedures for that Service are commercially reasonable. The specific Security Procedures for each Treasury Management Service are as set forth in the Business Online Banking Service Terms in Part II of the Agreement and/or in the applicable Service Terms & Conditions.
a) Bank may always rely on transmissions from Client in accordance with the Security Procedures, even if the actual user is not a User, regardless of whether Client has notified Bank of a change in User identity. Bank will not be obligated to act on a communication not transmitted in accordance with the Security Procedures and may refuse to act on any communication where Bank reasonably doubts Client’s authorization, contents, origination or compliance with the Security Procedures. Bank shall have no duty to discover, and shall not be liable for, errors or omissions by Client. If Bank complies with the Security Procedures in respect to a communication, Bank will be entitled to act on that communication and will not be obligated to verify the content of such communication, establish the identity of the person giving it, or, unless otherwise required, await any confirmation thereof, and Bank shall not be liable for acting on, and Client will be bound by, any communication sent in Client’s name, whether or not authorized.
b) Client acknowledges the critical importance of maintaining the strict confidentiality of all Account numbers, Security Procedures and related information and agrees to protect the confidentiality of and safeguard such information. Client shall not disclose Security Procedures except to employees or agents authorized to act for Client in connection with Treasury Management Services. Client assumes all risk of accidental disclosure or inadvertent use of such Security Procedures by any party whatsoever, whether such disclosure or use is on account of Client’s negligence or deliberate acts or otherwise. Bank shall not be liable for any loss or damage resulting from fraudulent, unauthorized or otherwise improper use of any Security Procedures.
c) Client has important responsibilities for protecting Client’s Accounts and the Treasury Management Services used by Client and for combating fraud and the unauthorized use of Client’s Accounts. Client represents and warrants that Client has in place and will maintain and enforce effective policies and procedures to monitor and control the secure use of its Accounts and the Services including:
• Ensuring that passcodes, Security Procedures, access devices and Account numbers are disclosed only to Client’s personnel and agents who are authorized to have and use them;
• Controlling the use of Internet access, Software, scanning equipment and other systems and devices used in communications with Bank;
• Training personnel on the proper use of the Treasury Management Services and fraud prevention measures particularly in connection with Internet access and email; and
• Controlling check stock, mechanical signing devices and Account information.
d) Client acknowledges that there is a growing risk of losses resulting from unauthorized transactions in Accounts. Bank offers Services that provide effective means for controlling such risk, including: (i) ACH Debit Block and ACH Positive Pay, (ii) Account Reconciliation and (iii) Positive Pay. In addition, Bank may recommend that Client use certain fraud prevention practices to reduce Client’s exposure to online fraud. Each of these practices is an industry “best practice.” An example of a best practice is Dual Control, which requires a payment or user modification initiated by one User to be approved by a second User on a different computer or Mobile Device before it takes effect. Client will be treated as having assumed the risk of any loss that could have been prevented by its use of any fraud prevention Service or best practice Bank has recommended to Client, if Client: (A) declines to enroll in the fraud prevention Service(s); (B) enrolls in the fraud prevention Service but fails to use it in accordance with the Service Terms & Conditions or Set-up Schedule applicable to it; or (C) fails to adopt and follow a best practice. In that event, Client will be precluded from asserting any claims against Bank for paying unauthorized, altered, counterfeit or other fraudulent items that such tool was designed to detect or deter, and Bank will not be required to re-credit Client’s Account or otherwise have any liability for paying such items.
8. Network Security
Client shall be solely responsible for the implementation of all commercially reasonable security procedures to control access to Client’s computer systems and to protect any data files stored thereon. Such procedures include but are not limited to anti-virus, physical, logical, and network security control systems and devices. Client should use a firewall product especially if it has a broadband Internet connection such as DSL or cable modem. Client must use a reputable antivirus/adware and anti-spyware program on its computer/device that runs daily and a process to ensure that patches for all Software and operating system modules are current. It is recommended that Client use the most current fully patched versions of Internet browsers for accessing Business Online Banking, designated websites or SFTPs. Client is solely responsible and liable for any hack, unauthorized access or related problems or other unknown hazards that originates from Client that may be associated with using email or the Internet to deliver or receive Services.
9. Security Incident Reporting
CLIENT MUST IMMEDIATELY NOTIFY BANK BY PHONE IF THE CONFIDENTIALITY OR INTEGRITY OF ANY SECURITY PROCEDURE IS BREACHED OR THREATENED, FOLLOWED BY A WRITTEN CONFIRMATION OF SECURITY BREACH. BANK WILL HAVE NO LIABILITY TO THE CLIENT FOR ANY UNAUTHORIZED TRANSACTION MADE USING A SECURITY DEVICE THAT OCCURS BEFORE THE CLIENT HAS NOTIFIED BANK OF THE POSSIBLE UNAUTHORIZED USE AND BANK HAS HAD A REASONABLE OPPORTUNITY TO ACT ON THAT NOTICE. In the event of
a breach, Client agrees to cooperate with Bank in connection with its incident response investigation in a timely manner and to provide any information requested by Bank within two (2) Business Days of the request. Client will permit Bank’s authorized representatives access to Client’s computer systems in connection with such investigation. Client will indemnify and hold Bank harmless from and against any third party claim arising in connection with a data security breach, except to the extent the breach is caused by Bank’s gross negligence or willful misconduct or the gross negligence or willful misconduct of Bank’s Service Provider.
a) All user guides, manuals, data, Software, processes, Security Procedures and other information provided to Client in connection with any Treasury Management Service and all fee and pricing information with respect to the Treasury Management Services (the "Information") constitute proprietary and confidential property of Bank and/or Bank’s relevant licensors, suppliers or Service Providers. Client will not make any copies, in whole or in part, of any Information without Bank’s prior written consent. Client agrees to notify Bank immediately if the confidentiality of any Information is compromised. Client agrees to use the Information only in the manner specified by Bank and in the ordinary course of Client’s business, to return it to Bank upon termination of the relevant Treasury Management Service, and to keep the Information confidential and limit access thereto only to Client’s agents and employees who require access in the normal course of their duties, except to the extent the Information is already in the public domain or Client is required to disclose the Information by law. Nothing in this Section will prohibit or limit any party’s use of Information (i) that can be demonstrated to have been previously known to it, other than through its relationship with the other parties without a confidentiality restriction on the use of such Information; (ii) independently developed by it, as established by written evidence; (iii) rightfully acquired by it from a third party with full legal right to disclose such information; (iv) disclosed without similar restrictions by the party that disclosed such information pursuant to the Agreement to a third party; or (v) which becomes part of the public domain through no breach of the Agreement.
b) Bank has implemented and shall maintain information security procedures designed to meet the requirements of the Guidelines Establishing Information Security Standards as adopted by the bank regulatory agencies who oversee Bank’s operations. These security measures include appropriate disposal of consumer information as required, and taking appropriate actions to address incidents of unauthorized access to Client’s sensitive information, including notification to Client as soon as possible of any such incident, which notice shall include appropriate details regarding such incident and a description of steps taken by Bank to remedy the incident and prevent its recurrence.
c) In the event of any breach of the obligations under this Section, each party acknowledges that the other party would have no adequate remedy at law, since the harm caused by such a breach would not be easily measured and compensated for in damages, and that in addition to such other remedies as may be available to such party, it may obtain injunctive relief including, but not limited to, specific performance.
11. Disclaimer of Warranty
Any Service, Software, Equipment and communication interfaces provided or licensed to Client are provided on an “as is” basis. Other than the express warranties contained herein or in the applicable Service Terms & Conditions, BANK MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL WARRANTIES AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY OF ANY TREASURY MANAGEMENT SERVICE FOR CLIENT, OR AS TO THE COMPATIBILITY OF SOFTWARE, EQUIPMENT OR COMMUNICATION INTERFACES WITH CLIENT’S EQUIPMENT.
12. Performance and Bank Liability
a) Bank will provide the Treasury Management Services in good faith in a commercially reasonable manner in accordance with the applicable Service Terms & Conditions. Bank will be responsible for any loss sustained by Client only to the extent such loss is caused by Bank’s breach of its representations, warranties and covenants contained in the Agreement and any Service Terms & Conditions or by its breach of good faith, gross negligence or willful misconduct and in every case the liability of Bank will not exceed the lesser of the actual damages sustained by Client or the fees Bank received for providing the Treasury Management Service to Client for the twelve (12) months preceding the loss (or such number of months as Bank is able to recover damages under any applicable Service Provider agreement).
b) For Wire Transfer requests that are subject to Article 4A of the Uniform Commercial Code, Bank is liable only for damages required to be paid under Article 4A or the Fedwire Regulations, as applicable, except as otherwise agreed in the Wire Transfer Service Terms & Conditions, provided that Client has otherwise complied with any duties imposed on Client under this Master Agreement, the Wire Transfer Service Terms & Conditions or the applicable Set-up Schedules. For all requests and Entries not subject to Article 4A, and for all other obligations under a Service, Bank’s liability shall not exceed the following, as applicable: (i) in case of an excessive debit to Client’s Account, the amount of the excess plus compensation equivalent to interest from the date of the excessive Debit to the date of the refund; (ii) in case of payment to an account not specified by Client, the amount of the payment plus compensation equivalent to interest from the date of the payment to the date of the refund; (iii) in case of any delay in crediting a Debit Entry to Client’s Account, the amount of compensation equivalent to interest for the period of delay; or (iv) in all other cases, the damages specified in the paragraph a) above. If Bank fails to credit an Account utilized in connection with any Service in accordance with the Service Terms & Conditions applicable thereto, as of the date such Credit was earned, upon discovery or notification of such error, Bank will properly credit such Account, but Bank shall not incur any liability therefore except as otherwise provided herein or in the Service Terms & Conditions. Client must use reasonable efforts to assist Bank in recovering the amount of any overpayment for which Bank is liable. If Bank is obligated to pay interest compensation, Bank’s liability for loss of interest resulting from its error or delay shall be calculated by using a rate equal to the average Federal Funds rate at the Federal Reserve Bank of Chicago for the period involved. At Bank’s option, payment of such interest may be made by crediting the Account.
c) If Client transmits a request to Bank by way of a funds-transfer system or other third-party communications system not specifically required by Bank, the system is deemed to be Client’s agent for that purpose. Bank is not liable to Client for any discrepancy between the terms Client transmits to such system and the terms it then transmits to Bank.
d) IN NO EVENT WILL BANK HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED TO OR COULD HAVE BEEN REASONABLY FORESEEN BY BANK.
e) Bank does not and cannot control the flow of data to or from Bank's network and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt Client's connections to the Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, Client's ability to connect to the Internet, or Bank's ability to connect to the Internet on Client's behalf.
f) Under no circumstances will Bank be responsible for any liability, loss or damages resulting from any delay in performance of or failure to perform in connection with any Treasury Management Service which is caused by interruption of telephone, telefacsimile or communication facilities, delay in transportation, equipment breakdown or mechanical malfunction, electrical, power or computer failure, accidents, fire, flood, explosion, theft, natural disaster or other catastrophe, acts or failure to act by Client or any third-party, strikes or lockouts, emergency conditions, riots, war, events of terrorism, acts of government or other circumstances which are unavoidable or beyond Bank’s control. Bank will not be liable for failure to perform any of Bank’s obligations in connection with a Treasury Management Service if such performance would result in it being in breach of a law, regulation or requirement of any governmental authority.
Except in the event of Bank’s failure to act in good faith, or its gross negligence or willful misconduct in connection with delivery of Treasury Management Services, Client shall defend, indemnify and hold Bank and its directors, officers, employees, Service Providers, successors and assigns harmless against and in respect to any and all loss, liability, expense and damage, directly or indirectly resulting from: (a) the processing of any request received by Bank through a Treasury Management Service; (b) any breach of the provisions of this Master Agreement or the applicable Service Terms & Conditions; (c) any request for stop payment; (d) any dispute between Client and a third party in connection with the use of a Treasury Management Service; and (e) any and all actions, causes of action, suits, proceedings, claims, demands, judgments, costs and expenses (including attorney’s fees) incident to the foregoing.
14. Service Providers
Bank may act on any communication and provide any Treasury Management Service using any payment system or third-party provider Bank reasonably selects. Bank’s performance of Treasury Management Services is subject to the rules and regulations of any such system or organization. Bank will have no obligation to disclose arrangements with third parties to Client or obtain Client’s consent thereto. Client authorizes the transfer of information relating to Client to Service Providers for use in connection with Treasury Management Services or as required by law. Bank will provide Client with all necessary instructions for contact with a Service Provider, if necessary.
15. Equipment and Software
a) When a Treasury Management Service requires Equipment or Software to be operated by Client, the provision of the Treasury Management Service by Bank will be conditioned on the proper installation, configuration, use and maintenance of such Equipment or Software by Client. Client is solely responsible for the selection, purchase or lease and maintenance of Client’s computer equipment and software and its compatibility for use where required in connection with any Treasury Management Service. Bank- provided Equipment will remain the property of Bank, and: (a) Client will use it solely in the manner specified by Bank in connection with the relevant Treasury Management Service; (b) Client will not remove or modify any name or identifying mark on it; and (c) Client shall return it to Bank upon termination of the Treasury Management Service. Client shall not reverse assemble or reverse compile any of the Software, in whole or in part, nor permit any other person, firm or corporation to do so.
b) Client is responsible for installing and implementing any changes and upgrades to the Equipment and Software as required by Bank within five (5) Business Days to ensure compliance with regulatory changes or developments and to protect the integrity and security of the Service.
Neither Client nor Bank will display any name, trademark or service mark of the other without the prior written consent of the other. Client will not advertise or promote any Treasury Management Service without Bank’s prior written consent for each use or release.
