Commercial Banking Services RecommendationCity of Dubuque
City Council
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Copyrighted
November 4, 2024
ITEM TITLE: Commercial Banking Services Recommendation
SUMMARY: City Manager recommending City Council approval of
Dubuque Bank and Trust as the bank to provide financial
services to the City of Dubuque for a five-year period.
Chief Financial Officer Jennifer Larson will make a
presentation.
SUGGUESTED Receive and File; Approve; Presentation
DISPOSITION:
ATTACHMENTS:
1. MVM Memo
2. Banking Financial Services —Staff memo_2024_10_28
3. City of Dubuque Banking Services RFP_2024_08_01
4. HTLF Master Treasury Management Services Agreement (12)
5. BUSINESS DEPOSIT ACCOUNT AGREEMENT AND DISCLOSURE
6. Updated Presentation -Uploaded 11.4.24
7. 25 Banking Services Presentation_2024_10_28
Page 2311 of 2498
THE C
DUUB__&___FE
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Commercial Banking Services Recommendation
DATE: October 28, 2024
Dubuque
*Amrb Citl
2007-2012-2013
2017*2019
Chief Financial Officer Jennifer Larson recommends City Council approval of Dubuque
Bank and Trust as the bank to provide financial services to the city of Dubuque for a
five-year period. With increased interest earnings and continued reduced costs, the City
is estimated to increase interest earnings by approximately $747,427 annually.
This selection is based on their competitive fee structure, potential for high interest
revenue, robust online banking capabilities, proactive fraud prevention measures,
exceptional customer service, and local accessibility through multiple branch locations.
Chief Financial Officer Jennifer Larson will make a presentation and be available to
answer questions.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mich el C. Van Milligen
MCVM/jml
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Jennifer Larson, Chief Financial Officer
Brian DeMoss, Finance Manager
Page 2312 of 2498
THE CITY OF
DUB E
Masterpiece on the Mississippi
TO: Michael C. Van Milligen, City Manager
FROM: Jennifer Larson, Chief Financial Officer
SUBJECT: Commercial Banking Services Recommendation
DATE: October 28, 2024
Dubuque
-ni- irczr
�III'r
2007-2012.2013
2017*2019
INTRODUCTION
The purpose of this memorandum is to recommend Dubuque Bank & Trust for the City's
commercial banking services.
BACKGROUND
The City of Dubuque has maintained bank accounts with Dubuque Bank & Trust since a
request for proposals (RFP) for banking services was issued in 2007. To reassess our
banking options, including a detailed analysis of costs, interest revenues, and potential
enhancements to our financial operations, the City released a new RFP on August 6,
2024. Interested financial institutions were invited to submit their proposals by the
closing date of September 3, 2024, following a Q&A period.
DISCUSSION
A total of eight financial institutions submitted proposals, including:
• U.S. Bank
• MidWest One Bank
• JP Morgan Chase
• Green State Credit Union
• Fidelity Bank
• Dubuque Bank & Trust
• Collins Community Credit Union
• Capra Bank
The RFP required a comprehensive submission addressing several criteria, including
fee and interest earnings proposals, account structures, compliance with regulations,
online platform capabilities, and customer support options.
The Banking Services RFP review committee consisted of the following members:
Jennifer Larson, Chief Financial Officer
Brian DeMoss, Finance Manager
Keith Strey, Finance Project Manager
Kate Weidemann, Finance Accountant
Joe Pregler, Chief Security Officer
Page 2313 of 2498
After a thorough review, the committee invited three institutions —Green State Credit
Union, Dubuque Bank & Trust, and Capra Bank —for onsite interviews, conducted
between October 1 and October 3, 2024. JP Morgan Chase was excluded from
consideration as they do not have a physical branch within city limits.
On October 10, 2024, after evaluating the interviews and demonstrations, the
committee unanimously selected Dubuque Bank & Trust for the following reasons:
• Fee Waivers: All existing account fees would be waived.
• Interest Rate: Proposed interest rate based on the 13-Week T-Bill plus five basis
points.
• No FDIC Assessment: Waiving the FDIC insurance assessment for the City's
accounts.
• No Deposit Ticket Costs: Continuation of waived costs for deposit tickets.
• Online Banking Platform: Access to either the existing Q2 online banking
platform or the upgraded DragonFly platform post -conversion in January 2025,
featuring extensive transaction history and secure messaging capabilities.
• Fraud Prevention: Proactive fraud alerts through Elite Business Services that
contact City finance staff when discrepancies in vendor payments arise.
• Customer Service Availability: Customer support beyond standard hours
(Monday — Friday, 8 a.m. — 7 p.m.).
• Accessibility: Four branch locations within the corporate limits of the City of
Dubuque.
Based on an average monthly collected balance of $17,293,835 and the proposed
interest rate of 4.52% (plus five basis points), the estimated annual interest revenue
generated from Dubuque Bank & Trust would amount to $790,328. This represents a
significant increase of approximately $747,427 compared to the current interest rate of
0.248%.
Dubuque Bank & Trust has consistently waived fees since 2007, ensuring no cost
changes for the City.
RECOMMENDATION
I respectfully recommend awarding a five-year banking services agreement to Dubuque
Bank & Trust. This selection is based on their competitive fee structure, potential for
high interest revenue, robust online banking capabilities, proactive fraud prevention
measures, exceptional customer service, and local accessibility through multiple branch
locations.
JML
Attachment
cc: Crenna Brumwell, City Attorney
Brian DeMoss, Finance Manager
Keith Strey, Finance Project Manager
Joe Pregler, Chief Security Officer
Page 2314 of 2498
REQUEST FOR PROPOSALS
FOR
COMMERCIAL BANKING SERVICES
THE C
ITY
DUB
Masterpiece on the Mississippi
Issue Date
August 6, 2024
Page 2315 of 2498
Contents
1.0
Introduction................................................................................................................................................
4
1.1
Purpose...................................................................................................................................................
4
1.2
Background Information.........................................................................................................................
4
2.0
Administrative Information........................................................................................................................
6
2.1
Issuing Officer........................................................................................................................................
6
2.2
Restriction on Communication...............................................................................................................
6
2.3
Downloading the RFP from the Internet................................................................................................
6
2.4
Procurement Timetable...........................................................................................................................
6
2.5
Questions and Requests for Clarification............................................................................................... 6
2.6
Amendment to the RFP..........................................................................................................................
7
2.7
Submission of Proposals......................................................................................................................... 7
2.8
Costs of Preparing the Proposal.............................................................................................................. 7
2.9
Rejection of Proposals............................................................................................................................
7
2.10
Disqualification.......................................................................................................................................7
2.11
Nonmaterial Variances...........................................................................................................................
8
2.12
Reference Checks................................................................................................................................... 8
2.13
Information from Other Sources.............................................................................................................
8
2.14
Bid Proposal Clarification Process.........................................................................................................
8
2.15
Public Records and Requests for Confidential Treatment...................................................................... 8
2.16
Copyrights............................................................................................................................................
10
2.17
Release of Claims.................................................................................................................................
10
2.18
Presentations.........................................................................................................................................
10
2.19
Evaluation of Proposals Submitted.......................................................................................................
10
2.20
Definition of Contract...........................................................................................................................
10
2.21
Choice of Law and Forum....................................................................................................................
10
2.22
Restrictions on Gifts and Activities......................................................................................................
10
2.23
No Minimum Guaranteed.....................................................................................................................
11
3.0
Contract....................................................................................................................................................11
3.1
Contract................................................................................................................................................
11
3.2
Resulting Contract................................................................................................................................
11
3.3
Contract Length....................................................................................................................................
11
City of Dubuque, Iowa RFP for Commercial Banking Services Page 2
Page 2316 of 2498
4.0
Format and Content of Proposals.............................................................................................................
11
4.1
Proposal Format....................................................................................................................................
11
4.2
Technical Proposal...............................................................................................................................
11
5.0
Current Commercial Banking Services....................................................................................................
13
5.1
Current Accounts and Services.............................................................................................................
13
6.0
Mandatory Service / Proposal Requirements............................................................................................
14
6.1
Personnel and Account Servicing.........................................................................................................
14
6.2
General Banking Information...............................................................................................................
14
6.3
Compensating Balance Credit / Interest Earnings on Account............................................................
15
6.4
On -Line Platform Status & Future Upgrades.......................................................................................
15
6.5
On -Line Access & Cyber Security........................................................................................................
15
6.6
On -Line User Administration...............................................................................................................
15
6.7
On -Line Check Deposit Services.........................................................................................................
15
6.8
On -Line Wire Transfer Origination Services.......................................................................................
15
6.9
On -Line Automated Clearing House (ACH) Services.........................................................................
16
6.10
ACH Debit Filter..................................................................................................................................
16
6.11
Positive Pay Services............................................................................................................................
16
6.12
Fraud Monitoring..................................................................................................................................
16
6.13
On -Line Account Information / Reporting (1,095-day or 3 year minimum) .......................................
16
6.14
Account Analysis Services...................................................................................................................
16
6.15
On -Line user defined alerts and messages...........................................................................................
17
6.16
Implementation/Conversion Plan..........................................................................................................
17
6.17
Other Financial Institution Relationships with the City.......................................................................
17
6.18
Other Services and Strategies...............................................................................................................
17
6.19
References............................................................................................................................................
17
7.0
Evaluation of Bid Proposals.....................................................................................................................
17
7.1
Introduction...........................................................................................................................................
17
7.2
Evaluation Committee..........................................................................................................................
17
7.3
Evaluation Criteria................................................................................................................................
18
8
Disputes/Exceptions.................................................................................................................................18
Attachment A — City of Dubuque Standard Terms and Conditions....................................................................
19
AttachmentB — Fee Proposal..............................................................................................................................
24
Attachment C — Current City Account Analysis Data........................................................................................
27
Attachment D — Sample Month Data to Compute Interest Earnings..................................................................
28
Attachment E — Insurance Requirements............................................................................................................
29
City of Dubuque, Iowa RFP for Commercial Banking Services Page 3
Page 2317 of 2498
1.0 Introduction
1.1 Purpose
The City of Dubuque, Iowa (the "City"), is requesting proposals from qualified Financial
Institutions ("Financial Institutions") for depository, cash management, and general banking
services. Through this Request for Proposals (this "RFP"), theCityintends
to evaluate its banking opportunities, including costs analysis, as well as explore new services that
could benefit the financial security and efficiencies of City operations.
1.2 Background Information
This RFP is designed to provide firms with the information necessary for the preparation of a
competitive bid proposal. The RFP process is for the City's benefit and is intended to provide
the City with competitive information to assist in the selections process.
The City constitutes a political subdivision of the State of Iowa (the "State"). Dubuque 2038
is a sustainable and resilient city, an inclusive and equitable community where ALL are
welcome. The City's Vision Statement is: Dubuque 2038 has preserved our Masterpiece on
the Mississippi, has a strong, diverse economy and expanding connectivity. Our residents
experience healthy living and active lifestyles; have choices of quality, affordable, livable
neighborhoods; have an abundance of diverse, fun things to do; and are successfully and
actively engaged in the community. The City's Mission Statement is: Dubuque city
government is progressive and financially sound with residents receiving value for their tax
dollars and achieving goals through partnerships. Dubuque city government's mission is to
deliver excellent municipal services that support urban living; contribute to an equitable,
sustainable city; plan for the community's future; and facilitate access to critical human
services.
A High -Performance Organization (and Community) with Engaged Employees and Residents
that is Data -Driven and Outcome -Focused built on the five pillars of. Creating an Equitable
Community (and Organization) of Choice, Resiliency, Sustainability, Equity, Compassion, and
Transparency.
City of Dubuque, Iowa RFP for Commercial Banking Services Page 4
Page 2318 of 2498
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Creating an Equitable Community
(and Organization) of Choice
High -Performance Organization (and ommunity) with
Engaged Employees and Residents that is Data -Driven and
Outcome -Focused built on the five pillars of:
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www.cityofdubuque.org
Adopted by City Council on January 1-6, 2024
Because the City is a local governmental unit of the State, the City is exempt from federal
excise taxes and state and local sales and use taxes on the services requested within this RFP.
The successful Financial Institution shall be responsible for paying any taxes incurred by the
Financial Institution in connection with its performance should it be awarded the contract.
2.0 Administrative Information
2.1 Issuing Officer
The Issuing Officer, identified below, is the sole point of contact regarding the RFP from the
date of issuance until selection of the successful Financial Institution.
Jenny Larson
Chief Financial Officer
City of Dubuque
50 W. 13th St.
Dubuque, IA 52001
E-mail: Jlarson@cityofdubuque.org
2.2 Restriction on Communication
From the issue date of this RFP until announcement of the successful Financial Institution,
Financial Institutions shall not discuss the RFP with or contact any other representative of the
City or any of the Selection Committee members except as expressly authorized by the Issuing
Officer. Violation of this restriction will be considered a violation of the rules and be grounds
for disqualification of the Financial Institution's proposal.
2.3 Downloading the RFP from the Internet
The RFP and any addenda to the RFP will be posted on the City's website at
www.cityofdubuque.or /bids. Financial Institutions are advised to check periodically for addenda to
this RFP, particularly if the Financial Institution downloaded the RFP from the Internet as the
Financial Institution may not automatically receive addenda. It is the Financial Institution's sole
responsibility to check as frequently as the Financial Institution deems prudent for addenda to posted
documents.
2.4 Procurement Timetable
The following dates are set forth for informational and planning purposes; however, the City
reserves the right to change the dates to meet the City's needs.
Post notice of RFP on City website
Questions and Requests for Clarification due
Response to Questions
Closing Date for Receipt of Proposals
Anticipated Date to issue Notice of Intent to Award:
Anticipated Date to Begin Services:
August 6, 2024
August 27, 2024 4:00 PM CDT
August 28, 2024 4:00 PM CDT
September 3, 2024 4:00 PM CDT
October 7, 2024
To Be Determined
2.5 Questions and Requests for Clarification
Financial Institutions are invited to submit questions and requests for clarifications regarding
the RFP. Questions or requests for clarifications must be submitted via email and received by
the Issuing Officer before 4:00 PM CDT on August 27, 2024. Verbal questions will not be
City of Dubuque, Iowa RFP for Commercial Banking Services Page 6
Page 2320 of 2498
permitted. If the questions or requests for clarifications pertain to a specific section of the RFP,
the page and section number(s) must be referenced. Written responses to questions and
requests for clarifications will be posted as needed to the City's website via an addenda at
www.cityofdubuque.org/bids on or before 4:00 PM CDT on August 28, 2024. The written
responses will be considered part of the RFP.
2.6 Amendment to the RFP
The City reserves the right to amend the RFP at any time. Financial Institutions shall
acknowledge receipt of any and all amendments in its proposal. If an amendment occurs after
the closing date for receipt of bid proposals, the City may, in their sole discretion, allow
Financial Institutions to amend their bid proposals in response to the amendment if necessary.
Financial Institutions may amend their bid proposals If the amendment is in writing, signed by
an authorized representative of the Financial Institution, and received by the City by the time
set for the receipt of proposals. Financial Institutions who submit proposals in advance of the
deadline may withdraw, modify, or resubmit proposals at any time prior to the deadline for
submitting proposals. Financial Institutions must notify the Issuing Officer in writing if they
wish to withdraw their proposals.
2.7 Submission of Proposals
The bid proposal must be a PDF attachment submitted via ShareFile provided to
hgps:Hciiyofdubuque.sharefile.com/r-r28e8cc4444b48228 and must be received by 4:00 PM CDT
on September 3, 2024. This is a mandatory requirement and will not be waived by the
City. Any bid proposal received after this deadline will be rejected. T h e City is under
no obligation to confirm receipt. Each Financial Institution must furnish all information
necessary for the City to evaluate its proposal by the submission deadline. Bid proposals that
fail to meet the mandatory requirements of the RFP will be disqualified. Verbal information
and general marketing material will not be considered by the City and shall not be submitted
as part of any proposal.
2.8 Costs of Preparing the Proposal
The costs of preparation and delivery of the proposal are solely the responsibility of the
submitting Financial Institution.
2.9 Rejection of Proposals
The City reserves the right to reject any or all proposals, in whole and in part, received in
response to this RFP. Issuance of this RFP in no way constitutes a commitment by the City to
award a contract.
2.10 Disqualification
The City may reject proposals outright for any one of the following reasons:
2.10.1 The Financial Institution fails to deliver the proposal by the due date and time.
2.10.2 The Financial Institution states that a service requirement cannot be met.
2.10.3 The Financial Institution's response materially changes a service requirement.
2.10.4 The Financial Institution's response limits the rights of the City.
2.10.5 The Financial Institution fails to include information necessary to
substantiate that it will be able to meet a service requirement.
2.10.6 The Financial Institution fails to respond to the City's request for
City of Dubuque, Iowa RFP for Commercial Banking Services Page 7
Page 2321 of 2498
information, documents, or references.
2.10.7 The Financial Institution fails to include any signature, certification,
authorization, stipulation, disclosure, or guarantee requested in Section 4 of
this RFP.
2.10.8 The Financial Institution presents the information requested by this RFP
in a format inconsistent with the instructions of the RFP.
2.10.9 The Financial Institution initiates or continues unauthorized contact regarding
the RFP.
2.10.10 The Financial Institution provides any misleading or inaccurate response.
2.10.11 The Financial Institution does not, as of the date of issuance of this RFP,
have a fully staffed, physical location within the corporate limits of the City.
For purposes of this subsection, "fully staffed" means (a) one or more
employees of the Financial Institution being physically present at the
physical location during normal banking hours; and (b) such physical
location is open to the public during normal banking hours.
2.11 Nonmaterial Variances
The City reserves the right to waive or permit cure of nonmaterial variances in the proposal if,
in the judgment of the City, it is in the City's best interest to do so. In the event the City waives
or permits cure of nonmaterial variances, such waiver or cure will not modify the RFP
requirements or excuse the Financial Institution from full compliance with RFP specifications
or other contract requirements if the Financial Institution is awarded the contract. The
determination of materiality is in the sole discretion of the City.
2.12 Reference Checks
The City reserves the right to contact any reference to assist in the evaluation of the proposal,
to verify information contained in the proposal, or to otherwise discuss the Financial
Institution's qualifications.
2.13 Information from Other Sources
The City reserves the right to obtain and consider information from any other source
concerning a Financial Institution, such as the Financial Institution's capability and
performance under other contracts.
