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FIRST FOUNDATION BANK

Business Online Banking Agreement

This Business Online Banking Agreement (“Agreement”) will be effective as of the first day we make the Services accessible to you.  Unless otherwise stated, any reference to the Agreement shall include applicable schedules, enrollment forms and exhibits to the same, as well as applicable user guides, user manuals, set-up forms and other user materials, including online terms and information.

This Agreement is in addition to other agreements between First Foundation Bank and you, as may be modified from time to time.  If there is a conflict between the terms and conditions of this Agreement and those contained in the other agreements between you and us, this Agreement will control. 

Available Services

With the Services, you can participate in (subject to our prior approval and to system limitations):

 

We may require you to agree to separate addenda to this Agreement in order to enable these services.  Services performed during nightly processing may not succeed when applied to your actual balance at the end of the nightly processing.

Cutoff Hours

Deadlines and cutoff hours for purposes of this Agreement have been established and are set forth in the Bank Daily Processing Schedule, which may be amended by Bank from time to time.  A Communication received by us after the cutoff time on a business day, or on a day that is not a business day, may be treated by us as if it were received on the next business day.  At our option, however, we may treat it as received the same day as the day of receipt.  There can be a delay between the time when you send a Communication to us and the time we receive it. 

General Terms

Definitions.  In this Agreement, defined terms have the meaning given to them.  In addition:

Your “Account” is the account or accounts you have designated as the account accessible to the Services.

An “authorized representative” is a person with authority of any kind with respect to an Account.

The “Application” shall mean the Cash Management and Online Banking Services Enrollment form or such other enrollment form as may be required by Bank from time to time.

A “commercial account” shall mean an account that is not established primarily for personal, family or household purposes.

Communication(s)” means instructions and actions from you (or attributable to you under this Agreement or otherwise) received by us through the Services, including your logon to the online banking service to access the Services.

The “Deposit Agreement” means the deposit account terms and conditions that apply to Client’s Account.

A “payment order” is a payment order as defined under Section 11103(a)(1), as amended or revised, of the California Commercial Code, and includes a Communication received by us instructing us to pay, or to cause another bank to pay, a fixed or determinable amount of money to a you, to a third party or to any other beneficiary.

Your “Security Codes” are the credentials (such as codes and passwords) that are associated with you and used by us to verify the authenticity of Communications from you.  Security Codes are used to access the Service and Accounts and to use the Services.  The Security Codes include any supplemental or alternative method used to verify the authenticity of Communications that may be offered or presented to you by us from time to time.

The “Service(s)” are the System interface and related banking services described in this Agreement.

“Supporting Documents” means applicable schedules, enrollment forms and exhibits to the Agreement, as well as applicable user guides, user manuals, set-up forms and other user materials, including online terms and information associated with the Services.

The “System” means the Bank’s internet banking website and online banking system as described in the Agreement.

Agreement.  Subject to our approval and to any limits we impose, you may designate Accounts for access through the System and for the Services.  We may act on requests for information, or requests to facilitate any Service requested on or associated with an Account, from any Account owner or its or their authorized representatives.  Each time you use our Services or you permit any other person to use our Services, you are agreeing to the terms and conditions that we have set out in this Agreement, including any Supporting Documents, as amended.  Each time you use our Services or you permit any other person to use our Services, you are agreeing to the terms and conditions of any Supporting Documents, including instructions presented to you at our website.  You agree not to resell or offer a Service to another, or to process any transactions for others using a Service.  You authorize us to obtain information about you from others (including credit reporting agencies) as part of our review of your Application and from time to time thereafter.  You agree to provide us with information as we request, from time to time. 

Eligible Accounts.  Only Accounts designated by you will be made accessible to you via the Services, and Accounts will only be made accessible after we have received a request from you to make the Account(s) available.  We are not, however, obligated to establish access to any or all of your Accounts, and not all Services may be available with all Accounts.  Some Services may not be available without special application to and approval by us, or may be limited to specific types of Accounts.

Accessibility to Accounts may vary based on the Service(s) you use. 

WAIVER OF ACCESS RESTRICTIONS:  Your Accounts may be subject to access restrictions when you conduct transactions in person or when you are using systems other than with a Service.  If access restrictions exist, they do not apply to your use of the Services.  We may limit or deny Services to you if there are access restrictions.  Conversely, we may process your transactions based on Communications without regard to or any need to comply with access restrictions otherwise applicable to your Accounts.

Compliance with Laws and Rules.  You agree to comply with all state and federal laws, rules and regulations applicable to you and to your use of the Services (the “Laws”), including the operating rules of all systems used to provide Services to you (the “Rules”), and to provide evidence reasonably satisfactory to us of the same if requested by us.  You agree not to use the Services for any illegal purpose, including but not limited to illegal Internet gambling.  Without limitation, you agree and acknowledge that the Services may not be used by you in violation of the laws of the United States, including sanctions laws administered by the Office of Foreign Asset Controls.  You acknowledge and agree that the software you use to access Services may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations. You agree and certify that neither the software nor any direct product thereof is being or will be used by you for any purpose prohibited by these Acts.

Additionally, each Account and the Services will be subject to and governed by the following:

Nothing in this Agreement relieves you of any obligation you may have under the Laws or the Rules, and this Agreement is deemed modified to the extent necessary to allow or require you to comply with the same.  You will implement and maintain procedures, including retention of legal or compliance services, to ensure that you are able to comply with all current and future Laws and Rules, including any changes to them.  We are not obligated to provide information, updates or notice of or regarding the Laws or the Rules, even if we are aware of the same and of the potential for material impact on you and your use of the Services, and your indemnification and other obligations to us are not relieved or reduced by our not providing the same to you.  If we do provide information, updates or notices of or regarding the Laws or the Rules to you, we are not responsible for the accuracy of the same and may discontinue doing so at any time.

Electronic Records and Signatures.  When any payment order or other Service generates items or transactions to be charged to your Account, you agree that we may charge the affected Account without requiring your signature on an item and without prior notice to you.  Any transactions resulting from your instructions which we receive in your name and under your credentials shall be deemed to have been “a writing” and authenticated by you “in writing” for purposes of any law in which a writing or written signature is needed or required.  All records maintained by us of transactions under your credentials shall be deemed to have been “signed” and to constitute an “original” when printed from records established and maintained by us or our authorized agent in the normal course of business.  You agree not to contest the authorization for, or validity or enforceability of, our electronic records and documents, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files or records are to be in writing or signed by the party to be bound thereby.  Records and “signed” documents, if introduced as evidence on paper in any judicial or other proceedings, will be admissible to the same extent and under the same conditions as other documentary business records.  Upon our written request, you agree to manually sign or place your signature on any paper original of any record or “signed” document which we provide to you containing your purported signature.

Stop Payment Orders

You cannot stop payment on an ACH transaction or an electronic Bill Payment.  When a check or draft is used for Bill Payment, You may be able to stop payment by contacting us, and following our stop payment procedures.  We will need the name of the payee, the payee-assigned account number, the amount of the payment and the due date of the payment. To be effective, your stop payment order will need to reach us in sufficient time for us to process the request before the paper item has cleared.  A stop payment order shall expire and be of no further effect six months from date of its receipt by us unless earlier released or renewed by you in writing.

You may also initiate stop-payment requests online through the Service only for paper checks you have written on your Accounts (not Bill Pay paper drafts.)  If the stop payment order is received after the cut off time established by us from time to time, then the stop payment will be processed on the next business day.  All fields on the stop payment form must be completed for your online request to be successfully received by us.  In addition, it is essential that the check covered by the stop payment order be described exactly, to include check number, date of issuance, exact amount of check, and payee.  We are not responsible for stop payment requests for checks that have already cleared or been paid from your account.  Also, we are not responsible for stop payment orders for which we did not have a reasonable opportunity to act upon.

With respect to all stop payment orders, you agree as follows:

Despite proper completion and delivery of a stop payment order, you will still be liable on the check to any subsequent holder in due course.  Should the check described in the stop payment order for any reason be paid over the stop payment order, we may avail ourselves of remedies at law to recover the loss.

Financial Information; Audit

We may from time to time request information from you in order to evaluate your use or continued us of any of the Services provided by us hereunder and/or adjustment of any limits set by this Agreement.  You agree to provide the requested financial information immediately upon request by us, in the form required by us.  You authorize us to investigate or reinvestigate at any time any information provided by you in connection with this Agreement and to request reports from credit bureaus and reporting agencies for such purpose.

Upon request by us, you hereby authorize us to enter your business premises for the purpose of ensuring that you are in compliance with this Agreement and you specifically authorize us to perform an audit of your operational controls, risk management practices, staffing and the need for training and ongoing support, and information technology infrastructure.  You hereby acknowledge and agree that we shall have the right to mandate specific internal controls at your location(s) and you shall comply with any such mandate.  In addition, you hereby agree to allow us to review available reports of independent audits performed at the your location related to information technology, any of the Services and any associated operational processes.  You agree that if requested by us, you will complete a self-assessment of your operations, management, staff, systems, internal controls, training and risk management practices that would otherwise be reviewed by us in an audit of you.  If you refuse to provide the requested financial information, or if we conclude, in our sole discretion, that the risk of providing any Service to you is unacceptable, or if you refuse to give us access to your premises, we may terminate all or any of the Services according to the provisions hereof.

In connection with our entry on your premises for the purposes of determining your compliance with this Agreement, the installation of Bank-provided equipment and Software, if applicable, for the purpose of conducting an on-site inspection pursuant to this Agreement, or in connection with providing support to you (if applicable), we shall not be liable or responsible to you or any third party for any loss, bodily harm, property damage, claims of the introduction of a virus or other malicious code into your system, including any which allegedly delay, alter or corrupt your data, whether related to the transmission of data to us or whether caused by the equipment, Software, Bank, Internet service providers, Internet browsers, or other parties providing communication services to or from us to you.

Computer Equipment and Software to Access the Services

You are responsible for providing and maintaining any equipment that is necessary for the Services, such as telephones, terminals, modems and computers.  You agree to use equipment that is compatible with our System, programs, and equipment, which we may change from time to time.  We assume no responsibility for the defects or incompatibility of any computers or software that you use in connection with the Services, even if we have previously approved their use.  WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY, WITH RESPECT TO THE SERVICES, THE SYSTEM, OR ANY COMPUTER PROGRAMS, EQUIPMENT OR SOFTWARE MADE AVAILABLE TO YOU.  You agree to notify us promptly if any software or equipment we provide to you becomes defective.  Our sole responsibility (if any) in such instances will be to repair or replace the defective software or equipment. 

To use the Services, you must have a sufficiently powerful computer hardware and appropriate software.  At this time, this includes an internet browser that supports 128-bit encryption.  Some Services may require you to download software from our website; in some cases, we may place software on your computer as part of our security and/or verification tools.  You agree to maintain the confidentiality of the Security Codes at all times and not to provide access to them to anyone that you do not authorize to access your Accounts through the Services.  You expressly acknowledge that any wireless access to the Services initiated by you may not be secure and, in such cases, you assume the risk associated with unauthorized access to the Service and any information contained therein, resulting from such wireless connectivity.  You agree to implement and maintain administrative, technical and physical safeguards to protect against unauthorized access to or use of any Account information which you may access or store on your computer or other data storage systems. 

Security Code Credentials

During your enrollment for the Services, you are required to select or will be assigned certain numbers, codes, marks, signs, public keys, tokens or other means of authenticating your identity and electronic communications in your name.  These may include a Client number, logon name, password, and token.  These credentials, with the other components of your Security Codes, will give access to your Accounts through the Service. 

You agree to change all passwords with sufficient frequency so as to protect confidentiality, and in any event no less frequently than every 60 days.

You agree to keep all Security Codes confidential; you agree not to write them down.  Passwords should not be easy to guess: for example, your children’s or pet’s names, birth dates, addresses or other easily recognized identification related to you.  It is also recommended you do not have your browser automatically remember your password.  We may offer to you or require you to use additional authentication tools or methods from time to time.  If you choose not to implement supplemental authentication tools, your access to some or all Services may be limited.  The term “Security Codes” will include any supplemental authentication tools that are used by you.

Contact in Event of Unauthorized Transfer

If you believe any part of your Security Code, including your password, has been lost or stolen call:

888-698-7442 

or write:

First Foundation Bank
Online Banking
18101 Von Karman Ave, Suite 750
Irvine, CA 92612

You should also call the number or write to the address listed above if you believe a transfer has been made using the information from your check without your permission.

E-Mail

While access to us through the secure e-mail function of the Services is "on-line," messages sent to us through e-mail are not reviewed by Bank personnel immediately after they are sent.  If immediate attention is required, you must contact us by telephone or in person.

Encryption of data transmissions does not guarantee privacy.  Data transferred via the Services is encrypted in an effort to provide transmission security.  Notwithstanding our efforts to insure that the Services are secure, you acknowledge that the Internet is inherently insecure and that all data transfers (including transfer requests and electronic mail) occur openly on the Internet.  This means that the data transfers potentially can be monitored and read by others.  We cannot and do not warrant that all data transfers utilizing the Services will not be monitored or read by others.

Your e-mail messages may be acted upon by us if received in a manner and in a time providing us a reasonable opportunity to act.  Nevertheless, unless otherwise provided herein, e-mail messages will not serve as a substitute for any requirement imposed on you to provide us with "written" notice.

E-mail or messages sent by us to you will be deemed received by you when sent by us to you at your e-mail address as shown on our records.  You agree to notify us (using the Service or otherwise in form acceptable to us) whenever your e-mail address changes.  You agree that information or messages made available to you via the Services will be deemed received by you when first posted on our website or made available to you.  You agree to access the Service from time to time, in no event less than monthly, to access this information or the messages.

Third Parties

You acknowledge and agree that we may arrange to provide software, if required, and/or may arrange for the Services covered by the Agreement to be performed or provided by third parties, including our affiliates.  You further agree that any such party is a third-party beneficiary of the Agreement and as such is entitled to rely on, and avail itself of, the provisions of the Agreement as if it were us, including, without limitation, the limitations on liability and the indemnities described in the Agreement.  Our ability to provide certain Services may be dependent upon our ability to obtain or provide access to third-party networks.  In the event any third-party network is unavailable or we determine in our sole discretion, that we cannot continue providing any third-party network access, we may discontinue the related Service or may provide the Service through an alternate third-party network.  In such situations, we will have no liability for the unavailability or delay of access. 

Notwithstanding the limitations described above pertaining to third parties, if you authorize a third party to access the Services on your behalf, you will be solely responsible and liable for all actions and inactions of said third party.  You expressly assume the risks associated with providing Service access rights to your agents or third-party vendors, including but not limited to the risk of unauthorized or erroneous transactions.  We will not be responsible, nor have any liability whatsoever for any services you receive from your agents or third-party vendors.  We reserve the right to require you to agree to additional terms and conditions as a condition precedent to your use of any agent or third-party vendor in connection with your access to the Services.

Service Fees and Charges

Our fees and charges are set forth in our Business Services Fee Schedule provided to you, and as may be amended from time to time.  We may impose new fees and charges, or increase or change existing fees and charges.  We will provide advance notice of these changes to you as required by law.  Other fees may be assessed and billed separately by your internet and/or telephone service provider.  You agree to pay all fees and charges we impose.  You authorize us to charge the designated Account and/or any other account you hold with us to cover your fees and charges. You also authorize us to charge you according to our then-current fee schedule. 

Business Days

Our business days are Monday through Friday, except federal bank holidays and state holidays.

Hours of Operation

You will generally be able to use Services seven days a week, 24 hours a day.  However, a Service may not be available due to system maintenance or circumstances beyond our control.  Services may be added, cancelled or limited at any time or from time to time, with or without cause or notice (except as required by law).

Changes/Interruptions in Services

We may, on a regular basis, perform maintenance on our System or equipment, which may result in interrupted Service or errors in a Service.  We also may need to change the scope of our Services from time to time.  We will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided.

Harm to Computer Systems/Data

You agree that we will not be liable for malware, viruses, worms, trojan horses, or other similar harmful components that may enter your computer system by downloading information, software, or other materials from our site.  We will not be responsible or liable for any indirect, incidental or consequential damages that may result from such harmful components.

Disclaimer of Warranty

We make no warranty of any kind, express or implied, including any implied warranty or merchantability or fitness for a particular purpose, in connection with Services provided to you under this Agreement.  We do not and cannot warrant that Services will operate without errors, or that any or all Services will be available and operational at all times.  Due to the possibility of human and mechanical errors, as well as other factors, the System is not error-free, and all information is provided “as-is,” without warranty of any kind.  We make no representation and specifically disclaim any express or implied warranties to users of any third parties, including but not limited to, warranties as to accuracy, timeliness, completeness, merchantability, or fitness for any particular purpose. 

Our Intellectual Property

You acknowledge and agree that the software and content used by us in the operation of the System and provision of the Services, and the copyright patent, trademark, trade secret and all other rights in and to the technology, software, content, designs, graphics, and trademarks included by us in the System and as part of the Services and our name and product names and the System website’s URL (collectively, by the “Intellectual Property”), are owned by us and our licensors.  As such, you will not gain any ownership or other right, title or interest in or to such Intellectual Property by reason of this Agreement or otherwise. 

You many not distribute, use, reproduce, duplicate, copy, publish, sell or otherwise transfer: (i) any portion or element of the Services or the Intellectual Property; (ii) use of the System, Services or Intellectual  Property; or (iii) access to the System, Services or Intellectual Property.  Further, you may not: (a) create derivative works of any portion or element of the System, Services or Intellectual Property; (b) reverse engineer, modify, decompile or disassemble any of the Intellectual Property; (c) deactivate or disable any password protection or other protection, security or reliability technology we incorporate in the System or the Services; (d) modify or erase any copyright or trademark notice we place in the System; (e) engage in the practice known as “screen-scraping” or otherwise attempt to, or actually, obtain copies of content provided at the site or a list of our content or site users, or use computer programs (sometimes known as “scraper,” “spiders,” “robots,” or “bots”) to systematically access and download data; (f) access the Services by any means other than via the System; (g) frame the System or any Intellectual Property; or (h) use any circumvention tools, meta tags or any other “hidden text” utilizing our name, trademark, URL, product name or Intellectual Property.  You agree to comply with the terms of any license agreement we make available to you with any software.

User Conduct

You agree not to use the Service or the content or information in any way that would: (i) infringe any third-party copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; ii) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of the Service to impersonate another person or entity; (iii) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising or illegal Internet gambling); (iv) be false, misleading or inaccurate; (v) create liability for us or our affiliates or service providers, or cause us to lose (in whole or in part) the services of any of our service providers; (vi) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (vii) potentially be perceived as illegal, offensive or objectionable; (viii) interfere with or disrupt computer networks connected to the Service; or (ix) use the Service in such a manner as to gain unauthorized entry or access to the computer systems of others.

No Business Use or Re-Sale

You agree that the Service is only for the business use of the individuals authorized to access your Account through the Service.  You agree not to make any commercial use of the Service or resell, lease, rent or distribute access to the Service.

Cumulative Remedies

The rights and remedies provided by this Agreement are cumulative and the use of any one right or remedy by any party shall not preclude or waive the right to use any or all other remedies.  Said rights and remedies are given in addition to any other rights the parties may have by law, ordinance or otherwise.

Delays/Force Majeure

The obligations of the Bank shall be suspended to the extent and for so long as such obligations are hindered or prevented from being performed on account of labor disputes, war, riots, civil commotion, acts of God, fires, floods, failure of suppliers and/or subcontractors to perform, failure of power, restrictive governmental law and/or regulations, storms, accidents or any other cause which is reasonably beyond the control of the Bank.