17. Recordings and Records
Either Client or Bank may produce telephonic or electronic recordings or computer records, including email and telefacsimile transmissions, as evidence in any proceedings brought in connection with any Treasury Management Service. Client agrees to Bank’s telephonic or electronic monitoring, recording and retention of records for the purposes of security, evidence of the transaction and/or quality of service. All records maintained by Bank for Treasury Management Services contemplated by the Agreement will be and remain Bank’s property. Bank may, at Bank’s discretion, make available to Client such records upon request. Any expense incurred by Bank in making such records available to Client will be paid by Client.
All Accounts accessed through a Treasury Management Services remain subject to the Account Agreement and availability schedules in effect from time to time, provided that in the event of any conflict between the Treasury Management Services Agreement and the Account Agreement, the Treasury Management Services Agreement will prevail. Each funds transfer under a Treasury Management Service is subject to any transfer limitations that apply to the Account.
19. Payment of Fees and Charges
Client will pay Bank for each Treasury Management Service in accordance with the Fee Schedule established by Bank, which may be changed by Bank from time to time. The Fee Schedule for each Treasury Management Service will be deemed accepted by Client upon provision of such Treasury Management Service to Client. Client will pay any sales, use or similar tax applicable to any Treasury Management Service. If Bank is required to pay any such taxes, Client will reimburse Bank upon demand. Client will also pay all attorneys' fees and other costs and expenses Bank may incur in collecting any fees or other sums Client may owe to Bank in connection with any Treasury Management Service. Bank may collect any amounts due to Bank by debiting any of Client’s Accounts with Bank, billing Client, and or setting off against any amounts Bank owes to Client, without any obligation to give prior notice thereof to Client.
20. Extensions of Credit
Client must maintain sufficient amounts of Available Funds in Client’s Accounts at Bank in connection with particular Treasury Management Services to cover Client’s payment obligations. Bank is not obligated to extend credit to Client unless it has specifically agreed to do so in a separate writing. If Bank extends credit to Client by permitting overdrafts or use of uncollected funds in Client’s Accounts or otherwise, the amount thereof will be immediately due and payable, together with interest thereon at a per annum rate determined by Bank from time to time, but not to exceed the maximum rate permitted by law. If Bank should perform on Client’s behalf any Treasury Management Services that create an overdraft or use of uncollected funds, such action will not establish a course of dealing between the parties that will require Bank to perform any Treasury Management Services on behalf of Client that would create an overdraft or use of uncollected funds. Bank may, without notice, refuse to honor any order for payment, transfer or withdrawal of funds if such order would create an overdraft or use of uncollected funds, notwithstanding that Bank may have previously allowed overdrafts or use of uncollected funds. Client agrees that Bank may debit any Account owned by Client or that Bank may set off against any amount Bank owes Client, in order to obtain payment for Client’s overdrafts.
21. Grant of Security Interest
As security for the full and timely payment and performance of all of Client’s obligations under this Master Agreement and any Service Terms & Conditions, Client hereby grants to Bank a security interest in, and a lien upon, the Accounts and any other Client accounts at Bank. The failure of Client to satisfy any of Client’s obligations to Bank will constitute a default. Upon the occurrence of a default, and at any time thereafter, Bank may use and apply any and all funds in the Accounts and any other account at Bank and exercise any and all other rights and remedies available to Bank by law, in equity or by agreement.
22. Account Reconciliation
Client’s transactions will be reflected on Client’s Periodic Statement. Client will regularly and promptly review and verify all Periodic Statements, reports, Check payment records, Wire Transfer instructions, confirmations, adjustments, charges, and other transactions. Client will, within a reasonable time, which in no event shall be greater than fourteen (14) Business Days following the day Bank first mails or otherwise makes data available to Client, notify Bank of any error or discrepancy between Client’s records and any Bank notice or statement, or any transaction or transfer Client believes was not authorized. Client will provide Bank with any information it may reasonably request in connection therewith. If Client fails to notify Bank of such unauthorized transaction within the fourteen
(14) Business Day review period, the failure to report any such errors or unauthorized transactions shall relieve Bank of any liability for the unreported erroneous or unauthorized transaction. In accordance with NACHA Rules, Client must report an unauthorized ACH Debit Entry to the Account by the established deadline on the Business Day following the settlement date of the unauthorized Entry. Otherwise, Client’s sole recourse is to the originator of the transaction.
23. Provisional Credit.
For a non-consumer Credit Entry subject to UCC Article 4A (such as a converted check or wire transfer), Client understands: (a) the Credit Entry may be transmitted through the ACH system; (b) the rights and obligations of the Originator concerning the Entry are governed by and construed in accordance with the laws of the State of New York, unless the Originator and the ODFI have agreed that the laws of another jurisdiction govern their rights and obligations; (c) credit given by Bank to Client for the Entry is provisional until Bank has received final settlement through a Federal Reserve Bank or otherwise has received payment as provided for in Section 4A-403(a) of UCC Article 4A; and (d) if Bank does not receive such payment for the Entry, Bank is entitled to a refund from Client in the amount of the credit to the Account, and the Originator will not be considered to have paid the amount of the Credit Entry to Client.
24. Check Samples, Forms Approval and Service Implementation
Prior to initiating a new Account or Service, or at any other necessary time, Client agrees to provide all information including, without limitation, signature cards, transmissions, corporate resolutions and other documents, and conduct any test that Bank may reasonably request. Bank may request samples of Client’s Checks, drafts, deposit slips and similar items to ensure, in Bank’s sole discretion, whether such items meet Bank’s quality control and processing standards. In the event that Bank determines that an item or test does not meet its specifications, Bank will so advise Client. Client acknowledges that Treasury Management Services will not commence or continue until such time as an approved item or test is provided to Bank and determined by Bank to be satisfactory. Client shall be responsible for initial product installation, whether or not Bank provides telephone or on-site installation support.
25. Transactions on Non-Business Days/Cut-off Times
Transactions, deposits, payment orders, entries or other requests by Client received by Bank on a non-Business Day or after established Cut-off Times may be treated by Bank as received on the next Business Day. Bank may change any Cut-off Time or other deadline at any time. Bank will make a reasonable effort to notify Client of any changes in advance.
26. Inconsistent Name and Account Number
Unless otherwise provided in any Service Terms & Conditions or as otherwise required by law, if Client or third party acting at the Client’s instruction initiates a fund transfer instruction or payment order to Bank that describes the person to receive the proceeds of such payment order (the “beneficiary”), the beneficiary’s bank, or an intermediary bank by name and an Account or other identifying number, Bank and subsequent parties to the Payment Order may rely on and act solely on the basis of such number, even though the name and number do not agree and even though Bank and subsequent parties know or have reason to know of the inconsistency. Client’s obligation to pay the amount of the payment order to Bank is not excused in such circumstances.
27. Data Retention and Disclosure
Client acknowledges that Bank may have certain legal record keeping and reporting requirements with respect to Treasury Management Services and consents to Bank’s disclosure to governmental authorities of information concerning Client and Treasury Management Services provided to Client, which Bank believes to be appropriate or necessary to fulfill such legal requirements.
During the term of the Master Agreement and for a period of two (2) years thereafter, Bank, and any third party representatives designated by Bank, including bank regulatory agencies, independent auditors and forensics experts, shall have the right, upon reasonable prior notice to Client (except in the event of fraud, unauthorized access to Accounts or any other circumstance where delay could result in loss to Client, in which case this right shall be immediate), to audit Client’s books, records, systems, computers and procedures to the extent necessary to verify Client’s compliance with the terms of this Master Agreement and/or any applicable Service Terms & Conditions, including compliance with applicable law and, as applicable, NACHA Rules, which may include, in Bank’s sole discretion, the right to enter onto the premises of Client for such purpose.
29. Remote Access Rights
From time to time, Bank personnel will use Software to create a remote access online session with Client’s Users for the purpose of troubleshooting problems, training on products or for related purposes.
Either party, upon thirty (30) days’ prior written notice to the other, may terminate any Treasury Management Service or the Agreement, which will terminate all Treasury Management Services. Bank reserves the right to terminate or suspend any Treasury Management Service or terminate the Agreement immediately, without notice to Client, if any of the following occurs: (a) a material adverse change, in Bank’s reasonable judgment, occurs in Client’s business or financial condition; (b) Bank has reason to believe that Client has engaged in suspicious, fraudulent or illegal activity; (c) Client fails to maintain balances in Accounts sufficient to cover overdrafts or proper funding for any banking activities; (d) Client violates the terms of the Agreement or any financing arrangement with Bank; (e) Client fails to provide financial information reasonably requested by Bank; (f) Bank determines it is impractical or illegal to provide any Treasury Management Service because of changes in laws, regulations or rules; or (g) Bank, in good faith, is unable to satisfy itself that Treasury Management Services have been properly authorized by Client. Notwithstanding any termination, the terms of the Agreement will apply to (i) all transactions which have been initiated prior to termination and (ii) Client’s payment obligations with respect to such transactions.
31. Representations and Warranties
a) Client agrees to provide Bank with copies of Client’s organizational documents. If Client is a corporation, limited liability company, or other entity, Client represents and warrants to Bank that the electronic or written authentication of this Agreement has been duly authorized by resolutions heretofore adopted by Client’s Board of Directors and/or by action of Client’s shareholders, members or owners in accordance with law and Client’s by-laws or operating agreement, that said resolutions have not been amended nor rescinded, are in full force and effect, and that the Authorized Signer(s) are duly authorized so to act. If Client is a partnership, limited partnership, trust, or similar entity, each person and/or entity authenticating the Agreement on Client’s behalf represents and warrants to Bank that each such person or entity is duly authorized to authenticate the Agreement for and on Client’s behalf, and that said authentication fully complies with the Client’s organic documents. In accepting the Agreement, Bank is expressly relying upon these representations and warranties.
b) Client will supply any information that Bank may reasonably request including, but not limited to, supplemental instructions and further evidence of any Users authority to transfer funds or to do any other act contemplated under the Agreement.
32. Dispute Resolution
In the event of a dispute between Bank and Client with respect to any issue arising out of or relating to the Agreement in any manner, excluding any claim for amounts due Bank hereunder, a breach of confidentiality or a claim for indemnification, such dispute shall be determined by arbitration. Arbitration shall be conducted before an arbitrator chosen as follows: either (a) Bank and Client shall together agree on a mutually acceptable arbitrator or (b) Client shall select one arbitrator and Bank shall select one arbitrator, and these two arbitrators shall choose a third arbitrator who will act as arbitrator hereunder. The arbitrator’s decision shall be final and binding upon all parties concerned. Such decision shall be rendered within thirty (30) days of the closing of the hearing record. The arbitration proceedings conducted hereunder shall be conducted in the state where the main office of Bank is located, and each party shall bear its own costs. The arbitration shall be conducted in accordance with the rules of the American Arbitration Association or JAMS at the discretion of the party submitting the claim. The exclusive venue for any and all proceedings commenced with respect to arbitration of any issue arising out of or relating to this Agreement, including without limitation the breach thereof, shall be the Circuit Court for county where the main office of Bank is located. Judgment upon the award rendered by the arbitrator(s) shall be entered in the Circuit Court for county where the main office of Bank is located. No award of punitive damages by the arbitrator(s) may be enforced.
a) From time to time, Bank may amend any of the terms and conditions contained in this Master Agreement and any Service Terms & Conditions, Set-up Schedules or exhibits thereto. By continuing to use any Treasury Management Service after notice of such amendment, Client shall be deemed to have agreed to such amendment and shall be bound by this Master Agreement or such Service Terms & Conditions, as amended.
b) From time to time, Bank may request or Client may submit updated Set-up Schedules or exhibits. Such Schedules or exhibits must be submitted in writing, be executed by a properly authorized person, and otherwise be acceptable to Bank. Updated Schedules and exhibits will be effective on the third Business Day following the Business Day of Bank’s receipt of the same or at such later date as Client may request.
34. Binding Effect of Agreement
The Agreement shall bind and benefit Bank and Client and their legal representatives, successors and assigns. None of the terms of the Agreement may be waived except as Bank may consent in writing, and no agreement with or representation made by any employee of Bank that is in conflict with the Agreement will be binding on Bank unless contained in a written modification of the Agreement, signed by an authorized officer of Bank. No delay on the part of Bank in exercising any right or power under the Agreement shall operate as a waiver thereof. The rights and remedies under the Agreement are cumulative and not exclusive of any rights or remedies which Bank would otherwise have.
Except as otherwise expressly provided herein, any written notice or other written communication required or permitted to be given under the Agreement shall be delivered, or sent by United States first class, registered or certified mail, postage prepaid, by certified email with a digital signature or by express carrier to the address on file.
If any term, covenant or condition of the Agreement were declared invalid or unenforceable, the remainder of the Agreement will be unaffected and each term, covenant or condition will be valid and enforced. If Bank’s performance of the Treasury Management Services in accordance with the terms of the Agreement would result in a violation of any existing or future law, rule or regulation to which Bank is subject, then the Agreement will be deemed amended to the extent necessary to comply with that law, rule or regulation, and Bank will incur no liability to Client as a result of such violation or amendment. The Agreement will be construed in accordance with and governed by the laws of the State where the main office of Bank is located. The Agreement may not be assigned to any other party by Client. Bank may assign or delegate, in part or whole, this Agreement to any third party. Section headings are for convenience only and will not affect the meaning of the provisions hereof. Sections 2-3, 5, 7-8, 10-13, 21-22, 28, 33, 35 and 36 will survive termination of the Agreement or any Service Terms & Conditions.