2.14 Bid Proposal Clarification Process
The City reserves the right to contact a Financial Institution after the submission of proposals
for the purpose of clarifying a proposal and ensuring mutual understanding. The City will not
consider information received during the clarification process if the information materially
alters the content of the proposal. An individual authorized to legally bind the Financial
Institution shall sign all responses to any request for clarification. Responses shall be submitted
to the City within the time specified in the request. Failure to comply with requests for
additional information may result in rejection of the proposal as noncompliant.
2.15 Public Records and Requests for Confidential Treatment
The City shall treat all information submitted by a Financial Institution as public records unless
the Financial Institution properly requests that specific parts of the proposal be treated as
confidential at the time of submission AND, in the opinion of the City or the City's counsel,
City of Dubuque, Iowa RFP for Commercial Banking Services Page 8
Page 2322 of 2498
the information is in fact confidential under Iowa or other applicable law. The City's release
of public records is governed by Iowa Code Chapter 22. Financial Institutions are encouraged
to familiarize themselves with Chapter 22 before submitting a proposal. The City will copy
and produce public records as required to comply with Chapter 22 or other applicable laws, and
no prior notice of the release of any public record will be provided to any Financial Institution.
Any request for confidential treatment of information must be included in the transmittal letter
with the Financial Institution's proposal. For each confidentiality request, the Financial
Institution must (1) enumerate the specific grounds in Iowa Code Chapter 22 or other
applicable law that supports treatment of the material as confidential; (2) provide adequate
justification as to why the material should be maintained in confidence; (3) explain why
disclosure of the material would not be in the best interest of the public; and (4) set forth the
name, address, telephone number, and email address for the person authorized by the Financial
Institution to respond to inquiries by the City concerning the confidential status of such
material. Requests to maintain an entire proposal as confidential will result in the entire proposal
being rejected as non -responsive. A request for confidentiality that does not comply with this
section or a request for confidentiality of information or material which cannot be held in
confidence as set forth herein are grounds for rejecting a proposal as non -responsive.
Any proposal submitted which contains information for which the Financial Institution is
requesting confidential treatment must be conspicuously marked by the Financial Institution
as containing confidential information, and each page upon which confidential information
appears must be conspicuously marked as containing confidential information. Failure to
properly identify specific information as confidential shall be deemed to constitute the
Financial Institution's consent to public disclosure of part or all of any such information.
If the Financial Institution designates any portion of its proposal as confidential, the Financial
Institution must submit a version of its proposal labeled as "Public Copy" and from which the
confidential information has been excised. The confidential information must be excised in
such a way as to allow the public to determine the general nature of the material removed and
to retain as much of the proposal as reasonably possible.
If the City receives a request for information that includes information the Financial Institution
has marked as confidential and the City believes it is required to release the information so
intends to release such information, the City will give written notice to the Financial Institution
at least seven calendar days prior to the release of the information to allow the Financial
Institution to seek injunctive relief pursuant to Iowa Code § 22.8. The City shall not be required
to seek injunctive relief or otherwise take any legal action for or on behalf of any Financial
Institution. After seven (7) calendar days, the City may release the information marked
confidential unless a court of competent jurisdiction determines the information to be exempt
from disclosure under Iowa Code Chapter 22 or other applicable law.
Except as otherwise provided herein: if the Financial Institution fails to comply with the request
process set forth herein; if the Financial Institution's request for confidentiality is
unreasonable, as determined in the sole discretion of the City or the City's counsel; or if the
Financial Institution rescinds its request for confidential treatment, then the City may release
such information or material with or without providing advance notice to the Financial
Institution and with or without affording the Financial Institution the opportunity to obtain an
order restraining its release.
City of Dubuque, Iowa RFP for Commercial Banking Services Page 9
Page 2323 of 2498
The Financial Institution's failure to request confidential treatment of material will be deemed
a waiver of any right to confidentiality the Financial Institution may have had.
2.16 Copyrights
By submitting a proposal, the Financial Institution agrees that the City may copy the proposal
for purposes of facilitating the evaluation of the proposal or to respond to requests for public
records. The Financial Institution consents to such copying by submitting a proposal and
warrants that such copying will not violate the rights of any third party. The City shall have the
right to use ideas or adaptations of ideas which are presented in the proposals.
2.17 Release of Claims
By submitting a proposal, the Financial Institution agrees that it will not bring any claim or
cause of action against the City based on any misunderstanding concerning the information
provided herein or concerning the City's failure, whether negligent or otherwise, to provide the
Financial Institution with pertinent information as intended by this UP.
2.18 Presentations
Financial Institutions may be asked to make a presentation of their proposal. The presentation,
if necessary, will occur at the City's offices. The determination as to need for presentations,
including the location, order, and schedule of the presentations, shall be at the sole discretion
of the City.
2.19 Evaluation of Proposals Submitted
Proposals which are timely submitted and are not subject to disqualification will be evaluated
in accordance with Section 7 of this RFP.
2.20 Definition of Contract
The full execution of a separate written contract shall constitute the making of a contract for
services, and no Financial Institution shall acquire any legal or equitable right relative to the
goods or services to be provided in connection with this RFP unless and until a separate written
contract, with terms and conditions acceptable to the City, has been fully executed by the City
and the successful Financial Institution. By submitting a proposal, each Financial Institution
acknowledges that any selection of a successful Financial Institution by the City under this
RFP, including, without limitation, any verbal or written notice thereofprovided by or on behalf
of the City, shall not create any contractual rights or other obligations between the City and the
successful Financial Institution.
2.21 Choice of Law and Forum
This RFP and any contract resulting therefrom shall be governed by the laws of the State of Iowa,
without regard to its conflicts of laws provisions or applications. Changes in applicable laws
and rules may affect the award process or the resulting contract. Financial Institutions are
responsible for ascertaining pertinent legal requirements and restrictions. Any and all litigation
or actions commenced in connection with this RFP shall be brought in the state courts of the
Iowa District Court in and for Dubuque County, Iowa or the federal courts of the Northern
District of Iowa, Eastern Division, and the parties hereby irrevocably consent to the exclusive
jurisdiction of said courts.
2.22 Restrictions on Gifts and Activities
City of Dubuque, Iowa RFP for Commercial Banking Services Page 10
Page 2324 of 2498
Iowa Code Chapter 68B restricts gifts which may be given or received by public employees and
requires certain individuals to disclose information concerning their activities with public
government. Financial Institutions are responsible to determine the applicability of the law to
their activities and to comply with all relevant requirements. Pursuant to Iowa Code § 722.1,
it is a felony offense to bribe or attempt to bribe a public official.
2.23 No Minimum Guaranteed
The City anticipates that the selected Financial Institution will provide services as requested
by the City. The City will not guarantee any minimum compensation will be paid to the
Financial Institution or any minimum level of usage of the Financial Institution's services.
3.0 Contract
3.1 Contract
The Financial Institutions proposed contract for services must be included in the submittal. It
should include the City of Dubuque's Standard Terms and Conditions found in the Appendix
A. The City reserves the right to either award a contract without further negotiation with the
successful Financial Institution or to negotiate contract terms with the selected Financial
Institution, if the City determines, in the City's sole discretion, the best interests of the City
would be served by doing so.
The City reserves the right to refuse to enter into a contract with the successful Financial
Institution for any reason.
3.2 Resulting Contract
The contract between the City and the Financial Institution shall be a combination of:
3.2.1 The specifications, terms, and conditions of this RFP.
3.2.2 The Financial Institutions mutually agreed upon contract.
3.2.3 The contents of the Financial Institution's proposal.
3.2.4 Any written changes or clarifications made in accordance with the provisions
herein.
3.3 Contract Length
The City currently anticipates the duration of any resulting contract will be for an initial period
of five (5) years. The City anticipates having the option to extend the contract upon the same or
more favorable terms and conditions for up to one (1) additional three (3) year period following
expiration of the initial five-year period, by providing the selected Financial Institution with
written notice of its exercise of such option. The resulting contract may be terminated at the
City's discretion, with or without cause, after thirty (30) days' written notice to the Financial
Institution.
4.0 Format and Content of Proposals
4.1 Proposal Format
The proposal shall be submitted as a PDF document using a page size of 8.5" x 11 ".
4.2 Technical Proposal
City of Dubuque, Iowa RFP for Commercial Banking Services Page 11
Page 2325 of 2498
The following documents and responses shall be included in the proposal in the order given
below:
4.2.1 Transmittal Letter: An individual authorized to legally bind the Financial
Institution shall sign the transmittal letter. The letter shall include the
Financial Institution's mailing address, email address, and telephone
number. Any request for confidential treatment of information shall be
included in the transmittal letter, in addition to the specific statutory basis
supporting the request and an explanation why disclosure of the information
is not in the best interest of the public. The transmittal letter shall also
contain the name, address, and telephone number of the individual
authorized to respond to the City about the confidential nature of the
information. The Financial Institution shall guarantee in writing the
availability of the services offered and that all proposal terms, including
price, will remain firm a minimum of one hundred eighty days
(180) days following the deadline for submitting proposals.
4.2.2 Table of Contents: T h e Financial Institution shall include a table of contents
of its proposal.
4.2.3 Responses to Mandatory Service Requirements: The Financial Institution
shall address each mandatory service requirement under Section 6 in this
RFP. In the response, please reference each section, e.g.: 6.1, 6.2, 6.3, etc.
4.2.3.1 Describe any order, judgment, or decree of any federal, state, tribal,
local, or other governmental authority barring, suspending, or
otherwise limiting the right of the Financial Institution to engage in
any business, practice, or activity.
4.2.3.2 A list and summary of all actual and threatened litigation,
administrative or regulatory proceedings, or similar matters to which
the Financial Institution or its officers have been a party.
Failure to disclose these matters may result in rejection of the proposal as
non -responsive or termination of any subsequent contract. The above
disclosures are a continuing requirement of each Financial Institution during
this RFP process and of the successful Financial Institution during the term
of any resulting contract. The Financial Institution shall also provide written
notification to the City of each such matter commencing or occurring after
submission of a proposal, and with respect to the successful Financial
Institution, following execution of the contract.
4.2.4 Fee Proposal — Attachment B: The Financial Institution shall submit a fully
detailed fee proposal as Attachment B.
4.2.4.1 There shall be no reimbursable expenses. T h e Financial
Institution shall be solely responsible for all costs and expenses,
including, but not limited to, travel, mileage, meals, lodging,
supplies, training, long distance telephone, and all other costs and
expenses of the Financial Institution.
4.2.4.2 The fees proposed in Attachment B shall be fixed for five (5) years
from the effective date of the agreement. Thereafter, fees may be
increased by no more than three percent (3%) per year; provided,
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however, that new fees may be introduced upon the written mutual
agreement for new services not addressed in Attachment F, or fees
attributable to new statutory or regulatory requirements. The City
shall not be obligated to pay any other fee, charge, or other
amount to the Financial Institution other than the fees set forth
in Attachment B.
4.2.5 Interest Earnings Proposal — Attachment D: The Financial Institution shall
submit a fully detailed interest earnings proposal as Attachment D.
4.2.5.1 The interest proposed in Attachment D shall be computed using the
"Sample Month Data to Compute Interest Earnings" in Attachment
D. The total Interest Earnings for the month shall be provided. The
calculation shall assume no change in the Federal Funds rate during
the month.
4.2.5.2 Please describe your policy for crediting interest earned to demand
accounts.
4.2.5.3 Daily interest should be paid on the investible balance (defined as
all monies on hand each night, less minimum float if required) of the
City's interest -bearing accounts. All proposals shall state the current
interest rate the Financial Institution will pay on the assumptions
cited above. Please include in the proposal submission the index the
Financial Institution uses as the basis for the interest rate. In
addition, please provide information on whether the interest rate
changes if more funds are invested with the Financial Institution and
at what levels it changes.
4.2.5.4 It is important to describe the types of accounts the bank is willing
to provide (i.e. market based interest checking account, sweep
account, etc.) and the calculation of interest rate as a percentage of
the federal funds rate and note the current rate when the bid is
submitted. Please describe how the Federal fund rate is determined.
4.2.5.5 Include a minimum interest rate or floor rate the Financial Institution
is willing to provide for the City.
4.2.6 Insurance Requirements — Attachment E: The Financial Institution will
provide insurance which meets all requirements on the attached insurance
schedule J, if selected as the Financial Institution of choice by the City. Any
deviation from such requirements shall be specifically identified on the
acknowledgment.
5.0 Current Commercial Banking Services
5.1 Current Accounts and Services
The City currently maintains twenty-one (21) accounts, including thirteen (13) commercial
checking accounts, in order to segregate and report on funds related to its various services and
programs. The average monthly balance for all 21 accounts was approximately $48.96 million
during the period of November 2023 through April 2024, as presented more thoroughly in
Attachment C. A full list of all current accounts which are part of this RFP, as well as
balance, volume, and count trends is included in Attachment C. All 962 current active payroll
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employees (except 4) are paid via direct deposit and are allowed up to three (3) direct deposit
accounts per employee. City accounts do require cash and coin operations.
6.0 Mandatory Service / Proposal Requirements
6.1 Personnel and Account Servicing
The Financial Institution must provide a dedicated relationship manager and staff capable of
training and supporting all products. The dedicated relationship manager should have a strong
understanding of the City's operations and sufficient decision -making authority within the
Financial Institution to resolve issues.
6.1.1 Please provide a profile of the proposed assigned relationship manager and
bios of all product specialists to be assigned to the City's account, including
the implementation manager. Describe how the staff is organized and how
the Financial Institution will meet the City's customer service needs when it
needs immediate assistance with wires or other account issues.
6.1.2 Describe the availability of user guides (both for administrators and regular
users), training, and customer support on an on -going basis.
6.2 General Banking Information
6.2.1 City of Dubuque Presence — Indicate if the Financial Institution has, as of the
date of issuance of this RFP, a fully staffed, physical location within the
corporate limits of the City. For purposes of this subsection, "fully staffed"
means (a) one or more employees of the Financial Institution being
physically present at the physical location during normal banking hours; and
(b) such physical location is open to the public during normal banking hours.
6.2.2 Federal Reserve — The Financial Institution must have direct access to the
check clearing, collection, and wire transfer services of the Federal Reserve.
Please affirm.
6.2.3 Ratings — Provide ratings information from a recognized credit rating agency
(e.g. Moody's, S&P Global, etc.) or financial institution rating agencies
(e.g. Veribanc, Highline, etc.)
6.2.4 Financial Statements — Provide audited financial statements for the most
recent three fiscal years.
6.2.5 Community Reinvestment Act (CRA) rating and rating authority — include
information on the Financial Institution's CRA activity within the State and
specifically within the City of Dubuque.
6.2.6 Public depository — Provide proof of current standing as an eligible public
depository.
6.2.7 Collateral Policy — Provide confirmation the Financial Institution will
adhere to the State's public funds collateral requirements. Iowa Code
Chapter 12C, "Deposit of Public Funds", requires institutions to pledge
collateral to the State Treasurer when they accept public deposits. The
amount of collateral must equal or exceed the difference between the
institution's public funds deposits and its total capital. The institution
must also pledge eligible collateral with a custodian approved by the
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State Treasurer. The institution must determine whether circumstances
require it to pledge securities on a given day. The institution must also
grant the State Treasurer a perfected security interest in the collateral to
secure the repayment of uninsured public funds and any future
assessments. The institution must ensure the State Treasurer has a valid,
enforceable, first priority security interest in the collateral. The
institution's acceptance of public funds also means it consents to the
disposition of the collateral, assessments by the State Treasurer, and
providing accurate information. The State Treasurer's Office can
answer questions about Iowa's pledging process and instructions.
6.3 Compensating Balance Credit / Interest Earnings on Account
As noted in Section 5.1, the twenty-one (21) City commercial accounts had an average monthly
collected balance of approximately $48.96 million during the period of November 2023
through April 2024, as detailed more thoroughly in Attachment C. T h e Financial Institution
must provide credit for average collected balances on deposit in all accounts to offset the
Financial Institution charges for fees. Please describe how the interest rate is established and
applied and provide the monthly interest rates proposed and the calculated net interest
earnings on each account listed in Attachment C from November 2023 through April 2024
which would have applied to the City.
6.4 On -Line Platform Status & Future Upgrades
Maintenance of software platforms utilized in providing services to the City is a priority.
Please describe the status of the on-line banking platform to be used in providing banking
services for the City, how often updates are carried out, and the timeline for planned future
system upgrades.
6.5 On -Line Access & Cyber Security
The Financial Institution must provide a high level of on-line and cyber security. Please describe
the security features of the Financial Institution's on-line access and cyber security protocols.
6.6 On -Line User Administration
The Financial Institution must have on-line user account set-up and maintenance for all
services provided. If a City administrator(s) cannot manage access to all services, please
provide a description of the services which can and cannot be managed on-line by such an
administrator. The City is looking for on-line user administration functions which allow for
user set-ups to be cloned and slightly modified, instead of having to set up each new user from
scratch.
6.7 On -Line Check Deposit Services
The Financial Institution must provide the capability for the City to scan and deposit checks
into specified accounts remotely using a digital scanner or similar device. Please describe the
remote deposit process, including the deadline for same day credit deposit. Please attach
availability schedules.
6.8 On -Line Wire Transfer Origination Services
The Financial Institution must provide the capability for the City to originate and manage wire
transfer transactions individually and to upload multiple wire transfer transactions in batches.
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Briefly describe the Financial Institution's various wiring functionalities and include the
Financial Institution's deadline for accepting wiring instructions. See Attachment C for current
account activity trends.
6.9 On -Line Automated Clearing House (ACH) Services
The Financial Institution must provide the capability for the City to originate and manage ACH
debit and credit transactions individually and to upload multiple ACH transactions in batches.
See Attachment C for current account activity trends.
6.9.1 Briefly describe the Financial Institution's ACH processing windows and
deadlines.
6.9.2 Briefly describe all the ways to initiate ACH on the Financial Institution's
online platform and t h e available security measures related to the ACH
initiation.
6.9.3 Briefly describe the security measures utilized by the Financial Institution to
ensure ACH debits are authorized.
6.9.4 Briefly describe the account verification services provided by the Financial
Institution.
6.10 ACH Debit Filter
The Financial Institution must have the ability to set up either an ACH debit block or a debit
filter on each account, as may be requested from time -to -time by the City and allow certain ACH
company IDs to bypass the ACH debit blocks, if requested. Financial Institution must have the
ability to set up a check clearing block on an account, as may be requested from time -to -time by
the City. Please affirm.