Severability

Wherever possible, each provision of this Agreement shall be interpreted in a manner which makes the provision effective and valid under applicable law.  If applicable law prohibits or invalidates any part or provision of this Agreement, that particular part or provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

Entire Agreement

This Agreement contains the entire agreement between the parties and no statements, promises or inducements made by either party or agent of either party that are not contained in this written Agreement or other documents referenced by this Agreement.

Choice of Law

This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, except where preempted by federal law.

Amendment of this Agreement

We may amend, add to or change this Agreement (including the Supporting Documents, Addenda and changes in its fees and charges hereunder).  We will provide notice of amendments, additions or changes if required by law.  Your continued use of the Services will constitute your consent to the amendments, additions or changes.

Additional Terms and Conditions

Waiver.  We may waive any term or provision of this Agreement at any time or from time to time, but any such waiver shall not be deemed a waiver of the term or provision in the future.

Assignment.  We may assign the rights and delegate the duties under this Agreement to a company affiliated with us or to any other party.  You may not assign your rights or obligations under this Agreement, and any effort by you to do so is unenforceable at our election.

Termination; Suspension; Delay.  We may terminate or suspend this Agreement and any Service provided hereunder at any time.  We will provide electronic or written notice of termination to you.  Except to the extent restricted by law, we reserve the right to terminate or to discontinue support of any Service, or delay or refuse processing any transaction, without notice.  You may terminate this Agreement upon 30 days written notice to us.  Termination of this Agreement will not affect any rights we may have, or any obligations you may have, as to any transaction or Services caused or attempted by you before termination.

Communications.  You are responsible for and bound by any Communication we receive in your name through a Service if the Communication: (i) comes from an authorized representative; (ii) is authenticated using security procedures, described herein, even if not authorized by you; or (iii) is legally binding on you under the laws of agency, contract or otherwise.

Authorized Representative(s). Your “authorized representative” includes each person who is: (i) authorized by you to conduct business with us, including as part of your account management resolution(s); or (ii) a principal officer of yours (such as your CEO if you are a corporation, or a partner in a partnership, or a manager in an LLC); or (iii) otherwise authorized (or deemed authorized) to act on your behalf, whether under this Agreement or any other agreement with us, by the laws of agency, or under by any other state or federal law, rule or regulation. You are responsible for all Authorized Representatives and actions taken by Authorized Representatives

 

Software Administrator(s).  A “Software Administrator” is any individual authorized to establish and change other Authorized Representatives and the online banking specific codes, access privileges, transaction limitations and other limitations and conditions associated with Authorized Representatives.  You must include the names of all person(s) designated as Software Administrator(s) on your Application(s).   You are responsible for all Software Administrators and for any action taken by Software Administrators.

Responsibility For Communications In Your Name, Whether Or Not Authorized By You.  The Security Codes are security procedures.  You agree that we may use the security procedures to access the Services and to verify the authenticity of Communications that are received by us in your name.  If we verify the authenticity of a Communication or instruction received in your name using the security procedures, we may rely on it and you will be obligated on the Communication or instruction, whether or not it was authorized by you.

On the other hand, if a Communication or instruction was authorized by you or if you would otherwise be bound by it under this Agreement, you will be obligated on it even if we did not verify its authenticity using the security procedures and even if the security procedures would have prevented error.  You agree that the security procedures are intended to verify authenticity and not to detect error.

Responsibility For Security Procedures.  In addition to the Security Codes as security procedures, we may from time to time offer supplemental security procedures, and you agree to consider them.  You agree to follow any instructions we provide to you about using, storing or otherwise related to security procedures.

You agree to consider the size, type and frequency of the payment orders or other money transactions you will or intend to use Services to accomplish.  You agree to consider the risks presented by the possibility of unauthorized access to these Services, including the risk loss to you that we may process Communications and instructions that are your responsibility even though they were not authorized by you.  You agree to access and use the Services only after determining, and only for so long as you continue to determine, that the security procedures are a commercially reasonable method of providing security against unauthorized payment orders or other Communications.  You agree and acknowledge that the security procedures are commercially reasonable for you and that you will be bound by instructions or Communications in your name, as set forth above.

You agree to take appropriate steps to ensure that all Security Codes are protected and kept confidential.  In your review of the Services, including those aspects of the Services pertaining to the issuance, use, and protection of Security Codes and security procedures, you agree to notify us if your use of the Services would necessitate or be better served by a level of security that exceeds that offered by the Services. If you fail to notify us, then you acknowledge and agree that the security procedures of the Services are appropriate for your needs and will provide you with a commercially reasonable degree of security against unauthorized use.

Refusal To Process Communications.  We may delay or refuse to process any requested Service, including payment orders or other money transactions, or any other Communication from you.  We may do so for any reason or for no reason.  We may provide notice to you, but are not obligated to do so.  We may delay or refuse processing, for example, if:  (i) processing would or may exceed the available funds in your affected Account;  (ii) the Communication is not authenticated to our satisfaction or we believe it may not have been authorized by you;  (iii) the Communication contains incorrect, inconsistent, ambiguous, or missing information; (iv) processing would or may involve funds which are subject to lien, security interest, claim, hold, dispute, or legal process prohibiting withdrawal; (v) processing would or may cause a violation of any Laws or Rules applicable to you or to us; or (vi) for any other reason under this Agreement.  In addition, we shall be excused from failing to transmit or delay in transmitting an Entry if such transmittal would result in our having exceeded any limitation upon our intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in our reasonable judgment otherwise violating any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority.  You agree that we will have no liability to you or to any other person for any loss, damage or other harm caused by or arising out of any such delay or refusal.

Limitations on Liability.  Unless otherwise required by applicable law, we are only responsible for performing Services as expressly stated in this Agreement, and will only be liable for material losses incurred by you to the extent such losses directly result from our gross negligence or intentional misconduct.

IN NO EVENT WILL WE OR ANY OF OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, OR THIRD PARTY SERVICE PROVIDERS BE LIABLE FOR ANY CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION LOSS OF DATA, FILES, PROFIT OR GOODWILL OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE), INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN ACTION UNDER CONTRACT, NEGLIGENCE OR ANY OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY SERVICES, OR THE INABILITY TO USE THE SERVICES, IRRESPECTIVE OF WHETHER WE HAVE OR HAVE NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE MAXIMUM AGGREGATE LIABILITY OF US FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OR CAUSE OF ACTION, SHALL BE THE LESSER OF THE AMOUNT YOU ORIGINALLY PAID FOR THE SERVICE, PRODUCTS OR MATERIALS OR $50,000.00.

You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with the Services.  You acknowledge that Service fees have been established in contemplation of:  (i) these limitations on our liability, (ii) Your agreement to review statements, confirmations, and notices promptly and to notify us immediately of any discrepancies or problems; and (iii) Your agreement to assist us in any loss recovery effort.

We will not be obligated to honor, in whole or in part, any transaction or instruction or Communication which:

Indemnification.  Except to the extent that we are liable under the terms of this Agreement, or of any agreement that otherwise governs your Account, you agree to indemnify and hold us, our affiliates, officers, directors, employees, consultants, agents, service providers, and licensors harmless from any and all third party claims, liability, damages and/or costs (including but not limited to reasonable attorney’s fees) arising from: (i) an Account; (ii) the performance of a Service; (iii) a third party claim, action, or allegation of infringement, misuse, or misappropriation based on information, data, files, or other materials submitted by you to us; (iv) any fraud, manipulation, or other breach of these terms; (v) any third party claim, action, or allegation brought against us arising out of or relating to a dispute with you over the terms and conditions of an agreement, purchase or sale of any goods or services; (vi) your violation of any Law or Rule or of the rights of a third party; (vii) your use, or the provision of Services or use of your Account by any third party; or (viii) any transaction or instruction or Communication from you to us. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. You will not settle any action or claims on our behalf without the prior written consent from us. This indemnification is provided without regard to whether our claim for indemnification is due to the use of the Service by you or your authorized representative.  This indemnification provision survives termination of this Agreement.

Data Retention.  You will retain data on file adequate to permit remaking or reconstruction of all requested Services (including payment orders or other money transactions) for one year following the date of the execution of the request to which such data relate, and will provide the data to us upon our request.  You agree to determine promptly the accuracy of all records and information regarding a Service and to notify us immediately of any errors in such records or information. Nothing in this Agreement relieves you from: (i) any responsibility imposed by law, regulation or contract with regard to the maintenance records; or (ii) any responsibility to perform audits and account reviewers customarily conducted by persons or entities whose businesses are similar to your business.

Advice of Payment; Duty to Examine.  You agree to examine any records or monthly account statements promptly upon receipt.  You will notify us immediately, and in no event later than 14 days after receipt of the record or account statement, whichever is earlier, of the existence of any errors, unauthorized transactions, or irregularities reflected on the record or on the account statement.  If you fail to notify us of any such discrepancy with 14 calendar days of receipt of the record or statement containing such information, you agree that we will not be liable for any other losses resulting from your failure to give such notice or for any loss of interest with respect to a transaction that is or should have been shown.  Except to the extent expressly limited by applicable law, if you fail to notify us of any such discrepancy within one year of receipt of such statement or report, you will be precluded from asserting the discrepancy against us.  For purposes of this Section, you will be deemed to have "received" a periodic statement at the earlier of the time that: (i) we first make it available to you for pick-up; or (ii) the statement or the information is mailed or otherwise made available to you electronically.

Providing Personal and Financial Information.  You agree to provide true, accurate, current and complete personal and financial information about yourself and about your affiliates as requested.  You agree to not misrepresent your identity.

Collection.  If we initiate collection proceedings against you in an effort to recover any amounts owed, you agree to reimburse us for all costs and expenses, including attorneys’ fees.  “Attorneys’ fees” includes reasonable charges for the time expended by in-house counsel.

Corporate Authority; Partnership Authority.  If you are a corporation or LLC, the person signing this Agreement on behalf of the corporation or LLC represents and warrants that he or she has full authority to do so and that this Agreement binds the corporation or LLC.  If you are a partnership, the person signing this Agreement for you represents and warrants that he or she is a general partner of the partnership, that he or she has full authority to sign for the partnership and that this Agreement binds the partnership and all general partners of the partnership.  You shall give written notice to us of any general partner’s withdrawal from the partnership.

There may be other exceptions stated in this Agreement and in other agreements with you. 

 

 

Addendum A

The eStatements Service

eStatements Service.  eStatements is a Service ( the “eStatement Service”) that allows Client to access and electronic versions of certain Statements and Communications (together referred to as “eStatements”) through the System and receive electronic notifications (“Alerts”) regarding the availability of eStatements through the System.  Any legal notices that normally accompany Client’s mailed Statements will either continue to be mailed under separate cover or delivered to Client electronically through the eStatement Service.

In order to use the eStatement Service, Client must select the eStatement Service on Client’s Application, and Bank must approve this Application.  By enrolling in the eStatement Service, Client represents that Client meets these requirements and that Client agrees to be bound by this eStatement Addendum (“Addendum”).

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

By initiating an electronic request through the System for delivery of eStatements, Client affirmatively consents to receive, and acknowledges that Client can receive, access and retain all eStatements, disclosures and legal notices provided by Bank pursuant to the eStatement Service.  Client further agrees that Client is able to view and download Adobe PDF files and that Client is required to update and download any software updates or other required technology or software in connection with any upgrade or modification to the PDF file format.

Eligible Accounts.  The eStatement Service is available for most deposit accounts. Some exclusions may apply, such as combined statements.  Bank reserves the right to determine from time to time which of Client’s Accounts may be eligible for eStatements.  Client may elect to use the eStatement Service for all or some of Client’s Accounts that are eligible for the eStatement Service, as designated by Client through the System.   Each Account must be activated for the eStatement Service on an individual basis. Any user with access to an Account through the System can activate that Account for the eStatement Service through the System.

Statements and Communications.  In accordance with applicable agreements between Client and Bank, Bank may provide to Client from time to time: (i) account statements relating to Client’s Accounts (“Statements”); and (ii) disclosures, notices, messages and other information or data relating to Client’s accounts held with Bank and services Bank provides in which Client is enrolled (collectively, (“Communication(s)”).

When eStatements are Deemed Given.  An eStatement will be considered made available to Client within three (3) business days after Client receives an Alert regarding the availability of an eStatement.   Client understands that it is Client’s responsibility to log on to Service to view and retrieve Client’s “eStatements” and notices.  As set forth in the Deposit Agreement, Client further acknowledges and understands that Client has a duty to exercise reasonable promptness in examining the electronic statement to determine whether any payment or transaction was not authorized because of an alteration of an item or because a purported signature by or on behalf of you or other signatory on the account was not authorized.  The statute of limitations and any notice requirements governing these responsibilities will commence at the time the eStatement is available as set forth herein.

Paper Copies.  Once an account is activated to receive eStatements, Client will no longer receive paper copies (by mail or otherwise) of Statements or Communications sent pursuant to the eStatement Service, though we may provide Client with paper copies of eStatements at our option. Client may also request that a copy of a current or previous Statement or Communication be mailed to Client at Client’s address of record for the applicable account. To request a paper copy of an eStatement, please contact us at 888-698-7442 .  We may charge a fee for sending paper copies of eStatements.  Please refer to the Schedule of Service Fees for applicable charges.

Accessing Client’s eStatements.

  1. Method of Delivery. Client’s eStatements and related legal notices and disclosures will be available to Client through the Service and Client may access available eStatements by logging onto the System.
  2. Access. Client will be required to use Client’s existing logon ID and password and follow any applicable Security Procedures, including providing the appropriate Security Codes to access the eStatement Service through the System.
  3. Viewing. eStatements will be viewable electronically in Adobe Portable Document Format (“PDF”) that Client can view online, save or print at Client’s convenience.  Client further agrees that Client is able to view and download PDF files and that Client is required to update and download any software updates or other required technology or software in connection with any upgrade or modification to the PDF file format.  All eStatements for an Account will be available for viewing through the System to all users with access to that Account regardless of which user activated the eStatement Service.
  4. System Requirements. Client is responsible for providing and maintaining any equipment that is necessary for the Services, such as telephones, terminals, modems and computers.  Customer agrees to use equipment that is compatible with our System, programs, and equipment, which Bank may change from time to time.  Bank assumes no responsibility for the defects or incompatibility of any computers or software that you use in connection with the eStatement Services, even if Bank has previously approved their use.
  5. Availability. Generally, Client’s eStatements will be available through the System the day after the eStatements are generated and Client may create an Alert to notify Client when an eStatement is available through the Service. The eStatements will be available at the same frequency as Client’s Account Statements that were previously mailed and made available in paper form.
  6. Statement History. While access to Account statement history (“History”) may vary by account type, once enrolled in the eStatement Service, Client will be able to accumulate up to 18 cycles of History to access through the eStatement Service.  Statements and Account information generated prior to registration generally will not be available for access through the eStatement Service.
  7. Checks. If Client receives images of  checks or receives cancelled checks (collectively, “Items”) with Client’s Statement,  by enrolling in the eStatement Service, Client understands and agrees that paper copies of these Items will no longer be provided to Client starting at the time Client’s eStatement Service is effective. These Items will be available as check images for up to 90 days through the System. 

Alerts.

  1. Description of Alerts. When Client registers to receive an eStatement Alert, Client will receive an Alert via email, to an email address as designated by Client, thereby informing Client when Client’s eStatement is available for viewing through the System.  Client acknowledges and understands that alerts are not intended to replace Client’s obligation to review eStatements or to replace any other Communications Bank may provide to Client regarding Client’s Accounts.
  2. Contact Information. A valid email address is required for Client to receive eStatements and Bank will use the email address provided by Client.  Client agrees to notify Bank of any change to Client’s email address in order to ensure continued delivery of Alerts.  Bank  may rely on the email address provided by Client until Bank receives notice of any changes to Client’s email address in accordance with the terms of this Agreement and Bank has had reasonable time to make the requested changes. 
  3. Updates. It is Client’s responsibility to ensure that Bank has a valid email address at all times in order for Bank to send the eStatement notification to Client.  Client may update Client’s email address or delete or change the status of Bank’s Alerts at any time through the “Alerts” page on the System.  If an email notification of eStatements is returned undeliverable, Vlient agrees that Bank has the right to change the delivery of Account statements to paper format, and it will be Client’s responsibility to re-apply for eStatements.
  4. Timing of Alerts. Alerts will not be sent immediately to Client as events occur. Alerts will be sent at scheduled delivery times after Client’s Statement cycle is complete. Bank reserves the right to change the frequency or timing of Alerts at any time.
  5. Content of Alerts. For Client’s protection, the content of Alerts will only include the last four digits of the relevant Account numbers.

Termination.  Either Bank or Client may terminate the eStatement Service at any time.  All applicable provisions of the Agreement shall survive termination by either Bank or Client.

Client’s Termination.  Client may terminate the eStatement Service and/or withdraw Client’s consent to receive electronic communications by contacting Bank at 888-698-7442  or visiting Client’s local branch.  Bank may require written confirmation of the request to discontinue the eStatement Service.

Bank’s Termination. Bank may terminate this Addendum and Client’s use of the eStatement Service at any time without prior notice.  Bank will notify Client of the change in an appropriate manner as soon as reasonably possible.

Discontinuing the eStatement Service.

  1. When the eStatement Service is terminated or otherwise discontinued, Client will automatically receive paper statements of statements and Communications previously received as eStatements beginning with Client’s next applicable statement cycle. If Client cancels the eStatement Service, the Statements and Communications that were previously presented online will not be mailed to Client; however, Client can order copies of past statements through the “Request a Statement Copy” option on the System, under Self Service.
  2. If Client closes an Account, Client will no longer be able to view any Statements or Communications for that Account through the eStatement Service.
  3. Before cancelling the eStatement Service or closing an Account, Client should print or electronically save copies of Client’s eStatements for Client’s records.
  4. Please note that any Accounts that were previously combined on Client’s paper Statement will not automatically be recombined. Client should contact Client’s Private Banker to set up a combined statement.

 

 

Addendum B

Bill Pay Service

Bill Pay Service.  To the extent Bank approves Client to use the Bill Pay service (“Bill Pay Service” or “Service”), Client agrees to the terms in this Bill Pay Service Addendum (“Addendum”). 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

Technical Requirements; Charging Accounts; Fees.  When using the Bill Pay Service, Client must designate the Account (“Bill Pay Account”) from which the Bill Pay payments (“Bill Payments”) are to be made; the complete name of the payee, the account number, and the payee's remittance address, all exactly as shown on the billing statement or invoice; the amount of the payment; and the date Client wants the payment to be processed from Client’s Bill Pay Account (“Payment Date”).  If the Payment Processing Date Client wants the payment to be processed from Client’s Bill Pay Account is not a Business Day, Client’s Bill Pay Account will be processed the next Business Day.  By using the Bill Pay Service option, Client agrees that, based upon instructions received under Client’s Code, Bank can charge Client’s designated Bill Pay Account by electronic transfer, "no signature required draft", or by debiting and remitting funds on Client’s behalf.  Client also agrees to pay Client’s Bill Pay Service fees, even if Client does not use the Bill Pay Service in any particular month, which may be charged to Client’s designated Bill Pay Account or otherwise charged to an account.

The Bill Pay Service identifies transfers based on the user ID of the person or other Codes and therefore the Service may not reflect transfers made by multiple persons from the same Bill Pay Account if different login ID's are used.  Account balance information obtained through the Services may not reflect current transactions. 