Part II: BUSINESS ONLINE AND MOBILE BANKING SERVICES
1. Scope of the Services
Business Online Banking will provide Client’s Users with access via Client’s personal computer or other device with Internet connectivity to those Services Client has selected. Client may also enroll in Business Mobile Banking and perform similar functions with a Mobile Device, as provided in Section 7 below; and may enroll in Mobile Deposit as provided in Section 8 below. Any loan or line of credit that Client accesses by Business Online Banking or Mobile Banking will remain subject to the loan documents between Client and Bank. Except as otherwise provided herein, any request for Business Online Banking that Bank receives prior to Bank’s End of Day on any Business Day will be processed on the Business Day of receipt. Except as otherwise provided herein and on Bank’s website, any request Bank receives after Bank’s End of Day on any Business Day will be processed on the next Business Day.
2. Equipment and Software
a) In order to utilize Business Online Banking, Client must have the appropriate Equipment meeting the system requirements and other criteria established by Bank (as detailed in Bank’s Resource Center on its website) and Internet access. Client understands and agrees that it is Client’s sole responsibility to obtain, install, operate and maintain its Equipment in accordance with the instructions of the equipment manufacturer. Client assumes sole responsibility for any and all loss, damage or injury arising with respect to any failure of its equipment.
b) The Business Online Banking program materials are confidential and proprietary and Client may not modify, duplicate or make the materials available to any third party by any arrangement without Bank’s prior written consent. Client may use the materials exclusively for the purpose of accessing Business Online Banking.
3. Business Online Banking Functions
The functions available through Business Online Banking at the time of these Service Terms & Conditions are described below and are more fully described in the online “Help” screens.
a) Balance Reporting. Those Users to whom Client permits access to these functions may request and receive all Account information about one or more of the specified Accounts. This includes: the Account balance information, the status and description of any or all Items, Debits or Credits or charges related to the Account, the Account history and all other information about activity associated with the Account. Client’s Users are able to import or export data to or from Business Online Banking.
The balance of the Accounts linked to the Online or Mobile Services may change at any time as Bank processes items and fees against them, and the information provided to Client through a Service may become quickly outdated. Financial information obtained through Business Online Banking (including, without limitation, any text message alerts sent to a Mobile Device) reflects the most recent Account information available through the Service and may not be accurate or current. Client agrees that neither Bank nor Bank’s Service Provider will be liable for any errors or delays in the content, or for any actions taken in reliance thereon.
b) Stop Payments. The “Stop Payment Order” feature allows Client’s User to use Business Online Banking to request that Bank stop payment of any Item payable for an Account to which that User has access.
i) The User whom Client specifies is allowed to transmit Stop Payments through Business Online Banking has full authority to do so without a written signature on file at Bank.
ii) A Stop Payment placed by Client using Stop Payment shall be considered to be “in writing” for all legal purposes. Client will not receive written confirmation of an order placed using Stop Payment online. When Client uses Business Online Banking to request a Stop Payment order, Client’s order will remain valid for the period specified in the original Stop Payment request. Client acknowledges that (A) Bank will not, and will not be required to, notify Client of the expiration of any order; (B) it is Client’s sole responsibility to keep track of the expiration dates of, and/or renew, all such orders; and (C) Stop Payment orders are subject to the rules of the Uniform Commercial Code. If Client wishes to extend Client’s Stop Payment order beyond the expiration of Client’s initial request, Client must contact Bank and follow Bank’s procedures for renewing Stop Payment orders.
iii) Client will incur a fee in the amount specified on Bank’s Fee Schedule for each Stop Payment request transmitted through Business Online Banking.
c) Funds Transfer. The “Funds Transfer” feature allows Client’s Users to use Business Online Banking to request transfers between those Accounts to which the User has access provided that the User has access to both Accounts. Funds Transfers will be processed on the same Business Day until End of Day.
d) Commercial Loan. The “Commercial Loan” function enables Client’s User to request that Bank deduct funds from a deposit Account and apply those funds as a payment to reduce the principal and/or interest amount outstanding under a loan Account. Client’s User may also request that Bank advance funds from the Line of Credit for transfer to another deposit Account increasing the principal and/or interest amount outstanding under a loan Account. Those Users to whom Client permits access may request and receive all Account information about one or more of the specified loan Accounts. This includes balance and interest information, along with historical activity.
4. Security Procedures
Bank uses multi-level and multi-factor authentication in connection with Business Online Banking to help prevent unauthorized access to Accounts. Notwithstanding any other provision of these Service Terms, to the extent Client effects transactions via Business Online Banking without using these Security Procedures, Client will be precluded from asserting any claims against Bank for paying unauthorized, altered, counterfeit or other fraudulent items that such Security Procedure was designed to detect or deter, and Bank will not be required to re-credit Client’s Account or otherwise have any liability for paying such items.
a) Identification. A unique User identification code and password will be established for each User. Client must develop adequate internal procedures to prevent the disclosure of the codes and passwords to other persons and the unauthorized use of Business Online Banking. Bank will have no knowledge of the passwords established for each User and will have no responsibility for ensuring compliance with the procedures Client develops for protecting the confidentiality of such identifications.
b) Secure Access Codes. Out-of-Band email and phone number access codes are used with certain Internet and Mobile
c) Secure Socket Layer (SSL). Until notified otherwise by Bank, Client will use software that supports the SSL
protocol, or other protocols accepted by Bank, and will follow Bank's log-on procedures that support such protocols. Client acknowledges that Bank is not responsible for: (i) notifying Client of any upgrades, fixes or enhancements to any such software; or
(ii) any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. With the exception of applications commonly known as web browser software, or other applications formally approved by Bank in writing, Client agrees not to: use any software, program, application or any other device to access or log on to Bank's computer systems, website or proprietary software; or automate the process of obtaining, downloading, transferring or transmitting any information to or from Bank's computer systems, website or proprietary Software.
d) Security Tokens. Bank also requires use of a one-time access code generated by Client’s Security Tokens for Clients with the ability to originate external transactions. The generated code can only be used once to provide a Business Online Banking authentication. A different code will be generated by the Security Token each time it is used. Bank will have no responsibility for ensuring compliance with the procedures Client develops for protecting the security of the Security Tokens.
i) Client is responsible for tracking Security Tokens issued to Users. In particular, Client must confirm that the Security Tokens issued in tangible form are kept safe and secure, in Client’s possession and or the possession of Client’s Users at all times and that Users do not share Security Tokens or permit them to be copied, reverse engineered or otherwise tampered with. Further, Client and Client’s Users must not use the Security Tokens for other than for the purpose of identifying themselves to Bank in relation to Business Online Banking, and Client may not transmit or otherwise send the Security Tokens to any other unauthorized party.
ii) If Client suspects any impropriety on the part of any User in connection with use of a Security Token or if a User with a tangible Security Token is leaving Client’s employment, Client must take immediate steps to ensure that the User is prevented from further access to Business Online Banking, including recovery, returning any tangible Security Token to Bank, or reassignment of the Security Token issued to the relevant User in such manner as designated by Bank.
iii) Bank will not be liable to Client or to third parties for any loss whatsoever arising from unauthorized use of Security Tokens.
iv) Bank grants Client and Client’s Users non-exclusive, non-transferable rights to the Security Tokens. Title to and rights in the Security Tokens reside in Bank and, except for specific rights granted to Client by license, neither Client nor any of Client’s Users will acquire any rights whatsoever in the Security Tokens. Bank will make all reasonable efforts to ensure that the Security Tokens will perform as necessary to permit Client’s access to Business Online Banking. BANK DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, PERFORMANCE, CONTINUOUS USE OR ERROR- FREE OPERATION. Client must notify Bank immediately if any Security Token fails to function and is responsible for the cost of replacing lost or damaged devices.
e) Dedicated Device. It is highly recommended that Client use a Dedicated Device to secure Business Online Banking activities in order to limit the possibility of viruses, malware or other software to be inadvertently downloaded to the device that could result in unauthorized access to the Client’s account. For this purpose, a “Dedicated Device” is a single computer or other device for online banking activity that is never used for reading email or browsing anywhere else on the web that:
• Has an Internet browser that is restricted to the Business Online Banking site;
• Has a firewall that is configured to restrict sharing and restricts the device to the Business Online Banking site;
• Disables the use of media components such as USBs and CDs to prevent transmission into or from the device;
• Prevents the computer/User from running any other business applications other than the browser for Business Online Banking;
• Includes a process to prevent the device from being used to browse the Internet other than for accessing the Services; and
• Prohibits wireless connectivity.
5. Bank’s Responsibilities and Limitation of Liability
Bank will use Bank’s best efforts to provide Client with access to Business Online Banking in accordance with the provisions of these Service Terms & Conditions. However, in addition to the limits of liability in the Master Agreement, Bank will not be liable to Client for any damages whatsoever arising in connection with a failure of the communications network, the Equipment or the Services, or in connection with events beyond Bank’s control. Because Business Online Banking utilizes information contained in Bank’s databases that may not necessarily reflect all current transactions, Bank will not be liable to Client for any damages whatsoever arising in connection with the accuracy or completeness of information supplied through Business Online Banking regarding Client’s Accounts.
6. Rejection of Business Online Banking Requests
Bank will have the right, but not the obligation, to reject any request transmitted via Business Online Banking if the request was incomplete or inaccurate in any respect, or if the request involves a transfer of funds from an Account in which there are insufficient Available Funds to cover the request. Should Bank, at Bank’s sole option, elect to honor a transfer request against insufficient funds, Client agree to pay Bank immediately upon demand any overdraft amounts, together with any and all overdraft fees and charges that may be assessed against Client’s Account in accordance with the terms of Account Agreement.
7. Business Mobile Banking
Based on the permissions established in Business Online Banking, Client may use Mobile Banking in the same manner Client uses Business Online Banking, to: (a) view current balance information for Accounts linked to the Service; (b) review available transactions for Accounts; (c) transfer funds between Accounts on a one-time basis; (d) view Account alerts and notifications; (e) submit a Bill Payment to Payees previously set up via Business Online Banking; (f) pay eBills; and (g) view payment history. In addition, Users may approve or reject ACH batch files for processing; approve or reject Wire Transfer requests; and approve or reject Positive Pay Exceptions.
a) Restrictions on Use.
i) Client will not use the Mobile Service in or for any illegal, fraudulent, unauthorized or improper manner or purpose and will only use it in compliance with all applicable laws, rules and regulations, including all applicable state, federal, and international Internet, data, telecommunications, telemarketing, “spam,” and import/export laws and regulations, including the U.S. Export Administration Regulations. Without limiting the foregoing, Client will not use the Mobile Services to transmit or disseminate: (A) junk mail, spam, or unsolicited material to persons or entities that have not agreed to receive such material or to whom Client does not otherwise have a legal right to send such material; (B) material that infringes or violates any third party’s intellectual property rights, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its clients or subscribers; (C) material or data that is illegal, or material or data, as Bank determines (in Bank’s sole discretion), that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm Bank’s or Bank’s Service Provider’s reputation; (D) material or data that is alcoholic beverage- related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs-related (e.g., marijuana, cocaine), pornographic- related (e.g., adult themes, sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e.g., funeral homes, mortuaries), hate-related (e.g., racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or services of any wireless carrier; (E) viruses, Trojan horses, worms, time bombs, cancelbots, or any other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; (F) any material or information that is false, misleading, or inaccurate; (G) any material that would expose Bank or any of Bank’s Affiliates or Bank’s Service Provider, or any other third party, to liability; or (H) any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of the Service Provider and its Affiliates, or any other third party.
ii) Client will not attempt to: (A) access the Mobile Services for a use that has not been authorized; (B) use or attempt to use a third party’s account; (C) interfere in any manner with the provision of a Mobile Service, the security of a Mobile Service, or other customers of a Mobile Service; or (D) otherwise abuse the Mobile Services.
b) Security Procedures. Client must comply with the Security Procedures for the Mobile Services, as they may be revised from time to time. Client will login and complete the Enrollment Process using the assigned secure access code. Client is solely responsible for keeping Client’s applicable User ID, passcodes, and other access/ Account information relative to the Mobile Services secret and confidential, and Client shall not disclose such information to any unauthorized person and shall take all steps necessary to prevent discovery of such information by any unauthorized person. Client must inform Bank as soon as reasonably practicable if Client knows or suspects that someone else knows such information or that unauthorized transactions have taken place and if Client fail to do so Client may be liable for any unauthorized transactions made.
c) Liability/ Fees and Charges. Neither Bank, Bank’s Affiliates nor the Service Provider will be liable for any errors in the content of information obtained or transmitted through the Mobile Services, or for any actions taken in reliance thereon (including, but not limited to, the type of alerts and other preferences Client select). Client is responsible for any and all charges, including, but not limited to, fees associated with text messaging or data usage rates imposed by Client’s telecommunications carrier. Bank is not responsible for any damages resulting from Client’s failure to comply with any terms and conditions provided by any telecommunications carrier or any app store. Any losses or charges incurred through the loss of a Mobile Device or the safeguarding (or failure to adequately safeguard) of User IDs and passcodes will remain Client’s sole responsibility.
d) Privacy and User Information. In connection with Client’s use of Mobile Banking, Bank and the Service Provider may receive and may share with one another names, domain names, addresses, passwords, telephone and device numbers, the content of messages, data files and other data and information provided by Client or from other sources in connection with the Mobile Services. Bank and the Service Provider will maintain reasonable safeguards to protect the User information from unauthorized disclosure or use, but Bank reserves the right to use and disclose the User information as reasonably necessary to deliver the Mobile Services and as otherwise permitted by law, including, without limitation, compliance with court orders or instructions from a Government agency, to protect the personal safety of subscribers or the public, to defend claims, and as otherwise authorized by Client.