6.11 Positive Pay Services
The Financial Institution must provide for the daily, automated receipt of payment data,
including check number, issue date, amount, and payee from the City, then only clear checks
which match check number, issue date, amount, and payee. Please affirm.
6.12 Fraud Monitoring
Please describe in detail the Financial Institution's fraud monitoring capabilities and protocols
to identify transactions which are out of the norm or suspicious, the software and other tools
used to monitor transactions, expected customer notification timelines for potential issues, and
the support provided to customers to investigate potential fraud and minimize loss.
6.13 On -Line Account Information / Reporting (1,095-day or 3 year minimum)
Provide a brief description of these capabilities.
6.13.1 Same day reporting of ACH and wire receipts
6.13.2 Date range / transaction type search feature
6.13.3 Access to images of cleared checks
6.13.4 Detail of wire transfers and ACHs
6.13.5 Access to on-line deposits and check images
6.14 Account Analysis Services
The Financial Institution must document all transaction volumes and charges on an analysis
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statement and provide an internal review of the analysis statements for accuracy each month
prior to assessing fees. The Financial Institution must make these analyses available to the
City. Please affirm.
6.15 On -Line user defined alerts and messages
The Financial Institution must provide on-line user -defined alerts and messages for critical
events. Please describe how these features function.
6.16 Implementation/Conversion Plan
The Financial Institution must provide an implementation/conversion plan for the transition of
services from the City's current service provider. Please provide a listing of steps, responsible
parties, and the approximate duration of each step. Any one-time set-up fees, consulting fees,
support fees, and other fees charged for such a transition should be included in Attachment B
— Fee Proposal.
6.17 Other Financial Institution Relationships with the City
Please highlight any current relationships the Financial Institution has with the City and how
each such relationship helps support the City's Vision Statement, Mission Statement, and
Equitable Community of Choice, as stated in Section 1.2.
6.18 Other Services and Strategies
Please describe in narrative form those services or strategies that are not covered in Sections 6.1
through 6.16 which may benefit the City, such as process improvements and/or more efficient
new technologies. This response may not exceed one single-spaced page in length.
6.19 References
Provide the entity name, contact person, telephone number, and email address for at least three
(3) clients the Financial Institution currently serves. Please include references for public
entities or entities of comparable size, if any.
7.0 Evaluation of Bid Proposals
7.1 Introduction
This section describes the evaluation process that will be used to determine which bid proposal
provides the greatest benefits to the City. The evaluation process is designed to award the
contract to the Financial Institution with the best combination of attributes to best perform the
required services at the greatest benefit of the City, not necessarily to the Financial Institution
of least cost.
7.2 Evaluation Committee
The City intends to conduct a comprehensive, fair, and impartial evaluation of bid proposals received in
response to this RFP. An Evaluation Committee will review and evaluate the proposals. The Evaluation
Committee will make a recommendation to the City Manager. No debriefing or scoring information shall
be released before the City Manager or City Council has recommended that an agreement be negotiated
with the recommended Financial Institution. However, after authorization has been granted to negotiate
an agreement, all contents of the submitted proposals (except those properly subject to the confidentiality
provisions of this RFP) shall become public information.
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7.3 Evaluation Criteria
The Evaluation Committee will evaluate all proposals and make an award recommendation to
the City Manager using the following criteria and general considerations:
7.3.1 Availability and Quality of Service (35%) - the ability to meet the City's
current and projected service requirements, capacity to provide a wide range
of on-line services, the experience of assigned staff, and quality of
references.
7.3.2 Cost (25%) — cost per identified activity and aggregate service costs, earnings
credit rate, availability of funds schedule.
7.3.3 Technology/Innovation (20%) — the manner in which the Financial
Institution's proposal has addressed the required items included in this RFP,
including conversion/implementation plans.
7.3.4 Financial Strength and Stability_ (15%) — the ability to demonstrate favorable
capital adequacy ratio (CAR), asset quality ratio, net interest margin (NEV), and
return on assets (ROA).
7.3.5 Completeness and Conciseness of Response (5%) — the manner in which the
Financial Institution's proposal has addressed the required items included in
this RFP.
7.3.6 Local Purchasing Preference - As required by Iowa Code § 23A.3, it shall be
City policy to consider purchasing equipment, materials, supplies, and services
from locally owned businesses located within the City of Dubuque, when the
cost and other considerations are relatively equal.
8 Disputes/Exceptions
Any prospective proposer who disputes the reasonableness or appropriateness of any item within
this RFP document, any addendum to this RFP document, any notice of award, or any notice of
rejection shall set forth the specific reason(s) and facts concerning the dispute, in writing, within
five (5) business days of the receipt of the proposal document or notification from the City. The
written dispute shall be sent via certified mail or delivered in person to the Issuing Officer set forth
in Section 2.1, who shall review the written dispute and work with the City Manager to render a
decision which shall be considered final.
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Attachment A — City of Dubuque Standard Terms and Conditions
ACCELERATED PAY DISCOUNTS - Accelerated discounts should be so stated on the bid
submittal page. If quick pay discounts are offered, the City reserves the right to include that discount
as part of the award criteria. Prices must, however, be based upon payment in net thirty (30) days
after receipt, inspection and acceptance. In all cases, quick pay discounts will be calculated from the
date of the invoice or the date of acceptance, whichever is later.
ADA COMPLIANCE
1. The Contractor shall comply with all applicable provisions of the Americans with Disabilities
Act (Public Law 101-336, 42 U.S.C. 12101 et seq.) and applicable Federal regulations under the
Act.
2. Bids for design, construction, programs, policies and concessions of any type shall comply with
the 2010 Standards for Accessible Design, the ADA title II regulation, Section 504 of the 1973
Rehabilitation Act, and similar statutes and regulations prohibiting discrimination on the basis of
disability.
3. The Contractor shall ensure that its websites and all online services, including those websites or
online services provided by third parties upon which Dubuque relies to provide services or
content, comply with, at minimum, Web Content Accessibility Guidelines - WCAG 2.0 AA.
ASSIGNMENT - The City and the Contractor each are hereby bound and the partners, successors,
executors, administrators and legal representatives of the City and the Contractor are hereby bound
to the other party to the Contract and to the partners, successors, executors, administrators and legal
representatives (and said assigns) of such other party, in respect of all covenants, agreements and
obligations of the Contract. Any assignment or attempt at assignment made without prior written
consent of the City shall be void.
BID CURRENCY/LANGUAGE - All bid prices shall be shown in US Dollars ($). All prices must
remain firm for the duration of the Contract regardless of the exchange rate. All bid responses must
be submitted in English.
BID FORM - Each bidder must submit an original bid and additional copies as required on the forms
attached. The bidder shall correctly sign the bid, and the bid may be rejected if it shows any
omissions, alterations of the form, additions not called for in the bid, or any irregularities of any kind.
In case of a discrepancy between the unit price and the extended price, the unit price shall prevail.
BID INFORMATION IS PUBLIC — The bid and all documents submitted with any bid shall
become public documents subject to Iowa Code Chapter 22, which is otherwise known as the "Iowa
Open Records Law". By submitting the bid any document to the City of Dubuque in connection with
a bid, the submitting party recognizes this and waives any claim against the City of Dubuque and any
of its officers and employees relating to the release of any document or information submitted. Each
submitting party shall hold the City of Dubuque and its officers and employees harmless from any
claims arising from the release of any document or information made available to the City of
Dubuque arising from any opportunity. Bid information requested by the public or other bidders will
be provided in an alternative format if the requestor is a person with a disability and requires an
alternative form for comprehension.
BID REJECTION OR PARTIAL ACCEPTANCE - The City reserves the right to accept or reject
any or all bids or parts thereof. The City further reserves the right to waive technicalities and
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formalities in bids, as well as to accept in whole or in part such bids where it is deemed advisable in
protection of the best interests of the City.
CONFLICT OF INTEREST - The Contractor represents, warrants, and covenants that no
relationship exists or will exist during the Contract period between the Contractor and the City that
is a conflict of interest. No employee, officer or agent of the Contractor shall participate in the
selection or in the award if a conflict of interest, real or apparent, exists. The provisions of Iowa
Code ch. 68B shall apply to the Contract. If a conflict of interest is proven to the City, the City may
terminate the Contract, and Contractor shall be liable for any excess costs to the City as a result of
the conflict of interest. The Contractor shall establish safeguards to prevent employees, consultants,
or members of governing bodies from using their positions for purposes that are, or give the
appearance of being, motivated by the desire for private gain for themselves or others with whom
they have family, business, or other ties. The Contractor shall report any potential, real, or apparent
conflict of interest to the City.
CONTRACT DOCUMENTS — The Contract Documents are this Contract, the Request for Bids,
the Contractor's Bids, and the following additional documents, if any:
In the event of a dispute with respect to any term or condition in the Contract Documents, they shall
be interpreted in the following order: this Contract, the Request for Bids, the Contractor's Bids, and
the following additional documents, if any:
DISPUTES - Should any disputes arise with respect to the Contract, the Parties agree to act
immediately to resolve such disputes. Time is of the essence in the resolution of disputes. The
Contractor agrees that, the existence of a dispute notwithstanding, it will continue without delay to
carry out all of its responsibilities under the Contract that are not affected by the dispute and the City
shall continue to make payment for all Work properly performed. Should the Contractor fail to
continue to perform its responsibilities regarding all non -disputed work, without delay, any additional
costs incurred by the City or the Contractor as a result of such failure to proceed shall be borne by
the Contractor. The unintentional delayed payment by the City to the Contractor of one or more
invoices not in dispute in accordance with the terms of the Contract will not be cause for Contractor
to stop or delay Work.
FORCE MAJEURE - Force majeure shall be any of the following events: acts of God or the public
enemy; compliance with any order, rule, regulation, decree, or request of any governmental authority
or agency or person purporting to act therefore; acts of war, public disorder, rebellion, terrorism, or
sabotage; floods, hurricanes, or other storms; strikes or labor disputes; or any other cause, whether
or not of the class or kind specifically named or referred to herein, not within the reasonable control
of the party affected. A delay in or failure of performance of either party shall not constitute a default
hereunder nor be the basis for, or give rise to, any claim for damages, if and to the extent such delay
or failure is caused by force majeure. The party who is prevented from performing by force majeure
shall be obligated, within a period not to exceed fourteen (14) days after the occurrence or detection
of any such event, to give notice to the other party setting forth in reasonable detail the nature thereof
and the anticipated extent of the delay, and shall remedy such cause as soon as reasonably possible,
as mutually agreed between the parties.
INDEMNIFICATION - To the fullest extent permitted by law, the Contractor shall indemnify and
hold harmless the City, its officers and employees, from and against all claims, damages, losses and
expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of
the Contract, provided that such claim, damages, loss or expense is attributable to bodily injury,
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sickness, disease or death, or injury to or destruction of property, including loss of use resulting
therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the
Contractor, or anyone directly or indirectly employed by the Contractor or anyone for whose acts the
Contractor may be liable, regardless of whether or not such claim, damage, loss or expense is caused
in part by a party indemnified hereunder.
LAWS AND REGULATIONS - The Contract shall be governed, interpreted and enforced in
accordance with all applicable federal, State of Iowa, and local laws, ordinances, licenses and
regulations and shall apply to the Contract throughout, as the case may be. The Contractor certifies
that in performing the Contract it will comply with all applicable provisions of the federal, state, and
local laws, ordinances, licenses and regulations. Venue for any action arising out of this Contract
shall be the Iowa District Court for Dubuque County, Iowa.
METHOD OF AWARDING - The City reserves the right to make awards based on the entire bid
or on an item -by -item basis. However, if Contractor's bid is based on an "all or none" condition, the
City may consider its bid non -responsive and reject the entire bid.
NO GIFT STANDARD - The City of Dubuque is committed to upholding the highest ethical
standards in all of its business practices. This standard recognizes the need to avoid even the
perception of improper gifts or favors to employees. Therefore, all suppliers have been asked to
abide by the City's "No Gift" standard. The "No Gift" standard also applies to all offers of discounts
or free items at any place of business targeted toward a City employee and not available to the general
public, regardless of the value.
NON -COLLUSION STATEMENT - Neither the Contractor, nor anyone in the employment of the
Contractor, has employed any person to solicit or procure the Contract nor will the Contractor make
any payment or agreement for payment of any compensation in connection with the Contract. There
is no contract, agreement or arrangement, either oral or written, expressed or implied, contemplating
any division of compensation for Work rendered under the Contract or participation therein, directly
or indirectly, by any other person, firm or corporation, except as documented in the Contract. Neither
the Contractor, nor anyone in the employment of the Contractor, has either directly or indirectly
entered into any agreement, participated in any collusion or otherwise taken any action in restraint of
free competitive procurement in connection with the Contract.
NON-DISCRIMINATION AND EQUAL OPPORTUNITY - All Contractors that engage in
contracts with the City of Dubuque, Iowa agree as follows: The Contractor will not discriminate
against any employee or applicant for employment because of race, sex, color, creed, ancestry,
national origin, marital status, Familial status, religion, age, disability, sexual orientation, gender
identity, genetic information, status with regard to public assistance, status as a veteran or any
classification protected by federal, state, or local law, (Protected Classes) except where age and sex
are essential bona fide occupational requirements, or where disability is a bona fide occupational
disqualification. Such action shall include, but not be limited to the following; (a) Employment, (b)
Upgrading, (c) Demotion or transfer, (d) Recruitment and advertising, (e) Layoff or termination, (f)
Rate of pay or other forms of compensation, and (g) Selection for training, including apprenticeship.
The Contractor further assures that managers and employees comply with both the spirit and intent
of federal, state, and local legislation, government regulation, and executive orders in providing
affirmative action as well as equal opportunity without regard to the protected classes, as stated
above. The Contractor will include, or incorporate by reference, the provisions of the
nondiscrimination clause in every contract or subcontract unless exempt by the rules, regulations or
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orders of the City and will provide in every contract or subcontract that said provision will be binding
upon each Contractor.
REGULATORY AGENCY COMPLIANCE - Compliance with laws and regulations set forth by
regulatory agencies is required. These agencies include, but are not limited to, OSHA — Occupational
Safety & Health Agency, EPA — Environmental Protection Agency, ICC — Interstate Commerce
Commission, DNR — Department of Natural Resources, and DOT — Department of Transportation.
The City of Dubuque expects that Contractors will offer expertise on conformance of regulations
applying to the products they sell and the Work they perform.
RIGHT TO PROTEST - Anyone wishing to file a protest concerning (1) the specifications, (2) the
bid procedure or (3) the award of the Contract must do so in writing in accordance with the City's
Protest by bidders which is found in the City's purchasing policy
SAFETY DATA SHEETS - The Hazard Communication Standard (HCS) requires chemical
manufacturers, distributors, and importers to ensure that each container of hazardous chemicals
leaving the workplace is labeled, tagged, or marked and to provide Safety Data Sheets (SDS) to
communicate the hazards of hazardous chemical products. It is the chemical supplier's responsibility
to determine which products are covered and to provide SDS with the initial shipment. It is also the
chemical supplier's responsibility to provide any updated or revised SDS, as they become available
for any products sold and delivered to the City of Dubuque. City of Dubuque employees shall not
accept a shipment of any chemical that does not have a SDS attached or currently on file. Safety Data
Sheets shall be available in alternative formats if the requestor is a person with a disability and
requires an alternative format for comprehension.
SUBCONTRACTING - All Subcontractors shall be listed in the Contract or in a written amendment
to the Contract.
SUSPENSIONS AND DEBARMENT - The Contractor hereby certifies, pursuant to 2 CFR pt. 180
and 2 CFR pt. 3000, that neither it nor its principles are presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation in the Contract by any
federal agency. The Contractor further certifies that it is not presently debarred, suspended, proposed
for debarment, declared ineligible, or voluntarily excluded from participation in any contracts with
the City of Dubuque or the State of Iowa.
TAXES - The City of Dubuque is exempt from sales tax and certain other use taxes. Any charges
for taxes from which the City is exempt will be deducted from invoices before payment is made.
TERMINATION OF CONTRACT - The City may terminate the Contract at any time for any
reason with or without cause. In that event, all finished or unfinished Work, reports, materials(s)
prepared or furnished by the Contractor under the Contract shall, at the option of the City, become
its property. If the Contract is terminated by the City as provided herein, the Contractor shall be paid
for all Work which has been authorized, provided, and approved up to the effective date of
termination. The City will not be subject to any termination fees from the Contractor.
WARRANTIES - WORK - The Contractor shall perform Work for the City pertaining to the
Project as set forth in the Contract.
Contractor represents that the Work and all of its components shall be free of defects; shall be
performed in a manner consistent with other Contractors in a similar industry and application; and
shall conform to the requirements of the Contract.
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Contractor shall be responsible for the quality, technical accuracy, completeness and coordination of
all Work performed under the Contract. Contractor shall, promptly and without charge, provide all
corrective Work necessary as a result of Contractor's acts, errors, or omissions with respect to the
quality and accuracy of the Work.
Contractor shall be responsible for any and all damages to property or persons as a result of
Contractor's acts, errors, or omissions, and for any losses or costs to repair or remedy any Work
undertaken by City based upon the Work as a result of any such acts, errors, or omissions.
Contractor's obligations shall exist without regard to, and shall not be construed to be waived by, the
availability or unavailability of any insurance, either of City or Contractor.
WARRANTIES - INTELLECTUAL PROPERTY - Contractor represents and warrants that all
the materials and Work produced, or provided to the City pursuant to the terms of the Contract shall
be wholly original with the Contractor or that the Contractor has secured all applicable interests,
rights, licenses, permits or other intellectual property rights in such materials and work. The
Contractor represents and warrants that the materials and Work, and the City's use of same, and the
exercise by the City of the rights granted by the Contract shall not infringe upon any other work or
violate the rights of publicity or privacy of, or constitute a libel or slander against, any person, firm,
or corporation. The Contractor further represents and warrants that the materials and Works does
not infringe upon the copyright, trademark, trade name, trade dress patent, statutory, common law or
any other rights of any person, firm or corporation or other entity. The Contractor represents and
warrants that it is the owner of or otherwise has the right to use and distribute the Work contemplated
by the Contract.