Use of Vendors; Use of Information.  Bank may use one or more bill payment vendors to provide the Bill Pay Service, and Client understands that various financial intermediaries and their servicers may be involved in processing any one of Client’s Bill Payment instructions.  These intermediaries may benefit from interest that accrues on Bill Payments between the time Client’s Bill Pay Account is debited and the time the payee is paid.  Any information Client provides may be used by Bank or any of these other parties to complete or otherwise deal with Client’s transaction or comply with any laws, rules or regulations.  If there is a dispute between Client and Bank, or either party and any other person (including any merchant, payee, financial institution or other intended or actual recipient of any Bill Payment), Client authorizes Bank to obtain information regarding Client, Client’s Account and Client’s Bill Pay obligations (or the absence of them) from any party that was involved in the Bill Pay transaction or that might otherwise assist in the resolution of the dispute or problem.  This may include financial and other information regarding Client.

Setting-Up Payees; One-Time and Recurring Payments.  When Client signs onto the Bill Pay Service, Client must establish its list of payees.  A payee is anyone, including the Bank, that Client designates to receive a Bill Payment; provided that Bank accepts the payee for the Bill Pay Service.  If Bank accepts the payee, then the payee will be placed on Client’s authorized list of payees.  Each time Client wants to initiate a Bill Payment, the payee must be on Client’s authorized list of payees.  Client can establish its list of payees by selecting the “Add New Business Payee” or “Add New Individual Payee” button on the “View/Edit Pending Payments” screen available through the Bill Pay Service. 

Bank is not responsible if a Bill Payment is not made to a payee because Client provided us with incomplete, incorrect or outdated information regarding the payee or Client attempted to make a payment to a payee that is not on Client’s authorized list of payees.  Also, Bank reserves the right to refuse to approve a payee for Client’s authorized list of payees and to otherwise prohibit payment to a payee via the Bill Pay Service or System.

One-Time Payment- Client can use the Bill Pay Service to make a one-time Bill Payment.  A one-time Bill Payment will be processed on the Payment Processing Date; provided that the Payment Processing Date selected by Client is a Business Day and Client submits its one time Bill Payment instruction prior to the Bill Payment Cut-Off Hour for that date.  If Client selects a Payment Processing Date that is not a Business Day or submit its Bill Payment instruction after the Bill Payment Cut-Off Hour for that date, then the Payment Processing Date will be the next Business Day. 

Recurring Payments- Client can use the Bill Pay Service to make recurring Bill Payments.  The Bill Pay Service will allow Client to schedule Bill Payment instructions that will cause a Bill Payment to be processed from the selected Bill Pay Account on Client’s selected frequency on an ongoing basis.  However, if the future Payment Processing Date is on a non-Business Day, then the new future Payment Processing Date will be the next Business Day.  Also, if Client designates a Payment Processing Date of the 28th through the 31st of a month, or Client selects a frequency that causes a future Payment Processing Date to fall on days that are on or between the 28th or 31st of a month, then Client agrees to select the option “Last Business Day” and that the new future Payment Processing Date will be the last calendar day of the month; provided that the last day of the month is a Business Day, if not then the Payment Processing Date will be the next Business Day.

Available Funds.  For current one-time Bill Payment instructions, Client will need to have sufficient available funds in its designated Bill Pay Account to cover the amount of the Bill Payment on the same Business Day Client logged onto the System and Bank will debit Client’s Bill Pay Account on that same Business Day; provided that Client submitted the Bill Payment instruction prior to the Bill Payment Cut-Off Hour for the Business Day and Client selected a Payment Date that is the same Business Day as the day Client logged onto the System.  If Client submits its current one-time Bill Payment instruction after the Bill Payment Cut-Off Hour, then the Payment Processing Date will not be the same day that Client logged onto the System, even if Client designated such day to be the Payment Processing Date, and the one-time current Bill Payment instruction will be processed the next Business Day.  Also, Client’s Bill Pay  Account will also be debited the next Business Day. For future one-time or recurring Bill Payment instructions, Client will need to have sufficient funds in the designated Bill Pay Account on the Business Day before the "Payment Date”, since Bank will debit Client’s designated Bill Pay Account on the Business Day before the "Payment Date.”  Client can initiate Bill Payments up to the available funds in its Bill Pay Account, plus any linked credit or other overdraft facility.  If Client exceeds these limits, then Bank may prevent (or reverse) Bill Payments in any order and in any amount that Bank chooses, even if the result is to reduce Client’s transactions to a level below the amounts needed to pay its bills.

Non-Recommended Payees.  Bank does not recommend that Client use the Bill Pay Service to pay non-domestic payees and your federal, state or local taxes, courts or other governmental entities.  These agencies normally require an accompanying coupon, which cannot be provided via the Bill Pay Service.  Bank will not be liable for penalties, interest or other damages of any kind if Client tries to use the Bill Pay service to remit or pay money for taxes, or to courts or governmental agencies, to include anyone that may require an accompanying coupon.

Payment Date.  The "Payment Date" is the date that Bank will initiate the Bill Payment.  Bill Payments should be scheduled sufficiently in advance of the due date of Client’s bill (“Due Date”) to allow the payee to receive it on the Due Date set by Client’s payee and without taking into account any grace period that may be offered by Client’s payee.  Bill Payment instructions received by Bank after the cut-off hour established by Bank from time to time, or on a day that is not a Bank Business Day (or a business day of any bill payment vendor or intermediary that Bank may use) may be treated by Bank as received on the next Business Day, delaying payment.

Bill Payment Cut-Off Hour. The cutoff hour applicable to Bill Payments shall be established by the Bank from time to time.  A Bill Payment is considered executed when Bank executes it.  If Entry data is received after the cutoff hour or on a day that is not a business day, the Entry data will automatically be processed on the following business

Scheduling Payments in Advance of the Due Date.  Electronic bills will be paid within 48 hours of the close of business of the Payment Date.  Some companies Bank pays through the Bill Pay Service are not set up for electronic payment and therefore receive a paper draft on Client’s behalf.  These paper draft payments can take up to 5 Business Days to process before the payee receives the payment.  Client is responsible for ensuring that it initiates a Bill Payment instruction in time for the payment to reach the payee before its Due Date (without taking into account any grace period).  Client must allow at least 5 Business Days, prior to the Due Date, for each Bill Payment instruction to reach the applicable payee.  Bank is not responsible for any damages Client may suffer if it does not allow at least 8 Business Days between the Payment Process Date and the Due Date of Client’s bill or obligation, without counting any grace period offered by the payee.

Payment Methods.  Bank reserves the right to select the method in which to remit funds on Client’s behalf to its payees.  These payment methods may include, but may not be limited to, an electronic payment, an electronic check payment (where the check is drawn off the Bank’s third party service provider’s account), or a demand draft payment (where a negotiable instrument is created and drawn off of Client’s Bill Pay Account).

Payment Changes and Cancellation.  Client may change or cancel a Bill Payment instruction via the System as long as Client logs on to the System by the cutoff time that Bank establishes from time to time, on the Business Day of the Payment Processing Date for the Bill Payment instruction and Client follows the Bill Payment instructions provided by the Bill Pay Service for changes and cancellations.  If Client asks Bank to cancel a Bill Payment request after the cutoff time established by the Bank on the Business Day on the Payment Processing Date of the Bill Payment request, then Client may not be able to prevent the Bill Payment instruction.  However, Client may not place a stop payment order on the Bill Payment instruction using the procedures provided under in Addendum K, “Stop Payment Orders,” below.

Accurate Information on Payees.  Client can make a Bill Payment to anyone that is accepted by the System as a payee.  Whether the Bill Payment is made by electronic payment or by check or draft, the Bill Payment will be processed using the information Client supplies, and if the information Client gives to Bank is inaccurate or incomplete in any way the Bill Payment may be delayed or mis-directed.  If the System provides Client with a series of options regarding payee address or location, Client is responsible for correcting that information if it does not agree with Client’s records or with Client’s particular bill.  Bank and the others that handle Client’s Bill Payment (including the payee's bank) are entitled to rely on information Client supplies, such as the payee's account number or the routing number of the payee's bank, even if the name Client gives to Bank and the number Client gives identify different persons.  Electronic payments are made through the automated clearing house (the "ACH") are subject to the rules of the ACH, and Client agrees to be bound by the Operating Rules of the ACH, including the rule making payment to the payee provisional until receipt by the payee's bank of final settlement of the credit transaction.  If final settlement is not received, Client will not be deemed to have paid the payee the amount of the electronic bill payment.  Client agrees not to initiate ACH payments in violation of, and to comply with, the laws of the United States, including sanctions laws administered by the Office of Foreign Asset Controls.  Client agrees to reimburse Bank for any fines or penalties imposed on Bank by the ACH, any ACH Operator or any other organization or person that are due to Client’s conduct.

Automated Clearing House Entries.  If a Bill Payment is processed electronically through the ACH, the ACH entries and the transaction will also be subject to the terms and conditions of any "ACH Origination Agreement" between Bank and Client, to the extent applicable.

Our Right to Refuse a Bill Payment Instruction or Transaction.  In addition to any other rights Bank may have, Bank may refuse to process any Bill Payment instruction or transaction at any time, for any reason or for no reason.  Bank will normally seek to notify Client promptly, unless there are security reasons for not doing so (but no notice is required if Bank refuses to process a payment that is prohibited under this Addendum or otherwise under the Agreement).  Without limiting the foregoing, Bank is authorized under this Addendum, and Client agrees that Bank may, prevent Bill Payments to or refuse to process Bill Payments to any person or entity that Client attempts to pay using the Bill Pay Service.

Bill Payment Requests.  A Bill Payment instruction, or any other electronic communication from Client to Bank is deemed received by Bank only when it is actually received by the System in a form and format acceptable to the System.  Bank has no right to cancel or amend any transfer, current one-time Bill Payment instruction or any debit or credit entry after transmission to Bank.  Bank may at its discretion seek to assist Client in canceling or amending any transmission, but is not obligated to do so.  If Bank does, Client will indemnify Bank in accordance with the Agreement for any losses Bank may suffer in connection with its efforts.

 

 

Addendum C

Remote Deposit ServiceRDC.  RDC and RDC Lite (collectively referred to herein as “RDC”) are optional Services which allow Client to deposit funds from a remote location through the transmission of an image of a payment instrument.  Client must select RDC on Client’s Application to use RDC, and Bank must approve this Application.  Once approved, RDC can be used for the accounts indicated on Client’s Application.  Terms and conditions for RDC are provided in this RDC Addendum (“Addendum”).  To the extent Bank approves Client to use RDC, Client agrees to the terms in this Addendum.  Distinctions in service limitations and fees between RDC and RDC Lite are outlined in the Supporting Documents for these Services.

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

RDC allows for the conversion of Checks to Substitute Checks or Image Exchange Items, which would enable Client to transmit paper checks converted to Imaged Items to Bank for processing and deposit into the Account designated by Client that is maintained at Bank.  Client desires to use RDC to facilitate the services as identified in and subject to this Addendum.  Bank reserves the right, with prior written notice to Client, to place, from time to time, limits on Client's right to use RDC. 

Primary Account Designation.  Client may use RDC to facilitate a deposit to any Account (other than those with deposit restrictions, such as certificates of deposit).  For purposes of this Addendum and the deposit transaction, the Account Client designates shall be referred to as the “RDC Account.”   Client authorizes Bank to debit the RDC Account (or any other account maintained by Client at Bank) for any fees or other amounts due Bank in connection with RDC.  If the RDC Account is closed for any reason, Client’s RDCs may be stopped along with any unprocessed transactions.  To reinstate RDC, Client may be required to designate a new RDC Account.

Client Rights. Subject to the terms of this Addendum, Bank hereby grants Client a non-exclusive, non-transferable right to access and use RDC in connection with Client's own business operations in accordance with the Supporting Documents.

Definitions.  For the purpose of this Addendum, the term “Communications” shall have the meaning provided in the Agreement and shall include Communications to Bank in connection with RDC, including transmission of output files from Client to Bank; the terms “Security Procedures” and “Security Codes” shall have the meaning provided in the Agreement and shall include but not be limited to any Security Procedures and Security Codes used to access the RDC Account and to use RDC.

RDC.  Client will create images of Checks at Client’s location by use of scanning hardware and Software, if any, approved or provided by Bank (as applicable).  Client will enter all amounts and any other required information correctly and as provided in the Supporting Documents.

The electronic images of Checks will be transmitted by Client to Bank, or Bank’s authorized processor, over the Internet through a secure web-based interface.

Client’s RDC Account will be provisionally credited upon Bank’s acceptance of the Imaged Items for deposit which are received by Bank from Client through RDC.

Client will maintain the RDC Account for Client to receive credit and provide other specific information required by Bank related to RDC.  As set forth in this Addendum, all deposits received by Bank are accepted subject to Bank’s verification and final inspection and may be rejected by Bank in Bank’s sole discretion.  All deposits are subject to the terms of the deposit account agreement governing Client’s accounts.

Once approved for RDC, if Client fails to use RDC during the first 24 months from the effective date of Bank making the RDC service available to Client, Bank will terminate Client’s access to and right to use RDC.  Upon such early termination, Client agrees to pay Bank the early termination fee as set forth in Bank’s Fee Schedule.

Client Responsibilities.  In connection with RDC, Client shall comply with the following:

  1. Client shall maintain the RDC Account at Bank for the receipt of deposits of Items.
  2. Client shall be responsible for training its own employees in the use of RDC.
  3. Client will only submit Items for processing to Bank that meet the definition of “Item” as provided in this Addendum and will ensure that the Items scanned meet the ANSI X9.37 standards for image quality required by Regulation CC, or other standards established or required by Bank or applicable law, as amended from time to time.  Client will not process any Non-qualifying Items.  Bank's processing of any Non-qualifying Items shall not constitute a waiver by Bank or obligate it to process such Non-qualifying Items in the future.  Bank may discontinue processing of Non-qualifying Items at any time, without cause or prior notice.
  4. Unless prior approval by Bank in writing, Client will not attempt to scan and transmit to Bank any Item which is drawn on a deposit account of Client at Bank or any other financial institution, or a deposit account of any business entity of which Client is a principal, officer or authorized signer. Client will only use RDC for its own purposes and in accordance with this Addendum.
  5. Client will not attempt to scan and transmit to Bank any previously truncated and reconverted Substitute Check. Any previously truncated and reconverted Substituted Check must be physically deposited with the Bank.  Notwithstanding the foregoing, Bank may redeposit any returned Substitute Check or Image Exchange Item consistent with the terms of the deposit account agreement governing Client’s accounts.
  6. Client will: (i) ensure that Items are restrictively endorsed or otherwise processed to permit only financial institutions to acquire rights of a holder in due course in the collection process of Items; (ii) handle, process, maintain and destroy Original Checks as set forth in this Addendum and in the Supporting Documents; and (iii) ensure that no financial institution (depositary, collecting or payor), drawee, drawer or endorser receives presentment or return of, or otherwise is charged for an Item more than once in any form.
  7. Except to the extent otherwise expressly agreed by Bank, Client will provide, at its own expense, a broadband Internet connection, such as via a digital subscriber line (DSL) or other connectivity having equivalent or greater bandwidth and all other computer hardware, software, including but not limited to a compatible Web browser, and other equipment and supplies required to use RDC, all of which must satisfy any minimum requirements set forth in the Supporting Documents or as otherwise may be acceptable to Bank. Except to the extent otherwise provided in this Addendum or the Supporting Documents, Client will provide, or obtain from another party selected by Client at Client’s expense, support and maintenance of such Internet connection and all other computer hardware, software, and equipment required to use RDC, including without limitation troubleshooting Internet connectivity issues with Client’s internet service provider (ISP).
  8. Client will be responsible for verifying Bank's receipt of Client’s transmission(s) by verifying that deposits have been posted to the RDC Account, in addition to cooperating in any investigation and resolving any unsuccessful or lost transmission with the Bank.
  9. Client will maintain fully qualified, properly trained and experienced administrative staff and employees sufficient to perform its obligations under this Addendum.
  10. Client will not engage in any activity directly or indirectly related to the use of RDC that is illegal or fraudulent.

Equipment.  To the extent Bank provides equipment for Client’s use of RDC, Client is responsible for the maintenance of the equipment and Bank may require Client’s use of the same to be subject to separate terms.  If any equipment is lost, stolen, or damaged in such a manner that Client cannot comply with the capture, transmission, processing, and other applicable procedures and requirements of this Addendum, Client agrees to inform Bank and to then obtain and substitute new equipment from Bank that is acceptable as shown in the Supporting Documents, before Client continues using the equipment and RDC.  If Client’s use or maintenance resulted in damage to any Bank-provided equipment, Client agrees to reimburse Bank on demand for Bank’s costs to repair the equipment or to replace the equipment if repair is not reasonably feasible.

Client shall be responsible for installing and implementing any changes and upgrades to the equipment as required by Bank, and to do so within 5 days of notice to Client of the same, including when provided to Client as part of an effort by Bank to ensure compliance with regulatory changes or developments, or to protect the integrity and security of the equipment or RDC.  Client will ensure that the equipment is clean and operating properly, and will inspect and verify the quality of images and ensure that the digitized images of Original Checks are legible for all posting and clearing purposes.  Client will be solely responsible for verifying the compatibility of any equipment used with RDC.  Client will comply with all capture, transmission, processing, and other applicable procedures and requirements of the Agreement (including any Supporting Documentation), the equipment and RDC.  Client will only use the equipment and RDC for Client’s own internal business purposes and in accordance with this Addendum.

Communications Security Software.  At any time during the term of this Addendum, Bank may require in its sole discretion the use of Software in connection with RDC. If Software is required, Bank will provide to Client a copy of the Software or instructions on how to obtain the necessary Software.              

To the extent the Bank requires the use of Software in connection with RDC, Client will implement and use the Software, as set forth in the Supporting Documents and any applicable materials relating to the Supporting Documents to transmit output files to Bank.

Client acknowledges that: (i) its license to any Software that may be required for RDC is directly from the Software provider, pursuant to the license agreement that appears when any such Software is electronically accessed by Client or otherwise provided to Client; (ii) Bank may provide certain "first level" support to Client with respect to the Software, but that Bank will have no responsibility, for maintenance, support, infringement protection, or otherwise, to Client with respect to the Software; and (iii) Client will look strictly to the Software provider, or its successors, with respect to any issues concerning the Software that cannot be satisfactorily resolved with Bank's assistance.

Client will use the Software solely for the purpose of transmitting output files to Bank consistent with this Addendum and not for communications with any other party.  Client will not allow access to the Software or the use of RDC by any person other than Client, and will only process Items arising from a transaction or obligation between Client and its direct payor.

If requested by Bank, Client will promptly return all copies of the Software, including materials related to the Software, to Bank upon termination of this Addendum.

Bank may, from time to time, require and change the Software.  Client will be responsible to install and implement and changes to the Software within 5 days following notice of such change.

Retention and Destruction of Original Check.  Client will retain each Original Check in accordance with the Supporting Documents.  Once Client has confirmed transmission of the Original Check to Bank, Client will stamp or mark each Original Check to indicate that it has been processed for deposit.  If not directed otherwise by the Bank, Client will store Original Checks in a safe and secure environment for such time as Client deems necessary and in any event for a period not exceeding 60 days after such Item has been digitized and processed.  Client shall take appropriate security measures to ensure that: (i) only authorized personnel shall have access to Original Checks, and (ii) that the information contained on such Original Checks or on any corresponding Imaged Items are not disclosed to third parties.  Client will promptly (but in any event within 5 business days) provide any retained Original Check (or, if the Original Check is no longer in existence, a sufficient copy of the front and back of the Original Check) to Bank as requested to aid in the clearing and collection process to resolve claims by third parties with respect to any Item or as Bank otherwise deems necessary.  Client will use a commercially reasonable method which is consistent with any requirements of Regulation CC and approved by Bank to destroy Original Checks after Client's retention period has expired. 