Bank and the Service Provider also reserve the right to monitor the use of Mobile Banking for purposes of verifying compliance with applicable law, these Service Terms & Conditions and any applicable license, but disclaim any obligation to monitor, filter, or edit any content.
e) Mobile Banking Limitations. It is important that Client understands the limitations of the Mobile Services, including but not limited to the following:
i) Because Mobile Banking is accessible only through Client’s Mobile Device, Client’s access to the Mobile Services may be limited by the service provided by Client’s telecommunications carrier.
ii) There may be technical or other difficulties related to Mobile Banking. These difficulties may result in loss of data, personalized settings or other the Service interruptions. Bank does not assume any responsibility for the timeliness, deletion, or misdelivery of any user data, failure to store user data, communications or personalized settings in connection with Client’s use of a Mobile Banking; nor for the delivery or the accuracy of any information requested or provided through Mobile Banking.
iii) Bank reserves the right to block access or delete the Mobile Banking Software from Client’s Mobile Device if Bank or Bank’s Service Provider has reason to believe Client is not complying with these Service Terms & Conditions, or has reason to suspect Client’s Mobile Device has been infected with malicious software or virus.
8. Mobile Deposit
a) For Mobile Deposit, Client must enroll in the Service and Users must download Bank’s Mobile Banking App on their Mobile Devices. All of the terms applicable to the Remote Deposit Capture Service, including Client’s representations and warranties and limitations, apply to Mobile Deposit. Each Check must be endorsed “For Mobile Deposit to GUARANTY Bank."
Part III: SERVICE TERMS & CONDITIONS
The following Service Terms & Conditions for each Service apply when Client completes the appropriate Set-up Schedules for the Treasury Management Service(s) identified below (which are accepted by Bank) or when Client otherwise uses a Service. The Service Terms & Conditions for each Service shall apply only to the described Service and shall not be applicable to Services not used by Client.
ACH ORIGINATION SERVICE TERMS & CONDITIONS
1. Scope of ACH Service
These Service Terms & Conditions set forth the terms and conditions under which Client will use Bank’s ACH Origination Service to initiate Credit and/or Debit Entries and under which Bank will act as an Originating Depository Financial Institution (“ODFI”) with respect to such Entries.
Unless otherwise defined herein, capitalized terms will have the meanings provided in the Master Agreement and the NACHA Rules.
3. Transmittal of Entries by Client
Client shall transmit Credit and Debit Entries to Bank on or before the daily deadline established through Business Online Banking. Same Day Entries may be initiated with the prior approval of Bank and subject to a fee disclosed by Bank, as long as the amount is less than the per Item thresholds established by NACHA and the format requirements are met. The total dollar amount of Entries transmitted by Client for any given Settlement Date shall not exceed the approved Daily Exposure Limit, which is established by Bank as part of Client’s set up and is reflected on the Set-up Schedule. The exposure limit may be changed in Bank’s discretion.
a) Each Entry initiated by Client will be prepared and submitted in mutually agreed-upon medium and in format specified by Bank and the NACHA Rules. Bank may reject or refuse to execute an Entry or files or tapes containing Entries not prepared in accordance therewith. Bank processes CCD, CTX and PPD Entries as part of its standard service package, including child support and tax payments. ARC, WEB and TEL Entries may be processed as additional services and will require Client to make additional representations and warranties. Bank will notify Client if it determines to process additional types of Entries.
b) In submitting any Entry, Client is responsible for providing all information required by Bank. Client bears sole and exclusive responsibility to verify that the information set forth in Entries submitted to Bank is authentic, accurate and conforms to the NACHA Rules. The Service provided hereunder is only designed to respond to information provided by Client. Accordingly, any inaccuracy in any information provided by Client may result in unintended processing by Bank. Bank bears no responsibility for detecting or reporting any error in data supplied by Client and shall not be liable to Client for any information provided by Client with respect to an Entry, which is inaccurate, incomplete or otherwise incorrect.
c) Client shall ensure that any Addenda Information, in the form of payment, remittance or related data that Client seeks to transmit electronically through Bank in conjunction with an Entry, is accurate, in proper form, and conforms to any and all requirements of the NACHA Rules. Bank reserves the unrestricted right to decline to transmit any Addenda Information on the basis that it is unreadable or non-processable as well as for any other reason provided for under the NACHA Rules. In the event that Bank agrees to transmit and/or receive any Addenda Information on Client's behalf, Bank shall not be responsible for insuring and/or maintaining the confidentiality of any such Addenda Information.
4. Security Procedures
a) Entries transmitted via Bank’s Business Online Banking Service must comply with the Security Procedures described in Part II hereof with respect to Entries transmitted by Client to Bank, including the use of Security Tokens. Bank standard is to require that each batch file delivered through Business Online Banking be created or modified by means of Dual Control. Bank strongly recommends that Client elect to use Dual Control. In addition, voice/PIN approvals may be made via Mobile Device under the Mobile Banking terms. Bank also employs ACH monitoring Software. Client acknowledges that the purpose of such Security Procedures is for verification of authenticity and not to detect an error in the transmission or content of a Request. No Security Procedures for the detection of any such error has been agreed upon by Bank and Client. Client has the option of receiving email and/or text message alerts with file totals and agrees to act upon these alerts when received and contact Bank for any questionable transactions. If Client elects to receive text message alerts, standard text message rates may apply. If Client chooses not to receive alerts, Client cannot hold Bank responsible for fraudulent or incorrect files.
b) If an Entry (or a request for cancellation or amendment of an Entry) received by Bank purports to have been transmitted or authorized by Client, it will be deemed effective as Client’s Entry (or request) and Client shall be obligated to pay Bank the amount of such Entry even though the Entry (or request) was not authorized by Client, provided Bank accepted the Entry in good faith and acted in compliance with the Security Procedures with respect to such Entry.
5. Processing, Transmittal and Settlement by Bank
a) Except as provided in Section 6, On-Us Entries, and Section 7, Rejection of Entries, Bank shall (i) process Entries received from Client to conform with the file specifications set forth in the NACHA Rules; (ii) transmit such Entries as an ODFI to the Chicago Federal Reserve acting as an Automated Clearing House Operator, and (iii) settle for such Entries as provided in the NACHA Rules.
b) Bank shall transmit such Entries to the ACH Operator prior to the Effective Settlement Date shown in such Entries, provided (i) such Entries are received by Bank’s related Cut-off Time on a Business Day; (ii) except for Same Day Entries, the Effective Entry Date is at least one day prior to Effective Settlement Date; and (iii) the ACH Operator is open for business on such Business Day. Entries shall be deemed received by Bank in the case of transmittal by electronic transmission, when the transmission (and compliance with any related Security Procedures provided for herein) is completed.
c) If any of the requirements of clause, (i), (ii), or (iii) of Section 5(b) is not met, Bank shall use reasonable efforts to transmit such Entries to the ACH Operator by the next deposit deadline of the ACH Operator which is a Business Day and a day on which the ACH Operator is open for business.
6. On Us Entries
Except as provided in Section 7, Rejection of Entries, in the case of an On Us Entry received for credit or debit, Bank shall credit or debit the Receiver’s account in the amount of such Entry on the Effective Settlement Date contained in such Entry, provided the requirements set forth in clauses (i) and (ii) of Section 5(b) are met. If either of those requirements is not met, Bank shall use reasonable efforts to credit the Receiver’s account in the amount of such Entry no later than the next Business Day following such Effective Settlement Date.
7. Rejection of Entries
Entries may be rejected by Bank or the ACH Operator for reasons specified in the NACHA Rules. Bank may reject any Entry which does not comply with the requirements of Section 3, Transmittal of Entries by Client, or Section 4, Security Procedures. Bank may reject an On Us Entry, for any reason for which an Entry may be returned under the NACHA Rules. Bank may reject any Entry if Client has failed to comply with its account balance obligations under Section 13, Payment; Prefunding. Bank shall notify Client by phone, fax, electronic transmission, secure email or in writing of such rejection no later than the Business Day such Entry would otherwise have been transmitted by Bank to the ACH Operator or, in the case of an On Us entry, its Effective Settlement Date. Notices of rejection shall be effective when given. Bank shall have no liability to Client by reason of the rejection of any such Entry or the fact that such notice is not given at an earlier time than that provided for herein. Client may remake any rejected Entry as long as it corrects the cause of the rejection.
8. Returns and Notifications of Change
a) Returns. Bank shall notify Client by phone, fax, electronic transmission, email (including the Fed ACH Payments Reporter Service or ARS Reporter Service) or in writing of the receipt of a returned Entry from the ACH Operator no later than one Business Day after the Business Day of such receipt. Except for an Entry retransmitted by Client in accordance with the requirements of Section 3, Transmittal of Entries by Client, Bank shall have no obligation to reinitiate a returned Entry to the ACH Operator if Bank complied with the terms of these Service Terms & Conditions with respect to the original Entry. Client shall be responsible for remaking and resubmitting any Debit Entries returned due to nonsufficient or uncollected funds, except where Client requests, and Bank is capable, Bank will automatically redeposit Debit Entries returned due to insufficient or uncollected funds. Neither Client nor Bank shall knowingly resubmit Debit Entries returned due to stop payment, revocation or termination of authorization. Client shall be responsible for collecting any such funds due to it by other means. Bank may debit the Account for all funds that Client has received for Entries that are subsequently returned.
b) Limits on Reinitiation of Returned Entries. Client’s rights to reinitiate a returned Entry under the NACHA Rules is limited: (i) where Client requests, and Bank is capable, Bank may reinitiate Debit Entries returned due to insufficient or uncollected funds, but not more than two times following the return; (ii) Client may also reinitiate an Entry when corrective action has been taken to remedy the reason for the return; (iii) neither Client nor Bank shall knowingly resubmit Debit Entries returned due to stop payment unless reinitiation has been separately authorized by the Receiver after the Entry was returned; and (iv) Client may not reinitiate Entries returned as unauthorized or returns due to revocation or termination of an authorization. Entries must in all events be reinitiated no later than 180 days of the Settlement Date of the original Entry.
c) Excess Return Rates. Bank will monitor the return rates of Client’s Entries and may require corrective action in the event of excess return rates. Bank will require a detailed plan from Client (no later than ten (10) Business Days after request) to reduce return rates considered excessive under the NACHA Rules or may terminate these Service Terms & Conditions. Bank may charge Client any fines or fees assessed against it by NACHA or an RDFI for returned Entries.
d) Dishonor of Returned Entry. Bank may dishonor a returned Entry to the RDFI if the returned Entry was untimely, contained incorrect information, was misrouted, was a duplicate, or resulted in an unintended credit to a Receiver related to the reversal process. Bank will transmit any dishonored return Entry within five (5) Business Days of the Settlement Date of the return.
e) Notification of Change. Bank shall provide Client all information, as required by the NACHA Rules, with respect to each Notification of Change (“NOC”) Entry or Corrected NOC Entry received by Bank relating to Entries transmitted by Client. Bank will provide such information to Client by phone, fax, electronic transmission, email (including the Fed ACH Payments Reporter Service or ARS Reporter Service) or in writing no later than one Business Day after the Business Day of such receipt of each NOC or Corrected NOC Entry. Client shall ensure that changes requested by the NOC or Corrected NOC (except NOCs that are in response to a prenotification) are made within six (6) Business Days of Client’s receipt of the NOC information from Bank or prior to initiating another Entry to the Receiver’s account, whichever is later. Bank may refuse an NOC containing incorrect or incomplete information.
9. Reversals and Adjustments
a) Reversals. Client or Bank may initiate Reversing Entries as permitted by the NACHA Rules in the event that previously originated data is erroneous or duplicated. In so doing, Client warrants that it has initiated Reversing Entries or files within five (5) Business Days of the original Entry or Entries and within twenty-four (24) hours of discovery of the error. Client also warrants that the account holder of a Reversing Entry has been notified of the reversal, and the reason for the reversal, no later than the settlement day of the reversal. For both Reversing Entries and files, Client shall indemnify all parties to the transactions(s) from and against any claim, demand, loss, liability or expense.
b) Adjustments. Bank will give Client prompt notice of Adjustment Entries received by Bank, and Bank is authorized to debit or credit the Account for such Adjustment Entries.
10. Cancellations or Amendment by Client
Client shall have no right to cancel or amend any individual Entry after release to the ACH Operator, except as permitted by the NACHA Rules. However, if such request complies with the Security Procedures, Bank will use reasonable efforts to act on a request by Client for cancellation of an Entry batch or file prior to transmitting it to the ACH Operator or, in the case of an On Us Entry, prior to crediting a Receiver’s account. Bank shall not be responsible if such cancellation is not effected. Client shall reimburse Bank for any expenses, losses, or damages Bank may incur in effecting or attempting to effect the cancellation or amendment of an Entry. Reversals have to be accomplished in accordance with NACHA Rules.
At its option, Client may send prenotification that it intends to initiate an Entry to a particular account in accordance with the procedures set forth in the NACHA Rules or as established by Bank. Client may not initiate live dollar Entries until at least three (3) Business Days following the Settlement Date of the prenotification (as long as there is not a return or NOC related to the prenotification received by Bank by the opening of business on the second Business Day following such Settlement Date). The prenotification can be returned or result in an NOC. If the prenotification is returned, Client shall research the reason for return and make any necessary corrections before transmitting another Entry. If the prenotification results in an NOC that Bank receives by the opening of business on the second Business Day following such Settlement Date, Client must make the required changes prior to a subsequent Entry to the Receiver’s account. If the NOC is received after that time, Client must make required changes within six (6) Business Days or prior to a live Entry, whichever is later.