City of Dubuque, Iowa RFP for Commercial Banking Services Page 23
Page 2337 of 2498
Attachment B — Fee Proposal
Financial Institution to prepare and submit as Attachment B a full detailed schedule of all proposed
specific fees based on information provided in this Request for Proposals. Please submit fees for the
accounts provided in Attachment C that have transaction analysis provided and provide a schedule
of overall fees for each service requested below.
Item
Unit
Price
Total
Monthly
Fees
Explanation
Ongoing Current Services:
Account Maintenance (Each Account)
Paper Credits
Paper Debits
Electronic Credits
Electronic Debits
Deposited Items
Deposited Items Returned
Coin Deposits
Currency Deposits
Returned Check Image Copy
Account inquiry
Overdraft Fees
Account Reconciliation Services
Positive Pay Maintenance
Positive Pay per item
Positive Pay — Exception Items
File Confirmation Per Email
Online Banking
ACH Received Item Report-Accts
Returned Item Report
Online Banking Current Day Detail
Online Banking Prior Day Account
Online Banking Prior Day Module
Online Banking Prior Day Detail
Online Banking Online DDA
Statement
Book Transfer Monthly Maint
Acct/Internal Transfers
Stop Payments Monthly Maint
Stop Payments — Per Stop
ACH Monthly Maintenance
Image Monthly Acct. Maint
Page 24 of 32
Page 2338 of 2498
Item
Unit
Price
Total
Monthly
Fees
Explanation
Wire Transfers
Wire Monthly Maintenance
Incoming Domestic Wire
Domestic Repetitive
Outgoing Domestic Wire
Internal Transfers
ACH Service
ACH Monthly Maintenance
ACH Process Run
ACH Originated Item
ACH Received Item
PC ACH Direct Monthly Maint
PC ACH Direct Process Run
PC ACH Direct Item
ACH Block Monthly Maint Per Acct
ACH Filter Monthly Maint Per Acct
ACH Return Per Item
ACH Return/NOC Emailed
Positive Pay
# of Check Runs: Weekly (52)
Safekeeping (incl. reporting):
Interest Received
Maturities/Calls
Investment Settlement (DVP)
Account Maintenance
Price to Market Report
Banking Supplies:
Coin Wrappers
Standard Deposit Slip Books
Standard business checks
Check Stock
Locking Bank Bags
Miscellaneous Services:
Night Depository Service
Page 25 of 32
Page 2339 of 2498
Item
Unit
Price
Total
Monthly
Fees
Explanation
Safe Deposit Box (I_G)
Courier Service
Fee for audit confirmations
Other Items Not Mentioned:
Page 26 of 32
Page 2340 of 2498
Attachment C - Current City Account Analysis Data
Aco0unt
Type
Apr,24
Mr-24
Feb-24
Jan-24
Dec-23
Nov-23
City of Dubuque General
Checking wAnt
$14.204,579
511r794,695
S73ro01,766
$12,813r226
$17,428,544
$22,270,999
City of Dubuque TfEE for DBQ Solid Waste Disposal
Checking wAnt
510,327,336
$9,797,127
$9,249,182
$10,M,299
$12,440,985
$11,969,190
City of Dubuque Credtt CardrMerchant Services
Checking wAnt
$7,214,848
$6,882,528
$6,472,564
$6,249,428
55,995,249
$5,745,561
Dubuque Initiatives
Analyzed Bus Ckg
$100,047
$100,026
$106.409
$99,949
$96,051
$94,201
Dubuque Initiatives Dynamic Sweep
Dynamic Sweep
$198,581
$200,665
5111,713
$19,620
$8,131
$2,483
City of Dubuque Ambulance Billing Lockbox
Analyzed Bus Ckg
52,750,717
$2,548,649
$2,313.198
$2,032,946
$1,779,299
$1,545,410
City ofDubuque-MlityBilling
Checking wAnt
$12,291,879
$10,433,633
$8,200,423
$9,799,608
$9,550,080
$7,545,586
City of Dubuque Cable Franchise Equip Fund
Savings
51,210,241
$1,210,190
$1,210,166
$1,210,170
$1,210,119
$1,210,069
City of Dubuque Housing Services Pap Fund
Business Savings
$512
$512
$512
$512
$512
$512
City of Dubuque Street & Garage Charily Fund
Business Savings
$550
$550
$550
$550
5550
$550
City of Dubuque Street & Garage Charily Fund
Money Market
$419
$436
$400
$269
5334
$349
City of Dubuque Police Forfeiture Fund
Savings
$150,270
$150,263
$150.257
$150,251
$150,245
$150,239
City of Dubuque Employees Lounge Committee
Money Market
$6fi0
$676
$692
$708
5725
$741
City of Dubuque Tyler Credit Card
Checking wAnt
53,898,088
$3,099,453
$2,093,413
$1,278,455
$549,992
$27,755
Dubuque Initiatives Childcare Wage Enhancement Pro
Analyzed Bus Ckg
$229,798
$228,524
$96,358
W,290
511,290
$0
City of Dubuque Fire Station 4
Business Checking
$205
$156
$153
$102
5218
$264
City of Dubuque Police Unclaimed Funds
Checking wAnt
$106,535
$116,421
$130.101
$138,564
$256,104
$351,142
City of Dubuque Dakview 360 Event
Checking wAnt
$83,445
$83,442
$83,438
$83,435
583,431
$83,428
City of Dubuque Dakview 360 Operating
Checking wAnt
$263,040
S25B,915
$413,597
$327,645
$240,893
$289,224
City of Dubuque Oakview 360 Capital
Checking wAnt
$256,978
5256,967
S256,957
$258,643
$263,511
$253,500
City of Dubuque Switch Escrow
Checking wAnt
$399,754
5399,811
5399,872
$399,917
$399,971
$400,006
53,688,482
47,564,339
44,291,721
45,778 597
50,466,234
51,951,209
Apr-24
Afar-24
# of
Checks
#of Checks
Wires
Checks
Checks
ACH
ACH
Wires
Account
Written
Deposited
ACH Credits ACH Debits
Initiated
Written
Deposited
Credits
Debits Initiatied
City of Dubuque General
333
1628
115
42
4
340
606
118
45
1
City of Dubuque TTEE for DBQ Solid Waste Disposal
0
168
29
1
9
0
124
2,6
1
4
City of Dubuque Credit CardiMerchant Services
2
280
340
36
0
2
265
306
22
0
Dubuque Initiatives
11
2
2
1
9
6
1
2
1
0
City of Dubuque Ambulance Billing Lcckbox
0
32
65
9
9
0
39
79
18
0
City of Dubuque Fire Station 4
0
0
0
2
9
0
0
0
2
4
City of Dubuque Police Unclaimed Funds
2
0
0
0
6
1
0
0
0
0
City of Dubuque Oakview 360 Operating
59
11
22
17
9
60
23
17
15
0
City of Dubuque Utility Billing
o
5054
29
0
9
1
5737
28
0
0
Page 27 of 32
Page 2341 of 2498
Attachment D — Sample Month Data to Compute Interest Earnings
Daily Collected
Weekday Day of Month Balance
Beginning:
$
16,368,697
Monday
1
15,038,675
Tuesday
2
15,905,344
Wednesday
3
14,762,252
Thursday
4
14,762,252
Friday
5
14,595,070
Saturday
6
14,595,070
Sunday
7
14,595,070
Monday
8
13,188,615
Tuesday
9
11,910,004
Wednesday
10
11,214,668
Thursday
11
11,077,292
Friday
12
9,877,863
Saturday
13
9,877,863
Sunday
14
9,877,863
Monday
15
9,235,461
Tuesday
16
9,818,215
Wednesday
17
9,568,634
Thursday
18
8,554,194
Friday
19
23,124,360
Saturday
20
23,124,360
Sunday
21
23,124,360
Monday
22
7,900,452
Tuesday
23
8,331,324
Wednesday
24
7,547,764
Thursday
25
15,453,562
Friday
26
13,619,129
Saturday
27
13,619,129
Sunday
28
13,619,129
Monday
29
14,575,261
Tuesday
30
14,575,261
Wednesday
31
13,980,247
Total Interest earnings for month:
Assumes no change in Federal Funds rate during the month
Page 28 of 32
Page 2342 of 2498
Attachment E — Insurance Requirements
INSURANCE SCHEDULE J
shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the coverage
required in Exhibit I prior to commencing work and at the end of the project if the term of work is longer than 60
days. Contractors presenting annual certificates shall present a certificate at the end of each project with the final
billing. Each certificate shall be prepared on the most current ACORD form approved by the Iowa Department of
Insurance or an equivalent approved by the Director of Finance and Budget. Each certificate shall include a
statement under Description of Operations as to why the certificate was issued. Eg: Project #_or Project Location
at or construction of
All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa and all
insurers shall have a rating of A or better in the current A.M. Best's Rating Guide.
Each certificate shall be furnished to the Finance Department of the City of Dubuque.
Failure to provide coverage required by this Insurance Schedule shall not be deemed a waiver of these requirements
by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach
of this agreement.
5. Contractors shall require all subconsultants and sub-subconsultants to obtain and maintain during the performance
of work insurance for the coverages described in this Insurance Schedule and shall obtain certificates of insurances
from all such subconsultants and sub-subconsultants. Contractors agree that they shall be liable for the failure of a
subconsultant and sub- subconsultant to obtain and maintain such coverages. The City may request a copy of such
certificates from the Contractor.
All required endorsements shall be attached to certificate of insurance.
Whenever a specific ISO form is listed, required the current edition of the form must be used, or an equivalent
form may be substituted if approved by the Director of Finance and Budget and subject to the contractor
identifying and listing in writing all deviations and exclusions from the ISO form.
8. Contractors shall be required to carry the minimum coverage/limits, or greater if required by law or other legal
agreement, in Exhibit I. If the contractor's limits of liability are higher than the required minimum limits, then
the provider's limits shall be this agreement's required limits.
9. Contractor shall be responsible for deductibles and self -insured retention for payment of all policy premiums
and other cost associated with the insurance policies required below.
10. All certificates of insurance must include agents name, phone number, and email address.
11. The City of Dubuque reserves the right to require complete, certified copies of all required insurance
policies, including endorsements, required by this Schedule at any time.
12. The City of Dubuque reserves the right to modify these requirements, including limits, based on changes in
the risk or other special circumstances during the term of the agreement, subject to mutual agreement of
the parties.
Page 29 of 32
Page 2343 of 2498
A)
B)
C)
INSURANCE SCHEDULE J (continued)
Exhibit I
COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products -Completed Operations Aggregate Limit $1,000,000
Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit (any one occurrence) $50,000
Medical Payments $5,000
1) Coverage shall be written on an occurrence, not claims made, form. The general liability
coverage shall be written in accord with ISO form CG 00 01 or business owners form BP
00 02. All deviations from the standard ISO commercial general liability form CG 00 01, or
business owners form BP 00 02, shall be clearly identified.
2) Include endorsement indicating that coverage is primary and non-contributory.
3) Include Preservation of Governmental Immunities Endorsement. (Sample attached).
4) Include additional insured endorsement for:
The City of Dubuque, including all its elected and appointed officials, all its employees and
volunteers, all its boards, commissions and/or authorities and their board members,
employees and volunteers. Use ISO form CG 20 26.
5) Policy shall include Waiver of Right to Recover from Others endorsement.
6) Policy shall include cancellation and material change endorsement providing thirty (30)
days advance written notice of cancellation, non -renewal, reduction in insurance coverage
and/or limits and ten (10) days written notice of non-payment of premium shall be sent to:
City of Dubuque Finance Department, 50 West 131" Street Dubuque, Iowa 52001.
AUTOMOBILE LIABILITY
Combined Single Limit $1,000,000
Coverage shall include all owned, non -owned, and hired vehicles. If the Contractor's business does
not own any vehicles, coverage is required on non -owned and hired vehicles.
WORKERS' COMPENSATION & EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as prescribed by Iowa
Code Chapter 85.
Coverage A Statutory State of Iowa Coverage
B Employers Liability
Each Accident $100,000
Each Employee -Disease $100,000
Policy Limit -Disease $500,000
Policy shall include Waiver of Right to Recover from Others endorsement. Coverage B
limits shall be greater if required by the umbrella/excess insurer.
If, by Iowa Code Section 85.1A, the Contractor is not required to purchase Workers' Compensation
Insurance, the Contractor shall have a copy of the State's Nonelection of Workers' Compensation or
Employers' Liability Coverage form on file with the Iowa Workers' Compensation Insurance
Commissioner, as required by Iowa Code Section 87.22. Completed form must be attached.
Page 30 of 32
Page 2344 of 2498
INSURANCE SCHEDULE J (continued)
D) UMBRELLA/EXCESS LIABILITY $1,000,000
The General Liability, Automobile Liability and Workers Compensation Insurance requirements
may be satisfied with a combination of primary and Umbrella or Excess Liability Insurance. If the
Umbrella or Excess Insurance policy does not follow the form of the primary policies, it shall include
the same endorsements as required of the primary policies including but not limited to Waiver of
Subrogation and Primary and Non-contributory in favor of the City.
E) PROFESSIONAL LIABILITY
1) Directors and Officers $20,000,000
Provide evidence of coverage for 5 years after completion ofproject.
F) CYBER LIABILITY $20,000,000
Coverage for First- and Third -Party liability including but not limited to lost data and restoration, loss of
income and cyber breach of information.
G) FINANCIAL INSTITUITOIN BOND $20,000,000
H) WIRE TRANSFER LIABLITY $20,000,000
Page 31 of 32
Page 2345 of 2498
PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT
1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase of
this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the
defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section
670.4 as it is now exists and as it may be amended from time to time.
2. Claims Coverage. The insurer further agrees that this policy of insurance shall cover only those
claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now
exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4
shall be covered by the terms and conditions of this insurance policy.
3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting
any defense of governmental immunity, and may do so at any time and shall do so upon the timely written
request of the insurer.
4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer shall
not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of
governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s)
of governmental immunity asserted by the City of Dubuque, Iowa.
No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change
or alter the coverage available under the policy.
SPECIMEN
Page 32 of 32
Page 2346 of 2498
Signature Agreement to
Master Treasury Management Services Agreement
This Signature Agreement to Master Treasury Management Services Agreement ("Signature Agreement") is entered
into by and among the undersigned Customer ("Customer") and the division of HTLF Bank shown below in the "Contact
Us" section ("Bank") as of the date accepted and agreed by Bank below ("Effective Date"). By executing this Signature
Agreement or enrolling in and using any of the Services, Customer hereby agrees to the terms of the Master Treasury
Management Services Agreement, including the Service Terms for each Service enrolled in and/or used by Customer,
and any corresponding Documentation implemented for use of the Services, which collectively establish the terms of
the Master Treasury Management Services Agreement, as amended from time to time (the "Agreement"). The
Agreement hereby amends and replaces in full any prior agreements between the Customer and Bank with regard to
the Services and the Agreement shall apply to all Services used by Customer, whether such Services are being enrolled
in and used by Customer as of the Effective Date or in the future. Customer may be required to sign additional
agreements or Documentation and is required to designate at least one Administrator to execute such Documentation
and implement the Services before certain Services will be made available to Customer. Any capitalized terms used but
not defined herein shall have the meaning as set forth in the Agreement.
Affiliates. By executing this Signature Agreement, Customer, each Affiliate of Customer listed (if any), and Bank agree
that each such Affiliate shall have all of the rights and obligations of, and shall for all purposes be a party under the
Agreement as a "Customer." An "Affiliate" is any entity that is directly or indirectly controlled by, controlling, or under
common control with the Customer. Customer represents, warrants and covenants to Bank that (i) each entity
executing this Signature Agreement as an Affiliate meets the definition of "Affiliate" and shall continue to meet such
definition as long as the entity receives or uses the Services in connection with Customer, (ii) the individual executing
this Signature Agreement is duly authorized to execute this Signature Agreement on behalf of each Affiliate, and
(iii) each Affiliate hereby agrees to be bound by the terms of this Signature Agreement and the Agreement for the use
of the Services.
Additional Services. If Customer adds or implements Services in the future, those Services will also be covered by the
terms and conditions contained in the Agreement. Bank may change the terms and conditions of Services provided
under the Agreement from time to time, and Customer's continued use of the Service constitutes Customer's
acceptance of the change.
Execution. This Signature Agreement may be executed in two or more identical counterparts (whether by electronic
signature, in facsimile, in PDF or original), each of which shall constitute an original as against the party whose signature
appears thereon, and all of which together shall constitute one and the same instrument. If Customer executed this
Agreement in electronic format using an electronic signature, Customer agrees that Customer's electronic signature on
this Agreement demonstrates Customer's intent that this Agreement be legally valid and enforceable in accordance with
its terms, and that Customer's electronic signature will have the same effect as Customer's signature on a paper
document.
07.19.2024
Page 2347 of 2498
IN WITNESS WHEREOF, this Signature Agreement and the Agreement is agreed to and executed by the Customer, each
Affiliate, if any, and Bank as of the date first set forth above and shall be deemed to be effective as of such date
("Effective Date"); provided, that any Service shall not be effective or provided until Bank has notified Customer that
the Services are implemented and active for use.
CUSTOMER:
TIN:
Authorized Officer Signature:
Name:
Title:
Email:
This Agreement includes the following Affiliates:
If authorized officer of the Affiliate listed below, is different than Customer listed above, obtain signature from
authorized officer from Affiliate below.
Affiliate Name: Tax ID No.: Authorized Officer different than Customer Signer:
El
El
El
El
El
Signing as a duly authorized officer or agent of each of the Affiliates listed above:
Authorized Signature:
Print name:
Print title:
[Signature Page to Signature Agreement to Master Treasury Management Services Agreement]
07.19.2024
Page 2348 of 2498
MASTER TREASURY MANAGEMENT SERVICES AGREEMENT
Accepted and Agreed by Bank as of
This Master Treasury Management Services Agreement
("Agreement") is made by and between the "Bank" and
the "Customer" identified on the Signature Agreement.
The Bank and Customer shall also be referred to herein as
a "Party" or collectively as the "Parties".
The General Terms and Conditions and the Services of the
Agreement are governed and set forth in the following
Schedules:
Contents
Affiliate Name: Tax ID No.:
Authorized Officer different than Customer Signer: 2
Schedule 1: GENERAL TERMS AND CONDITIONS........... 1
Schedule 2 : INTERNET BANKING SERVICES ................. 17
Schedule 3: ELECTRONIC INFORMATION REPORTING
18
Schedule 4: WIRE TRANSFER SERVICES ........................