Processing Times.  A deposit of Imaged Items will be deemed to have been received and accepted by Bank for deposit when all of the following have occurred: (i) Bank has preliminarily verified that the image quality of the Imaged Items is acceptable to Bank in its discretion, all Item information is complete and the deposit totals are balanced to the Item information provided for the deposit; and (ii) Bank has successfully performed all further validation routines with respect to the deposit.  Notwithstanding the foregoing, Imaged Items received by Bank for deposit may be rejected by Bank in Bank’s sole discretion. 

Items will be processed and ready for presentment by Bank after Bank receives all good digitized images and associated data for any given transmission from Client.  Client agrees to view the images of each scanned Item that is sent to Bank.  If Item information received by Bank is not complete or cannot be processed by Bank for any reason, Bank may reject the entire batch or particular Imaged Item, at its discretion, notwithstanding any transmission confirmation and charge the amount back against any provisional credit to Client’s RDC Account.  Bank will use commercially reasonable efforts to present Items for payment to the applicable Endpoint within a reasonable period of time following such receipt.

If an Imaged Item is not accepted for deposit, Client may then submit the Original Check to Bank for processing or contact the maker to reissue the Check.  If Client submits the Original Check for processing, Bank reserves the right to refuse to process the Check for deposit and presentment to the Paying Bank and may instead require Client to have the maker reissue the Check.

It is Client's responsibility to understand and build into its transmission schedules the appropriate deadlines necessary to meet the availability schedules of Bank as set forth in the Agreement or as otherwise established by Bank.  Client is further responsible for understanding and building into its transmission schedule the changes in transmission windows required by time changes associated with Daylight Savings Time. 

Returned Items.  Client understands and agrees that an Item that is not paid by a Paying Bank, or is otherwise returned for any reason, will in Bank’s discretion be: (i) re-presented to the Paying Bank; or (ii) returned to Client and Client’s RDC Account charged for the amount of the Item plus any associated fees as disclosed in Bank’s applicable fee schedule, which may be changed from time to time in Bank’s discretion.  Client agrees that Items may be returned as Image Exchange Items, rather than Substitute Checks.  Bank’s right to charge the RDC Account of Client will apply without regard to whether the Item is timely returned to Bank or whether there is any other claim or defense that the Item has been improperly returned to Bank.

Bank Rights and Responsibilities.

For all Imaged Items processed by Client pursuant to this Addendum, either: (i) digitized images will be converted to Substitute Checks and presented for payment to established Endpoints; or (ii) Imaged Exchange Items will be presented for payment through image exchange networks.  Bank may in its sole discretion determine the manner of processing.  All such processing and presentment shall be done in accordance with timeframes and deadlines set forth in the Supporting Documents and as otherwise established by the Bank from time to time.

Unless otherwise agreed by Client and Bank, Bank will process any returned Items in accordance with applicable law and the Agreement.

Subject to the terms of this Addendum, availability of credit from Items processed under this Addendum will be subject to the availability schedule of Bank, which may be amended without notice.

Bank may at its sole option, with or without cause, at any time and from time to time, refuse to process  any Imaged Items.  Bank may from time to time establish file, deposit and exposure limitations and assign them to Client.

Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission, or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond Bank's control.  In the event of any of the foregoing failure or delays, Client acknowledges that it may instead deposit directly with Bank any Original Items for processing and presentment, provided such Original Items have not been previously imaged and processed in connection with RDC. In addition, Bank shall be excused from failing to transmit or delay in transmitting an Item for presentment if such transmittal would result in Bank's having exceeded any limitation upon its intraday net funds position established pursuant to Federal Reserve guidelines or if Bank's otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority.

In addition to any other rights Bank may have with regards to the accounts of Client, Bank may hold and use funds in any Client account following termination of this Addendum for such time as Bank reasonably determines that any Item processed by Bank prior to termination may be returned, charged back or otherwise a cause for any loss, liability, cost, exposure or other action for which Bank may be responsible.  Without limitation, Client recognizes that under the Rules, the UCC, Regulation CC and the rules of any image exchange network Bank’s representations and warranties as regards Image Exchange Items and Substitute Checks may expose Bank to claims for several years following processing of the Image Exchange Item or Substitute Check.

Bank may at its sole discretion conduct an on-site inspection, at any time and from time to time, of Client’s place of business to ensure compliance with the provisions of this Addendum.  In connection with Bank's entry on the premises of Client for the purpose of conducting an on-site inspection, Bank shall not be liable or responsible to Client or any third party for any loss, bodily harm, property damage, claims of the introduction of a virus or other malicious code into Client's system, including any which allegedly delay, alter or corrupt the data of Client, whether related to the transmission of Imaged Items or other data to Bank or whether caused by the equipment, Software, Bank, Internet service providers, Internet browsers, or other parties providing communication services to or from Bank to you.

Client Representations and Warranties.  Client makes the following representations and warranties with respect to each Item, including Non-qualifying Items, processed by Client pursuant to this Addendum:

  1. The Imaged Item is a digitized image of the front and back of the Original Check and accurately represents all of the information on the front and back of the Original Check as of the time Client converted the Original Check to an Imaged Item;
  2. The Imaged Item contains all endorsements applied by parties that previously handled the Original Check in any form for forward collection or return;
  3. Except as otherwise specifically disclosed in writing to Bank, Client is not now engaged, and will not during the term of this Addendum engage, in any business that would result in Client being or becoming a "money services business" as defined in the Federal Bank Secrecy Act and its implementing regulations;
  4. All encoding, transfer, presentment and other warranties made under applicable law as Bank is deemed to make under applicable law, including without limitation those under the UCC, Regulation CC and the rules of any image exchange network; and
  5. There will be no duplicate presentment of a Check in any form, including as a digitized image, as a paper negotiable instrument or otherwise and Client will be liable for and otherwise assume responsibility for any such duplicate presentment of any Check. Client agrees to indemnify and defend Bank against any and all claims, causes of action or demands arising out of or directly or indirectly related to the duplicate presentment of any Check.

Bank's Liability.  In addition to any limitations in the Agreement, Bank will not be liable to Client for any refusal of a Paying Bank to pay an Image Exchange Item or Substitute Check for any reason (other than the gross negligence or willful misconduct of Bank), including without limitation, that the Original Check, Image Exchange Item or Substitute Check was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature.

 

 

Addendum D

Wire Manager Service

Wire Manager Service.  The Wire Manager service (“Wire Manager Service”) is an optional Service which allows Client to originate domestic funds transfers and international funds transfers.  Client must select Wire Manager on Client’s Application to use Wire Manager, and Bank must approve this Application.  Once approved, Wire Manager can be used for the Accounts indicated on Client’s Application.  Additional terms and conditions for Wire Manager are provided in this Wire Manager Service Addendum (“Addendum”).  To the extent Bank approves Client to use the Wire Manager Service, Client agrees to the terms in this Addendum. 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

To the extent Bank approves Client to use the Wire Manager Service, Client agrees to the terms in this Addendum.  Client may submit funds transfer request (“Request(s)”) to Bank in accordance with the terms and conditions of this Addendum.  A “Request” includes payment orders, as defined in Division 11 of the California Commercial Code.  Subject to the terms of this Addendum, Bank may execute a Request received in the name of Client received through the System consistent with the Agreement.  A Request submitted electronically using the System will be subject to the terms of this Addendum.  Client is responsible for all Requests to the fullest extent provided by law and as set forth in this Addendum.  Bank may choose the funds transfer mechanism (for example, FedWire, correspondent bank transfer, internal transfer) to be used when acting on upon Client’s Request.

Form and Accuracy.  All Requests must be provided to Bank, which may be required to be in a form prescribed by Bank.  Client assumes the sole responsibility for providing Bank with accurate transaction information in the form and format that Bank requires.  Bank is not responsible for confirming such information, or for failing to detect and reject duplicate Requests.  If Client provides Bank with a Request that is incorrect in any way, Client agrees that Bank may charge Client’s accounts for the transaction whether or not the error could have been detected by Bank.  Bank is not obligated to detect errors in Client’s transfer or payment instructions.

Payment Account Designation.  Client agrees to designate the payment account each time a Request is initiated (“Payment Account”).  Client authorizes Bank to debit the Payment Account or any other account maintained by Client at Bank for the amount of the Request plus any fees or other amounts due Bank in connection with the Wire Manager Services.  

Sufficient Funds.  Client agrees to maintain sufficient available funds (as determined under Bank's funds availability policy) in the Payment Account to cover all Requests and applicable fees, or such higher amounts as Bank may specify from time to time.  Client acknowledges that Bank does not control intermediary banks, including intermediary banks chosen by Bank, and that Bank does not control whether intermediary banks deduct fees as part of the processing of a funds transfer.  Client agrees that Client's funds may be held by Bank for a period of time during the term of this Addendum and following termination of the Wire Manager Services, to protect Bank against any possible losses relating to the use by Client of the Wire Manager Services.  If Bank does hold funds, Bank may treat the held funds as not available for other purposes, and reject other transactions (for example, checks or other transfer instructions) in any order Bank chooses.  Bank may, at its sole discretion, allow overdrafts/overlimits or negative balances, but Bank also may discontinue the practice at any time with or without prior notice to Client.  Bank may prevent or reverse any payments or other service in any order that Bank chooses as a means of preventing or recovering any overdrafts or other exposures.  If Client does not have sufficient or available funds or credit in the Payment Account, Bank may charge any account of Client’s with Bank.  Alternatively, and at Bank’s sole discretion, Bank may overdraw Client’s Payment Account and Client may be charged an overdraft or other fee (such as fees for returned checks or other electronic items), such overdraft and fee(s) Client agrees to immediately pay Bank.  Nothing in this Addendum shall be construed as Bank’s commitment or obligation to lend Client money.

Security Procedures.  Client and Bank may agree to certain procedures set forth in the Supporting Documents (collectively, "Security Procedures") designed to verify the authenticity but not errors in transmission or content, including discrepancies between account names and numbers of a Request.  If Bank takes any action not provided in the Security Procedures in connection with any Request, such additional action shall not be deemed to become a mandatory part of the continuing Security Procedures.

Before using the Wire Manager Service and before sending a Request to Bank, Client will review the Security Procedures and determine whether they will provide a commercially reasonable method for verifying whether a Request is that of Client.  Client agrees not to use the Wire Manager Service if Client is unable to determine that the Security Procedures will provide a commercially reasonable method for verifying that a Request is Client’s.  As part of the review, Client will consider the size, type and frequency of Requests Client will make or anticipates making, along with such other factors as Client may deem relevant or appropriate.  If the size, type or frequency of a Request made by Client changes such that the Security Procedure in use by Client no longer provide a commercially reasonable method of providing security against unauthorized Requests, Client shall notify Bank.  Client agrees that Bank will use the Security Procedures to verify the authenticity of a Request, but that the Security Procedures are not designed to and are not used for the purpose of detecting error. 

Bank may offer to Client or require Client to use additional security authentication tools or methods from time to time.  If Client chooses not to implement supplemental authentication tools, Client’s access to some or all of the Wire Manager Service may be limited.  The term “Security Procedures” will include any supplemental authentication tools that are used by Client.  Client’s continued use of any modified Security Procedures will evidence Client’s agreement that the modified Security Procedures are commercially reasonable for Client’s use of the Wire Manager Service.

If Bank acts on a Request in compliance with the Security Procedures, then Client will be obligated on the Request and it will be treated as Client's Request, whether or not authorized by Client.

Any Request received by Bank will be treated as Client’s and will bind Client whether or not Bank complied with the Security Procedures, if the Request is authorized by Client, if the Request is delivered to Bank directly or indirectly by any authorized representative of Client (each an “Authorized Person”), or if Client would otherwise be legally bound by the Request, regardless of whether the Request was erroneous in any respect or that any loss would have been prevented if Bank had complied with the Security Procedures. 

Client will use and safeguard the Wire Manager Service, Security Procedures, and Supporting Documents in accordance with the Agreement.  In connection with Client’s safeguarding obligations, Client will implement and maintain physical, technical, and administrative controls and procedures sufficient to prevent impermissible or unauthorized access to or use of the Wire Manager Service, the Supporting Documents, or any part of the Security Procedures. 

Client assumes all risks associated with disclosure of any part of the Security Procedures, including a Security Procedure to its employees. Client agrees to limit disclosures of Security Procedures to those employees or agents Client will authorize to access the Wire Manager Service on Client’s behalf, or who have a specific need to know.  Client agrees to follow all requirements and guidance that may be outlined in the Supporting Documents.  Client agrees to promptly change security codes and level of authority, as applicable, in the event of any change in personnel or when reasonably prudent to do so.

Bank is not obliged to act on a Request that is not transmitted in accordance with the Security Procedures.  Bank may act on an incomplete Request at its sole discretion, including but not limited to if in Bank's reasonable opinion, it contains sufficient information.  Bank has no duty to discover, and shall not be liable for, errors or omissions made by Client or the duplication of any Request by Client.

Any person identified by Client in the Supporting Documents or so designated by any subsequent notice delivered to Bank may receive information, communications and notices regarding the Wire Manager Service, and is authorized to transact all business, make all agreements and sign and deliver all documents in connection with the Wire Manager Service.  If the identity of such a person changes, Client will promptly notify Bank.  Bank will have a reasonable time after receipt of a notice or other communication to act on it.

Recalls, Cancellations, or Amendments.  If Client informs Bank that it wishes to recall, cancel or amend a Request after it has been received by Bank, Bank may, but will not be required to, use its reasonable efforts to assist Client to do so, but shall not be liable for any loss, cost or expense suffered by Client if Bank does not, or is unable to, amend, cancel or recall the Request.  Without limiting any other provision of the Agreement, Client hereby agrees to indemnify Bank against any loss, liability, claim or expense (including legal fees) it may incur in connection with assisting Client to recall, cancel or amend any Request.

Account Transfer Limitations.  All transfers to and from an Account will be subject to the terms and conditions applicable to the Account as set forth in the Deposit Agreement, including but not limited to transfer limitations.  For example, federal regulations limit certain types of transactions/transfers from a money market or savings account.  If Client exceeds these limits, Bank may impose a fee, close or convert Client’s Account, limit Client’s use of the Wire Manager Service, or any combination of the foregoing.  In addition, there may be other transfer limits addressed in the Deposit Agreement and Supporting Documents.

Refusal To Process Request.  Bank reserves the right to, in its sole discretion, delay or refuse to process any requested the Wire Manager Service, including inbound or outbound transfers.  Bank may do so for any reason or for no reason.  Bank may provide notice to Client, but is not obligated to do so.  Without limiting the foregoing, Bank may delay or refuse processing, for example, if:  (i) processing would or may exceed the available funds in Client’s affected account;  (ii) the Request is not authenticated to Bank’s satisfaction or Bank believes it may not have been authorized by Client; (iii) the Request contains incorrect, inconsistent, ambiguous, or missing information; (iv) processing would or may involve funds which are subject to lien, security interest, claim, hold, dispute, or legal process prohibiting withdrawal; (v) processing would or may cause a violation of any laws or rules applicable to Client or to Bank; or (vi) for any other reason.  In addition, Bank shall be excused from failing to transmit or delay in transmitting a Request if such transmittal would result in Bank’s having exceeded any limitation upon Bank’s intra-day net funds position established pursuant to present or future Federal Reserve guidelines or in Bank’s reasonable judgment otherwise may violate any provision of any present or future risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority.  Client agrees that Bank will have no liability to Client or to any other person for any loss, damage or other harm caused by or arising out of any such delay or refusal.

Inconsistencies.  If a beneficiary of a Request is identified by both name and account number, payment may be made by Bank and by any other financial institution based on the account number even if the name and the account number are not consistent or identify different parties.  If an intermediary bank or a beneficiary’s bank is identified on a payment order by both name and number, Bank and other financial institutions may rely on the number even if the name and the number are not consistent or identify different parties.

Provisional Credit.  Client acknowledges that credit for a payment order is provisional until the receiving financial institution obtains final settlement.  If final settlement does not occur, the originator of the payment order is not deemed to have made payment to the beneficiary, and the beneficiary's bank is entitled to a refund of the provisional credit.  Client agrees that when Bank gives Client credit for an incoming payment order, including but not limited to, returned credited transactions or credit reversals, it is provisional until Bank receives final settlement for the payment order.  Bank may delay availability of provisional funds at its discretion.  If Bank does not receive final settlement, Client must return the funds previously credited to Client's account to Bank, and the person who sent the payment order will not be treated as having paid Client.  Bank may refuse to permit the use of any amount credited for an incoming payment order, including but not limited to a debit entry or credit reversal if Bank believes in its sole discretion that there may not be sufficient funds in Client's account to cover chargeback or return of such transaction.

Confirmation; Duty to Review and Report.  Bank may provide confirmation of advice based on the request of Client and in any case shall include the transfer as part of the account statements provided by Bank to Client.   Client agrees to examine the confirmations and monthly account statements promptly upon receipt or availability, whichever occurs first.  Client shall notify Bank immediately and in no event later than fourteen (14) days after receipt or availability, whichever occurs first, of the advice or statement of the existence of any errors, unauthorized transactions or irregularities reflected on the confirmation or account statement.  Failure to notify Bank within 14 days shall relieve Bank of responsibility for errors, unauthorized transactions or irregularities that may arise after the 14th day.  Failure to notify Bank within one year shall preclude Client asserting the errors, unauthorized transactions or irregularities against Bank.  Notwithstanding the foregoing, Bank reserves the right to, in its sole discretion, adjust transaction records for good cause after the expiration of said one year period.

Cutoff Hours.  Bank may establish from time to time the cutoff hour for same-day Requests must be received by Bank’s Wire Department.  A Request is considered executed when Bank executes it.  If a Request is received after the cutoff hour or on a day that is not a business day, Bank may process the Request the following business day.

Delayed Processing.  In addition to any rights or allowances provided to Bank under the Agreement or in any other agreement Bank has with Client, Client agrees that Bank may delay posting of an inbound credit to Client’s account(s), or delay the processing of an outbound transaction, when the delay is due to a suspicion that the transaction may be in violation of applicable law, or the transaction is otherwise under review by Bank.

Fees.  Client agrees to pay Bank the fees prescribed in Bank’s applicable current Schedule of Fees and Charges for the Wire Manager Service, a copy of which is available upon request.  Unless other arrangements are made for payment of the fees, Bank will automatically debit any account maintained by Client with Bank in the amount of the fees. 

 

 

Addendum E

ACH Manager

ACH Manager Service.  The ACH Manager service (“ACH Manager” or the “ACH Manager Service”) is an optional Service which allows Client to originate ACH transfers.   To use ACH Manager, Client must select ACH Manager on Client’s Application, and Bank must approve this Application.  Once approved, ACH Manager can be used for the Accounts indicated on Client’s Application.  Additional terms and conditions for ACH Manager are provided in this ACH Transaction Addendum (“Addendum”).  To the extent Bank approves Client to use the ACH Manager Service, Client agrees to the terms in this Addendum. 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.  The term "Entries" shall have the meaning provided in the Rules and shall also mean the data received from Client hereunder from which Bank prepares Entries.

Client may initiate credit and/or debit Entries by means of the Automated Clearing House Network pursuant to the terms of this Addendum and the rules of the National Automated Clearing House Association (“NACHA”) and the local Automated Clearing House Association (the “Rules”), and Bank will act as an Originating Depository Financial Institution (“ODFI”) with respect to such Entries. Client may submit ACH Entries to Bank in accordance with the terms and conditions of this Addendum. Client is responsible for all Entries to the fullest extent provided by law and as set forth in this Addendum.

Related ACH Entries.  Entries submitted by Client using Bank’s Online Banking Services must be consistent with the Agreement.  Additional terms and conditions may apply to the ACH Manager Service to the extent Client transmits Entries outside Bank’s System.  Client may not submit Entries outside Bank’s System without Bank’s prior written consent.