12. Right to Refund for Debit Entries
When initiating a Debit Entry, Client acknowledges the right of a third party to stop payment on such Entry to a Consumer's account or to obtain a return of the funds withdrawn from a Consumer's account in accordance with the procedures set forth in the NACHA Rules and pursuant to Regulation E. Client shall promptly reimburse Bank for all funds Client has received when a Consumer follows these procedures.
13. Payment; Prefunding
a) Client Payment. Bank shall debit Client’s Account for the amount of each Credit Entry that Client transmits to Bank pursuant to these Service Terms & Conditions and for each Debit Reversal on the Effective Settlement Date, unless Client prefunds Credit Entries by paying for them on the same date as the Entries are received by Bank. Bank reserves the right at any time to require such payment before Bank processes Credit Entries. Client will immediately pay Bank for any returned Debit Entry and any adjustment Entries Bank previously credited to the Account.
b) Bank Payment. Bank shall pay Client the amount of each Debit Entry transmitted by Bank pursuant to these Service Terms & Conditions at such time on the Effective Settlement Date with respect to such Debit Entry as Bank, in its discretion, may determine, and the amount of each On Us Entry at such time on the Effective Entry Date with respect to such Entry as Bank, in its discretion, may determine. Bank reserves the right, in its discretion, to delay payment of any or all Debit Entries to Client hereunder. Bank shall promptly pay Client the amount of each Credit Entry returned by an RDFI that was transmitted by Bank pursuant to these Service Terms & Conditions.
c) Accounts. Bank may, without prior notice or demand, obtain payment of any amount due and payable to it under these Service Terms & Conditions by debiting the Accounts identified as Client’s Accounts on Entries that Client transmits to Bank hereunder. Client shall at all times maintain a balance of Available Funds in the Account sufficient to cover its payment obligations under these Service Terms & Conditions. In the event there are not sufficient Available Funds in the Account to cover Client’s obligations under these Service Terms & Conditions, Client agrees that Bank may, but it is not obligated to, debit any account maintained by Client with Bank or any affiliate of Bank or that Bank may set off against any amount it owes to Client, in order to obtain payment of Client’s obligations under these Service Terms & Conditions.
d) Prefunding. Bank reserves the right from time to time and on written notice to Client to require Client to pay Bank in collected funds the amount of any Entry up to three (3) Business Days in advance of transmittal of the Entry by Bank or otherwise to require adequate collateral to secure in advance the amount of such payment. Once Bank has given written notice of such requirement, Client agrees to comply with this prepayment or collateralization obligation until such time as Bank shall give notice in writing waiving all or any part of such requirement.
14. Client Representations and Agreements; Indemnity
In addition to the representations and warranties of Client that may be included in the Master Agreement, Client represents, warrants and agrees that with respect to each and every Entry transmitted by Client:
a) Each person or company shown as the Receiver on an Entry received by Bank from Client has authorized the initiation of such Entry and the crediting or debiting of its account in the amount and on the Effective Settlement Date shown on such Entry.
b) Such authorization is operative at the time of transmittal or crediting or debiting by Bank as provided herein and has not been revoked.
c) Entries transmitted to Bank by Client are limited to those types of Credit or Debit Entries authorized by Bank.
d) Client shall perform its obligations under these Service Terms & Conditions in accordance with the NACHA Rules and all applicable laws and regulations. Without limiting the foregoing, with respect to each and every Entry transmitted by Client, Client represents and warrants to Bank and agrees that (i) it will not initiate any transactions in violation of the requirements or sanctions of OFAC or act on behalf of, or transmit funds to or from, any party subject to OFAC sanctions, and (ii) it will not initiate any transactions in violation of or restricted under the UIGEA or its implementing regulations.
e) Client shall, with respect to information transmitted or exchanged between Client and the ODFI, RDFI, ACH Operator or a Receiver using an Unsecured Electronic Network, both prior to the key entry and through transmission of any such information (i) Encrypt the information or (ii) transmit or receive the information via a secure session, in either case using a commercially reasonable security technology that complies with applicable regulatory requirements. Client shall implement advancements to such encryption technology as they become available.
f) Client shall be bound by and comply with the provision of the NACHA Rules (among other provisions of the NACHA Rules) making payment of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry. Client specifically acknowledges that it has received notice of the rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Client shall not be deemed to have paid the Receiver the amount of the Entry. Client shall indemnify Bank against any loss, liability or expense (including attorneys’ fees and costs) resulting from or arising out of any breach of any of the foregoing warranties, representations, or agreements.
g) If a Receiver alleges an error under the Electronic Fund Transfer Act, Regulation E or any other applicable law with regard to a Debit Entry, including a claim that a Debit Entry was unauthorized, Client shall promptly investigate the claim of error and shall, upon Bank’s request, provide Bank with copies of all documentation relating to such error to allow for appropriate adjustments to the Receiver’s account, if any are required.
15. Bank Responsibilities; Liability; Limitations on Liability; Indemnity
a) In the performance of the Service, Bank shall be entitled to rely solely on the information, representations, and warranties provided by Client pursuant to these Service Terms & Conditions, and shall not be responsible for investigating or confirming the accuracy or completeness thereof. Bank shall not be responsible for Client’s acts or omissions (including without limitation the amount, accuracy, timeliness of transmittal or authorization of any Entry received from Client) or those of any other person, including without limitation any Federal Reserve Bank (including any service provided by any Federal Reserve Bank), Automated Clearing House or transmission or communications facility, any Receiver or RDFI (including without limitation the return of an Entry by such Receiver or RDFI), and no such person shall be deemed Bank’s agent. Client shall indemnify Bank against any loss, liability or expense (including attorneys’ fees and expenses) resulting from or arising out of any claim of any person that Bank is responsible for any act or omission of Client or any other person described in this Section 15(a).
b) Without limiting the generality of the foregoing provisions and in addition to the limitations provided in the Master Agreement, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint (including, but not limited to, suspected violations of an OFAC sanctions policy), interruption of transmission or communication facilities, equipment failure, war, events of terrorism, emergency conditions or other circumstances beyond Bank’s control. In addition, Bank shall be excused from failing or delaying the transmission of an Entry if such transmittal would result in Bank’s exceeding any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines or if, in Bank’s reasonable judgment, such transmission involves possible fraudulent activity or would violate provisions of any present or future risk control program of the Federal Reserve, or any other rule or regulation of any other U.S. governmental regulatory authority.
16. Data Retention
Client shall retain data on file adequate to permit remaking of Entries for fourteen (14) Business Days following the date of their transmittal by Bank as provided herein, and shall provide such data to Bank upon its request. Without limiting the generality of the foregoing provision, Client specifically agrees to be bound by and comply with all applicable provisions of the NACHA Rules regarding the retention of documents or any record, including, without limitation, Client’s responsibilities to retain all items, source documents, and records of authorization in accordance with the NACHA Rules.
17. Evidence of Authorization
The NACHA Rules require Client to obtain authorizations from all Receivers, consumer and corporate, and Client shall retain such consents and authorizations for two years after they expire. Client must provide a copy of the authorization to Consumer Receivers for Debit Entries to be initiated (special rules are set forth in the WEB and TEL addenda) and must respond to Bank within five (5) Business Days of a request with an accurate record evidencing the Receiver’s authorization. Upon request, Bank will provide forms for authorizations.
18. Cooperation in Loss Recovery Efforts
In the event of any damages for which Bank or Client may be liable to each other or to a third party pursuant to the Services provided under these Service Terms & Conditions, Bank and Client will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party.
19. ACH Security Framework
The NACHA Rules require that each non-consumer Originator must establish, implement, and update, as appropriate, policies, procedures, and systems with respect to the initiation, processing, and storage of Entries that are designed to: (a) protect the confidentiality and integrity of Protected Information until its destruction; (b) protect against anticipated threats or hazards to the security or integrity of Protected Information until its destruction; (c) protect against unauthorized use of Protected Information that could result in substantial harm to a natural person. “Protected Information” for this purpose means the non-public personal information, including financial information, of a natural person used to create, or contained within, an Entry and any related addenda record. Such policies, procedures, and systems must include controls that comply with applicable regulatory guidelines on access to all systems used by such non-consumer Originator to initiate, process, and store Entries. Client agrees to develop and implement policies and procedures and establish oversight that will comply with the ACH Security Framework rule to ensure the protection of security and integrity of ACH sensitive data throughout its lifecycle. Client must also protect Depository Institution Account Numbers by rendering them unreadable when stored electronically no later than the time it reaches the Entry thresholds established by NACHA. Client shall notify Bank immediately upon learning that any unauthorized person may have gained access to sensitive ACH data as defined by the ACH Security Framework rule.
20. Financial Information and Audit
Client agrees to furnish Bank with financial statements, in a form acceptable to Bank, upon Bank’s request. Client further agrees to furnish Bank upon request with copies of Federal Tax Returns upon their preparation each year together with all other financial information reasonably requested by Bank. Bank shall have the right from time to time in its sole discretion to audit Client’s compliance with the terms of these Service Terms & Conditions, including Client’s compliance with the NACHA Rules and these Service Terms & Conditions, and to require that Client submit to Bank the results of Client’s self-assessment of such compliance in a form as required by Bank.
21. Client’s Use of Third-Party Service Provider
Client shall not engage a third-party service provider (“TPSP”) to generate and/or transmit Entries to Bank without the prior written consent of Bank and without requiring such TPSP to first enter into a written agreement with Bank setting out the relationship, rights and duties between such TPSP and Bank. Client agrees any such TPSP shall be Client’s agent for all purposes under this Service, including the right of Bank to give notices to the TPSP and receive directions from the TPSP, all on behalf of Client. The TPSP must also comply with the ACH Security Framework rule described above and submit to audits for compliance with the NACHA Rules. Client shall indemnify Bank against any loss, liability or expense, including reasonable attorney’s fees, with regard to a breach of these Service Terms & Conditions that may result from the actions of a TPSP.
ACH DEBIT BLOCK AND ACH POSITIVE PAY SERVICES TERMS & CONDITIONS
1. Scope of ACH Debit Block Service
These Service Terms & Conditions set forth the requirements for Bank to stop payment on all or some ACH Debit Entries to the Account(s). Client will provide Bank with the Debit Block specifications on the Set-up Schedule for Debit Entries on which Client desires Bank to stop payment to Client’s Account. Client agrees to comply with the NACHA Rules for all Entries.
a) Bank Rights and Responsibilities
i) Bank will automatically return any Debit Entry that meets the Debit Block specifications.
ii) Bank may also return an Entry that would be returned for any reason under the NACHA Rules. Bank may also pay any Entries, reversals or adjustments which Bank is required to accept under the NACHA Rules, operating circulars or any other applicable rule, guideline or regulation.
iii) The ACH Block Service does not apply to transactions between Client and Bank, and Bank may pay Entries that Client has authorized Bank to originate against Client’s Account (e.g., loan or credit card payments), whether or not Client has included these in Client’s authorization criteria.
b) If a Debit Block is terminated for any reason, Bank will no longer be obligated to monitor Entries against Client’s authorization criteria and will receive and accept or return Entries to Client’s account in accordance with Bank’s normal procedures. Client still has the right to return Entries in accordance with the NACHA Rules.
c) If Client also subscribes to the ACH Positive Pay Service, Client will still need to make Client’s pay or return decisions under Client’s ACH Positive Pay Service. Such decisions will supersede the terms contained in Client’s ACH Debit Block Service.
2. Scope of ACH Positive Pay Service
Client may use the ACH Positive Pay Service to allow specified ACH Debits to be debited to Client’s Account, and to decline to allow other specified ACH Debits to be so debited. Client may also use the ACH Positive Pay Service to establish rules to apply to future ACH Debits, so that such future ACH Debits will be allowed automatically.
a) Terms of Service
i) Bank may establish time periods and Cut-off Times within which Client may act on a particular ACH Debit, and may change such time periods and deadlines at any time without notice. Client may establish limits and restrictions on the types or rules that Client may establish with respect to ACH Debits.
ii) User permissions are established online for ACH Positive Pay. Client must access the daily reports of Exception Items via Business Online Banking. Using such website, Client must then notify Bank which Exception Items to Pay/Accept or which to Return. If Client fails to notify Bank by the Cut-off Time, Bank will handle the Exception Items in accordance with the prescribed default procedure of Pay/Accept.
iii) Where available Client may request to receive certain types of notifications of Client Exception Items. These notifications are further described in the applicable Schedules.
b) Bank Rights
Client acknowledges that Bank’s ACH Positive Pay Service does not preclude Bank’s standard ACH processing procedures, which may cause an ACH Entry to be dishonored even if Client instructions do not otherwise require Bank to return such ACH Entry. Client acknowledges that Bank’s ACH Positive Pay Service is intended to be used to identify and return ACH Entries which Client suspects in good faith are unauthorized. The Service is not intended to be used as a substitute for authorization instructions or to delay Client pay/accept return decisions on Exception Items, including and not limited to stop payment orders on ACH Entries which are not suspected in good faith to be unauthorized. If Bank suspects or deems, in Bank’s sole discretion, that Client is using the ACH Positive Pay Services contrary to those intentions, Bank may require Client to provide evidence that ACH Entries Bank returns pursuant to Client instructions were in fact unauthorized. In addition, Bank may hold Client liable for losses Bank sustains on ACH Entries which Bank is requested to return under such ACH Positive Pay Services and which Client does not reasonably establish as unauthorized ACH Entries.
ACCOUNT RECONCILIATION TERMS & CONDITIONS
1. Scope of Account Reconciliation Service
The purpose of the Service is to provide automated reconciliation of Client’s Account on the basis of an Electronic Issue File created in accordance with Bank and Client’s specifications.