19
Schedule 5: ACH ORIGINATION SERVICES ....................
22
Schedule 6: Business Bill Pay ........................................
28
Schedule 7: POSITIVE PAY AND ACH BLOCK/ FILTER...
30
Schedule 7: SWEEP SERVICES .......................................
33
Schedule 8: REMOTE CHECK PROCESSING ...................
38
Schedule 9: LOCKBOX SERVICES ..................................
43
Schedule 10 : ZERO BALANCE ACCOUNTING ("ZBA")
SERVICES................................................................
44
Schedule 11: Currency Vault Services ..........................
46
Schedule 12: TERMS FOR MULTI -ENTITY CUSTOMER
RELATIONSHIPS......................................................
49
CONTACT US ..................................................... 52
and any applicable Documentation (collectively, the
"Treasury Management Services Terms and
Conditions"). Customer hereby agrees to be bound by,
and any reference to this Agreement shall be deemed to
include, the Treasury Management Services Terms and
Conditions. To the extent any terms or provisions of this
Agreement directly conflict with the terms or provisions
of such additional agreements or Documentation, the
terms and provisions of this Agreement shall control with
respect to the Services described herein. Unless
otherwise provided, to the extent any provisions of the
terms set forth in Schedule 1 directly conflict with any
other Schedule, the provisions of such other Schedule
shall control with respect to the Services covered by that
Schedule.
Schedule 1: GENERAL TERMS AND
CONDITIONS
The General Terms and Conditions shall apply to the
terms of the Services provided under this Agreement in
the following Schedules or other addendum or schedule
incorporated herein by reference. Customer also agrees
that the Accounts to which the Services apply are
governed by the agreement entitled "Business Deposit
Account Agreement and Disclosure" (the "Account
Terms"). Customer agrees to maintain an Account during
the Term of this Agreement with an adequate Available
Balance for the Services used by Customer. Customer
expressly agrees that any dual or multiple signature
requirements established for any Account shall not apply
to the use of any Services. Except as otherwise provided
herein, where any terms and conditions contained in the
Account Terms or any other agreement between the
Parties conflict with the terms of this Agreement, the
terms of this Agreement shall control unless such
separate agreement to which Bank is a party expressly
provides that its terms shall prevail over the terms of this
Agreement.
1. Services. Subject to the terms and conditions of this
Agreement and upon Bank's receipt of the required
Documentation and final approval and
implementation by Bank, the Bank will provide
Customer with those Services as requested by
Customer. Except as otherwise specifically provided
in this Agreement, any changes requested by
Customer shall not be effective unless the Bank has a
reasonable amount of time to implement the
requested amendments, revisions or modifications.
Customer shall only use the Services, including the
07.19.2024
Page 2349 of 2498
origination of any wire or other electronic funds
transfers, as principal, and shall not execute
Transactions of any Services as agent on behalf of a
third party that is not party to this Agreement
(including any Affiliate) unless otherwise agreed by
Bank in writing.
2. Authority of Administrator(s); Authorized Persons.
Any Administrator(s) designated by Customer in the
Documentation shall have access to all of Customer's
Accounts, and full authority to access and use the
Services and System (defined below) on behalf of
Customer, including adding and removing Services;
the authority to select and change Security
Procedures (defined below); request the issuance or
re -issuance of Administrator usernames, passwords,
access devices and other Security Procedures; access
and use all of the features of the System and the
Services; enable, set parameters for the use of or
disable any Customer controlled features of the
System and each Service; use the System and Services
to issue, activate, limit, or de -activate one or more
usernames, passwords and other Security Procedures
which may be used to access and use one or more
features of the System and the Services. Any
Administrator shall also have the authority to
authorize other persons to access and use one or
more features of the System and the Services, up to
and including the same rights granted to an
Administrator named in this Agreement and
described herein, including, but not limited to
replacement of any Administrator,(each such person
provided or given access to any such username or
password collectively referred to as "Authorized
Persons"). Bank may, in its sole discretion, limit the
authority of an Administrator to change, remove or
adopt alternative Security Procedures and may
require a separate waiver or agreement be signed by
another authorized individual at Customer. Bank
may rely upon and act upon Instructions submitted
over the System as well as oral or written Instructions
and requests reasonably believed by the Bank to be
from any designated Administrator and any
Authorized Person. Bank has no duty to monitor the
addition or removal of Administrators or an
Authorized person as such authority and actions are
within the authority granted to an Administrator to
manage Services on behalf of Customer.
3. Term, Termination. This Agreement shall remain in
effect until terminated in the manner provided in this
Agreement (the "Term"). Either Party may terminate
this Agreement or any or all Services upon thirty (30)
calendar day's prior written notice to the other Party.
The Bank may also terminate this Agreement in its
entirety, or terminate or suspend any specific Service,
without advance notice to Customer in the event that
any of the following occurs: (a) any breach or default
by Customer under the terms of this Agreement;
(b) any breach or default under the terms of any
other note, obligation, mortgage, assignment,
guaranty, other agreement, or other writing to which
Customer is a party; (c) an Act of Insolvency or the
dissolution, liquidation, merger or consolidation of
Customer; (d) any assignment for the benefit of
creditors of Customer; (e) any commencement of any
proceeding under any bankruptcy, insolvency,
receivership, dissolution, liquidation or similar law by
or against Customer; (f) the issuance or levy of any
writ, warrant, tax lien, attachment, garnishment,
execution or other process against any property of
Customer; (g) any statement, representation or
warranty made by Customer (or any representative
of Customer) to the Bank at any time shall be
incorrect or misleading in any material respect when
made; (h) there is a material adverse change in the
condition (financial or otherwise), business or
property of Customer; (i) the Bank receives notice of
allegations or information, without any duty of
further inquiry or verification, that Customer has
used any Service in violation of Applicable Laws, or
(j) the Bank shall in good faith believe that the
prospect of due and punctual payment or
performance of Customer's obligations under this
Agreement is impaired or the Bank may otherwise
incur Losses.
Upon termination of this Agreement, Customer may
no longer use the Services and the Bank may decline
any Services to be used by or on behalf of Customer
or by any Authorized Person to initiate any
transactions with respect to Customer's Accounts.
Following termination, neither Party shall have any
further obligations under this Agreement, except
that: (i) Customer shall remain liable for any
Transactions initiated by Customer using any Service
and any other liabilities or obligations arising out of
Customer's use of any Service that have not been
paid, satisfied or otherwise performed prior to
07.19.2024
2 1 P a g e
Page 2350 of 2498
termination, and any Transactions that are permitted
after the effective date of termination; in each case
to the extent provided by the terms of this
Agreement; and (ii) the rights, duties, obligations and
liabilities of the Parties pursuant to Sections 10, 15,
23, 24 and 27 shall survive and remain in effect
following termination.
4. Systems and Access to Services.
(a) Systems. Each Service may be provided using a
System as offered by Bank from time to time, and
Customer will access through the internet using
Customer's own computers, Customer's own internet
browser software and Customer's own internet
service provider or other internet access point
selected by Customer. Each Customer computer and
internet browser used with any Service or to access
the System must meet or exceed the specifications
set forth on the Bank's website and other
Implementation Materials made available to
Customer, if any. Customer is solely responsible for
the selection, purchase, license or lease,
maintenance, upgrade, security, and any error,
failure or malfunction of Customer's computers,
operating systems, internet browser software, virus
software, firewalls, internet service providers or
other internet access points, and internal and
external communication lines and wireless
communication systems, none of which shall be
deemed part of the System made available by the
Bank. Customer is solely responsible for the security
of and access to any such computers, systems and
Security Procedures used by Customer to access the
Services and Customer's Accounts. Customer
acknowledges that computer, operating system and
internet browser specifications may change from
time to time and that Customer is solely responsible
for maintaining or upgrading its computer, operating
system and internet browser software in response to
any changes in specifications. While Bank will use
commercially reasonable efforts to make the Systems
available at all times, one or more of the Systems may
be temporarily unavailable for a variety of reasons
(e.g., maintenance, periods of high volume, system
outages, unauthorized activity or other events
beyond Bank's control) and Customer agrees that
Bank will not be liable if a System is not available for
use at any time. Customer shall select in the
Documentation for a particular Service the System(s)
used as a means of communicating with Bank.
Information and Instructions may be sent and
received by Customer using such System.
(b) Third Party Links. Third -Party Links. The System
may contain links to the websites of third parties
("Linked Sites") or provide the opportunity to use or
access third -party software or services that are not
part of the Services ("Third -Party Software") offered
by a third party other than a Vendor (a "Third -Party
Vendor"). Bank does not endorse or assume any
responsibility for any Linked Sites or Third -Party
Software and makes no representations or
warranties whatsoever with respect thereto.
Customer is solely responsible for its use of any
Linked Sites or Third -Party Software and agrees that
it must look to the Third -Party Vendor, and not Bank,
for any content, services and any problems or claims
related to its use of the Linked Sites or Third -Party
Software, including any security or data breach.
(c) Mobile Apps. Bank may offer applications that
Customer and its Users can download to access
certain Systems through the use of a supported
wireless device, such as a smartphone or tablet
device ("Mobile Apps"). Customer agrees that,
where required, the acceptance by its Users of terms
of use or software associated with the use of a Mobile
App is authorized by Customer and will be binding on
Customer and each User. Bank is not responsible for
any charges that Customer or its Users may incur
from their telecommunications carrier in connection
with use of a Mobile App. Customer acknowledges
that the use of Mobile Apps presents unique risks,
including the loss or compromise of a mobile device
with a Mobile App and increased exposure to
potential unauthorized access and to malware and
similar software. Customer assumes all risks arising
from the use of Mobile Apps by its Users and accepts
responsibility for managing the security of its Users'
mobile devices to combat these risks.
5. License, Representations and Warranties of Bank.
During the Term of this Agreement, Customer has a
non-exclusive License to use the System and all
related System software ("Software"), and all
Implementation Materials, as in effect from time to
time (collectively, "Proprietary Data") solely for the
purpose of using the System and related Services in
accordance with the terms and conditions of the
Agreement. Customer acknowledges that the System
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may be operated by or include Software or other
Proprietary Data owned and copyrighted by third
parties and is being made available or sub -licensed to
Customer by the Bank, subject to the terms,
conditions and limitations of the Bank's service and
license agreement with such third parties. Customer
acknowledges that it is not purchasing title to any
Software or Proprietary Data, that such Software and
Proprietary Data may not be copied or used
independently of the System or related Service, and
that no third party provides any support services,
upgrades or technical assistance in connection with
the software owned by it. Customer agrees not to
decompile or reverse engineer any code contained in
any Software. The Bank shall not be responsible for
any computer virus or related problems that may be
associated with the use of the System.
BANK MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND WITH RESPECT TO THE
SYSTEM, EACH SERVICE AND ANY SOFTWARE AND
PROPRIETARY DATA; WHICH ARE PROVIDED "AS IS."
EXPRESS, IMPLIED OR STATUTORY INCLUDING
WARRANTIES, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF QUALITY,
PERFORMANCE, MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. NO THIRD PARTY
PROVIDER OF THE SYSTEM OR ANY SERVICE,
SOFTWARE OR PROPRIETARY DATA MAKES ANY
EXPRESS OR IMPLIED WARRANTIES OF QUALITY,
PERFORMANCE, MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE. NO DESCRIPTIONS
OR SPECIFICATIONS, WHETHER OR NOT
INCORPORATED INTO THE AGREEMENT, NO
PROVISION OF MARKETING OR SALES MATERIALS
AND NO STATEMENT MADE BY ANY
REPRESENTATIVE OF BANK OR A SUPPLIER IN
CONNECTION WITH THE SERVICES, ANY SOFTWARE
OR SYSTEM OR THE AGREEMENT, SHALL
CONSTITUTE REPRESENTATIONS OR WARRANTIES
OF ANY KIND.
6. Fee Schedule. Unless otherwise agreed by Bank with
Customer in writing, Customer agrees to compensate
the Bank for each Service in accordance with the
Bank's Fee Schedule, which may change from time to
time, and for any other fees and charges not covered
under such fee schedule for any Customer requested
or required special service or handling (collectively,
the "Fees"). Customer hereby acknowledges receipt
of the Bank's Fee Schedule in effect as of the Effective
Date. Unless other arrangements are made for
payment of the Fees, Bank will automatically debit an
Account in the amount thereof when due. Unless
otherwise agreed in writing with Bank, any
amendments to the Fee Schedule or new Fee
Schedule provided by Bank shall be effective upon
notice to Customer including notice sent
electronically or posted to the System for the use of
Services and view Account information. Customer
understands that utilization of Services may cause
Customer to incur charges and fees imposed by third
parties, including, without limitation, charges
imposed by any third -party telecommunication
provider. Customer agrees that Customer will pay all
additional charges in connection with or otherwise
resulting from Customer's use of the Services.
7. Security Procedures.
(a) Commercially Reasonable Security Procedures.
Customer will use the System, Services, and Software
in accordance with the terms of the Agreement,
including any Security Procedures offered and
implemented by Bank in connection with the Services
and as may be set forth in the applicable Product
Enrollment form and Assignment of Security
Procedures. Customer has reviewed the Security
Procedures offered and recommended by Bank and
agrees that such Security Procedures are
commercially reasonable and suitable for Customer
with respect to authentication of Customer's
Payment Orders and other Instructions based upon
Customer's intended use of the Services as
communicated to Bank, including the size, type,
frequency and volume of Customer's Payment
Orders. The Security Procedures are designed to
verify the authenticity of, not to detect errors in,
Customer's Payment Orders and other Instructions,
and Bank has no obligation to detect errors in
Customer's Payment Orders and other Instructions.
Any Payment Orders or other Instructions
communicated to Bank in Customer's name in
compliance with the Security Procedures, and all
access to and use of Channels and other Services
using the Security Procedures assigned to Customer,
are considered authorized by Customer and
enforceable under the terms of the Agreement if
accepted by Bank in good faith. Customer agrees that
failure by Bank to use or comply with any Security
Procedure shall not excuse Customer from its
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obligation to pay Bank the amount of any Payment
Order made or authorized by the Customer or for
which Customer is otherwise liable. Bank may
implement different or additional Security
Procedures for use by Customer from time to time
upon notice to Customer, and Customer's continued
use of the Services and implementation of those
additional Security Procedures shall be Customer's
agreement to such Security Procedures. Unless
expressly stated otherwise in the Documentation,
Bank will have no obligations under the Security
Procedures and Customer agrees that failure by Bank
to use any Security Procedures shall not excuse
Customer from its obligation to pay Bank for the
amount of any Payment Order made or authorized by
Customer or for which Customer is otherwise liable.
(b) Refection or Waiver of Security Procedures. If
Customer chooses to communicate any Payment
Order to Bank in a manner that varies from the
Security Procedures, then Customer agrees to be
bound by and pay for such Payment Order accepted
by Bank in good faith, whether or not authorized, and
Customer will be deemed to have refused the
Security Procedures that Bank offers and
recommends as commercially reasonable. However,
Bank has no obligation to accept any Payment Order
that is not communicated in compliance with the
Security Procedures, and Bank shall not be
responsible for refusal to act upon any Payment
Order received which does not comply with the
Security Procedures. Customer agrees that
requesting that all or any part of any Security
Procedure be curtailed, deactivated or otherwise
modified, it has elected not to use other
commercially reasonable Security Procedures or
Security Procedures that are commercially
reasonable if used without curtailment, deactivation
or modification. Except as otherwise required by
Applicable Laws, Customer agrees to be bound by and
liable for all Transactions initiated using the Services
and Security Procedures selected by Customer in the
Schedules to this Agreement, including Transactions
initiated using a Security Procedure that has been
curtailed, deactivated, or otherwise modified or
adopted by or at the request of Customer, and all
such Transactions shall be deemed authorized
regardless of whether such Transaction was initiated
by Customer or any other person authorized to act by
or on behalf of Customer. Customer acknowledges
and agrees that Security Procedures are in addition to
and do not limit or otherwise revoke or restrict any
separate Customer authority of any Authorized
Person, any Administrator or other person (whether
by course of dealing or otherwise) to authorize any
action, Transaction or communication or otherwise
act on behalf of Customer. Bank may also, from time
to time, implement additional verification and
identification steps, factors or procedures as it may
deem necessary or appropriate, as an amendment to
any Security Procedure selected by Customer or as an
additional Security Procedure available to Customer;
provided, that, no such amendment or adoption of a
Security Procedure shall constitute an admission or
other evidence that a Security Procedure was not
commercially reasonable as and when previously
selected by Customer.
(c) Safeguarding Security Procedures. Customer will
establish and maintain the confidentiality of and
security and control over those aspects of each
Security Procedure communicated or entrusted to or
created, established or selected by Customer,
including but not limited to any identification codes,
usernames, voice retrieval codes, passwords, access
cards, access devices or code or password generating
devices; all electronic, paper or other media on which
any of the foregoing are maintained, recorded or
stored, and each computer used to access the System
or any Service. Customer further agrees that each
person that is provided access or control over any of
the foregoing shall be an Authorized Person and fully
authorized to initiate Funds Transfers and other
Transactions and use the, System, Services, and
related Security Procedures as an authorized agent of
Customer. If Customer believes that any Security
Procedures have become lost, compromised or
known to any unauthorized person, Customer shall
immediately disable such Security Procedures and
provide telephone notice to the Bank, followed by
written notice.
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES
THAT CERTAIN RISKS ARE INHERENT IN THE
TRANSMISSION OF OR PROVIDING ACCESS TO
INFORMATION OVER THE INTERNET AND THERE
CAN BE NO ASSURANCE THAT INQUIRIES OR
TRANSACTION ACTIVITY WILL BE COMPLETELY
SECURE OR FREE FROM DELAYS, MALFUNCTIONS,
OR OTHER INCONVENIENCES GENERALLY
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ASSOCIATED WITH THIS ELECTRONIC MEDIUM. THE
BANK MAKES NO REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT THAT A SECURITY
PROCEDURE WILL BE EFFECTIVE AND, EXCEPT AS
OTHERWISE REQUIRED BY APPLICABLE LAWS, THE
BANK SHALL NOT HAVE ANY LIABILITY FOR THE
BREACH OF A SECURITY PROCEDURE OR THE
INTEGRITY OF ANY SYSTEM, OR ANY SERVICE.