The Rules.  A copy of the Corporate Edition of the Rules can be purchased from NACHA at www.NACHA.org or a read-only version is available at no cost at www.achrulesonline.org.  Client agrees to obtain or review a copy, to understand and be familiar with the Rules, and to be responsible for keeping up to date with changes in the Rules.  Client agrees that information or advice received by Client from Bank as to the Rules or the operation of the Rules is not legal advice and is not a substitute for Client’s obligation independently to understand and comply with the Rules.

Processing Entries.  To the extent authorized and approved by Bank, Client shall transmit PPD (Prearranged Payments and Deposits), CCD (Corporate Credit or Debit) or debit Entries to Bank to the location(s) and in compliance with the formatting and other requirements set forth in the Rules and the Supporting Documents.  The ACH Manager Service will start on a date agreeable to Client and to Bank after all set up requirements have been completed.

Client will not submit individual or total monthly Entries in excess of the maximum limits established by Bank and reflected in the Supporting Documents, as amended from time to time.  The parameters and variations of the limits shall be set at Bank’s discretion, including but not limited to limits based on dollar amounts and/or Standard Entry Class Code types.  Client will not divide a transaction into more than one Entry in order to avoid these limitations.  The Bank may adjust these limitations from time to time by providing notice to Client.  The Bank processing of Entries in an amount greater than the established limit(s) shall not be deemed a waiver of this provision; the Bank may cease processing Entries in a greater amount at any time without prior notice. 

Client may not originate Entries using Standard Entry Class Codes other than CCD, PPD or WEB without prior notice to and written approval by Bank.  Bank may require Client to submit an application in form and content acceptable to Bank, and execution by Client of such supplemental schedules, agreements and other documents as Bank may require, as a condition precedent to Client's use of other Standard Entry Class Codes.  By way of example, the foregoing restrictions and requirements may apply to Client's use of ARC, RCK, BOC, POP, CTX, IAT or TEL Standard Entry Class Codes, or if Client is engaging in cross-border (International) transactions.  Bank may block unapproved use of a Standard Entry Class Code or an unapproved cross-border transaction.

Except as provided below for On-Us Entries, Bank shall: (i) process Entries received from Client to conform with the file specifications set forth in Rules; (ii) transmit such Entries as an ODFI to an ACH Operator selected by Bank in its sole discretion (“ACH Operator”);, and (iii) settle for such Entries as provided in the Rules.  Bank shall transmit or complete the necessary authorizations for ACH Entries by the deadline of the ACH Operator, two business day prior to the Effective Entry Date shown in such Entries, provided: (a) such Entries are received by Bank's related cut-off time on a business day, (b) the Effective Entry Date is at least two business days after such business day, and (c) the ACH Operator is open for business on such business day.  Entries shall be deemed received by Bank when the transmission and compliance with any related Security Procedures is completed.  If any of the requirements of this paragraph are not met, Bank may use reasonable efforts to transmit such Entries to the ACH by the next deadline of the ACH Operator which is a business day and a day on which the ACH Operator is open for business.

Bank may from time to time establish file, Entry and exposure limitations and assign them to Client.

Tax Payments.  The “Tax Payments” Service refers to Client’s use of the ACH Manager Service to make tax payments and deposits.  To the extent Client uses the Tax Payment Service, Client appoints Bank to act as Client’s agent for the purpose of making tax payments and deposits on Client’s behalf.  Upon Bank’s request, Client agrees to execute such additional enrollment forms and authorizations as Bank may request.  Client authorizes Bank to release account and tax payment information to any taxing authority in performing the Tax Payment Service and to confirm payments.

CLIENT MUST BE PRE-ENROLLED WITH THE FEDERAL AND/OR STATE TAXING AUTHORITIES PRIOR TO USING THE TAX PAYMENT SERVICE.  Client warrants that Client is enrolled in the Electronic Federal Tax Payment System (EFTPS) and have selected the ACH Credit option.  Client also warrants that all special requirements of the EFTPS system have been met and that Client has made appropriate enrollment with each state taxing authority, as applicable.

Client is solely responsible for determining the amount of any taxes due and transmitting the correct payment information in accordance with Bank’s procedures.  Client must furnish Bank with complete and accurate tax payment information.  Bank is not responsible for: (i) determining the correctness of any tax computation or payment; (ii) questioning the timing or amount of the payment; (iii) determining or questioning the correctness of any report or information submitted by Client (even if it appears incorrect on its face); or (iv) any penalty which may be imposed if Client instruct Bank to make a payment after Bank’s cut-off time or the date the tax payment is due.

Bank will notify Client orally, electronically or in writing if Bank is unable to process any payment in the manner attempted by the Tax Payment Service, and will do so no later than the business day following the payment date.  If Client fails to maintain sufficient collected and available funds in Client’s account, Bank may refuse to perform the tax payment.  If any payment is rejected, it will be Client’s sole responsibility to resubmit the payment instruction.  If Client does not have sufficient or available funds, Client may be charged an insufficient funds fee and any other fees or charges applicable to the transaction.

When Bank receives Client’s payment instruction to make a tax payment, Bank will charge Client’s Account for the amount of the payment(s).  The funds may be held by Bank as a non-interest bearing deposit liability to Client, but will not be held in trust.  Until Bank makes Client’s tax payment, Client’s funds will be subject to offset for any debts owed to Bank.

Client assumes the risk of any failure to submit payment instructions to Bank in a timely and correct manner.  Payments should be submitted at least two business days prior to the due date.  Any interruption of the Tax Payment Service, regardless of the reason, will not relieve Client of Client’s obligation to make a tax payment or report.  Client is responsible for promptly making required tax payment or report.  Client is responsible for promptly making required tax payments by another means in the event there is an interruption in the Tax Payment Service.

Client acknowledges that Bank’s employees, subcontractors and agents are not authorized or permitted to give tax advice to Client.  Client agrees not to seek or place any reliance upon tax advice from Bank, its employees, subcontractors or agents.  If the Tax Payment Service is not used for a period of ninety (90) days, the Tax Payment Service may be removed or disabled.  To cancel a Tax Payment Service Communication and the payment instruction that Client has scheduled, Client must cancel online prior to the cut-off time on the processing date.  Payments cannot be cancelled after this time.  Bank may, at Bank’s discretion, seek to assist Client in attempting to cancel or amend any payment but is not obligated to do so.  If Bank does attempt to cancel or amend any payment, Client will indemnify Bank in accordance with this Addendum for any losses Bank may suffer in connection with Bank’s efforts.

On-Us Entries.  In the case of an Entry received for credit to an account maintained with Bank (an "On-Us Entry"), Bank shall credit the Receiver's account in the amount of such Entry on the Effective Entry Date contained in such Entry, provided the requirements set forth in this Addendum are met.  If said requirements are not met, Bank may 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 Entry Date.

Recalls, Cancellations, or Amendments.  If Client informs Bank that it wishes to recall, cancel or amend a Entry after it has been received by Bank, Bank may, but will not be required to, use its reasonable efforts to assist Client to do so, but shall not be liable for any loss, cost or expense suffered by Client if Bank does not, or is unable to, amend, cancel or recall the Entry.  Without limiting any other provision of the Agreement, Client hereby agrees to indemnify Bank against any loss, liability, claim or expense (including legal fees) it may incur in connection with assisting Client to recall, cancel or amend any Entry.

Notice of Returned Entries.  Bank shall notify Client by phone or electronic transmission, including email of the receipt of a returned Entry from the ACH no later than one business day after the business day of receipt.  Except for an Entry retransmitted by Client in accordance with the requirements of this Addendum, Bank shall have no obligation to retransmit a returned Entry to the ACH if Bank complied with the terms of this Addendum with respect to the original Entry.

Notifications of Change.  Bank shall notify Client of all Notifications Of Changes (NOC) received by Bank relating to Entries transmitted by Client by mutually agreeable means, including regular mail, fax or email, no later than two business day after the business day of receipt.  Client must make the changes specified in an NOC or corrected NOC: (i) within six business days of receipt or prior to initiating another Entry to the Receiver's account, whichever is later; or (ii) as otherwise required in the Rules, if the Rules specify a different time for correction.

Prefunding; Payment.  Bank may designate Client as "ACH Prefunding," and Bank may change Client's designation to or from ACH Prefunding at any time, with or without cause and at Bank's sole discretion.  Bank will inform Client of its designation as an ACH Prefunding client, and of any change in the designation. 

Client will pay Bank, in immediately available funds, an amount equal to the sum of all credit Entries or debit Reversals related to Entry data delivered to Bank at such time as Bank may from time to time designate or, if not otherwise designated: (i) if Client is not an ACH Prefunding client, no later than two business days prior to the Effective Entry Date; and (ii) if Client is an ACH Prefunding client, no later than the date of transmittal of the related Entry data to Bank or at such other time as Bank may have established for Client.

Lead Days.  Bank may require in its sole discretion that Client provide Entries to Bank with a minimum number of lead days prior to Bank processing such Entries.  Bank shall provide Client with prior notice of any such lead day requirement.

Inconsistencies. If a Receiver of an Entry is identified by both name and account number, payment may be made by Bank and by any other financial institution based on the account number even if the name and the account number are not consistent or identify different parties.  If an intermediary bank or a beneficiary’s bank is identified on a payment order by both name and account number, Bank and other financial institutions may rely on the account number even if the name and the account number are not consistent or identify different parties.

Provisional Credit.  Client agrees that any payment by Bank to Client for any debit Entry, returned credit Entry or credit Reversal is provisional until Bank has received final settlement for such Entry.  Bank may delay availability of provisional funds at its discretion.  If final settlement is not received, Bank is entitled to and Client agrees to pay a refund of the amount credited; Bank may charge Client's account for the amount due.  Bank may refuse to permit the use of any amount credited for a debit Entry or credit Reversal if it believes that there may not be sufficient funds in Client account to cover chargeback or return of such Entry or Reversal.

Cutoff Hours.  The cutoff hour applicable to ACH Entries shall be established by the Bank from time to time.  An Entry is considered executed when Bank executes it.  If Entry data is received after the cutoff hour or on a day that is not a business day, the Entry data will automatically be processed on the following business day. 

Client Representations and Warranties.  In addition to the representations and warranties provided by Client under the Agreement, with respect to each and every Entry initiated by Client, Client represents and warrants to Bank and agrees that:

  1. Client shall obtain all consents and authorizations required under the Rules and shall retain such consents and authorizations for two years after they expire and other documents related to Entries for a period of six years. Without limiting the foregoing, each person as the Receiver of 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 Entry Date shown on such Entry.  Client will provide the Receiver with a copy of such authorization whenever required to do so. Such authorization is operative at the time of transmittal or crediting / debiting by Bank as provided herein;
  2. Entries transmitted to Bank by Client are limited to those types of credit or debit Entries set forth in this Addendum;
  3. If the amount of a debit Entry to a Receiver's account varies in amount from the previous debit Entry relating to the same authorization or preauthorized amount, Client will, at least ten days before the Effective Entry Date of such debit Entry, send the Receiver written notice of the amount of such debit Entry and its Effective Entry Date, unless the Receiver has previously been notified of Receiver's right to receive such notice and Receiver has elected to receive such notice only when the debit Entry does not fall within a specified range of amounts or varies from the most recent debit Entry by an agreed amount;
  4. If any change is made by Client in the scheduled Effective Entry Date of one or more debit Entries, Client will, at least seven days before the Effective Entry Date of the first such debit Entry to be affected by such change, send the Receiver a written notice of the new Effective Entry Date(s) of such Entry or Entries;
  5. Client shall be bound by and comply with the Rules as in effect from time to time, including, without limitation, the treatment of a payment of an Entry by the Receiving Depository Financial Institution (“RDFI”) to the Receiver as provisional until receipt by the RDFI of final settlement for such Entry;
  6. 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;
  7. Client will not use the ACH Manager Service to collect: (i) payments for goods or services sold by third parties; (ii) payments relating to gambling services or child pornography; (iii) obligations owning to third parties; or (iv) obligations related to cash advances by Client;
  8. Client hereby makes the same representations and warranties to Bank with respect to Entries sent by Bank to an ACH Operator upon the authorization of Client as Bank is deemed to make under the Rules, and Bank shall have no responsibility with respect to matters so represented and warranted by Client; and
  9. Except as previously disclosed in writing by Client to Bank: (i) Client is not a “money-services business” (as defined at 31 CFR 103.11(uu) or successor regulation) and is not subject to any state license requirements applicable to a money-services business, banks, broker-dealers or other financial institutions; and (ii) no Entry data is submitted by Client on behalf of, or as agent, service bureau or processor for another. By way of example, Client will not submit debit Entries that result from a sale of goods or services by a third party to the Receiver.
  10. Client agrees to indemnify Bank against any loss, liability or expense (including attorney's fees and expenses) resulting from or arising out of any breach of any of the foregoing representations or agreements.

Audit.  In addition to the audit commitments provided under the Agreement, if transactions Client conducts involve some use of the Internet, then Client agrees to conduct an internal security audit at least annually to ensure that the financial information obtained from Receivers is protected by security practices and procedures (“security audit”) that include, at a minimum, adequate levels of: (i) physical security to protect against theft, tampering, or damage; (ii) personnel and access controls to protect against unauthorized access and use; (iii) network security to ensure secure capture, storage, and distribution of financial information; and (iv) any other items identified in the Operating Guidelines of the Rules.  Upon Bank’s request, Client agrees to have an external security audit conducted within sixty (60) days of the request.  The external security audit will include the same items described in this paragraph for an internal security audit.  Client agrees to provide Bank with a copy of each internal and external audit report, as applicable, in a format acceptable to Bank within (30) days from the completion of the audit.

Security Procedures.  Client and Bank may agree to certain procedures set forth in the Supporting Documents (collectively, "Security Procedures") designed to verify the authenticity but not errors in transmission or content.  If Bank takes any action not provided in the Security Procedures in connection with any Entry, such additional action shall not be deemed to become a mandatory part of the continuing Security Procedures.

Before using the ACH Manager Service and before submitting an Entry to Bank, Client will review the Security Procedures and determine whether they will provide a commercially reasonable method for verifying whether an Entry has been submitted by Client.  Client agrees not to use the ACH Manager Service if Client is unable to determine that the Security Procedures will provide a commercially reasonable method for verifying that an Entry has been submitted by Client.  As part of the review, Client will consider the size, type and frequency of Entries Client will submit or anticipates submitting, along with such other factors as Client may deem relevant or appropriate.  If the size, type or frequency of an Entry submitted by Client changes such that the Security Procedure in use by Client no longer provide a commercially reasonable method of providing security against unauthorized Entries, Client shall notify Bank.  Client agrees that Bank will use the Security Procedures to verify the authenticity of a submitted Entry, but that the Security Procedures are not designed to and are not used for the purpose of detecting error. 

Bank may offer to Client or require Client to use additional security authentication tools or methods from time to time.  If Client chooses not to implement supplemental authentication tools, Client’s access to some or all of the ACH Manager Service may be limited.  The term “Security Procedures” will include any supplemental authentication tools that are used by Client.  Client’s continued use of any modified Security Procedures will evidence Client’s agreement that the modified Security Procedures are commercially reasonable for Client’s use of the ACH Manager Service.

If Bank acts on an Entry submitted in compliance with the Security Procedures, then Client will be obligated on the Entry and it will be treated as Client's submitted Entry, whether or not authorized by Client.

Any Entry received by Bank will be treated as submitted by Client and will bind Client whether or not Bank complied with the Security Procedures, if the Entry was submitted with Client’s authoritzation, if the Entry is submitted to Bank directly or indirectly by any authorized representative of Client (each an “Authorized Person”), or if Client would otherwise be legally bound by the Entry, regardless of whether the Entry was erroneous in any respect or that any loss would have been prevented if Bank had complied with the Security Procedures. 

Client will use and safeguard the ACH Manager Service, Security Procedures, and Supporting Documents in accordance with the Agreement.  In connection with Client’s safeguarding obligations, Client will implement and maintain physical, technical, and administrative controls and procedures sufficient to prevent impermissible or unauthorized access to or use of the ACH Manager Service, the Supporting Documents, or any part of the Security Procedures. 

Client assumes all risks associated with disclosure of any part of the Security Procedures, including a Security Procedure to its employees. Client agrees to limit disclosures of Security Procedures to those employees or agents Client will authorize to access the ACH Manager Service on Client’s behalf, or who have a specific need to know.  Client agrees to follow all requirements and guidance that may be outlined in the Supporting Documents.  Client agrees to promptly change security codes and level of authority, as applicable, in the event of any change in personnel or when reasonably prudent to do so.

Bank is not obliged to act on an Entry that is not transmitted in accordance with the Security Procedures.  Bank may act on an incomplete submitted Entry at its sole discretion, including but not limited to if in Bank's reasonable opinion, it contains sufficient information.  Bank has no duty to discover, and shall not be liable for, errors or omissions made by Client or the duplication of any Entry submitted by Client.

Any person identified by Client in the Supporting Documents or so designated by any subsequent notice delivered to Bank may receive information, communications and notices regarding the ACH Manager Service, and is authorized to transact all business, make all agreements and sign and deliver all documents in connection with the ACH Manager Service.  If the identity of such a person changes, Client will promptly notify Bank.  Bank will have a reasonable time after receipt of a notice or other communication to act on it.

 

 

Addendum F

 

Positive Pay (Check) Service

 

Positive Pay (Check).  The Positive Pay (Check) service (“Positive Pay (Check) “Service”) is an optional Service which provides automated check matching.  In order to use the Positive Pay (Check) Service, Client must select the Positive Pay (Check) Service on Client’s Application, and Bank must approve this Application.  Once approved, Positive Pay (Check) can be used for the Accounts indicated on Client’s Application.  Terms and conditions for Positive Pay are provided in this Positive Pay (Check) Service Addendum (“Addendum”).  To the extent Bank approves Client to use the Positive Pay (Check) Service, Client agrees to the terms in this Addendum. 

 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

 

Definitions.  Unless otherwise defined in this Addendum or the Agreement, capitalized words or phrases used in this Addendum shall have the meanings set forth in California Uniform Commercial Code Division 3 - "Negotiable Instruments" and California Uniform Commercial Code Division 4 - "Bank Deposits and Collections."

 

“Check Information” means check number, amount and issue date, or such information identifying a Check issued by Client as Bank may require from time to time.

 

"Exception Check" means a Presented Check that does not match the checks listed or identified on the Positive Pay File provided to Bank via the Bank’s System.

 

“Exception Checks Report” means a record of Exception Checks, which is provided by the Bank via the System to the Client. 

 

"Positive Pay File" means a cumulative list of all checks, uploaded by the Client through use of the System to the Bank, which have been issued by the Client but have not been presented and are otherwise approved for payment under this Addendum.

 

"Presented Check" means a check drawn on the Account and presented to the Bank for payment through the check collection system.  A check presented to the Bank by the payee directly (for example, over-the-counter) or otherwise outside of the Bank's automated check collection system will not be a Presented Check and will not be governed by this Addendum. 

 

"Return Items File" means a record describing Exception Checks listed on the Exception Checks Report that Client does not want to be paid, which is provided via the System by the Client to the Bank as described below.

 

Positive Pay (Check) Services.

 

Positive Pay File.  Client must submit a Positive Pay File to Bank prior to the cutoff time that the Bank establishes for this purpose from time to time (“Cutoff Time”).  The Positive Pay File must be uploaded to the Positive Pay (Check) Service of Bank’s System by the Cutoff Time on any banking day in order for files to be updated through end-of-day processing.  Only those checks listed on a validly prepared and uploaded Positive Pay File will be part of the Positive Pay (Check) Service.  Any Positive Pay File uploaded after the Cutoff Time may not be included with the Bank’s end-of-day processing until the next banking day.