Unless otherwise defined herein, capitalized terms have the meanings provided in the Master Agreement.
“Account Recon”: The reconciliation of Client’s Account by matching the Electronic Issue File against Checks paid from Client’s Account.
“Electronic Issue File”: Client’s prepared, transmitted file of Items issued against Client’s Account for purposes of performing Account Reconciliation.
“Outstanding Items List”: Bank’s report summary in electronic form provided at the end of the Reconciliation Period and providing the information required by Client.
“Paid Items List”: Bank’s report summary listing the reconciliation of Client’s Account reflecting the information required by Client.
“Reconciliation Period”: The accounting period, which Client has designated as being covered by the Service.
3. Transmission and Input of Electronic Issue File Information
On any day, whether or not a Business Day, on which Client issues a Check or other Debit Item drawn on the Account, Client shall prepare and electronically transmit to Bank, prior to the Cut-off Time, the Check Information identifying each Check issued. If Client is unable to electronically transmit Check Information on the day of such issue, Client shall electronically transmit such Check Information to Bank on the next Business Day. Bank shall input all Check Information received from Client into Bank's Account Recon system.
4. Security Procedures
Bank will set up Users on the Account Recon SFTP site and will establish credentials in order to permit them to download files from the site. Client acknowledges that the purpose of such Security Procedures is for verification of authenticity and not to detect an error in the transmission or content of a transaction. No Security Procedures for the detection of any such error has been agreed upon between Bank and Client.
5. Accuracy and Timeliness of Information
a) Bank will use reasonable efforts to provide the Paid Items List requested through the Service in a prompt fashion, but shall not be liable for temporary failure to provide timely information. In such event, Client shall be responsible for carrying out banking business through alternative delivery channels.
b) Client will notify Bank of non-receipt of Paid Items List no later than three (3) Business Days after the designated Reconciliation Period.
Client agrees to review Paid Items List and the Outstanding Items List promptly to insure accuracy, and completeness of the information. Client shall notify Bank within thirty (30) Business Days after receipt of any discrepancy. If Client fails to notify Bank within thirty
(30) Business Days after receipt of the Paid Items List that any information on the Paid Items List is inaccurate, incomplete, unclear, unreadable, or otherwise unacceptable, Client shall be deemed to have accepted the Paid Items List and Outstanding Items List and to have waived (a) any and all objections including but not limited to objections concerning its accuracy, completeness, clarity, readability or quality, and (b) the right to bring any action or raise any claim against Bank based on any such objection. Bank shall not be liable for any loss, including loss of interest, resulting from Client’s failure to give such notice and Client shall be precluded from asserting such discrepancy against Bank.
7. Stopping Payment or Voiding a Serial Number
a) If Client desires to stop payment on an issued Check, Client must issue a stop-payment order with respect to such Check in accordance with Bank's usual stop-payment procedures. Service fees will apply in accordance with such stop payment procedures.
b) If Client desires to void a Check serial number or range of Check serial numbers not yet issued, Client must deliver to Bank a void file in a method or format mutually agreed upon by Client and Bank.
eCHECK PAYMENTS ADDITIONAL TERMS & CONDITIONS
1. Scope of eCheck Services
The Service permits Client to electronically initiate check-based payments (“Payments”) from enrolled Accounts. Client may use the Service and make Payments via laptops or PCs.
2. Dedicated Website
Bank agrees to provide a hosted website through its Service Provider for electronic generation of eChecks. BANK MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL WARRANTIES AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY OF THE DEDICATED WEBSITE.
3. Service Privileges
Client will designate Users to access the Service on behalf of Client. Each User may be assigned access privileges—transactional or inquiry only—for each enrolled Account. Client may add or delete Users or modify access privileges for Users at any time through the website.
4. eChecks.com User Terms & Conditions
In order to use the Service and generate Payments, each User will electronically accept the terms of the Service Provider’s eChecks.com User Terms & Conditions.
a) Client will have the option to send eChecks, send Print+Mail payments, void eChecks, view and export eCheck and Print+Mail remittance information, and review the status and history of eChecks and Print+Mail Payments originating from its Account, all as described in the eChecks.com User Terms & Conditions. There will be no upfront purchase of a range of checks required.
b) Client will be able to have full, free-form remittance data sent to its recipients with Payments.
c) All Payments will clear through the Bank as if they were made by paper Checks and will post when presented to Bank for payment. Payments will appear on Client’s Periodic Statements.
Client will pay fees associated with using the Service for each eCheck sent, each Print+Mail Payment and the costs of postage. Fees will be calculated at the time of the eCheck/Print+Mail submission and be paid in arears through Bank’s regular service fee calculation and settlement.
IMAGE SERVICES TERMS & CONDITIONS 1. Scope of Image Services
a) Bank’s Image Services will make available to Client in real time digital images of Debits, Credits, notices and Periodic Statements with respect to Accounts. Images may be received, at Client’s election, via the Image Service designated website, by SFTP or by CD-ROM/DVD.
b) Client’s options are as follows:
i) Digital Images will be made available to Client in real time on the designated website and include images of Debits, Credits, notices and Periodic Statement research.
ii) Images available via file transmission include Debits and Credits at such intervals as Client selects on the Set-up Schedule.
iii) Digital images made available via CD-ROM/DVD include Debits, Credits and Periodic Statements. If Client elects to receive images of deposited Items such Items will also be made available. CD- ROM/DVD’s will be delivered to Client periodically as selected by Client on the applicable Schedule by
U.S. mail or Client may pick up the CD-ROM/DVDs at Bank’s designated office.
2. Missing Images and Limit of Liability. If an image of a Check is missing or is illegible, Bank will provide Client with a copy upon its request. The request must include the Account number, the Check serial number, the exact amount (dollars and cents) of the payment and the date the payment was made. Bank may assess a fee for copies provided to Client. Bank will not be liable for failure to provide copies by a given time or for failure to provide copies Bank is not reasonably able to provide. Notwithstanding the Limitation of Liabilities section of the Master Agreement, Bank will not be liable for damages arising under any Image Service in excess of the amount of the Check, draft or miscellaneous Debit giving rise to the claim. Any such claim must include the account number, the Check serial number, the exact amount (dollars and cents) of the payment, the date the payment was made, the name of the payee, a detailed explanation of how the claimed loss occurred and the name, address and phone number of the payee.
LOCKBOX SERVICE TERMS & CONDITIONS
1. Scope of the Lockbox Service
Client will establish, or hereby authorizes Bank to establish, a USPS address to be used specifically to identify Client’s Lockbox. If necessary, Client will provide a letter to the USPS Postmaster evidencing such authority for Bank to establish the Lockbox on Client’s behalf. Bank shall have exclusive and unrestricted access and/or use of the Lockbox for the purposes of effectively handling Client’s remittances. Client will be responsible for all USPS charges related to the establishment and renewal fees of the Lockbox.
Capitalized terms will have the meanings provided below and elsewhere in this Agreement.
“Lockbox”: The address for Client remittances. “Non-Processable Items”:
i) Checks that are deemed not to be processable due to failure to meet ALL processing procedures stated in these Service Terms & Conditions or the applicable Schedule.
ii) Envelopes that contain only correspondence (no Check enclosed).
iii) Other documents that fail to meet ALL processing procedures stated in these Service Terms & Conditions or the applicable Schedule.
“USPS”: United States Postal Service.
3. Bank’s Responsibilities
a) Bank shall collect and open all Client mail received by or from the Lockbox, in accordance with Bank’s pre-established USPS mail pick-up schedule. Pick-ups are made on Business Days only.
b) Bank will process for deposit Client’s remittances received from the Lockbox as instructed by Client in the applicable Schedule. This includes mail received from overnight mail carriers and directly delivered to Bank.
c) Bank will open the envelopes received through Client’s Lockbox and remove the contents. All Checks will be inspected and handled in the following manner, unless otherwise provided in the applicable Schedule:
i) The payee or last endorsee must be one of those set forth in the Lockbox Schedule. If Bank determines the payee or endorsee on the Check differs from this list, the Check will not be deposited. If a Check contains NO payee, Bank will review accompanying documents to determine if the amount of the Check matches and the payment was intended for Client. If these indicators are positive then Bank will deposit the Check. If they are not positive, Bank will not deposit the Check.
ii) All post-dated, non-dated, stale-dated, and Checks received without signature will be deposited.
iii) If the written and numeric amounts on a Check are different, Bank will deposit the Check for the written amount.
iv) If Bank identifies Checks with restrictive or conditional statements (i.e., “Paid in Full” or “Final Payment”), Bank will treat the Check as provided in the applicable Schedule. Notwithstanding the
foregoing, Bank will have no liability to Client should it process and deposit any Checks bearing such restrictive or conditional notation as required by Client.
v) When cash is received in a Lockbox remittance, Bank will process it unless otherwise indicated on the applicable Schedule. Client acknowledges the numerous discrepancies that may occur when remittances are made in cash. As such, Bank will assume no liability for cash received within the Lockbox mail and Client agrees to and hereby does indemnify and hold harmless Bank from and against any loss, damage, claim, or cost arising out of or related to the handling of cash received within the Lockbox mail. Foreign checks in non-U.S. currency will be forwarded for collection.
d) Bank will endorse all Checks with the standard Lockbox endorsement.
e) Bank will create a deposit to Client’s Account on Business Days. Bank will ensure completion of Item sorting and clearing, including the assignment of float and according to the latest Check-clearing schedule. Inherent in the Item sorting process, the Checks will be imaged. Records will be retained by Bank for the period of time required by applicable law.
f) Bank will prepare a remittance package(s) containing reports and back-up documentation each Business Day. The remittance information will be forwarded daily via the method indicated by Client. Client is responsible for updating Bank immediately of any changes to contact information or termination of recipients. Client is responsible for requesting password changes to electronic information due to client personnel changes.
g) Bank will batch separately all Items that are deemed a Non-Processable Item. When an Item is deemed non- processable, the Item will be returned as indicated on the Schedules.
4. Remittance Package
Client shall open the remittance package immediately and notify Bank of any discrepancies or documentation that does not belong to Client.
5. Incoming Mail Restrictions
Client will only use the Lockbox for the receipt of Items to be deposited in the Account. Any non-remittance activity received and handled by Bank may be subject to additional fees. Bank will not forward third class mail received at the Lockbox. The Lockbox cannot be used as a return address for undeliverable mail.
6. Data Security
Bank, as a service provider to Client, acknowledges that it is responsible for the security of cardholder data Bank possesses or otherwise stores, processes, or transmits on behalf of Client, or to the extent that it could impact the security of Client’s cardholder data environment.
POSITIVE PAY SERVICE TERMS & CONDITIONS
1. Scope of Positive Pay Service
Positive Pay is a Check fraud detection service Bank offers to Bank’s business customers to reduce the likelihood of an unauthorized Check being paid from the Account. The Positive Pay web-based Software program accessed through Business Online Banking uses a systematic matching process to compare the information from Items in the Issue File to those that have been presented for payment. If the information in the Issue File does not match the information on the Item presented for payment, the Software issues an Exception Item. Client is responsible for reviewing Exception Items daily and instructing Bank to pay or return an Exception Item.
Unless otherwise defined herein, capitalized terms will have the meanings provided in the Master Agreement.
“Check Information”: The Account number, serial number, issue date, and exact dollar amount of each Item.
“Issue File”: A file that Client prepares and electronically transmits, which contains Check Information on Items issued against an Account for purposes of performing Positive Pay.
“Transactions”: Those procedures performed using Positive Pay such as, but not limited to, uploading or manual inputting of Items and processing Exception Items.
3. Positive Pay Options
Client may select the following (ACH Positive Pay is subject to the separate ACH Positive Pay Service Terms & Conditions provided above):
• Traditional Positive Pay. Bank will check the MICR encoding and the dollar amount on the Checks against the Issue File.
• Payee Verification. If this option is selected, Bank will check MICR information, dollar amount and payees against the Issue File.
Bank also offers ARS Reporting as an optional module under the Positive Pay Service that will either send an encrypted email with an attachment or an unencrypted email notifying Client of the transaction information and prompting it to login to Business Online Banking/Positive Pay for details.
4. Issued Items
On each day in which Client issues Items, Client shall submit an Issue File to Bank, prior to the Positive Pay Cut-off Time. Data for each Check must include the Check Information. This information may be entered either manually or by importing a file into the Service. Client must place a Stop Payment with Bank for any issued Checks that they wish to be stopped. Stale dated Checks may be voided for return (has not been honored within 180 days).
5. Exception Items
On the Business Day following presentment of any Item to Bank, the Service will, by the Exception Cut-off Time, electronically compare the information for each Item to the Check Information contained in the Issue File and Bank will notify Client of any Exception Items by the notification method selected on the Set-up Schedule.
a) If the Item serial number and amount match, such Item shall be deemed conclusively authorized by Client to be paid by Bank without further examination by Bank.
b) Bank will deem a presented Item as an Exception Item if the following occurs:
i) The amount does not match the amount of the Check as reflected in the Issue File;
ii) A presented Check serial number does not appear in the Issue File;
iii) The Issue File reports a Check as voided by Client;
iv) The payee does not match the list (when Payee Verification is requested).
v) If the Item is communicated to Bank as fraudulent. (Additional action may be required in this instance.)
c) If the Check Information for such Item does not match, Bank will review such Item for evidence of MICR misencoding or misreading. If Bank determines that there has been a MICR misencoding or misreading, Bank shall make the necessary corrections and such Item shall be deemed conclusively authorized by Client to be paid. If Client discovers the encoding error, Client should instruct Bank to Return the Item. Bank shall make the necessary correction and such Item shall be deemed conclusively authorized by Client to be paid.
d) If there has been no MICR misencoding or misreading with respect to such Item, or if after such correction the Check Information for such Item still does not match the Check Information in the Issue File, Client is required to make a decision through the Service. A User must provide to Bank a “pay” or “return” decision on any Exception Item for that Business Day by the Decision Cut- off Time. Bank will return such Item to the depository bank unpaid if a “return” decision is provided by a User. Bank will pay such Item if a “pay” decision is provided by a User. If Bank does not receive any such instruction with respect to a “pay” or “return” decision, Bank will follow Client instructions as outlined on the Set-up Schedule.
e) Nothing herein shall affect Bank’s right to return any Item to the depository bank (i) if the Account on which such Item was drawn does not contain sufficient Available Funds to pay such Item or (ii) if Bank in its sole discretion determines that such Item is not properly payable.