(d) Transaction Monitoring. Bank may, in its sole
discretion, implement internal monitoring systems to
evaluate Customer Transactions and the risk of
possible fraudulent activity. Such Transaction
monitoring is part of Bank's internal processing and is
not a component of the Security Procedures, and
Customer agrees that the Security Procedures will be
considered commercially reasonable regardless of
whether they incorporate information from
Transaction monitoring. Customer agrees that Bank
may process Payment Orders and other Instructions
verified by the Security Procedures and Bank will be
considered to have acted in good faith and in
compliance with the Security Procedures, regardless
of the results of Transaction monitoring, including the
detection of possible fraudulent activity; provided
that Bank does not have actual knowledge that the
Transaction is unauthorized and a reasonable
opportunity to act on that knowledge. However,
Bank reserves the right to reject Payment Orders and
other Instructions verified by the Security Procedures
in the event Bank identifies a risk of possible
fraudulent activity and Bank shall not be responsible
for its refusal to act upon any Payment Order or other
Instructions based upon the results of Transaction
monitoring.
(e) Access Through Third -Party Vendor. In certain
instances, Bank may allow Customer to access the
System, and other Services accessible to Customer
through the System, by signing on through a Third -
Party Vendor's internet site without logging in using
the Security Procedures (referred to as "Single Sign -
On" or "SSO"). Any SSO will be subject to the Third -
Party Vendor's terms of use. In the event Customer
accesses the System using SSO, Customer agrees that
it has waived use of the Security Procedures to access
the System, and that Bank may accept and act upon
Instructions received using Security Procedures
assigned to Customer following Customer's use of
SSO. All use of the System and Instructions submitted
subsequent to SSO from a Third -Party Vendor's
internet site will be deemed to have been authorized
by Customer. Bank is entitled to rely upon, and treat
as authorized and binding on Customer, each
Instruction sent to Bank through the System by a User
using the Security Procedures assigned to a User
subsequent to SSO from a Third -Party Provider's
internet site.
8. Protection Against Fraud and Unauthorized
Transactions. It is Customer's responsibility to
protect: (i) Customer's Account number(s) and other
information related to Customer's Account; (ii) any
access device or Security Procedures Bank provides
for Customer's Account (such as a debit card) or
equipment that may allow access to an Account; and
(iii) Check stock and other paper Items. An
unauthorized person's access to Customer's Account
number may alone be sufficient to allow that person
to initiate Unauthorized Transactions. Customer
acknowledges that there is a growing risk of Losses
resulting from Unauthorized Transactions. Bank
offers services that help control the risk from
unauthorized Items. Additionally, Bank strongly
recommends that Customer impose a dual -control
environment, maintain up-to-date virus protection
software and firewalls, update employee access
when employment is terminated or an employee is
reassigned, and use a stand-alone personal computer
for all online banking and activity for the origination
of Payment Orders. If Bank has expressly
recommended that Customer implement one or
more of the services or controls listed above (or any
other Service or control related to fraud prevention
that Bank offers after the Effective Date of the
Agreement) and Customer either decides not to use
the recommended Service or fails to use the
recommended Service in accordance with the
applicable Service description or other
documentation applicable to the Service, Customer
will be treated as having assumed the risk of any
Losses that could have been prevented if Customer
had used the recommended Service in accordance
with the applicable Service description or applicable
documentation. As a result: (1) Customer will be
precluded from asserting any claims against Bank
with respect to any Unauthorized Transactions
occurring in Customer's Accounts that the product or
Service was designed to detect or deter, and (2) Bank
will not be required to re -credit Customer's Account
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or otherwise have any liability for such Unauthorized
Transactions.
9. Electronic Statements; Email Communication;
Reconcilement; Error Reporting.
(a) Electronic Statements. Customer will notify the
Bank immediately upon detection of any incorrect or
erroneous transmission, Unauthorized Transaction,
dispute, irregularity, signature issues, alterations,
discrepancy or other communication or similar
matter (each, an "Error") request or other
unauthorized communication. If Customer has
elected to receive statements electronically
("Electronic Statements") for any Accounts used with
any Service or has selected a Service that gives
Customer access to Account statement and
Transaction information, Customer must promptly
and regularly access and review each Electronic
Statement and accompanying items and other
Account statement and Transaction information and
immediately notify the Bank in writing of any Error.
The Bank may, at the Bank's option, deliver
disclosures, notices and other information to
Customer electronically as part of an Electronic
Statement or otherwise using the Service. Any
applicable time period within which Customer must
notify the Bank of Errors, shall begin on the earlier of
(a) the date an e-mail is sent notifying the Customer
of the availability of the Electronic Statement or other
on-line Transaction confirmation or acceptance that
first includes the Transaction or item in question, or
(b) if the Customer has selected a service that allows
Customer access to daily Transaction information,
the first date on which the Transaction information or
item is available on the System. Customer agrees to
notify Bank immediately of any change to the e-mail
address to which Electronic Statement notices are to
be delivered. Customer should not rely on e-mail to
communicate with the Bank immediately — for
example, if Customer needs to report an Error from
one of its Accounts or if Customer needs to stop a
payment that is scheduled to occur. If Customer
sends the Bank an e-mail message at the email
address provided by Bank for the receipt of such
notices, the Bank will be deemed to have received it
on the following Business Day. Once received, the
Bank will have a reasonable time to act on Customer's
e-mail. Customer agrees that the Bank may respond
to it by electronic mail with regard to any matter
related to a Service, including responding to any claim
of unauthorized electronic funds transfer that
Customer makes. Customer acknowledges that
unencrypted e-mail is not a secure form of
communication and that Customer's complete
Account numbers, tax identification numbers or
other confidential information should not be
included in any unencrypted e-mail transmissions to
the Bank.
(b) Customer Information Review. Customer is
responsible for monitoring its use of the Services and
all activity in its Accounts with Bank. Information
regarding Transactions with the Services is reported
on Customer's periodic Account statement and is
available through any online reporting or inquiry
functionality or Services. Depending upon the
Services that Customer uses, Customer will have
access to Account and Transaction information on a
prior day, intraday and/or real time basis. Account
and Transaction information changes frequently and
is subject to updating, verification and correction.
Bank assumes no responsibility for Customer's
reliance on any Account or Service information
reported on an intraday or prior day basis that is
subsequently updated, verified or corrected.
Customer understands and agrees to: (i) regularly
review the Account and Transaction information
(including Electronic Statements) that Bank makes
available to Customer; and (ii) notify Bank as soon as
reasonably possible of any Error
(c) Error Reporting. Customer understands that the
nature of certain Transactions and Applicable Laws
relating to certain Services require that Customer
provide Timely Notice (defined below) of an Error in
order to preserve or exercise rights against third
parties that may have been the beneficiary of such
Error. "Timely Notice" is defined as notice provided
to Bank: (a) on the same Business Day with respect to
any Payment Order (including any electronic funds
transfer and any form of real-time payments), (b) the
next Business Day for other Transfers, or (c) within
fourteen (14) days for any other Instruction,
transaction or Service (ninety (90) days in the case of
Fees), following the date on which such information
is sent by Bank or otherwise made available to
Customer. If Customer fails to provide Timely Notice
to Bank of any Error, then Customer shall be
precluded from asserting such Error against Bank.
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The Timely Notice requirement does not limit Bank's
or Customer's rights to attempt to collect on
unauthorized or fraudulent Transactions from other
banks. Notwithstanding the forgoing, Bank reserves
the right, in its sole discretion, to adjust Transaction
records for good cause after the expiration of the
Timely Notice time periods.
(d) Unauthorized Requests or Instructions. The
Customer is solely responsible for all requests
received by the Bank. If at any time the Customer
suspects that an unauthorized request has been
made or that Security Procedures assigned to
Customer have or may have become known to any
unauthorized person or party, THE CUSTOMER
MUST IMMEDIATELY PROVIDE TELEPHONE NOTICE
TO TREASURY MANAGEMENT SUPPORT AT THE
PHONE NUMBER INDICATED ON THE "CONTACT US"
PAGE AT THE END OF THIS AGREEMENT. BANK MAY
REQUIRE WRITTEN CONFIRMATION AS SOON AS
POSSIBLE, BUT NO LATER THAN THE END OF
BUSINESS DAY, AFTER TELEPHONE NOTIFICATION
TO THE ADDRESS AS SET FORTH ON THE CONTACT
US PAGE BELOW.
10. Limitations of Liability and Indemnification.
Notwithstanding any provisions of the Agreement
providing to the contrary, Bank's liability to Customer
for failure to exercise ordinary care resulting in a
delay in executing, improper execution of, or failure
to execute a transaction constituting a Payment
Order (as defined in the UCC) shall be limited to an
amount equal to interest losses attributable thereto,
however, the Bank's liability to Customer for any loss
or damage arising from or relating to the Agreement
or any of the Services that are outside the scope of
Article 4A of the UCC, regardless of the form of
action, shall be limited to direct damages attributable
to Bank's willful misconduct or gross negligence in
performing the Services, and in no event shall Bank
be liable for (i) any punitive, indirect, incidental,
consequential or special damages or lost profits, even
if Bank has been advised of the possibility of such
damages, (ii) the acts or omissions of a third party
servicer or vendor used by Customer, or any loss,
cost, damage or expense incurred by any person or
entity in connection therewith, (iii) any loss, cost,
expense, or damage to Customer in connection with
any Communication Device, System or Customer's
use thereof, excepting damages attributable to
Bank's gross negligence or willful misconduct, (iv) any
interception of any information relating to the
Customer or its transactions as a result of (A)
Customer communicating information to the Bank,
excepting damages attributable to Bank's gross
negligence or willful misconduct or (B) use of the
Internet or other System, or (v) any other matter,
including without limitation, any act or omission by
any other financial institution, funds transfer system,
or any other third party, or for the inaccuracy or
omission in a notice or communication received by
Bank from Customer or any other third party. The
Bank will be deemed to have exercised ordinary care
if its actions or failure to act have been in conformity
with this Agreement, the applicable Security
Procedure and the Bank's then current procedures.
Bank's liability hereunder for interest excess of the
lesser of 1.) The loss sustained by the Customer or 2.)
The amount customer has paid for Fees over the
course of the prior 6 months under the terms of this
Agreement, except to the extent otherwise required
by UCC Article 4A or other Applicable Laws. In the
event that Customer is entitled to interest on any
unauthorized or erroneously executed Payment
Order under UCC Article 4A, the Bank will not be
liable for interest unless Customer notifies Bank in
writing that such Payment Order was not authorized
or properly executed within twenty (20) calendar
days following Customer's receipt of notification
either of the acceptance of such Payment Order or
the debiting of such order to one of Customer's
Accounts losses will be calculated by using a rate
equal to the average Federal Funds rate at the
Federal Reserve Bank of Chicago
Customer shall indemnify and hold the Bank
(including its officers, directors, employees, agents
and Processors) harmless from and against any
Losses, directly or indirectly, arising out of or related
to (a) any claim by a third party alleging that any
transaction or other activity contravenes or
compromises the rights, title or interest of any third
party, or violates any Applicable Laws, court order or
other mandate or prohibition, (b) the breach of any
representation, warranty, or covenant made by
Customer to the Bank in this Agreement ("Claim"), or
(c) any act or omission in any way relating to or
arising out of this Agreement or any Transaction,
except to the extent the Claim is caused directly by
the Bank's negligence or willful misconduct, failure to
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act in accordance with Customer's Instructions given
pursuant to and in the manner required by this
Agreement (provided that reliance, without further
investigation, on any oral, telephonic, telegraphic,
electronic, or written request, notice, or Instructions
believed in good faith to have been given or signed by
Customer will in no event constitute bad faith or
willful misconduct by the Bank). This Section shall
survive termination of this Agreement with respect to
acts or omissions occurring during its Term.
11. Recording and Use of Communications. Customer
acknowledges and agrees that all telephone
conversations and data transmissions through or
using the System or among or between Customer,
Bank, and any third parties used by Customer or the
Bank and their respective employees and agents and
relating to the Services, may be recorded and
retained by the Bank and the Bank's third -party
service providers by use of any reasonable means.
12. Setoff and Security Interest. In addition to all rights
provided by Applicable Laws, Customer agrees that
any and all amounts on deposit in any Account
maintained by Customer with Bank or any Bank
Affiliate may be set off and applied against any
liability in any currency Customer owes Bank under
the Agreement, and any liability that any Customer
Affiliate owes Bank or any Bank Affiliate. Customer
further grants Bank a first priority security interest in
all Accounts held by Customer now or in the future
with Bank or any of its Affiliates to secure payment of
any and all obligations under the Agreement;
provided that this security interest shall be
subordinate to any security interest separately
agreed to in writing by Bank.
13. Delivery of Financial Information. At least once
every twelve (12) months Customer shall provide the
Bank with such financial statements and other
information as the Bank may reasonably request,
including for purposes of evaluating Bank's risk of
nonpayment under this Agreement.
14. Representations and Warranties of Customer.
Customer represents and warrants to Bank that
(i) the execution and delivery of the Agreement has
been authorized by all necessary corporate and
governmental action and does not violate any
provision of law applicable to the Customer, or any
provision of the Customer's organizational
documentation charter, articles of incorporation or
by-laws or any other agreement binding upon the
Customer, (ii) the officers executing and delivering
the Agreement and the Documentation for and on
behalf of Customer, are duly authorized to do so,
(iii) the Customer and its Transactions will comply
with all Laws and the authority granted by Customer
to its officers, employees or Vendors executing such
transactions, (iv) Customer will engage in
Transactions as principal (or, if agreed in writing,
including for any Affiliate as provided under the
terms of this Agreement, in the form of an annex
hereto or otherwise, in advance of any Transaction by
the other party hereto, as agent for a disclosed
principal), and (v) each of Customer's Transactions
has a business or commercial purpose and each
Account is maintained by Customer for a business or
commercial purpose. Bank, in accepting the
Agreement, is acting and relying upon the foregoing
representations and warranties. When Customer and
Bank enter into any amendment or supplement to
the Agreement, the Customer shall be deemed to re
make the above representations and warranties as of
the date of each and any such document. Bank has no
responsibility with respect to any matter warranted
by Customer.
15. Binding Nature and Assignment. This Agreement
shall be binding on the Parties and their successors
and assigns, but neither Party may assign this
Agreement without the prior written consent of the
other, which consent shall not be unreasonably
withheld.
16. Heading and Interpretation. The Schedule and
section headings used herein are for reference and
convenience only, and shall not enter into the
interpretation hereof.
17. Relationship of Parties. The Bank, in furnishing
Services to Customer, is providing Services only as an
independent contractor. The Bank does not
undertake by this Agreement or otherwise to pay,
perform or satisfy any obligation of Customer,
whether regulatory or contractual.
18. Approvals Consents. Where agreement, approval,
acceptance or consent by either Party is required by
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any provision of this Agreement such action shall not
be unreasonably delayed or withheld.
19. Use of Third Parties.
(a) Third Parties and Suppliers. Certain Services are
provided by Bank through access and availability of
third party networks. Customer agrees that Bank
may disclose to any third party any information,
including Confidential Information, regarding
Customer as necessary to provide any Service and
related support to Customer. Bank reserves the right
to discontinue the Service or provide the Service
through an alternative third party network and shall
have no liability should such network become
unavailable. Bank shall be entitled to perform any of
its obligations and any of the Services offered under
this Agreement through third -party subcontractors
and/or agents (each, a "Supplier") without the
assignment or delegation of its rights and obligations
hereunder. A third party network that is not hired by
Bank to perform its obligations shall not be
considered a Supplier. All expenses associated with
hiring a Supplier shall be the responsibility of Bank.
The performance of Services through a Supplier shall
not relieve Bank of its obligations to perform fully
under this Agreement
(b) Customer's Vendors. If Customer hires, employs
or engages any third party contractors, processor, a
Third Party Service Provider, and/or agents (a
"Vendor") in connection with any Service, such
Vendor is agent. Customer shall notify Bank of the
name of any Vendor to whom it delegates its duties
or responsibilities under this Agreement before that
Vendor initiates any transactions or performs an
obligation authorized or required under this
Agreement. Customer agrees that it shall be solely
responsible for ensuring its Vendor complies with
Customer's obligations under this Agreement
(including the Security Procedures). Customer is
bound by all acts and omissions of such Vendor.
Customer confirms that it grants authority to those
Vendors, whether or not so identified in accordance
with this Section, to legally bind Customer with
respect to its use of the Services. Customer is liable
for (i) Vendor's actual failure to comply with any of
Customer's obligations under this Agreement, (ii) all
fees, costs and expenses owed to each Vendor for its
services on Customer's behalf, and (iii) any claims,
damages, costs and expenses incurred by Customer
or Bank as a result of Vendor's failure to perform,
delay or error in performing services on Customer's
behalf. Vendor shall not have any claim against Bank
for any Services provided on behalf of Customer.
Notwithstanding the foregoing, Customer
understands and agrees that Bank may refuse in its
sole good faith discretion to accept any Instructions
from such Vendor for any reason, but in no event
shall Customer or Vendor have a cause of action, legal
or equitable, against Bank for such refusal and
Customer shall hold Bank harmless for such refusal.
Customer shall provide information, including
financial information or information demonstrating
the security procedures used by Customer or such
Vendor or either such party's compliance with
Applicable Laws, which Bank may, in its sole
discretion, require from time to time regarding
Customer or any Vendor that Customer hires,
employs, or retains in any manner, to initiate
transactions or assume any of Customer's duties
under this Agreement. Customer understands and
agrees that because of the risks involved in certain
Services that Customer may utilize, Bank may refuse,
in its sole discretion, to provide such Services to
Customer if Customer or Vendor retained by
Customer does not meet Bank's qualification criteria.
Neither Customer nor any other person or entity have
the right to rely upon the determination made by
Bank nor have a cause of action against Bank for or as
a result of Bank's determination. Customer agrees
that it shall not allow any third party (including any
Affiliates) to use a Service under this Agreement or to
process such third party transactions through
Customer or its Accounts without Bank's prior written
consent.