 

  1. If there are checks reported on the Positive Pay File, the System will compare the Check Information from the checks listed on Client’s Positive Pay File with the Check Information that is encoded on that banking day's Presented Checks that are presented to Bank for payment against your Account. This comparison will be done only on the banking day Presented Checks are received by Bank.  Also, the comparison will be done only against the checks that are on the Positive Pay File.  It is Client’s responsibility to submit the Positive Pay File in the proper format and time specifications as set forth in this Addendum.  If the Check Information matches exactly, the System will treat the matching items as validly issued and properly payable, and will process those items for payment, assuming Client has sufficient available funds in Client’s Account for the payment.  If there are checks presented to Bank on or as of that banking day that do not match the Check Information as set forth in your Positive Pay File, the Bank will notify Client of these mismatch checks by providing Client an "Exception Checks Report" as provided below.

 

  1. Bank will make an Exception Check Report available to Client each banking day that Bank receives Presented Checks through the System that contains Exception Checks. The Exception Check Report lists the items that did not match Client’s Positive Pay File.  To have any Exception Checks returned unpaid, Client must review the Exception Check Report, assign a “Return” decision for each Exception Check on the Return Items File via the System for processing.  If an Exception Item is not assigned a “Return” decision on the Return Items File before a designated cutoff time to be established by the Bank from time to time, on the business day following the day of presentment of the Presented Checks, Bank will pay all Presented Checks, including but not limited to Exception Checks and non-matching items.  If Client fails to timely list an Exception Check in a Return Items Report, the Bank may, but is not obligated to, return the Exception Check unpaid but will not be liable for its failure to do so.

 

  1. Bank makes no representation or warranty regarding the effectiveness of the Exception Check Report, and makes the Exception Check Report available only as an accommodation to Client. Client agrees to indemnify, defend and hold us harmless from every loss, liability and claim arising from information provided on, or excluded from, this Exception Check Report by us.  Client understands that the fee for this Service has been established in contemplation of this limitation on Bank’s liability.

 

  1. Client may only use the Positive Pay (Check) Service of the Bank’s System as a mechanism to instruct us to return Presented Checks listed on the Exception Check Report and not for any other checks, including those checks presented prior to or after the banking day Bank sends the Exception Check Report.  If Client wants to stop payment on any check, Client must follow the proper stop payment procedures and requirements established by the Deposit Agreement.

 

Checks Covered by Service.  The Positive Pay (Check) Service applies to Presented Checks that are presented for payment to us through normal interbank clearings.  It is not designed to compare Client’s Positive Pay File against items that are presented in any other manner (e.g., at a teller window, through an automated teller machine, or by mail).  At Bank’s sole discretion, Bank may attempt to compare Client’s Positive Pay File with such items; however, Bank will not be liable for Bank’s failure or refusal to do so.

 

Bank assumes no duty to compare or otherwise to identify and/or return, checks not able to be processed on an automated basis, duplicate checks, checks with duplicate serial numbers, mis-encoded items, or checks lacking an encoded serial number.  Bank may pay stale-dated and post-dated checks unless Client timely submits a stop payment order or notice of post-dating for such items.

 

Reliance on MICR Encoding.  Client agrees that Bank will not be obligated to verify the authenticity of any check that matches the Check Information listed in Client’s Positive Pay File.  Client understands and agrees that Bank may compare Client’s information on its Positive Pay File with information that is encoded on the items presented to Bank for payment.  Bank will not be required to otherwise examine checks, or seek to confirm that they are properly signed, completed or encoded, or otherwise unmodified.  Client agrees that Bank may rely on such a process and that the process will be deemed an acceptable standard of care for this Service and Client’s Account.  Client understands that the Service may not identify altered, counterfeit or duplicate checks or checks with forged or unauthorized signatures.  As such, Client agrees to review promptly all statements, returned checks, reports and other check and transaction information Bank makes available to Client.

 

If Client orders or prints checks from a check-printing vendor other than the Bank, Client agrees to ensure the MICR encoding ink is of high quality.  Not using high quality ink could result in a large number of Exception Checks being reported by the Bank on an Exception Check Report and higher costs to Client.

 

Accuracy of Information.  Client assumes full responsibility for the completeness and accuracy of all information furnished to Bank.  Client understands that it is important that the information be exact, e.g., the correct amount in dollars and cents.  Bank assumes no responsibility for detecting or correcting ambiguous, incomplete, untimely or inaccurate information provided by Client.  Bank’s willingness to process nonconforming information will not be considered a waiver of any requirement of this Addendum, and Bank may discontinue processing nonconforming information without prior notice.

 

Client and Bank Communications.  Client or the Bank, at either’s discretion, may each submit to the other party a revision of any communication provided for under this Addendum.  The revised communication must: (i) be sent in its entirety and not in the form of a partial amendment to the communication originally sent; (ii) identify the original communication; (iii) clearly specify that it is a revision of the original or prior communication; and (iv) be sent in the format and medium, and be received by the deadline(s) and at the place(s), established by the receiving party.  A properly submitted revised communication serves to revoke the original communication.

 

Bank and Client shall only use a Positive Pay File, Return Items File or Exception Check Report that complies with this Addendum, provided that either has not been timely revoked, in the handling of Presented Checks under this Addendum.

 

Bank and Client shall not be obligated to comply with any communication not received by Bank, or received in a format or medium, after a deadline, or at a place not specified or agreed to under this Addendum but may instead treat such a communication as though it had not been received.

 

Bank is not responsible for detecting any Client error contained in any Positive Pay File or Return Items File sent by Client to Bank.

 

Lost or Destroyed Checks.  Any Presented Check that is damaged, lost or destroyed ("Damaged Checks") so as to be rejected by automated processing systems during processing will not be covered by this Addendum.

 

Client and Bank will cooperate in the payment decision regarding processed Damaged Checks.  Client agrees that Bank has discretion regarding returning a Damaged Check to the presenting bank or otherwise to any depository financial institution.  This means that  Bank is not obligated to (but may) return a Damaged Check, unless expressly instructed otherwise by Client.  Client further agrees that Bank's decision to return a Damaged Check does not obligate Bank to return future Damaged Checks.  If Bank returns a Damaged Check, it may return the Damaged Check by any means reasonable, including by use of notice in lieu of return or by return of copies of the Damaged Check.  Bank will use its best efforts to notify Client of a Damaged Check. 

 

Remedies.

 

Commercial Code Liability.  To the extent applicable, the liability provisions of California Uniform Commercial Code Divisions 3 and 4 shall govern this Addendum, except as modified below.

 

Wrongful Honor.  It shall constitute wrongful honor by Bank if Bank pays an Exception Check submitted in a timely and un-revoked Return Items File.  In the event that there is wrongful honor:

 

  1. Bank shall be liable to Client for the lesser of the amount of the wrongfully paid Exception Check or Client's actual damages resulting from Bank's payment of the Exception Check, but for no other damages suffered as a result of the wrongful honor.

 

  1. Notwithstanding the improper payment of an Exception Check, Bank expressly reserves the right to assert that Client is liable for the amount of the wrongfully honored Exception Check on the grounds that the Exception Check was properly payable under Section 4-401(a).

 

  1. Bank retains the right to assert Client's failure to exercise reasonable care under Sections 3-406(a) and 4-406(c). Bank's improper payment shall not in and of itself constitute a failure of the Bank to have exercised ordinary care under the loss allocation provisions of Sections 3-406(b) and 4-406(e).

 

  1. Bank retains the right to assert the defense that Client has sustained no actual damages because the Bank's honor of the Exception Check discharged for value an indebtedness of Client.

 

Rightful Payment and Dishonor.

 

  1. If Bank honors a Presented Check that is listed on an Exception Check Report but that is not submitted on the Return Items File, such honor shall be rightful, and Client waives any right it may have to assert that the Presented Check was not properly payable under Section 4-401.

 

  1. If Bank honors a Presented Check that is listed on a Positive Pay File, such honor shall be rightful, and Client waives any right it may have to assert that the Presented Check was not properly payable under Section 4-401.

 

  1. If Bank dishonors a Presented Check that is listed on the Return Items File, the dishonor shall be rightful, and Client waives any right he or she may have to assert that the dishonor was wrongful under Section 4-402.

 

  1. Client agrees that Bank exercises ordinary care whenever it rightfully pays or returns a Presented Check consistent with the provisions of the Addendum.

 

 

 

Addendum G

 

Positive Pay (ACH) Services

 

Positive Pay (ACH).  The Positive Pay (ACH) service (the “Positive Pay (ACH) Service”) is an optional Service which provides automated ACH entry blocking or filtering.  In order to use the Positive Pay (ACH) Service, Client must select the Positive Pay (ACH) Service on Client’s Application, and Bank must approve this Application.  Once approved, the Positive Pay (ACH) Service can be used for the Accounts indicated on Client’s Application.   Terms and conditions for Positive Pay are provided in this Positive Pay (ACH) Service Addendum (“Addendum”).  To the extent Bank approves Client to use the Positive Pay (ACH) Service, Client agrees to the terms in this Addendum. 

 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

 

ACH Filtering or Blocking.  Client may use the Positive Pay (ACH) Service to review and confirm ACH debit and credit transactions that post to the specified Accounts either through blocking (the “ACH Blocking Service”) or filtering (the “ACH Filtering Service”) mechanisms.

 

  1. If the Client selects the ACH Filtering Service, Client shall establish (and update from time to time) through the System its ACH policies which govern permissible transactions by Originating Company ID, Standard Entry Class, Dollar Range, and/or Transaction Code, as specified further by Bank from time to time. Alternatively, if Client chooses the ACH Blocking Service over the ACH Filtering Service, all incoming ACH transactions (debit or credit) may be treated as exceptions and available for the Client's review.

 

  1. Client shall review exceptions it receives from Bank through email notifications made through the System and/or online through the System, and determine if the exceptions will be treated as authorized or unauthorized ACH transactions.

 

  1. Client shall make its exceptions decisions online through the System on each Bank business day by the deadline specified by Bank from time to time.

 

  1. Client acknowledges that the Positive Pay (ACH) Service does not cover ACH debit or credit items which Bank has already paid or finalized or which Bank is already committed to pay or honor under applicable laws, regulations or the ACH Operating Rules.

 

  1. Bank shall compare incoming ACH debit and credit transactions against Client's established ACH policies and accept those transactions which are authorized under Client's ACH policies as established by Client in the System.

 

  1. Bank shall submit to Client as exceptions any ACH transactions which do not meet Client's ACH policies (unless the Client has chosen the ACH Blocking Service, in which case all ACH transactions may be treated as exceptions).

 

  1. Bank shall make reasonable efforts to make exceptions available to Client on each Bank business day by the deadline specified by Bank from time to time.

 

  1. Bank will return and will reflect in Client's account records as posted and returned any ACH exceptions Client does not choose to pay. Generally, unauthorized ACH debit transactions will be returned on the Bank business day following posting.

 

  1. Bank shall default to a “pay” decision for any exception for which Client has not submitted a decision on the same Bank business day by the deadline specified by Bank from time to time.

 

System Interruption or Failure.  In the event of system interruption or failure, either that of Client’s system or Bank’s System, resulting in Bank’s inability to receive or process Client’s ACH file or other communication, the ACH file or other Client communication will be deemed as having not been sent by Client, even if Bank has possession of the ACH file or other Client communication.

 

Limitation on Liability.  In addition to any other limitation on liability in the Agreement, Client agrees that if Bank pays or rejects any ACH debit or credit in accordance with this Addendum, Client releases Bank and holds it harmless from any claim that the ACH debit or credit was not authorized by Client.

 

 

 

 

Addendum H

Advance Reporting Service

Advance Reporting Service. The Advance Reporting service (“ARS Service”) provides Client with the ability to view and download specifically formatted files to help with Client’s reconciliation of the posted credit and debit transactions on Client’s accounts (“ARS Files”). The Service provides Client with secure access to prior day deposit, account balance and other transaction information in standard BAI (Bank Administration Institute) file format.  This will enable Client to review all of Client’s Account information online, including debit and credit activity reports detailing incoming Automated Clearing House (ACH) transactions in accounting and reconciliation reports.

Client must select the ARS Service on Client’s Application to use the ARS Service, and Bank must approve this Application.  Once approved, the ARS Service can be used for the Accounts indicated on your Application as approved by Bank.  Terms and conditions for the ARS Service are provided in this ARS Addendum (“Addendum”).  To the extent Bank approves your use of the ARS Service, you agree to the terms in this Addendum. 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

Eligible Accounts.  The ARS Service is available for most deposit accounts, however some exclusions may apply, such as providing the Service for multiple Accounts.  Bank reserves the right to determine from time to time which of Client’s Accounts may be eligible for the ARS Service.  Client may elect to use the ARS Service for all or some of Client’s Accounts that are eligible for the ARS Service, as designated by Client through the System, however, each Account must be activated by Bank for the ARS Service on an individual basis.

Posted Transactions.  Posted transactions are transactions that have hard posted to your account history. They do not include memo transactions or other pending transactions.  Client acknowledges that information obtained on Client’s account and made available by use of the ARS Service may not reflect all account transactions performed by Client, or those not yet received or processed by Bank.  Client acknowledges and agrees that Bank has the sole discretion as to the order in which to process transactions regarding your Account.

File Delivery.  ARS Files will be available for download from the ARS Module through the System in accordance with the times and schedules as established by the Bank from time to time. Refer to Bank’s daily processing schedule for ARS File availability.

Obligations.  Client’s use of the ARS Service does not affect any of Client’s obligations which are described in the Agreement or other applicable agreements to discover and report to Bank any improper, irregular or otherwise unauthorized transactions with respect to Client’s Account, including without limitation: (i) any unauthorized signatures, alterations or endorsements on checks; (ii) any unauthorized requests or transactions; or (iii) other errors and discrepancies.

Use of Service.  You agree to use the ARS Service as set forth in the Supporting Documents and any applicable materials relating to the Supporting Documents to receive Account information from Bank through the ARS Service.  Your use of the ARS Service or Bank’s receipt of information associated with the ARS Service does not modify any existing obligations of Bank with respect to your Account(s) or the payment of checks or other transactions on your Account.

Service Interruptions.  Bank may perform maintenance on the System from time to time, which may result in interrupted service and the inability for Client to access the ARS Service.  Bank will attempt to provide prior notice of such interruptions and changes but cannot guarantee that such notice will be provided.  Client agrees that Bank will not be liable to you if an online system is delayed or unavailable at any time.  We make no warranty to you regarding your equipment or the ARS Service including fitness for a particular purpose.

Limited Liability for Failure to Provide ARS Service.  Bank will not be liable to Client due to the non-receipt or incompleteness of any transaction and Account information provided through the ARS Service, including due to delays which occur due to delays in processing debit or credit transactions such as those transactions occurring after any applicable cutoff time.

New Accounts.  If Client opens a new Account after the date Client is requests and is approved to use the ARS Service, Bank will not automatically set up that Account for the ARS Service.  It will be Client’s obligation to request any such new Account to be added by Bank to the ARS Service.

 

 

Addendum I

Lockbox Services

Lockbox Services.  The Lockbox service (the “Lockbox Service”) is an optional Service which allows Client to automate Client payment deposits.  Client must select “Lockbox” on Client’s Application to use the Lockbox Service, and Bank must approve this Application.  Once approved, Lockbox can be used for the Accounts indicated on Client’s Application.  Terms and conditions for Lockbox are provided in this Lockbox Services Addendum (“Addendum”).  To the extent Bank approves Client to use the Lockbox Service, Client agrees to the terms in this Addendum. 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

Lockbox Service.  Client acknowledges that the Lockbox Service may be provided by or through Bank’s subcontractor(s) (“Processor(s)”), subject to the terms of this Addendum. 

  1. Client shall direct its customers to mail their payments in the form of checks or other payment instruments (the “Checks”) to Client to the United States Post Office address identified in the Supporting Documents, or otherwise identified in writing by Bank to Client (the "Lockbox"). Bank (including Bank’s Processors) will have unrestricted and exclusive access to the mail directed to the Lockbox.
  2. Client authorizes Bank to indorse Checks received at the Lockbox, and to deposit them into Client’s account designated in the Supporting Documents (“Lockbox Account”). Bank will credit the Lockbox Account with funds no later than the next business day, subject to Bank’s funds availability policy.  Lockbox deposits credited to Client’s Lockbox Account maintained with Bank will be reflected on Client's periodic statement issued by Bank with respect to the Lockbox Account pursuant to the agreement between Bank and Client. 
  3. Client acknowledges that this Addendum covers the Lockbox Service to be provided by Bank and, except as specifically provided in this Addendum, does not cover the handling of the Lockbox Account or the processing of Checks drawn on the Lockbox Account. As a result, Client’s Lockbox Account will be subject to, and Bank's operation of the Lockbox Account will be in accordance with, the terms and provisions of Bank's Deposit Agreement governing the Lockbox Account, a copy of which Client acknowledges having received.

Commencement of Lockbox Service.  The Lockbox Service covered by this Addendum will start on the date separately agreed to by the Bank and the Client if all of the following events have occurred prior to such date:

  1. Bank has established a lockbox with the number and at the address specified by Bank to Client.
  2. Client maintains one or more accounts in good standing with Bank.
  3. Client has designated to the Bank in writing the names of Acceptable Payees. “Acceptable Payee” means Client's name and any other payee name provided to Bank by Client as an acceptable payee for Checks to be processed under the Lockbox.
  4. Client has completed all Supporting Documents applicable to the Lockbox Service, including but not limited to the procedures for handling returned Checks and restrictive notations on Checks, and the processing options selected by Client for the Lockbox Service.
  5. Client has provided to Bank such other information and documents as Bank requests to enable Bank to commence and operate the Lockbox for Client and to enable Bank to comply with Bank’s other obligations under this Addendum.

Remittance Materials.  Papers accompanying each remittance, including copies of additional correspondence, together with all unprocessed or rejected items (collectively, “Remittance Materials”) will be forwarded to the Client via USPS.

Unacceptable Checks.  Unless otherwise requested by Client and agreed to by Bank, Bank will not deposit Checks falling into any of the following categories, or Checks which Bank has otherwise instructed Client not to deposit (collectively, “Unacceptable Checks”):

  1. Checks on which the name or designation of the payee is not the name or designation specified as an Acceptable Payee or a reasonable variation (in Bank’s opinion) of such name or designation.
  2. Checks which do not bear a drawer's signature.
  3. Checks with alterations.

Notwithstanding the foregoing, Bank will only use reasonable efforts to identify Checks as Unacceptable Checks and prevent deposits.  As a result, Bank will have no liability whatsoever, despite anything to the contrary in this Addendum, for deposit of Unacceptable Checks unless the deposit results directly from the willful misconduct of Bank’s officers or employees.  Client agrees to indemnify, defend and hold harmless Bank, the drawee bank (which may include Bank) and any intervening collecting bank against any claim resulting from Bank’s having processed an Unacceptable Check.