6. Bank’s Responsibilities and Limitation of Liability
Bank will use its best efforts to provide Client with access to Positive Pay in accordance with the provisions of these Service Terms & Conditions. Because Positive Pay utilizes information contained in Bank’s databases that may not necessarily reflect all current transactions, Bank shall not be liable to Client for any damages whatsoever arising in connection with the accuracy or completeness of information supplied through Positive Pay regarding Client’s Accounts.
REMOTE DEPOSIT CAPTURE SERVICE TERMS & CONDITIONS
1. Scope of Remote Deposit Capture
The Service enables Client to submit Check Images, in lieu of original Checks, to Bank for deposit to the Account(s). Under the terms and conditions of these Service Terms & Conditions, Bank hereby grants Client the non-exclusive right to use the Service.
2. Client’s Responsibilities
a) Client must endorse each Check (electronically or manually), scan or take a picture of the front and back of each Check and submit Check Images to Bank in such format, and with such associated Check information, as Bank may specify from time to time. The endorsement must read “For Remote Deposit to GUARANTY Bank” on each check.
b) In using the Service, Client will create an accurate Check Image and associated MICR data using approved Equipment. The Check Image must contain all the information on the MICR line of the original Check at the time the original Check was issued. In addition to making those warranties to Bank that Bank must make under applicable law, Client represents and warrants, with respect to each Check Image submitted to Bank, that:
i) The Check is currently and was at the time of its creation, a bona fide and existing obligation of the drawer, free and clear of all security interests, liens, and claims whatsoever of third parties and is not now nor has it ever been declared in default;
ii) Documentation under which the Check is payable authorizes the payee to charge and collect the monies owed;
iii) The Check Image accurately represents all of the information on the front and back of the Check, and all such information is clear and legible on the Check Image; and
iv) The Check will not be duplicated and no person will receive presentment of the original Check, a substitute Check based on the original Check, or a paper or electronic representation of the original Check or a substitute Check, such that that person will be asked to make a payment based on a Check that it has already paid.
c) Client will maintain original Checks for a period of thirty (30) days and allow Bank to review and inspect them during reasonable business hours, and Client will supply, all financial information, financial records, and documentation regarding the Checks that Bank may request. Checks are to be stored in a secure site under lock and key requiring dual control for access. After the recommended retention period, Checks must be shredded and disposed of properly.
3. Other Responsibilities
Client also agrees to: (a) maintain one or more Accounts at Bank; (b) provide to Bank, on the form required by Bank and when required by Bank, the certification of a self-assessment checklist to the effect that its Equipment, Software and implemented internal controls meet the requirements of these Service Terms & Conditions; (c) install and implement any changes and upgrades to the Software and Equipment as required by Bank within five (5) Business Days to ensure compliance with regulatory changes or developments and to protect the integrity and security of the Remote Deposit Capture Service; and (d) maintain fully qualified, properly trained and experienced administrative staff and employees sufficient to perform its obligations under these Service Terms & Conditions.
4. Prohibited Checks
Prohibited Checks will not be deposited through the Service, and Client must have processes in place to prevent processing of any Check that:
• Is payable to any person or entity other than Client;
• Is prohibited by these Service Terms & Conditions or is in violation of any law rule or regulation;
• Client knows or suspects, or should know or suspect, is fraudulent or otherwise not authorized by the owner of the account on which the Check is drawn;
• Has not been previously endorsed by a bank and is either a “substitute check” (as defined in Regulation CC) or “image replacement document” that purports to be a substitute check, without Bank’s prior written consent;
• Is drawn on financial institutions that are located outside the United States or its territories;
• Is a “remotely created check” (as defined in Regulation CC); or
• Is not acceptable by Bank for deposit in the Account as provided in the Account Agreement.
5. Bank Obligations
a) Bank will process Checks submitted by Client through the Service in accordance with Bank’s internal procedures and all state and federal laws during any Business Day, subject to the Cut-off Time. Any files received after the Cut-off Time will be processed the next Business Day. Bank will not examine Checks to verify any data or dates. The Check Image must be clear and include all information required by the Federal Reserve System for processing and collection of Items.
b) Bank will process each Check according to the amount entered by Client, if applicable, or by the numeric amount shown. If the numeric amount is unclear, Bank may process the Check according to the written amount. Checks made payable to the client or any reasonable derivation thereof are acceptable for deposit. If a Check does not have the necessary information to be processed by Bank, then Bank will treat the Check as a Prohibited Check. Bank will disregard any notation on a Check containing "paid in full" or other restrictive notation, whether preprinted or handwritten, and treat any such Check as though such notation did not appear thereon. Bank reserves the right to reject any single Check Image or group of Check Images for any reason, before or after confirmation.
c) Check Images will be deemed to have been accepted by Bank for deposit on the date that the deposit is acknowledged by Bank’s systems, subject to Cut-off Times and recognized Business Days. Availability of deposits is based on Bank’s normal availability schedule as in effect from time to time. Checks will continue to be processed as local or non-local based on the location of the payor bank, as provided in Regulation CC.
d) Bank will make available from time to time a report stating the total amount deposited to the Account, as well as a listing of individual Checks deposited.
6. Equipment and Software
a) Client may be provided with the Equipment and Software necessary for Client to make deposits through the Remote Deposit Capture Service. If the Equipment is Bank’s property, it must be returned upon termination of these Service Terms & Conditions in good condition, ordinary wear and tear excepted. It is Client’s sole responsibility to operate and maintain the Equipment in accordance with the instructions of the Equipment manufacturer. Bank recommends regular scanner maintenance as provided in the User guide. Client assumes sole responsibility for any and all loss, damage or injury to the Equipment or arising from any failure of the Equipment. The Software may not be provided to another party without Bank’s prior written consent.
b) In the event Bank does not provide the Equipment, Client is solely responsible for the working condition of the scanner and the Software interface. If Client supplies the Software, it must comply with the transmission protocol, which will be provided in a separate addendum when applicable.
7. Security Procedures and Communications
Check Images transmitted via Bank’s Remote Deposit Capture Service must be made by Users named by the Administrator using assigned Security Tokens. Mobile Deposit Users must use the Mobile Device Security Procedures.
8. Limitations on Use
Bank reserves the right to place limitations on the use of the Service, including, but not limited to, a limitation on the number of Accounts accessed via a Service, limitations on the number of Checks, the maximum permissible dollar amount of any individual Check or the total dollar amount of Checks processed on any given day or other time period. Bank may also limit high risk customers to enrolling only one Account for use with the Service.
9. Bank Limitation of Liability
a) Bank will use Bank’s best efforts to provide Client with access to the Service in accordance with the provisions of these Service Terms & Conditions. However, Bank will not be liable to Client for any damages whatsoever arising in connection with a failure of the communications network or the Equipment, in connection with any intrusion or stolen data, or in connection with events beyond Bank’s control.
b) Use of the Service is at Client’s own risk. In addition to the limits of liability expressed in the Master Agreement, Bank is not responsible for any errors or failures from any malfunction of Client’s computer, scanner or Mobile Device, Client’s Internet service provider or the Service.
10. Network Connectivity and Security
a) Client is solely responsible for connectivity to the Internet and for the implementation of all commercially reasonable security procedures to control access to its computer systems and to protect any data files stored thereon. Such procedures include but are not limited to anti-virus, physical, logical, and network security control systems and devices. Client should use a firewall product especially if it has a broadband Internet connection such as DSL or cable modem. Client’s computer operating system and browser should be fully patched for critical security issues. It is recommended that Client use the most current fully patched versions of Internet browsers for accessing the Service.
b) Bank is not responsible for any damage to Client’s computer, modem, Mobile Devices or other property resulting from the use of the Service, including damage from any electronic virus or viruses that Client may encounter.
In addition to that indemnification provided in the Master Agreement, Client will defend, indemnify and hold harmless Bank and each of its directors, officers, employees, agents, successors and assigns from and against all liability claims, loss and damage of any kind (including attorneys' fees and other costs incurred in connection therewith) incurred by or asserted against Bank arising out of these Service Terms & Conditions by reason of any acts or omissions of Client or any third party. Client will reimburse and indemnify Bank for all loss, damage and expenses, including reasonable attorneys’ fees, incurred in defending transactions involving invalid or fraudulent Checks or due to a substitute check being processed instead of the original Check. This indemnification shall survive the termination of these Service Terms & Conditions as to matters that occurred during its term.
12. Financial Information, IT Infrastructure and Audit
In addition to Client’s agreement, as set forth in the Master Agreement, to provide Bank with financial statements or other information on Client’s financial condition upon request of Bank, Client also authorizes Bank to investigate or reinvestigate at any time any such statements or information provided by Client and to request reports from credit bureaus for such purpose. Client acknowledges and agrees that Bank may conduct an audit of Client and enter Client’s premises for the purpose of ensuring that Client is in compliance with these Service Terms & Conditions. Bank’s right to audit Client as set forth in the Master Agreement includes the right to audit Client’s IT infrastructure to assure compliance with these Service Terms & Conditions. Bank also has the right to mandate specific internal controls at Client’s operations.
13. Discrepancies and Investigations
In addition to the provisions contained in the Master Agreement regarding Client’s notification to Bank of errors or discrepancies, Client agrees to provide Bank with any information it may reasonably request in connection herewith. Client will promptly supply all financial information, financial records, and documentation regarding the Checks that Bank may request. Client will also cooperate in investigations regarding any unsuccessful or lost transmissions, will provide imaged documents (or original Checks if available) to facilitate investigations within two (2) Business Days of Bank’s request and will resolve with Bank any issues regarding the same. Notwithstanding the foregoing, if Bank at any time discovers that the legal amount of the Check is different than the amount that has been credited to the Account, Bank may make the necessary adjustment to the Account to correct the discrepancy.
14. Business Continuity and Contingency Procedures
Client will have in place a business continuity plan, including back-up of data submitted under the Service, and, in the event that Client experiences technical difficulties in connection with the Service, Client should implement the following procedures:
For Equipment and Account issues, Client should call Bank.
For computer, printer or Internet connectivity issues, Client should contact the computer repair department, computer vendor or Internet provider as appropriate.
In the event that Check Images may not be transmitted through the Services for deposit into the Account, Client should bring the deposit in person to any one of Bank’s branch offices to deposit the original Check(s) or mail the Checks to Bank.
SWEEP SERVICE TERMS & CONDITIONS
1. Scope of Sweep Services
As described further below, Bank offers its clients the following Sweep Service options: Target Balance Sweeps (including zero balance)
Cash Investment Sweep
Commercial Line of Credit Sweep (including an optional one-way sweep)
Sweep Services are automatic and occur on any Business Day after the final posting of Items in the Primary Account.
Unless otherwise defined herein, capitalized terms will have the meanings provided in the Master Agreement.
“Available Credit”: For purposes of the Commercial Line of Credit Sweep, the principal amount available to Client under the terms of the Line of Credit, which will at no time exceed the stated principal amount of the Note, less the principal amount thereof then outstanding.
“Available Funds”: The net funds in the Primary Account(s) that are eligible to be swept at the end of a Business Day after taking into account all deposits and Checks and other Items drawn on the Account. The funds availability policy of Bank will apply to deposits in the Primary Account.
“Loan Documents”: For purposes of the Commercial Line of Credit Sweep, the promissory note (“Note”) and any business loan agreement, mortgage, commercial security agreement, or other document or instrument executed in connection with the note evidencing Client’s line of credit provided by Bank as designated on the Set-up Schedule (“Line of Credit”).
“Primary Account”: An Account at Bank, as shown on the Set-up Schedule, which Client has designated as being covered by the Sweep Service described herein and on which Client authorizes Bank to transfer out on a daily basis funds in the amount of any Target Balance Excess, and/or in some Sweep Services to transfer funds in the amount of any Target Balance Deficit so that at the opening of each Business Day the Primary Account will have the Target Balance.
“Sweep Account”: The Account at Bank, as shown on the Set-up Schedule, that Client has designated as being covered by the Sweep Service described herein and on which Client authorizes Bank to transfer Available Funds, on a daily basis, to or from a Primary Account in order to achieve the selected sweep of funds.
“Target Balance”: The Available Funds balance designated on the Set-up Schedule that Client wishes to maintain in the Primary Account and above which Bank will sweep funds out of the Primary Account and into which Bank may sweep funds. For Zero Balance Sweeps, the Target Balance will be zero.
“Target Balance Excess”: The amount of Available Funds in the Primary Account at the end of any Business Day in excess of the Target Balance.
“Target Balance Deficit”: On any Business Day, the amount by which the Available Funds balance in the Primary Account is less than the Target Balance.
“Zero Balance Account”: The Primary Account used when the Target Balance is zero.