20. Amendments; Waivers. No delay or omission by
either Party to exercise any right or power accruing
upon noncompliance or default by the other Party
with respect to any of the terms of this Agreement
shall impair any such right or power, or be construed
as a waiver thereof. The terms and conditions of this
Agreement, including, without limitation, the fees to
be charged by the Bank to Customer, may be
amended or changed by the Bank upon the mailing,
to Customer, of notification of the new terms,
conditions or fees. The changes will be effective
immediately. At its discretion, the bank may provide
notice of only the changed terms. Notice may be
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included in any reasonable way which would inform
the customer of the change in terms. For example,
the notice may be included with or on Account
statements, may be delivered as a separate mailing
to the address reflected on the customer's bank
statement, may be delivered electronically to the any
Administrator or may be posted on the login page for
the Services. The continued maintenance of
Customer's Accounts or the service affected by the
change after the effective date of the change
indicates Customer's acceptance of the changes or
amendments. If notices sent are returned, the
change contained in the notice is still effective. No
prior notice is required when any change in terms is
determined by the Bank to be necessary to the
services provided herein or to prevent a loss by the
Bank. In such case, the Bank will send Customer
notice of the change after the change becomes
effective. No amendment or modification of this
Agreement and no waiver of its terms will be valid
unless set forth in a writing executed or delivered by
the Bank. A waiver by either of the Parties of any of
the covenants, conditions, or agreements to be
performed by the other shall not be construed to be
a waiver of any succeeding breach thereof or of any
other covenant, condition or agreement herein
contained.
21. Entire Agreement. This Agreement (including the
Signature Agreement, Business Deposit Account
Agreement and Disclosure, exhibits, and Schedules)
constitutes the full and complete agreement
between Bank and Customer regarding the Services
and supersedes any other agreements expressed or
implied. There are no understandings or agreements
relative hereto which are not fully expressed herein
and no change, waiver or discharge shall be valid
unless in writing and executed by the Party against
whom such change, waiver or discharge is sought to
be enforced. This Agreement supersedes any and all
previous agreements relating to the Services entered
into between Customer and the Bank.
22. Governing Law, Waiver of Jury Trial; Jurisdiction. (a)
Governing Law. The Agreement shall be
governed by and construed in accordance with
federal law and the laws of the state where your
Account was opened, without regard to the conflict
of law provisions thereof (the "State"). This is
generally the state of the banking office where we
opened your Account, but we may transfer your
Account to another banking office in the same state
or in a different state.
(b) Claims and Disputes Not Submitted to
Arbitration. With respect to all Disputes and other
claims hereunder that are not submitted to
arbitration pursuant to the Arbitration Agreement
(Section 23), CUSTOMER AND BANK EXPRESSLY AND
IRREVOCABLY AGREE TO WAIVE ANY RIGHT TO A
TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW
IN ANY MATTER ARISING OUT OF OR RELATED TO
THIS AGREEMENT, and Customer consents to service
of process, personal jurisdiction and venue in the
state where your Account was opened and waive the
right to claim that it is an inconvenient forum.
Customer acknowledges that Bank would not have
opened or maintained any Account for Customer if
this waiver of jury trial were not part of the
Agreement. In those instances where California law
governs a Dispute or other claim that is not submitted
to arbitration pursuant to the Arbitration Agreement, or
the jury trial waiver contained herein shall be held or
deemed unenforceable in California, the Dispute or
claim shall be referred to a referee in accordance with
California Code of Civil Procedure Section 638 et seq.,
and this general reference agreement is intended to
be specifically enforceable in accordance with said
Section 638, as amended or replaced from time to
time. Pursuant to such judicial reference, each party
hereto agrees to the appointment of a single referee
and shall use reasonable, good faith efforts to agree
on the selection of a referee. If the parties are unable
to so agree, a referee shall be appointed by the court
to hear any disputes hereunder in lieu of a jury trial.
Each party hereto agrees that the appointed referee
shall have the power to decide all issues in the
applicable action or proceeding, whether of fact or law,
and shall report a statement of decision thereon.
Judgment upon the decision rendered by a referee
shall be entered in the court in which such proceeding
was commenced in accordance with California Code
of Civil Procedure Sections 644 and 645, as amended
or replaced from time to time. Any party may file an
original counterpart or copy of this Section with any
court as written evidence of the consent of the parties
to the waiver of the right to trial by jury and the
agreements contained herein regarding the
application of judicial reference in the event of the
invalidity of such jury trial waiver.
23. Arbitration Agreement.
(a) Disputes Subject to Arbitration. Customer and
Bank agree that upon the election of either of the
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parties, any dispute relating in any way to Customer's
Account or transactions on the Account, or otherwise
arising under this Agreement (a "Dispute") will be
resolved by the dispute resolution procedures
described herein, including binding arbitration in
accordance with the terms of this Section (the
"Arbitration Agreement"). A "Dispute" shall include
any dispute, claim or controversy of any kind,
whether in contract or in tort, legal or equitable, now
existing or hereafter arising, relating in any way to
any aspect of this Agreement, Customer's Account,
any transactions therein, and Customer's deposit
relationship with Bank. A "Dispute" also includes any
disagreement about whether the terms of this
Arbitration Agreement are enforceable or valid, the
meaning of this Arbitration Agreement, and whether
a claim or disagreement is a Dispute subject to
binding arbitration hereunder. A "Dispute" does not
include our collection of a credit obligation.
(b) How to Resolve a Dispute. If a Dispute cannot be
settled through informal discussions or negotiation,
the parties agree first to try in good faith to settle the
Dispute by mediation administered by the American
Arbitration Association under its Commercial
Mediation Procedures before resorting to arbitration,
litigation, or some other dispute resolution
procedure. If a Dispute cannot be resolved informally
or through mediation, Customer and Bank agree to
submit to binding arbitration as described herein;
provided, however, that any party may require that a
Dispute be resolved in Small Claims Court if the
Dispute and related claims are fully within that
court's jurisdiction. Arbitration may be demanded by
either party before the institution of the judicial
proceeding, or during a judicial proceeding, but not
more than 60 days after service of a complaint, third
party complaint, cross -claim, or any answer thereto,
or any amendment to any of such pleadings. Any
party who fails or refuses to submit to arbitration
following a demand by any other party shall bear all
costs and expenses incurred by such other party in
compelling arbitration of any Dispute.
(c) Jury Trial and Class Action Waiver. CUSTOMER
UNDERSTANDS THAT DISPUTES SUBMITTED TO
ARBITRATION ARE NOT RESOLVED IN COURT BY A
JUDGE OR JURY. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, CUSTOMER AND BANK EACH
AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY
AND ANY RIGHT TO PARTICIPATE IN A CLASS ACTION
OR REPRESENTATIVE BASIS WITH RESPECT TO ANY
DISPUTE ARBITRATED PURSUANT TO THIS
ARBITRATION AGREEMENT. No party hereto shall be
entitled to join or consolidate disputes by or against
others in any arbitration, or to include in any
arbitration any dispute as a representative or
member of a class, or to act in any arbitration in the
interest of the general public or in a private attorney
general capacity.
(d) Governing Rules. Any arbitration proceeding will
be: (i) governed by the Federal Arbitration Act (title 9
of the United States Code), notwithstanding any
conflict choice of law provision in any of the
documents between the parties; and (ii) conducted
by the American Arbitration Association ("AAA") in
accordance with the AAA's commercial dispute
resolution procedures, unless the claim or
counterclaim is at least $1,000,000.00 exclusive of
claimed interest, arbitration fees and costs, in which
case the arbitration shall be conducted in accordance
with the AAA's optional procedures for large,
complex commercial disputes (the commercial
dispute resolution procedures or the optional
procedures for large, complex commercial disputes
are referred to herein, as applicable, as the "Rules").
Rules and forms may be obtained from the AAA at
adr.org or by calling (800) 778-7879 or such other toll -
free support phone number as is posted on the AAA's
website from time to time. In any arbitration
proceeding, discovery will be permitted in
accordance with the Rules. If there is any
inconsistency between the terms hereof and the
Rules, the terms and procedures set forth herein shall
control. Arbitration proceedings hereunder shall be
conducted at a location mutually agreeable to the
parties, or if they cannot agree, then at a location
selected by the AAA in the state of the applicable
substantive law primarily governing the Dispute. To
the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action
required to conclude any arbitration proceedings
within 180 days of the filing of the Dispute with the
AAA.
(e) No Waiver of Provisional Remedies: Self Help. This
Arbitration Agreement does not limit Customer's or
Bank's rights with respect to, and each party can
exercise any lawful rights or use other available
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remedies to do any the following: (i) preserve or
obtain possession of property; (ii) exercise self-help
remedies including setoff and repossession rights; or
(iii) obtain provisional or ancillary remedies such as
injunctive relief, garnishment or attachment;
whether before, during, or after the pendency of any
arbitration proceeding. This paragraph does not
constitute a waiver of the right or obligation of any
party to submit any Dispute to arbitration hereunder,
including those arising from the exercise of the
actions detailed in this paragraph; however, the
arbitrator will have no right or power to enjoin or
restrain any party.
(f) Arbitrator Qualifications and Powers. Any
arbitration proceeding in which the amount in
controversy is $5,000,000.00 or less will be decided
by a single arbitrator selected according to the Rules,
and who shall not render an award of greater than
$5,000,000.00. Any Dispute in which the amount in
controversy exceeds $5,000,000.00 shall be decided
by majority vote of a panel of three arbitrators;
provided however, that all three arbitrators must
actively participate in all hearings and deliberations.
Every arbitrator shall be a neutral practicing attorney
or a retired member of the state or federal judiciary,
in either case with a minimum of ten years'
experience in the substantive law applicable to the
subject matter of the Dispute. The arbitrator shall
have the power to award recovery of all costs and
fees, to impose sanctions and to take such other
action as the arbitrator deems necessary to the same
extent a judge could pursuant to the Federal Rules of
Civil Procedure, the applicable state rules of civil
procedure, or other Applicable Laws. Judgment upon
the award rendered by the arbitrator may be entered
in any court having jurisdiction. No arbitrator or
other party to an arbitration proceeding may disclose
the existence, content or results thereof, except for
disclosures of information by a party required in the
ordinary course of its business or by Applicable Laws
or regulation.
(g) Conflicts; Survival. If more than one agreement
for arbitration by or between the parties potentially
applies to a Dispute, the arbitration provision in the
document that is most directly related to the subject
matter of the Dispute shall control. This Arbitration
Agreement shall survive the closing of any Account(s)
and the termination, amendment, or expiration of
any Service or this Agreement or any relationship
between the parties.
24. Compliance with Applicable Laws. Customer
represents, warrants, and covenants to the Bank that:
(a) at the time each Transaction request (or any
related adjustment, reversal or stop payment or
posting requested or initiated by Customer) or any
cancellation is executed, made or transmitted by the
Bank, the information regarding it provided by
Customer to the Bank is accurate and complies with
the format and content specifications of the
applicable funds transfer system rules and this
Agreement, (b) if a transaction request requires the
authorization of a third party, Customer will keep a
copy of any required authorizations on file and make
them available to the Bank upon request, (c) each
transaction request initiated by Customer is in
compliance with the Applicable Laws, including,
without limitation, economic sanctions maintained
by the United States Treasury Department's Office of
Foreign Asset Control. Without limiting the
generality of the foregoing, Customer agrees to be
bound by the Operating Rules of Nacha and Subpart
B of Federal Reserve Board Regulation J, as applicable
and in effect from time to time. If the accounts to be
debited and credited by a Transaction are both
maintained by the Bank, the intra-bank transfer or
related cancellation may be made by a book transfer
rather than through a funds transfer system. If a
Transfer request or cancellation relates to or is part
of a Transaction, portions of which are subject to the
Electronic Funds Transfer Act of 1978 and Federal
Reserve Board Regulation E (the "EFTA Act"), as may
be in effect from time to time, all actions and disputes
between Customer and the Bank concerning that
transfer or cancellation request shall be determined
pursuant to Article 4A of the Uniform Commercial
Code, except to the extent the EFTA Act otherwise
requires. Customer agrees that its breach of this
Agreement may cause irreparable injury to the other
party, and agrees that the other party shall be
entitled to seek temporary and preliminary injunctive
relief in a court of competent jurisdiction, without the
necessity of proving actual damages or posting a
bond, to prevent such violation
25. Bank's Right to Audit. Upon Bank's request,
Customer agrees to: (a) provide Bank with the
records Customer maintains with respect to
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Customer's use of the Services as required by
Applicable Laws and the Agreement; (b) provide Bank
with internal and external audit reports relating to
Customer's use of the Services and Customer's
information technology infrastructure and
operational processes and procedures; (c) provide
Bank with such financial information and statements
and other documentation Bank reasonably
determines to be necessary or appropriate to enable
Bank to evaluate its exposure or risk; and (d) permit
Bank (including its regulators and auditors)
reasonable access to the locations where Customer
uses any of the Services during normal business hours
to audit Customer's (including Customer's Vendors')
compliance with the terms of the Agreement and
Applicable Laws. Customer will cooperate with any
such audit and provide, at Customer's expense, any
information or documents as may be reasonably
requested by Bank in the course of such audit.
Customer shall provide Bank with any information
necessary to conduct such audit (e.g. receiver
authorizations, polices, procedures, etc.) within 10
calendar days from a date of a written request.
26. Force Majeure. Notwithstanding any other provision
of this Agreement, the Bank shall not be liable for
delays or failures in the performance or completion
of any of its obligations under or with respect to this
Agreement beyond its reasonable control, including
without limitation, delays or failure directly or
indirectly caused by fire, flood, storm, earthquake,
strikes, lockouts, labor difficulties, sabotage, war,
insurrection, military operation, national emergency,
mechanical, electrical or computer system
breakdown, riot or civil commotion; failures of
transportation, communications or power supply;
any regulation, order, requisition, request or
recommendation of any governmental agency or
acting governmental authority or the Bank's
compliance therewith; or other acts of God or causes
beyond Bank's reasonable control, whether similar or
dissimilar to the foregoing.
27. Notices. Except as otherwise provided in the
Agreement, all notices concerning the administration
of the terms of the Agreement between Customer
and Bank (e.g., termination, breach, or waiver of
rights) that are sent by either Customer or Bank shall
be in writing and, if to Customer, addressed to
Customer's primary mailing address as shown on
Bank's records at such time, and if to Bank, addressed
to "Treasury Management Administration" at the
address(es) of the Bank set forth on the "Contact Us"
page at the end of this Agreement, or at such other
address as Bank may specify in writing from time to
time. Any such notice will be effective either on the
date it is actually received by the receiving party or
five (5) days after it is mailed by first class mail
whichever is earlier; provided, however, that any
notice sent by Customer terminating the Agreement
or a Service shall be rendered ineffective if Customer
uses or avails itself of any such terminated Service
after the date of termination contained in any such
notice.
Notwithstanding the forgoing requirements, Bank
may amend the terms of this Agreement (including
the fees and pricing or any other terms in this
Agreement) by providing electronic notice to
Customer, and such notice may include posting the
terms of such amendment or full terms of a new
Agreement on the Bank's System for such Services or
email notice to the email address on file with Bank at
the time such notice of amendment is provided.
Additionally, Customer and Bank each acknowledge
and agree that certain notices and communications,
as specifically set forth in the Agreement or the
Documentation, concerning the operation of Services
and the communication of Transaction and other
information with respect to the Services and
Accounts, may be provided by the Customer or the
Bank to the other party by telephone, fax or
electronic transmission (including e-mail) in
accordance with the information provided by the
receiving party. Any such notice or communication
provided by fax or electronic transmission will be
effective upon transmission thereof to the receiving
party, and any such notice given by telephone will be
effective upon the receiving party's receipt thereof.
Unless specifically stated otherwise, each party may
rely on such notices or communications given by fax
or electronic transmission as though they are
originals. Notwithstanding any terms in this Section
to the contrary, any addition, deletion or change to
any Documentation or Services requested by the
Customer must be submitted in a form acceptable to
the Bank, and no such requested addition, deletion or
change will become operative or effective until the
Bank confirms to Customer that such addition,
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deletion or change has been implemented, which the
Bank agrees to do within a reasonable period of time.
Each party is entitled to treat as authentic any notice,
communication or Instructions believed by it in good
faith to be genuine or to have been signed or
authorized by an Authorized Person(s) of the sending
party
28. Confidential Information. Bank acknowledges that it
may obtain or have access to non-public personal
information regarding Customer or its customers,
and agrees to (i) maintain the confidentiality,
integrity and security of such information, (ii) use
such information only for the purposes set forth in
this Agreement and the Account Agreement,
including without limitation for the performance of
its obligations and exercise of its rights hereunder,
(iii) disclose such information only to its employees,
Affiliates, agents, auditors, accountants, attorneys
and regulators, and only as necessary to perform its
obligations and exercise its rights hereunder, or as
otherwise permitted by law, and (iv) maintain
physical, technical, procedural and administrative
controls and safeguards reasonably designed (taking
into account the nature and circumstances of Bank
business) to ensure the security, integrity and
confidentiality of such information, and to protect
against any anticipated threats or hazards to the
security or integrity of, or unauthorized access to,
such information.
29. Notice of Funds Transfers; Provisional Credits. The
periodic Account statements and/or electronic
reporting information, if subscribed to by Customer,
provided to the Customer by the Bank will notify the
Customer of funds transfer payments received by
Bank for credit to one or more Accounts. Customer
agrees that Bank will not be required to provide to
Customer any other notice of such receipt of
payments. All credits to any Account for funds
transfers are provisional until Bank receives final
settlement for the funds according to the rules of the
funds transfer system by which such funds have been
transmitted. Customer acknowledges and agrees that
if Bank does not receive such final settlement, Bank is
entitled to a refund and may debit the Account in the
amount of such funds transfer credited to such
Account.
30. Definitions. The meanings of defined terms shall be
equally applicable to the singular and plural forms of
the defined terms. All references to "include,"
"includes," or "including" shall be deemed to be
followed by the words "without limitation. "Unless
otherwise defined herein, capitalized terms shall
have the following meanings:
• a. "Account" means any deposit account
maintained with Bank by Customer and any other
account with Bank over which Customer has access
to and control over any funds on deposit therein,
and loans or other products you have with us.
b. "Applicable Laws" means, as applicable to the
Services, a party, or the activities of a party, any
declaration, decree, directive, legislative
enactment, order, ordinance, law, rule or
regulation, or other binding restriction of or by
any governmental authority (including any
federal, State, municipal, local, territorial, or
other governmental department, whether
domestic or foreign), and the rules of the
association or organization through which
transactions are processed, including the
Operating Rules. References to "Applicable
Laws" shall mean such laws as they may be
amended, modified or otherwise exist from time
to time.
c. "Act of Insolvency' means "Act of Insolvency"
means, with respect to any party, (i) the
commencement by such party as debtor of any
case or proceeding under any bankruptcy,
insolvency, reorganization, liquidation,
moratorium, dissolution, delinquency or similar
law, or such party seeking the appointment or
election of a receiver, conservator, trustee,
custodian or similar official for such party or any
substantial part of its property, or the convening
of any meeting of creditors for purposes of
commencing any such case or proceeding or
seeking such an appointment or election, (ii) the
commencement of any such case or proceeding
against such party, or another seeking such an
appointment or election, or the filing against a
party of an application for a protective decree
under the provisions of the Securities Investor
Protection Act of 1970, which (A) is consented to
or not timely contested by such party, (B) results
in the entry of an order for relief, such an
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appointment or election, the issuance of such a
and information provided by Bank relating to the
protective decree or the entry of an order having
Services.
a similar effect, or (C) is not dismissed within 15
n.