Checks to Be Deposited (also referred to as “Acceptable Checks”).  Unless Client specifies otherwise in writing to Bank, checks which do not fall into one of the categories of Unacceptable Checks will be deposited in Client’s Lockbox Account, subject to this Addendum.  In addition:

  1. Checks missing a date will be deposited in Client’s Lockbox Account after being dated by Bank as of the date the Check is collected from the Lockbox, unless they also fall into one of the categories of Unacceptable Checks, in which case they may not be deposited.
  2. Checks will be deposited regardless of their date, including Checks which are postdated after the date they are collected from the Lockbox, and stale dated Checks (e., dated six months or more prior to the date they are collected from the Lockbox).
  3. Checks with a discrepancy in amount may be deposited in Client’s Lockbox Account after being processed in any manner deemed appropriate by Bank or Bank’s Processor, which may include depositing the Check in the amount that corresponds to the written amount (rather than the numerical amount or the amount identified in the Remittance Materials). Bank reserves the right to forward as unprocessed Checks which Bank or Bank’s Processor are unable to determine the amount of the Check.
  4. Bank may disregard restrictive notations, such as "Paid in Full," and such Checks will be processed as if the restrictive notations did not appear. Bank will have no liability whatsoever, despite anything to the contrary in the Addendum, for Bank’s failure to comply with such restrictive notation.

Without limiting the foregoing, Client expressly acknowledges that the Lockbox Service is for Check processing only; Client’s payor may not send cash (currency and/or coin), credit transaction authorizations, or automated clearing house authorizations to the Lockbox except with Bank’s specific and prior written approval.  Absent an express agreement with Bank providing otherwise, Client agrees to instruct Client’s customers and other obligors not to send cash, credit transaction authorizations, or automated clearing house authorizations to the Lockbox.  If cash is sent to the Lockbox with any Remittance Materials, the cash will be removed from the envelope containing the Remittance Materials and a credit advice for the amount of the cash will be placed in such envelope. 

Foreign Checks.  Checks drawn on a foreign bank or in a currency other than United States dollars (“foreign checks”) may be automatically returned.  In the event Bank agrees to deposit foreign checks, Bank or Processor may process the foreign checks through collection systems and at exchange rates chosen by Bank or Processor, and Bank may impose fees and charges for the service, which fees and charges Client agrees to pay.  The currency conversion and collection process may take a long time (for example, eight weeks or more), depending on the foreign bank.  Adjustments for returned foreign items or otherwise may result in a different currency exchange rate, and Client could lose or gain due to changes in the exchange rates.  Bank’s determination to take a foreign check for deposit on any occasion will not obligate Bank to do so in the future, unless expressly agreed by Bank otherwise.

Lockbox Processing.  On each business day, Bank or a Processor will pick up at and transport from the Lockbox to the processing site or sites the Checks or any other mail addressed to the Lockbox.  The following Lockbox Services will be performed by Bank or a Processor:

  1. Open the envelopes picked up from the Lockbox and remove the contents.
  2. Inspect all Checks received for acceptability based on this Addendum and the Supporting Documents.
  3. Prepare all Acceptable Checks and their associated paperwork for further processing.
  4. Prepare deposit tickets and process deposits daily.
  5. Prepare and mail to Client any Unacceptable Checks and Remittance Materials as described herein.

If Bank receives any mail containing Client's lockbox number at Bank's operations locations (instead of the Lockbox), Bank may in Bank’s sole discretion handle the mail as if it had been received at the Lockbox.  Bank may treat as an Acceptable Payee any variation of any Acceptable Payee's name that Bank deems to be reasonable.  If any payee on the list of Acceptable Payees delivered to Bank pursuant to the Supporting Documents is a legal entity other than Client, Client represents and warrants to Bank and Processor(s) that Client has the proper authorization from such payee: (i) to have such Check indorsed for deposit, and deposited, into the Lockbox Account; and (ii) for Bank and any Processor(s) to perform the Lockbox Service under this Addendum for such Acceptable Payee.  Client agrees to indemnify Bank and Processor(s), along with their officers, employees, agents, representatives and Processors (individually and collectively, the “Indemnified Parties”) against, and hold the Indemnified Parties harmless from, any losses, liabilities, damages, claims, demands, obligations, actions, suits, judgments, penalties, costs or expenses, including, but not limited to, attorneys’ fees, suffered or incurred by any of the Indemnified Parties as a result of, or in connection with, Bank’s or any Processor(s) failure to have such authorization.  The indemnification set forth in this Section shall be in addition to, and not in lieu of, indemnification and other rights of Bank under the Agreement and Deposit Agreement.

Returned Checks.  If any of the Checks (or image of the same) are returned unpaid for any reason, Bank may charge any one of Client’s Accounts for the amount of the returned Checks plus applicable handling fees, without regard to whether the institution on which the Checks were drawn effected a timely return before its midnight deadline.  If any of the Checks are returned for indorsement missing, Bank may, but will not be obligated to, supply an indorsement (utilizing Bank’s indorsement stamp) and the Checks will be represented to the depository bank.

Processor(s).  Client authorizes Bank to use Processors (which, for purposes of the Lockbox Services may include other banks, financial institutions and third parties, and their subcontractors) to provide any one or more of the Lockbox Services to Client.  Client authorizes Bank to act (such as opening accounts and providing instructions) as Client’s agent and on Client’s behalf with Processors as necessary or appropriate to do so.  Wherever under this Addendum Client authorizes Bank to take action or inaction, such authorization shall also serve as authorization for a Processor to take such action or inaction.  At Bank’s option, Bank may use a commingled account at a Processor and process as agent for Client and for others through the commingled account, or Bank may establish a separate account for Client at a Processor and process as Client’s agent through the separate account.  Bank’s responsibility for Processors and liability for action or inaction by a Processor is limited as set forth in the Agreement and Deposit Agreement.

If Bank uses a correspondent financial institution to process payments, deposits to a Lockbox Account:  (i) may be delayed by one banking day; (ii) may be affected by local bank holidays; and (iii) the availability may depend on the availability of the correspondent institution and any required third party service provider or funds transfer system.

Card Transactions.  Client agrees that the Lockbox may not be used to process card payments, unless Bank has expressly agreed to such processing and Client has agreed to Bank’s separate merchant card processing terms and conditions.  If Bank and Client agree to the processing of card transactions through the Lockbox, Client will ensure that all card transactions/payments are legible and contain: (i) merchant’s name and account number; (ii) the information embossed on the card presented by the cardholder; (iii) the date of the transaction; (iv) description of goods or services; (v) transaction authorization number; (vii) total sale amount, and cardholder signature.  Any card transactions/payments missing the required information may be returned to the Client.

Client Responsibilities.  Client’s responsibilities under this Addendum include, but are not limited to each of the following:

  1. Client agrees to encode remittance documents to meet Bank or Processors’ requirements if Client requires electronic data capture of information on remittance documents.
  2. Client agrees to duly complete the Supporting Documents and all special instructions, and provide the same to Bank before start of the Lockbox Services.
  3. Client will notify Bank in writing of any modification, addition or deletion to the list of Acceptable Payees for the Checks being received in the Lockbox. Bank will not be obligated to implement any changes until Bank has actually received the change and had a reasonable opportunity to act upon the change, such time to act may be a minimum of 30 days from Bank’s receipt of notice of such changes.  All changes are subject to Bank’s rights to reject any addition, deletion or modification to the list of Acceptable Payees.

Funds Availability.  Funds deposited in connection with this Addendum are subject to Bank’s funds availability policy as disclosed in the Bank’s policy.  For the purpose of application of Bank’s funds availability policy and Regulation CC, funds deposited to the Lockbox are considered deposited on the day on which the deposit is removed from the Lockbox and is available for processing by Bank.

Cutoff time.  At the Bank’s discretion or that of Processor, a cutoff time may be established, and thereafter amended, for the Lockbox Service (“Cutoff Time”).  The Cutoff Time assigned dictates when on a business day the last USPS mail is opened pursuant to this Addendum.

Reports.   Lockbox reporting services may be available to Client for an additional cost.  Bank reserves the right to require Client to agree to additional  terms to activate lockbox reporting services.

Collections.  Unless otherwise agreed, while Client receives Lockbox Services, all funds held in the Lockbox Account shall be deemed to be Client’s funds for all purposes, including adjustment, attachment, set-off, security interests, execution, garnishment and other forms of legal process.  The crediting and collection of Checks will be handled under the same agreement as applied to other commercial deposits.

Reconcilement.  Except as otherwise specified herein and in the Supporting Documents, Bank will not reconcile the Checks, cash or other Remittances in the envelopes to invoices, to remittance statements, or to any other documents or papers in the envelopes elsewhere.

Protected Health Information.  Except with prior notice to and written approval by Bank, Client shall ensure that protected health information is not provided to Bank and that the provision of Lockbox Services does not result in Bank being deemed a “business associate” within the meaning of, or otherwise subject to, the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), including related regulations issued pursuant thereto, or otherwise under medical privacy and securities laws, rules or regulations.  Client shall provide to Bank such assistance as Bank may request should Bank’s provision of the Lockbox Service subject Bank to any compliance obligations under HIPPA or otherwise under medical privacy and security laws, rules or regulations.

Statement; Notice of Discrepancy.  Client agrees to notify Bank:  (i) no later than five (5) calendar days after Client receives or is provided access to an advice of deposit, or electronic image summary, if there is any error in such advice; and (ii) no later than fifteen (15) calendar days after Client receives, or is provided access to, a periodic statement on the Lockbox Account if such statement contains an error or fails to show a deposit that should have been made during the time period covered by such statement.  If Client fails so to do, then Client shall be precluded from asserting such error or failure, and the advice or statement shall be deemed to be accurate as to any claims by Client (but shall not preclude later adjustment by Bank).

Termination.  Bank may terminate, suspend or restrict some or all of Client’s access to the Lockbox Services, with or without cause, at any time immediately upon notice to Client.  Client has the right to terminate the Lockbox Service, with or without cause, upon sixty (60) days written notice provided to Bank.  Should Client terminate this Addendum without prior notice, Client will owe Bank two (2) times the minimum monthly fees as reflected in Bank’s then current Lockbox Service schedule.  Upon termination of the Lockbox Service Bank will dispose of the mail addressed to the Lockbox according to written instructions provided by the Client for a period of three (3) months after the termination date, unless arranged otherwise between Client and Bank.  Lockbox Service fees with respect to such disposition will be based on Bank's estimate and prepaid directly to Bank at the time of such termination by a check made payable to Bank.

 

 

Addendum J

Multiple Access Service

Multiple Access Service.  The Multiple Access service (“Multiple Access” or “Multiple Access Service”) is an optional Business Online Banking service which allows Client and others to conduct online and onsite banking activities between Client’s Account(s) and other accounts that may have different owners and different Taxpayer Identification Numbers.  Terms and conditions for the Multiple Access Service are provided in this Multiple Access Service Addendum (“Addendum”).  This Addendum is entered into between Bank and the Account Holders identified in the separate Multiple Access Parties and Accounts Authorization Schedule (“MAPA Authorization Schedule”) which must be separately executed by each Account Holder prior to their respective Accounts are added to and accessible through this Multiple Access Service.  To the extent Bank approves the Account Holders’ use of the Multiple Access Service, the Account Holders agree to the terms in this Addendum. 

This Addendum forms part of the Agreement.  In the event of conflicts between the terms of this Addendum and the terms of the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum.

Each of the Account Holders request the Bank to allow all other Account Holders to access the Accounts using the Bank's Services, as defined below.  By agreeing to these terms, each of the Account Holders acknowledges that is has read and agrees to be bound by the terms and conditions provided in this Addendum and the exhibits attached hereto, as may be amended. 

  1. Definitions. As used in this Addendum, and in addition to other defined terms, the terms below will have the following meaning:
  2. Accounts” means all deposit accounts of Account Holders opened now and in the future.
  3. Account Holder,” “you,” and “your” mean each account holder identified as an Account Holder in the MAPA Authorization Schedule.
  4. Adverse Event” means:

(a)            If any Account is subject to levy, attachment or other legal process;

(b)           If any Account Holder is the subject of voluntary or involuntary bankruptcy proceedings, or any other action for relief of creditors generally;

(c)            If any Account Holder disputes the authenticity of any Communication, or the authority of the Bank to act or not to act, or the legitimacy of any action taken by the Bank, in connection with any Service performed in response to any Communication received by the Bank;

(d)           Any non-Account Holder asserts an interest in an Account, whether or not the interest is later held to be valid; or

(e)            Any other action or inaction deemed by the Bank to present risk to the Bank.

  1. Authorized Representative” means:

(a)            The Account Holder;

(b)           An Account Holder’s employees, officers, designees, agents, Authorized User or other persons authorized by the Account Holder to use the System or Services.  Any person who has been given authorization by an Account Holder or by another Authorized Representative (even if in breach of obligations of confidentiality) to use the System or Services.  Except to the extent expressly prohibited by law or regulation, authorization to use the System or Services is deemed to have been given and is hereby confirmed to have been given by the Account Holder to any person: (i) to whom the Account Holder provides actual authority (for example, by appointment as agent or by resolution of the Account Holder’s board of directors or governing body); (ii) who has apparent authority to act on behalf of the Account Holder; or (iii) who receives Security Devices or any other security procedures from the Account Holder, or any other person previously given access to the security procedures by the Account Holder.  The authorization of an Authorized Representative continues until the Account Holder notifies the Bank and expressly withdraws authorization for that person to use the security procedures and the Bank has had a sufficient time to act on such information.

  1. Authorized User” means, without limiting any other provision of this Addendum, all users authorized by Account Holders to access the Services through the System.
  2. Communication” means any message, instruction, payment, electronic data or other communication received by the Bank through the System and in the name of any one or more Account Holders. The term “Communication” includes any requests for transfers between accounts, or other access to or use of the System for purposes of any Services made available in this Addendum.
  3. Security Devices” and “security procedures” refers to the authentication systems, tools or methods used by the Bank to authenticate Communications from an Account Holder including any Authorized Representatives, or their successors (as applicable).

Services.  Each Account Holder acknowledges and agrees that all of the Services under the Agreement will be subject to access by all Authorized Representatives of each Account Holder.  Accordingly, the Services will be applied or made available to each Account Holder and to all Accounts of each Account Holder on an individual and on a multi-party basis.  The Bank may, but is not required to, impose limitations on Account Holders that differ from one Account Holder to the next Account Holder.  At the Bank’s option, an Account Holder’s access to or use of the Accounts of another Account Holder may be subjected by Bank to the restrictions applicable to the Account Holder in whose name the Account is held, or to those applicable to the Account Holder seeking access, or to such other restrictions as the Bank may impose.

Use of Services.  The multi-access nature of this Addendum directs the Bank to provide Service access between unlike accounts, that may or may not be related by common ownership or common signers.  Each Account Holder understands that the Security Devices allow active account transaction functionality (i.e., payments, transfers, etc.) between the Accounts and to third parties.

Authorization.  By accepting the terms of the Agreement and executing the MAPA Authorization Schedule, each Account Holder authorizes the Bank to allow the Account Holder and its respective Authorized Representatives, in addition to each other Account Holder and their Authorized Representatives, access to the Account Holder’s Accounts via the System with full authority given to conduct transactions on each Account Holder’s behalf.  This may include Services that are made available to other Account Holders but that are not made available by the Bank directly to the Account Holder whose Accounts are affected.  This includes authority granted under this Addendum, the Agreement or Deposit Agreement.  Without limiting the foregoing, each Account Holder authorizes the Bank to debit or credit its Accounts and otherwise to act in accordance with Communications received from any other Account Holder or Authorized Representative.

Each Account Holder acknowledges and agrees that the Bank may share information regarding the Account Holder’s use of the Services and any use by Account Holder’s Authorized Representatives with any other Account Holder or its designee, including the other Account Holder’s Authorized Representatives.

Communication with the Bank.  Each Account Holder agrees that the Bank is entitled to act upon any instruction or other Communication received by the Bank through the System from any Account Holder or Authorized Representative, and may treat that Communication received through the System as valid to the same extent and to the same effect as if it had been received through the System from one of the Account Holders whose Account will be debited or otherwise is affected.  To this end, each Account Holder appoints their Authorized Representatives, as well as every other Account Holder and their Authorized Representatives, as the appointing Account Holder’s agent and attorney in fact for the purpose of initiating instructions and transactions through the System, including but not limited to initiating payment orders to third parties and providing Communications to the Bank, and agrees to be bound by any payment order or Communication issued through the System by the appointing Account Holder’s Authorized Representatives, as well as any other Account Holder or their Authorized Representative.

A Communication received by the Bank through the System will be deemed to be a valid and authorized Communication of the Account Holder named in the Communication for purposes of any Service requested in the Communication.  The Bank is not required to verify the authenticity of any Communication other than through the security procedures.  Except to the extent expressly prohibited by law or regulation, a Communication received by the Bank via the System in the name of the Account Holder will be deemed an authorized Communication, binding on the Account Holder named in the Communication, if the Communication is sent by:

  1. Any Authorized Representative or Authorized User, regardless of whether such individuals are reflected as authorized signers for the Account; or
  2. Any other person, whether or not such person was authorized to act on behalf of the Account Holder, if the Communication is in the name of the Account Holder and if the Bank verifies the authenticity of the Communication using the security procedures described herein.

Account Restrictions.  Each Account Holder understands that Services may be used to cause transfers of funds (debits and credits) from and to its Accounts without regard to any withdrawal or signature restrictions otherwise applicable to the affected Account.  For example, if withdrawals, checks or other access to an Account is subject to dollar limits or multiple signature requirements, these limitations are not applicable to transactions conducted using the Services.  This applies to deposit accounts, if access to these or other types of accounts are made available using the System.

Limitation on Services.  Each Account Holder agrees that the Bank may impose restrictions on any Services, with or without cause, at any time and either with notice or without notice to any Account Holder (including those affected by the restriction).  Without limiting the foregoing, if an Adverse Event occurs, then the Bank may (but is not obligated to) take any one or more of the following actions in connection with one or more (including possibly all) Accounts:

  1. Terminate or close Accounts;
  2. Restrict or terminate Services in connection with Accounts;
  3. Delay availability of funds on deposit in any one (and up to all) Account(s);
  4. Freeze funds in any one (and up to all) Account(s) and hold them pending instructions acceptable to the Bank;
  5. Interplead funds in Accounts with any court, whether or not the court later determines that interpleader is or is not an authorized action by Bank; or
  6. Take any other action to protect the Bank against cost, harm, inconvenience, litigation or otherwise as it sees fit in the Bank’s sole discretion.

Account Holder Acknowledgements.  Each Account Holder acknowledges and agrees that:

  1. The Bank did not, at any time, solicit the Account Holders for activation of this multiple party access service;
  2. The Bank is providing the multiple party access service as an accommodation to the Account Holders and at the express request of the Account Holders;
  3. The Account Holder and not the Bank is responsible for reviewing and understanding any negative impact on the Account Holder that may arise due to the Account Holders use or allowance of these multiple party access services (for example, loss of any insurance coverage, increased possibility of liability for obligations or actions of other Account Holders in insolvency or otherwise, and increased losses due to unauthorized transactions);
  4. The Bank will not control or restrict any transaction effected by an Authorized Representative on any of the Accounts and that the Authorized Representatives may access information and funds in any of the Accounts using the Service, such access may increase the risk of unauthorized activity, improper comingling and misapplication of funds;
  5. The multiple access feature will allow Authorized Representatives to utilize a single set of Security Devices to access all Accounts using the Service which may result in significant diminution in the protection offered by such Security Devices or procedures;
  6. The Account Holder should consult with their legal counsel and accountant prior to signing up for the multiple party access service; and
  7. The Account Holder accepts all risks associated with the use of the multiple party access services by itself and by the other Account Holders.