3. Target Balance Sweeps
This Sweep Service will transfer on each Business Day to one or more non-interest bearing Sweep Accounts the amount of Target Balance Surplus in a Primary Account and, as needed, will transfer on each Business Day from one or more Sweep Accounts to the Primary Account amounts necessary to cover any Target Balance Deficit. In each event, the funds will be swept in increments as provided on the Set-up Schedule.
If the Target Balance is zero, the following provisions will apply:
a) Client shall make arrangements for there to be sufficient Available Funds in the Sweep Account to cover all Items drawn on the Zero Balance Account presented for payment on the Business Day on which presentments are made. Items drawn on the Zero Balance Account shall conform to Check specifications provided by Bank to Client. Issuance of Items, which have not received Bank’s prior approval as to compliance with Bank’s Check specifications, may result in charges for extra processing.
b) Bank will automatically transfer funds from the Sweep Account to the Zero Balance Account to cover Items that are presented for payment. To the extent that such Available Funds, in the Sweep Account, are insufficient to cover such Items, Bank is authorized to transfer Available Funds by provisional credit to the Zero Balance Account in an amount equal to the total of all amounts payable on all Items, which are presented to Bank. If the Available Funds on deposit in the Sweep Account are insufficient for such purpose, Bank may in its sole discretion revoke the provisional credit to the Zero Balance Account and return the Items which created such provisional credit unpaid, or Bank may in its sole discretion provisionally advance the necessary additional funds to Client and transfer such provisional credit in the amount thereof to the Zero Balance Account (any such transfer or provisional credit shall remain revocable, at all times, by Bank in its sole discretion prior to midnight of the day following presentment of the Items). If Bank should provisionally advance any funds to Client, such action shall not establish a course of dealing between the parties that shall require Bank to provisionally advance any additional funds. If Client fails to repay any such provisional advance on the Business Day on which Bank notifies Client of such advance, Bank shall, without any requirement of prior notice to Client, automatically reverse such provisional credit, initiate a Debit in the amount of the original advance to the Zero Balance Account, and return any or all affected Items unpaid. Bank also may return any Items, which Bank determines, are not properly payable.
4. Cash Investment Sweep
Under this Sweep Service, Bank will sweep any Target Balance Excess in the Primary Account on any Business Day in increments selected on the Set-up Schedule to a Sweep Account that earns interest. Funds will automatically sweep back to the Primary Account, subject to any maximum limitations established by law.
5. Commercial Line of Credit Sweep
The commercial line of credit sweep will sweep funds to and from the Primary Account under paragraphs a) and b) below or, if selected by Client, it may only sweep from the Line of Credit to the Primary Account to cover overdrafts as provided in paragraph b).
a) Loan Sweep. Bank will sweep funds out of the Primary Account as described below in the increments provided on the Set-up Schedule in order to pay down the amount due on the Note.
i) If there is a Target Balance Excess at the end of a Business Day, Bank will (A) debit the Primary Account for the amount of any unpaid principal balance under the Note, up to the amount of the Target Balance Excess, and (B) apply the amount of the Debit to the unpaid principal balance of the Note.
ii) In no event will Bank debit the Account pursuant to these Service Terms & Conditions to pay any interest that shall accrue under the Note, but this shall not affect Bank’s right to set-off against the Account any monies due Bank under the Note, including, but not limited to, principal and interest, and Bank hereby expressly reserves such right of set-off and any other rights under the Loan Documents.
b) Extension of Credit under Note. Bank will sweep funds into the Primary Account in increments as provided on the Set- up Schedule according to the following terms and in the following order:
i) If there is a Target Balance Deficit, including an overdraft, Bank will extend credit to Client to the extent provided in subparagraphs (ii) and (iii) below.
ii) If the Available Credit at such time equals or exceeds the Target Balance Deficit, Bank will (A) extend credit to Client by making an advance under the Note in the amount of the Target Balance Deficit and
(B) Credit the amount of the advance to the Primary Account to eliminate the Target Balance Deficit, as applicable.
iii) If the Available Credit at such time is less than the Target Balance Deficit, Bank will (A) extend credit to Client by making an advance under the Note in the amount of the Available Credit and (B) credit the amount of the advance to the Primary Account to reduce the Target Balance Deficit.
c) Advances. All advances under the Note made pursuant to these Service Terms & Conditions shall be evidenced by, bear interest at the rate provided in, and be repaid in accordance with the terms of the Note and shall be secured by any and all collateral securing the Note. In no event shall Bank have any obligation to make advances under the Note in excess of the Available Credit.
d) Authorizations. Client authorizes Bank to charge and credit the Account, make advances and payments on behalf of Client under the Note in accordance with the terms of these Service Terms & Conditions, all without further notice to or authorization by Client or any authorized person, if any, identified in the Note.
e) Effect on Loan Documents and Other Agreements. The terms of the Loan Documents are hereby modified to include the terms and provisions of these Service Terms & Conditions, including, without limitation, Section 5(a) and (b) hereof. However, these Service Terms & Conditions is not intended to and shall not be construed to modify or supersede the Loan Documents or the respective rights and obligations of Client and Bank as therein provided or any other agreements, terms, conditions, rules or regulations of Bank as may be applicable to the Line of Credit or the Primary Account, including, without limitation, any requirements relating to minimum balances and service or other charges. In the event of any conflict between these Service Terms & Conditions and the Loan Documents, the Loan Documents will prevail with respect to the Line of Credit.
WIRE TRANSFER SERVICE TERMS & CONDITIONS
1. Scope of Wire Transfer Services
These Service Terms & Conditions set forth the terms and conditions under which Client will use the Wire Transfer Service to direct Bank to honor Wire Transfer Requests to beneficiaries in the United States or abroad. Wire Transfers Requests may be made via:
Business Online Banking: when such Requests are made by those Users authorized by the Administrator to do so; or
Telephonic or Fax: when such Requests are received from Users designated on the Wire Transfer Schedule.
In the event that Bank’s Business Online Banking Service is not available, Bank may, in its sole discretion, accept and process a Request as contemplated in the Wire Transfer Set-up Schedule.
Unless otherwise defined herein, capitalized terms have the meanings provided in the Master Agreement.
“Fedwire”: The funds transfer system owned and operated by the Federal Reserve Banks that is used primarily for the transmission and settlement of payment orders governed by the Fedwire Regulation.
“Fedwire Regulation”: Subpart B of Regulation J of the Board of Governors of the Federal Reserve System, as amended from time to time.
“Request”: Instructions from Client for a transfer of funds to a specific account or beneficiary or to amend or cancel prior instructions.
3. Means of Transmission
In acting on any Request, Bank may utilize any means of transmission, funds transfer system, or intermediary bank reasonably selected by Bank, even if Bank’s selection differs from instructions in the Request. Bank may select any means for the transmission of funds which it considers suitable including, but not limited to, Bank’s own internal systems and Fedwire.
In connection with use of this Treasury Management Service, Bank may use Fedwire when acting upon Client’s Request. Any subsequent bank may use Fedwire when carrying out Client’s Request. Fedwire Regulation governs the rights and obligations of Bank and Client in any part of a Wire Transfer intended to carry out Client’s Request carried out through the use of Fedwire.
Bank is not responsible for performance failure as a result of interruption in transfer facilities, labor disputes, power failures, equipment malfunctions, suspension of payment by another bank, refusal or delay by another bank to accept the Wire Transfer, war, emergency conditions, fire, earthquake, or other circumstances not within Bank’s control.
4. Security Procedures
a) Business Online Banking. Requests transmitted via Bank’s Business Online Banking Service must comply with the Security Procedures described, and agreed to, in the Business Online Banking Service Terms with respect to Entries transmitted by Client to Bank, including the use of Security Tokens and Dedicated PCs/Secure Encrypted VPN. Bank standard is to require that each Request delivered through Business Online Banking be created or modified by means of Dual Control. Bank strongly recommends that Client elect to use Dual Control. In addition, voice/PIN approvals may be made via Mobile Device under the Mobile Banking terms. Client acknowledges that the purpose of such Security Procedures is for verification of authenticity and not to detect an error in the transmission or content of a Request. No Security Procedures for the detection of any such error has been agreed upon by Bank and Client.
b) Other Requests. Bank will perform a callback on transfer Requests for non-repetitive Wire Transfers that are not initiated through Business Online Banking. Client shall designate on the Wire Transfer Set-up Schedule the Users Bank will contact to confirm non-repetitive Wire Transfers. Each User will be assigned a Personal Identification Number (“PIN”) to be used when requesting, verifying or otherwise communicating with Bank regarding Wire Transfers that are not initiated through online banking. Client may not waive the callback requirements. Bank shall not be responsible for refusal to act upon any transfer Request not in compliance with Client’s established callback requirements.
5. Compliance with Security Procedures
a) If a Request (or a Request for cancellation or amendment of a Wire Transfer) received by Bank purports to have been transmitted or authorized by Client, it will be deemed effective as Client’s Request and Client shall be obligated to pay Bank the amount of such Wire Transfer even though the Request was not authorized by Client, provided Bank accepted the Request in good faith and acted in compliance with the Security Procedures with respect to such Request. If signature comparison is to be used as part of those Security Procedures, Bank shall be deemed to have complied with that part of such procedures if it compares the signature accompanying a Request (or Request for cancellation or amendment of a Wire Transfer) received with the signature of an User and, on the basis of such comparison, believes the signature of Client sending such file to be that of the User.
b) If a Request (or Request for cancellation or amendment of a Wire Transfer) received by Bank was transmitted by Client or a designated User, Client shall pay Bank the amount of the Wire Transfer, whether or not Bank complied with the Security Procedures with respect to that Request and whether or not that Request was erroneous in any respect or that error would have been detected if Bank had complied with such procedures.
6. Client Responsibilities
Client shall not initiate any Wire Transfer that would violate the economic sanctions administered by the OFAC. Client must maintain and designate an Account(s) with Bank, which Bank may, without prior notice or demand, use for debiting or crediting with respect to all Requests and related adjustment and charges in connection with the Wire Transfer Service. Client must have collected and Available Funds on deposit in the Account(s) sufficient to cover Client’s payment obligations for the Service. Client shall pay Bank on the date on which Bank acts on the amount of each transfer of funds pursuant to a Request. For purposes of satisfying Client’s obligation to pay such amount and any other payment obligation, Bank may, but is not required to, consider any overdraft line of credit or other arrangement Client may have with Bank. If a conflict occurs regarding the applicable Account balance, Bank’s records (including information on accounts at other banks, which are debited under a Service) will be controlling for the processing of any Request.
7. Bank Responsibilities
a) Acceptance and Execution of Request. Bank will act upon a Request after receipt of such Request by making applicable accounting entries or by transmitting payment instructions to the applicable bank or other party, (i) no later than the stated payment date (if such date is a Business Day and is not earlier than the day such Request is received), or (ii) on the day such Request is received if no payment date is stated, if such Request is received prior to Bank’s applicable Wire Transfer deadline on a Business Day. In order to be processed on a same-day basis, Bank must receive Wire Transfer Requests on a Business Day no later than the deadline times posted by Bank from time to time. Any Request received after that time will be processed on the next Business Day. Procedures for Wire Transfers that are initiated by telephone or facsimile are included in Wire Transfer Schedule.
i) Bank’s acting upon a Request will also be subject to the Business Day schedule of any bank or other party holding an account to be debited or credited under the Service. Client’s Request is considered accepted by Bank when Bank executes it.
ii) In cases where one or multiple Wire Transfer Requests result in an order against uncollected funds, Bank may, in its sole discretion, process Wire Transfers in any order subject to the availability of funds within an Account. Bank will contact Client when transfer Requests exceed an Account’s Available Funds balance.
b) Rejection of Request; Notices and Instructions. Bank may reject any Request which exceeds the collected and Available Funds on deposit in the Account or may make an offsetting reversal if a Debit is made before Bank ascertains there are not sufficient collected and Available Funds on deposit in such Account. Additional terms and conditions contained in the deposit Account Agreement governing Client’s Accounts may apply.
i) Bank may reject a Request which does not conform in form and substance with the requirements of the Master Agreement, these Service Terms & Conditions, or any applicable Schedule.
ii) Bank may reject a Request, the authenticity of which Bank has been unable to verify through the use of the Security Procedures.
8. International Wire Transfers
a) Currency Conversion. The Service may permit Client to initiate payments in currencies other than U.S. dollars. The conversion rate will be the spot rate offered by Bank at the time the Request is executed. Client fully assumes the risk that rates may change after a Request is initiated. The rate offered by Bank to Client may not be the same rate that is available to Bank in the interbank or other market, and Bank or its Service Providers may retain any spread between the rates obtained by them and the rates offered to Client. If the Wire Transfer is returned for any reason, Client agrees that, at Bank’s sole discretion, the refund may be in either United States Dollars based on Bank’s then-current buying rate or the foreign currency in which the Wire Transfer Request was originally made. In no case shall Bank be liable to Client if payment is not made to the beneficiary in the currency requested by Client.
b) Country Risks. From time to time, Bank experiences various difficulties in transferring funds to certain countries. Those difficulties include (but not by way of limitation): (a) excessive delay in applying funds; (b) incorrect application of funds; (c) disappearance of funds; (d) excessively slow response to inquiries; or (e) government restriction on the transfer of such funds. In addition, countries and their subdivisions where the recipient is wired funds charge transfer taxes and other transfer fees that reduce the amount received. Client hereby acknowledges and assumes any expense in connection with such transfers which may be incurred by Bank in addition to normal and customary charges. Client is obligated to comply with all laws relating to the transfer of funds for foreign countries, individuals, or agencies. Noncompliance may result in the delay of Wire Transfer Requests, fines equivalent to a percentage of the principal or confiscation of the entire principal amount of the transfer if an attempt is made to transfer funds to a sanctioned individual, agency and/or country.