Bank Liability.  Except to the extent expressly prohibited by law or regulation, each Account Holder agrees that the Bank shall not be liable for any indirect, special or consequential damages arising out of any action or inaction by the Bank under this Addendum.  Without limiting the foregoing, and except to the extent expressly prohibited by law or regulation, each Account Holder agrees that damages as to any breach by the Bank of any term of this Addendum shall apply only to the extent the damages are the direct result of the Bank’s gross negligence or willful misconduct, further that such damages are speculative and difficult to determine, and thus that the Bank shall in no event be liable to any Account Holder individually or to all Account Holders in the aggregate for an amount in excess of $5,000.  Each Account Holder agrees to cooperate with the Bank in any loss recovery efforts the Bank undertakes to reduce any loss or liability that arises in connection with the Services.  Each Account Holder acknowledges that Service fees have been established in contemplation of:  (i) these limitations on the Bank’s liability; (ii) each Account Holder’s agreement to review statements, confirmations, and notices promptly and to notify the Bank immediately of any discrepancies or problems; and (iii) the Account Holder’s agreement to assist Bank in any loss recovery effort.

Account Holder Representations and Warranties.  The Account Holders individually represent and warrant to the Bank, at the time of execution of this Addendum and as part of each Communication or use of a Service, that it is the true owner of all funds in the Account associated with its name on the signature lines in Exhibit A to this Addendum, and as follows:

  1. The Account Holder has all requisite power and authority to request and authorize this Addendum, the Agreement and Deposit Agreement;
  2. Each Communication is authorized, valid and binding on the Account Holder when named in the Communication, as provided to the Bank in compliance with the terms and conditions of this Addendum;
  3. Any transaction conducted by the Account Holder will not be in violation of any state or federal law (including, but not limited to, California Corporations Code Section 2253, which prohibits making any dividend or distribution of assets except in the cases and in the manner allowed by law, either with the design of defrauding creditors or shareholders or of giving a false appearance to the value of the stock and thereby defrauding subscribers or purchasers); and
  4. All corporate or other business formalities, as applicable, have been and will be followed with respect to each transfer of funds, including, but not limited to, proper authorization of all requests and transfers and record keeping requirements with respect to them.

Security Procedures.  The security procedures used to verify the authenticity of instructions and Communications by the Account Holders equally apply to any successor Authorized Representatives.  By using the Services, each Account Holder acknowledges and agrees that the security procedures provide a commercially reasonable method of authenticating Communications and agree to be bound by any Communications, whether authorized or unauthorized, which the Bank executes in compliance with the security procedures. 

Notice to the Bank.  Each Account Holder will notify the Bank immediately if any representation or warranty made by the Account Holder ceases to be true or if the Account Holder becomes aware of any breach of any representation or warranty by any other Account Holder.

Laws and Regulations.  Each Account Holder agrees to comply with all applicable laws, rules and regulations in connection with its use of the System and the Services, including the sanctions laws of the United States as administered by the Office of Foreign Asset Controls (OFAC), as well as the Bank Secrecy Act Anti-Money Laundering prohibitions.  Each Account Holder agrees to assist the Bank in complying with all laws, rules and regulations applicable to the Account Holders or to the Bank, the System or the Services.

Authorization.  Upon request, each Account Holder agrees to provide appropriate corporate, partnership or other applicable entity authorization, satisfactory to the Bank, verifying the authority of each person shown in the MAPA Authorization Schedule to enter into this Addendum for and on behalf of that Account Holder.

Fees.  In addition to other applicable fees that have been separately disclosed for the Services, the Bank reserves the right to charge each Account Holder a multiple access monthly fee.  The Bank will provide Account Holders with written notice at least thirty (30) days in advance of the imposition or any increase of fees unless there are increases in governmental or access fees charged to Bank, in which case such fees will be immediately passed to Account Holders at cost without notice.

Amendments; Termination.  The Bank may amend this Addendum from time to time, including by addition of new terms and conditions not currently contemplated under this Addendum, at the Bank’s discretion.  The Bank will provide advance notice to the Account Holder if and to the extent expressly required by applicable law.  The Account Holder’s continued use of the service following such amendment shall represent its consent to the changes.  The Bank reserve the right to termination this Addendum at any time, at its sole discretion.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Addendum K

 

 Business Mobile Banking Service

 

Business Mobile Service. This Addendum contains terms related to the business mobile banking service (“Service”) offered by First Foundation Bank (“Bank”, “we”, and “us”). Client agrees to the terms in this Business Mobile Service Addendum (“Addendum”). 

This Addendum forms part of the Business Online Banking Agreement. In the event of conflicts between the terms of this Addendum and the Agreement, the terms of this Addendum shall control.  Defined terms in this Addendum shall have the meaning provided in the Agreement, unless otherwise defined in this Addendum. Your use of the Service will be deemed further evidence of your agreement to these terms.

 

 

General Terms and Conditions. Message & Data rates may apply to the Service. In case of questions please contact customer service at  888-698-7442  or visit www.ff-inc.com.

 

Participation. By participating in the Service, you are agreeing to the terms and conditions presented here.

 

Participating Carriers. Our participating carriers include (but are not limited to) AT&T, Sprint PCS, T-Mobile®, U.S. Cellular®, Verizon Wireless

 

Software.  Mobile banking and any software you may obtain from us or our service providers for mobile banking (“Software”) may not be available at any time for any reason outside the reasonable control of the Bank or its service providers.

 

Privacy and User Information. You acknowledge that in connection with your use of the Service, the Bank, its affiliates and service providers, including Fiserv, Inc. and its affiliates, may receive names, domain names, addresses, passwords, telephone and device numbers, the content of messages, data files and other data and information provided by you or from other sources in connection with the Service or the Software (collectively “User Information”). The Bank, its affiliates and service providers will maintain reasonable safeguards to protect the information from unauthorized disclosure or use, but reserve the right to use and disclose this information as reasonably necessary to deliver the Service and as otherwise permitted by law, including compliance with court orders or lawful instructions from a government agency, to protect the personal safety of subscribers or the public, to defend claims, and as otherwise authorized by you. The Bank, its affiliates and service providers also reserve the right to monitor use of the Service and the Software for purposes of verifying compliance with the law, these terms and conditions and any applicable license, but disclaim any obligation to monitor, filter, or edit any content.

 

Restrictions on Use. You agree not to use the Service or the Software in or for any illegal, fraudulent, unauthorized or improper manner or purpose and will only be used 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, you agree that you will not use the Service or the Software to transmit or disseminate: (i) junk mail, spam, or unsolicited material to persons or entities that have not agreed to receive such material or to whom you do not otherwise have a legal right to send such material; (ii) 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; (iii) material or data, that is illegal, or material or data, as determined by the Bank (in its 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 the reputation of the Bank or any third-party service provider involved in the provision of the Service; (iv) 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; (v) viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information; (vi) any material or information that is false, misleading, or inaccurate; (vii) any material that would expose the Bank, any third-party service provider involved in providing the Service, or any other third party to liability; or (viii) any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of Fiserv or any third party. You agree that you will not attempt to: (a) access any software or services for which your use has not been authorized; or (b) use or attempt to use a third party’s account; or (c) interfere in any manner with the provision of the Service or the Software, the security of the Service or the Software, or other customers of the Service or the Software; or (d) otherwise abuse the Service or the Software.

 

Use of Google Maps. You agree to abide by the Google terms and conditions of use found at

http://maps.google.com/help/terms_maps.html and the Google Legal Notices found at                                                           http://www.maps.google.com/help/legal notices_maps.html, or other URLs as may be updated by Google.

 

 

 

Business Mobile Banking Service. We offer the following mobile Services:

 

 

 

 

 

Your Equipment. In order to use the Service, you will need a Mobile Device that is web-enabled with a working connection to the Internet. Your Mobile Device must support 128-bit encryption. You also will need our mobile banking App installed on your Mobile Device. You are responsible for obtaining and maintaining any equipment that is necessary for the Service, such as your Mobile Device. You agree to use equipment that is compatible with our programs, systems and equipment, which we may change from time to time, with or without notice. We are not responsible for any errors, failures, or malfunctions of your Mobile Device, software or other equipment required for the Service, or for any virus or related problems that may occur with your use of this Service. The Service may not be available over some network carriers and may not support all mobile devices. We assume no responsibility for the defects or incompatibility of any equipment or software that you use for the Service, even if we have previously approved their use. We reserve the right to change our system requirements from time to time. Please note that your wireless provider may charge you for internet-related use and text messages. This Addendum does not amend any agreement you may have with your internet service or wireless providers.

 

Your Password. You must be enrolled for our online banking service before you can use this Service. In order to access the Service, you will use the same User IDs, Passwords and/or other means of identification and authentication (collectively, “Password”) you use to access our online banking service. You are responsible for keeping the Password secure and confidential. Never place your Password on or near your Mobile Device. For security reasons, we may disable your Password if it is entered incorrectly several times. We may act on any Service instruction that is accompanied by your Password. You agree not to disclose your Password to anyone and to take other reasonable precautions to ensure the safety, security and integrity of transactions conducted with your Mobile Device (e.g., not leaving your Mobile Device unattended when logged onto the Service). Please see the Agreement for additional information regarding security procedures.

 

Mobile Access. You can use the Service to obtain information about your accounts and transactions, communicate with us, receive transaction information, transfer funds between your designated accounts with us, and approve certain transactions that have been initiated through our online banking service.

 

Account Information. You can use your Mobile Device to obtain account balance and transaction information. Since certain information and transactions are not processed by us until after the close of our business day, some transactions may not be reflected in the system until the next business day. Posted items may be reversed due to insufficient funds, stop payment orders, legal process, and other reasons. Certain balances also may not be subject to immediate withdrawal. We assume no responsibility for any loss arising from incomplete information or for any temporary interruption in our information Service.

 

Account Transfers. You can use this Service to transfer funds between your eligible accounts with us. Transfers cannot be made from time deposit accounts. Transfer requests which are received by us on or before our cutoff hour on business days will be posted that day (generally at the end of the day). Transfer requests received after our cutoff hour or on a weekend or holiday may be deemed received as of the next business day.

 

Transaction Approval.  If a transaction is initiated through our online banking service and requires approval by a second person, the second person can use this Service to approve the transaction. The second person must have transaction approval authority and may not exceed any transaction limits established by us or your Service administrator. Transaction approvals received after our cutoff hour or on a weekend or holiday may be deemed received as of the next business day.

 

Mobile Deposit. If you are approved for mobile deposit, you can use your Mobile Device to deposit checks to your designated Bank account by capturing images of the original paper checks and transmitting the digital images and associated deposit information (“images”) to us.

 

Eligible Items. You may only use this Service to deposit images of original paper checks that are payable to you. Unless we specifically agree otherwise in writing, you may not use the Service to deposit: (a) checks payable to a third party; (b) demand drafts or remotely created checks (i.e., checks lacking the original signature of the drawer); (c) substitute checks (i.e., paper checks created from an electronic image); (d) checks previously converted to an image replacement document; (e) payable through drafts; (f) checks that are irregular in any way (e.g., where the numerical and written amounts are different); (g) checks that have previously been returned unpaid for any reason; (h) checks that are postdated or more than 6 months old; (i) checks drawn on a foreign bank or payable in a foreign currency; (j) checks payable to “cash” or “holder”; (k) registered government warrants; (l) checks that are drawn or otherwise issued by you or any other person on any of your accounts or any account on which you are a joint account holder; (m) checks that contain evidence of alteration, or that you know or suspect, or should know or suspect, are fraudulent or otherwise not properly authorized; (n) checks that do not comply with the Bank’s procedures for this Service, as specified in the “Requirements” section below; (o) any check or checks that exceed the transaction limitation(s) described in this Addendum; or (p) checks that are otherwise not acceptable under the terms and conditions of your account agreement. Our processing of any of the checks described above shall not obligate us to continue that practice, and we may stop doing so without cause or prior notice.

 

Requirements. Each image must provide all information on the front and back of the original check at the time of transmission, including the information set forth on the check as presented to you by the drawer. You agree to place the words “For Mobile Deposit Only” and your account number above the endorsement on the reverse side of all checks you deposit through the Service.

 

Deposit Limits. You agree not to exceed the transaction limits we establish from time to time for this Service. If you are enrolled for our remote deposit capture service, deposits made through that service will be combined with deposits made through this Service for the purpose of calculating your deposit limits. Note: Transactions occurring on a Saturday, Sunday or holiday will be combined with transactions on the next business day for this purpose. We may change these limits from time to time. Unless we advise you otherwise, revised limits will be effective immediately upon notice to you.

 

Receipt of Deposit. When you send an image, you should confirm whether it has been received by us. You can do this through our online banking website or the Service on the business day following the day of your deposit. If your deposit cannot be confirmed through our online banking website or the Service, it may mean that we did not receive your transmission or that there was a problem with some of the information. If check information received by us is not complete or otherwise cannot be processed by us, we may reject the deposit, notwithstanding our receipt of your transmission, and charge the amount back against any provisional credit to your account.

 

Following receipt, we may process the image by preparing a paper “substitute check” or clearing the item electronically.

 

We may refuse any check for deposit, with or without cause, or may elect to take a check on a collection basis only. Please see your account agreement for other terms related to deposits.

 

Your Responsibility. You are responsible if you, intentionally or unintentionally, submit incorrect, duplicate or illegible images to us or if the Service is used by authorized or unauthorized persons to submit fraudulent, unauthorized, inaccurate, incorrect or otherwise improper or unusable images to us.

 

 

 

Original Checks. After you confirm that we have successfully received an image, you must securely store the original check for not more than 60 days after the date of your transmission, at which time you must thoroughly destroy it (e.g., by marking it “VOID” and cutting it into small pieces). At our request, you must provide us with the original check (if it is still in your possession) or a legible copy within five business days. If you fail to do so, we may reverse the amount from your account.

 

 You agree that you will never transfer or present the original check (or a copy) once it is processed by us. You agree to indemnify and hold us harmless if anyone is asked to make a payment based on an original check that has already been paid (or any copy or other reproduction of that check).

 

Availability. If we receive your deposit information on a business day before our Service cutoff hour, we will consider that day to be the day of your deposit. If we receive your transmission after our cutoff hour or on a non-business day, we may treat the deposit as received the next business day. If the drawee of a check or another third party makes a claim against us or seeks a re-credit with respect to any check deposited through this Service, we may provisionally freeze or hold aside a like amount in your account pending our investigation and resolution of the claim. We also may charge your account for any check that is returned, whether or not the return is timely or proper. If a check is returned to us for any reason, we may return it to you in the form of a substitute check. If you decide to redeposit the returned item, you may only redeposit the substitute check in person at one of our branches; you may not deposit the original check without advising us that it was previously deposited electronically and obtaining our written approval.

 

Your Warranties. You make the following warranties and representations to us with respect to each check you deposit through this Service: (a) You assume responsibility for any check that is transmitted which for any reason is not paid; (b) You are a person entitled to enforce the original check. You have the legal right to accept the check for deposit and negotiation, regardless of the name of the payee shown on the check; (c) Each image is a true and accurate rendition of the front and back of the original check, without any alteration, and the drawer of the check has no defense against payment of the check; (d) The amount, payee(s), signature(s), and endorsement(s) on the image and on the original check are legible, genuine, and accurate; (e) You will not transfer, deposit or otherwise endorse to a third party the original check and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the original check or a paper or electronic representation of the original check such that any person will be asked to make payment based on an item that has already been paid; (f) The original check was authorized by the drawer in the amount and to the payee(s) stated on the original check, as reflected in the image sent to us; (g) You have possession of the original check and no party will submit the original check for payment; (h) You have not taken any action that would obscure, alter or impair the capture or transmission of information on the front or back of the check or that otherwise may prevent us or another bank from capturing or processing such information; (i) You make all warranties that would otherwise apply to the check if it had been a paper item deposited with us. For example, you warrant that the check has not been altered; (j) You make all encoding, transfer, presentment and other warranties that we are deemed to provide to others (e.g., as a reconverting bank) under any law, regulation, operating circular, clearing house rule, or image exchange network rule or agreement to which we are a party; (k) Once we confirm our receipt of the check, you will not attempt to deposit it again; and (l) You will only use this Service for lawful purposes and in compliance with our instructions and applicable law. You agree to take reasonable steps to ensure that files and images transmitted to us do not contain viruses or any other disabling features that may have an adverse impact on our network, data, or related systems.

 

Service Unavailability. In the event that the Service is unavailable, you may deposit original checks at our branch or through our ATMs.

 

Notice of Errors and Other Problems. You agree to notify us immediately in writing if you discover: (a) any error or discrepancy between your records and the information we provide to you about your mobile deposit transactions (e.g., in a statement, confirmation, or electronic report); (b) unauthorized or unreported deposits;(c) a breach in the confidentiality of your Password; or (d) other problems related to this Service. Unless you notify us within 30 days, the statements, confirmations and reports regarding mobile deposits made through this Service shall be deemed correct (absent manifest error), and you are prohibited from bringing a claim against us for the alleged unauthorized transaction or discrepancy.

 

Limitation of Liability. We will not be liable for any indirect, incidental, special, consequential or exemplary damages. In addition to the limitations on our liability set forth in the Agreement, we will not be responsible for any loss, delay, cost or liability which arises, directly or indirectly, in whole or in part, from: (a) your failure to provide us with complete and correct check images and data in accordance with this Addendum and our instructions regarding this Service; (b) the return of any check by the institution upon which it is drawn; (c) any information that is lost, intercepted or destroyed during its transmission to us; or (d) the unavailability of this Service for any reason. You agree to cooperate with us in any loss recovery efforts we undertake to reduce any loss or liability that arises in connection with this Service.

 

Indemnification. In addition to the indemnities set forth in the Agreement, you agree to indemnify, defend, and hold us, our service providers and agents harmless from and against any and all demands, actions, proceedings, liabilities, losses, costs (including attorney’s fees), penalties, fines, and claims, including (without limitation) warranty claims, that result from or arise in connection with: (a) your use of this mobile deposit Service or our processing of checks in accordance with this Addendum; (b) your actions or omissions, including your breach of any representation or failure to comply with this Addendum; (c) your failure to comply with applicable state and federal laws and regulations; (d) actions by third parties, such as the introduction of a virus, that delay, alter or corrupt the transmission of images to us; or (e) any claim by a recipient of a substitute check corresponding to a check processed through this Service, that the recipient incurred a loss due to (i) the receipt of a substitute check instead of the original check, or (ii) multiple payments with respect to the same original check, based on any combination of the original check, the substitute check and/or any paper or electronic copy of either. This section shall survive the termination of this Addendum.

 

No Warranties. THE SERVICE IS MADE AVAILABLE ON AN “AS-IS” AND “AS AVAILABLE” BASIS. NEITHER WE NOR OUR VENDORS PROVIDE ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THIS SERVICE. ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED TO THE GREATEST EXTENT PERMITTED BY LAW. NEITHER WE NOR OUR VENDORS ASSUME ANY LIABILITY FOR THE UNAVAILABILITY OF THE SERVICE.

 

Hours of Operation; Service Unavailability. You can access account information through the Service 24 hours a day, 7 days a week. The information may not reflect recent or pending transactions. There may be times when all or part of the Service is temporarily unavailable due to system outages, maintenance or technical difficulties, including those of the Internet service provider, cellular service provider, and software provider. We may suspend this Service immediately if we believe the security of the Service has been compromised or we question the legality of any transaction. We assume no responsibility for any damage or delay that may result from such unavailability.

 

Discrepancies. We assume no responsibility for the accuracy or timeliness of information provided by, or retrieved from, other institutions or other parties to your transactions. You agree to provide us with prior written notice of any changes in your designated accounts with payees and other institutions that would affect our right or ability to process Service transfers or payments. If a transfer or payment instruction identifies a payee or a bank by name and account or other identifying number, we and other financial institutions may process the transaction solely on the basis of the number, even if it identifies a different person or entity from what is indicated in the instruction. We have no obligation to identify and investigate discrepancies between names and numbers.

 

Other Terms. Please see the Agreement for other terms relating to this Service (e.g., security procedures, dispute resolution, limitations on liability, indemnification, amendments, termination, and notices).

 

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