"Instructions" means any instruction (including
days, (iii) the making by such party of a general
any Payment Order or an application for credit),
assignment for the benefit of creditors, or (iv) the
request, instrument, or other communication
admission in writing by such party of such party's
provided using Customer's Security Procedures,
inability to pay such party's debts as they become
or otherwise provided by or on behalf of
due.
Customer to Bank to perform a Service or take
d.
"Affiliate" shall have the meaning as set forth in
action on behalf of Customer or its Accounts.
the Signature Agreement.
o.
"License" means the non-exclusive, non-
e.
"Authorized Person" shall have the meaning as
transferable right to use, during the term of the
set forth in Section 2 above.
Agreement, the Software, System or other
f.
"Available Balance" means the funds in your
intellectual property provided by Bank to use a
Account that are available to you to withdraw or
particular Service.
transfer; to pay Checks and other Items; Payment
p.
"Losses" means any and all claims, actions,
Orders, and for all other use of the Services
demands, losses, damages, judgments, liabilities,
permitted under the Agreement in accordance
costs and expenses (including, without limitation,
with the Bank's Funds Availability Policy.
reasonable attorneys' fees and court costs) and
g.
"Business Day" means any day other than a
all costs of settlement of claims.
Saturday, Sunday, holidays observed by the
q.
"Nacha" means the National Automated Clearing
Federal Reserve Bank or other day on which Bank
House Association.
is required or authorized to be closed.
r.
"Operating Rules" means the operating rules and
g.
"CheW means a draft that is payable on
guidelines of Nacha.
demand, drawn on, or payable through a United
s.
"Payment Order" has the meaning as set forth in
States financial institution, whether negotiable or
Article 4A of the UCC.
not, and in whatever medium including an
t.
"Security Procedures" means the Treasury
imaged or substitute check.
Management Security Procedures provided by
h.
"Collected Funds" means the positive balance, if
the Bank to Customer describing the procedure,
any, of an Account, after settlement and
access codes, passwords or other security devices
processing of all other debits and credits to the
required to access and use the Services securely,
Account at the close of each Business Day.
which may be provided in either a hard copy or
j.
"Cut -Off Time" means the time on any Business
electronic format, as may be amended by Bank
Day when Bank will no longer accept Payment
from time to time.
Orders or other Instructions or process
u.
"Services" means the treasury management
Transactions for that Business Day and any such
services described in the Schedule to the
Payment Orders or other Instructions received
Agreement or otherwise incorporated herein.
after such time, if accepted, will be processed as
v.
"Set up Form" means the forms completed by
of the next Business Day.
Customer or Bank at the direction of Customer
k.
"Documentation" means any Set up Form(s),
requesting specific Services and may include: the
Implementation Materials or other
Product Enrollment Form and Assignment of
documentation provided by Bank to Customer
Security Procedures, Service specifics, such as
addressing the use of the Services.
procedures, specifications, Instructions, names of
I.
"Error" has the meaning as set forth in Section 9
Authorized Persons, Accounts, and Cut -Off Times
of these General Terms and Conditions.
or deadlines, and any guides or materials
m.
"Implementation Materials" means all materials
describing to use of any Services or System, and
that explain or facilitate the use of a Service or
shall include any other Customer election
System, including, without limitation, s, user
document all of which may be amended from
booklets, operational manuals, Security
time to time
Procedures, instruction and training materials,
w.
"Software" shall have the meaning in Section 4 of
the General Terms and Conditions.
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x. "Supplier" has the meaning in Section 19 of the
General Terms and Conditions.
y. "System" means any method by which Customer
may communicate with Bank for use of the
Services, which may include, but not be limited
to, Internet (including InBusiness , Remote Check
Processing, and Lockbox) or other Web Browser,
direct transmission File Transfer Protocol ("FTP"),
Mobile App, SWIFT or other payment network
offered by Bank from time to time.
z. "Transfer" or "Funds Transfer" means an
electronic transfer of funds from Customer's
Account.
aa. "Transaction" means executing an Instructions,
including any Payment Order, on behalf of
Customer as part of the Services.
bb. "Unauthorized Transactions" means any
unauthorized, altered, counterfeit, or to other
fraudulent transactions or other transaction not
originated, initiated or signed (if necessary) by
Customer or an Authorized Person.
cc. "Uniform Commercial Code" or "UCC" means the
Uniform Commercial Code as adopted in the
State.
dd. "Vendo►" shall have the meaning as set forth in
Section 19 of the General Terms and Conditions.
Schedule 2 : INTERNET BANKING
SERVICES
1. System Access. Customer may elect to use a Service
and communicate with Bank with respect to such
Service using one of Bank's Internet Banking Services
(or "IBS"). Internet Banking Services may include
from time to time when offered by Bank for a
particular Service include, but are not limited to,
Services such as InBusiness, Remote Check
Processing, direct transmission (e.g., FTP), SWIFT or
other payment network or association. IBS shall be
deemed a "System" as defined in this Agreement.
After completion of the required Set Up Form,
completing the required testing, and upon notice
from Bank, Customer may communicate instructions
and other information, enter into Transactions and
access certain Services as described in within this
Agreement, by accessing IBS as assigned to or made
available by Bank and selected by Customer for such
Service. The IBS with respect to a Service may be
mentioned within the Service Schedule or Set Up
Form and more than one IBS may be available for
such Service. Customer and Bank agree that each IBS
shall be considered a System under the terms of this
Agreement and any applicable Schedule. Bank offers
multiple methods for accessing IBS, including through
the Mobile App and through a web browser ("Web
Browser"). Customer may request to communicate
with the Bank by sending messages via one of the
Systems that Bank offers and supports for the use of
the Services from time to time. These messages may
include Instructions with respect to the Services
(including Payment Orders), payment advices, and
information reporting. Customer agrees to send and
receive messages as set forth in the Set Up Form and
in the format required by the Bank. Customer agrees
to not send Instructions or other messages to the
Bank that are not part of the Documentation or
Service and will not send notices regarding the
administration of this Agreement as set forth in the
General Terms and Conditions. Customer agrees to
comply with any applicable rules applicable to the
type of IBS. Customer agrees with and authorizes
Bank to debit and credit the applicable Account to
provide the Services, and to execute the Instructions
in connection with Customer's use of the IBS and such
Service. The Services available through each of these
methods may be limited. Not all IBS services are
available from mobile devices and some IBS services
may not be available from mobile devices that do not
meet the hardware and software requirements
established by Bank from time to time. At the
discretion of Bank, IBS access via the Mobile App may
not be available for certain types of Accounts, or
Services due to security concerns or due to other
Account restrictions.
2. Security Procedures. Customer agrees to comply
with the Security Procedures required for each IBS.
Customer acknowledges that the security procedures
are for the verification of authenticity and not to
detect errors in Transactions or Instructions.
Customer warrants that no Authorized Person will be
allowed to initiate Transfers without proper
supervision and safeguards and agree to take all
reasonable steps to maintain confidentiality of
security procedures and any related security
features.
Customer agrees to designate Authorized Persons to
act on Customer's behalf, who shall have authority to
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authorize all action necessary in the use of IBS or
other System. Any Administrator or other Authorized
Person authorized by an Administrator may
designate the access and authority of Authorized
Persons. Customer agrees that the Bank shall not be
under a duty to inquire as to the authority or
propriety of any Transaction made by Authorized
Persons. Bank shall be entitled to act upon the
Instructions of any person whom the Bank reasonably
believes to be an Authorized Person, whether or not
Customer has authorized such Instructions when
received through IBS or other System. The Bank shall
not be liable for any Losses arising out of any such
Instructions.
Customer further agrees that the Bank will not be
responsible or liable to Customer in any way if
information is intercepted by an unauthorized
person, either in transit or at Customer's place of
business. Customer agrees to: (1) keep Customer's
password(s) secure and strictly confidential,
providing password(s) only to Authorized Persons on
Customer's Account(s); (2) instruct each person to
whom Customer gives password(s) that he or she is
not to disclose it to any unauthorized person; and (3)
immediately notify the Bank and select a new
password(s) if Customer believes a password may be
known to an unauthorized person.
BANK WILL HAVE NO LIABILITY TO CUSTOMER FOR
ANY UNAUTHORIZED PAYMENT OR TRANSFER MADE
USING CUSTOMER'S PASSWORD(S) THAT OCCUR
BEFORE CUSTOMER HAS NOTIFIED BANK OF
POSSIBLE UNAUTHORIZED USE AND BANK HAS HAD
REASONABLE OPPORTUNITY TO ACT ON THAT
NOTICE. Bank may suspend or cancel Customer's
password(s) even without receiving notice from
Customer, if Bank suspects a password is being used
in an unauthorized or fraudulent manner.
Customer acknowledges receipt of the Security
Procedures for IBS and agrees that they are
considered commercially reasonable Security
Procedures as set forth in the Agreement for the
instructions, Transactions, communications and
Services accessed by Customer using IBS. Customer
agrees to be responsible for each request,
Transaction, or other communication initiated using
the Security Procedures issued by Bank to Customer.
3. Customer Requirements. In connection with
Customer's use of IBS, Customer must use a Web
Browser or Mobile App, hardware, software and
encryption that complies with the Bank's
specifications therefore, which may be specified by
Bank from time to time in the Documentation. Bank
recommends that Customer have appropriate
security measures for Internet use, including a proxy
server and/or firewalls to control and protect
Internet access. In no event will Bank have any
liability in connection with and shall not be
responsible for (i) inability to connect to or use IBS or
any Service via the Internet or inability to
communicate with Bank via the Internet or any
website resulting from a problem with an Internet
service provider or online service provider, failure of
Customer's systems or otherwise, (ii) unknown
hazards of Internet use, including, but not limited to
interception of any information relating to Customer
or its Transactions, which may include, but not be
limited to, the use of spyware or "man in the middle"
interception of information, or any application errors
in or security breaches of any Internet browser, or (iii)
any data that is lost or destroyed in connection with
Customer's use of IBS.
Customer will (a) manage and administer the security
of all communications from Customer to Bank, (b)
designate employees of Customer authorized to use
IBS to access information or transact business on
behalf of Customer, (c) create user profiles, (d)
enable or disable user identification, (e) enable,
disable, or distribute access mechanisms, and (f)
complete, execute, and modify any forms or
Service -related Documentation deemed necessary by
Bank to provide IBS. Bank may rely on all
designations made by Customer until such time as
Bank receives notice that such designations have
been changed. Bank is not responsible for detecting
errors in transmissions made by Customer using IBS
Schedule 3:
ELECTRONIC INFORMATION
REPORTING
In connection with the Electronic Information Reporting
Service (the "Reporting Service"), Bank will collect certain
information with respect to Accounts (and/or accounts
maintained with other financial institutions), the Service
provided under this Agreement and Transactions
involving Accounts, and Bank will make such information
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available to Customer to be viewed electronically via an
IBS or transmitted electronically, all as more specifically
elected by Customer and described in the
Documentation.
1. Balance and Transaction Electronic Transmission.
Customer may elect to receive or have the Bank send
Account balance and Transaction activity information
reporting via electronic transmission directly to Customer
or through other Systems offered by Bank from time to
time as described in the Documentation; which may
include, but not be limited to, SWIFT and elected by
Customer in the Documentation. The Bank is not
responsible for the content of balance or Transaction
information received from third parties, even if such
content or information is provided by Bank through a
System.
2. Electronic Statements and Regulatory Information.
Customer may elect to receive Account statements,
account analysis and other information relating to
Account activity or services, Transactional activity and/or
Services used with the Bank and/or its Affiliates
("Statements") electronically. Statements with respect
to which Customer opts for electronic delivery
("Electronic Statements") will be selected by Customer
on the Documentation. By selecting electronic delivery of
Statements, Customer consents both to electronic
delivery of such Statements and to electronic delivery of
regulatory information that the Bank or its affiliates
would typically include in mailings of paper Statements,
such as mandated disclosures ("Regulatory
Information"). Electronic Statements and Regulatory
Information will be made available for viewing and
printing through Customer's access via IBS or other
System. Bank will make the Electronic Statements
available after the Account's Statement cycle. The Bank
recommends that Customer enroll for email notifications
offered through IBS in connection with Electronic
Statements, which provide notice to the Customer that
the Electronic Statements are available for viewing,
however, the Bank will have no liability or responsibility
for any failure or delay in such email notifications being
provided. Selecting electronic delivery of Statements
and Regulatory Information will result in only electronic
delivery (and NO paper delivery) thereof. Customer
represents and warrants that it has the ability to receive,
access and view the Electronic Statements and
Regulatory Information by using IBS or other System and
acknowledges that Customer's receipt of the Electronic
Statements and Regulatory Information is subject to the
terms of Schedule 2 of the Agreement. Notwithstanding
the foregoing, the Bank may, at its option, deliver paper
Statements and/or Regulatory Information at any time.
In addition, Customer may request a paper Statement
and/or Regulatory Information by contacting Customer's
service representative. A fee may apply for such
Customer requests. Email and IBS shall constitute a
"System" and Electronic Statements shall constitute a
"Service" for purposes of the Agreement.
3. Updating Information. Customer understands that
certain information available to it in connection with the
Electronic Information Reporting Service is updated
periodically and therefore, at any point in time may not
reflect the information on Bank's records at such time, as
more fully described in the Documentation. Customer
acknowledges and agrees that the Electronic Information
Reporting Service does not include any recommendation,
guaranty, representation or warranty whatsoever by the
Bank. Bank shall not be responsible for errors in, or delays
regarding, information provided to Bank by other
financial institutions or other non -Bank sources.
Customer understands and acknowledges that balances
on all accounts and other information will be reported by
Bank in United States Dollars (USD), regardless of
whether the source Account or information is maintained
in USD or other currency.
Schedule 4:
WIRE TRANSFER SERVICES
Subject to the terms and conditions of this Agreement,
the Bank will execute Funds Transfers using the Wire
Transfer Services (or "Wire Services") described in this
Schedule in the amount and from one of Customer's
Accounts, for credit or payment to another Account, or to
an account at another financial institution (including such
transfer made by Fedwire, SWIFT, or other electronic
funds transfer system — excluding any ACH system) or
internal Bank transfer, all as specified in each Payment
Order (each a "Transfer" or "Wire Transfe►"). Each
Instruction submitted by Customer shall be considered
Customer's Payment Order. Each instruction to initiate a
Transfer shall be deemed Customer's "Payment Order
1. Customer's origination of Payment Orders.
Customer may use the Security Procedures assigned to
Customer to originate Payment Orders for Bank to initiate
Wire Transfers on Customer's behalf through a System as
offered and permitted by Bank from time to time. Each
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Payment Order must (a) be submitted in the format and
contain the information required by Bank and actually
received by the Bank; (b) designate the Customer
Account from which it is to be paid; (c) not exceed the
amount of the Available Balance in the designated
Customer Account, or any applicable daily limits, or other
restrictions or limitations established by the Bank or
Customer; (d) is accepted by the Bank; and (e) otherwise
complies with the terms of this Agreement. Any Payment
Orders received after the Cut -Off Time on any Business
Day may be treated as if they were received at the
opening of the next Business Day. These Cut -Off Times
are subject to change by the Bank from time to time in
the Bank's sole discretion.
2. Right of Refusal. The Bank reserves the right to
refuse processing of any Payment Order for any reason in
our sole good faith discretion, including those issued
against uncollected or insufficient balances. Nothing in
this Schedule shall prohibit the Bank from debiting any
Customer Account for any Wire Transfer executed by the
Bank, even if the amount of the Wire Transfer creates or
increases an overdraft in the Account. In the event an
overdraft is created or increased, Customer shall deposit
or transfer into the Account sufficient immediately
available funds to pay the amount of the overdraft by the
close of that Banking Day. Any overdraft existing at the
close of a Banking Day is immediately due and payable
without notice or demand. Nothing in this Agreement
nor any course of dealing between Customer and the
Bank constitutes a commitment or obligation of the Bank
to lend money, allow the creation or increase of an
overdraft, or otherwise extend any credit or advance
funds to Customer to pay for any Transaction or Transfer
made hereunder.
3. Notice of Failure or Rejection. The Bank will
notify Customer if the Bank, any funds transfer system,
or any other bank rejects or fails to execute a Wire
Transfer. Bank will also notify Customer of the reason for
the rejection or failure after the Bank receives notice of
the reason. The notices provided under this paragraph
shall be deemed commercially reasonable and effective
when given or otherwise made available to Customer
through its regular Account statement, any Electronic
Statement or any System or other Service used by
Customer, and Customer agrees that Bank shall have no
liability for any failure or delay in providing such notice.
Bank has no obligation to re -send a Payment Order that
is returned to us if we complied with terms of the original
Payment Order.
4. Cancellation or Amendment of Payment Order.
The Customer has no right to cancel or amend any
Payment Order after it has been received by the Bank.
However, to the extent permitted by Applicable Laws, the
Bank will use its reasonable efforts to act on the
Customer's request to cancel any such Payment Order
before the Bank processes it, but the Bank will have no
liability if such cancellation is not affected.
5. Processing Payment Orders. Following Bank's
receipt and acceptance of a Payment Order, Bank will
execute such Payment Order subject to the terms of the
Agreement, including, but not limited to, the requirement
that: (i) such Payment Order is received containing all
information required by Bank; (ii) such Payment Order is
received in the format and through the Channels or other
transmission method required or permitted by Bank; and
(iii) if required by Bank, Customer has paid Bank for the
amount of the Payment Order, including Bank's Fees and
any other applicable charges.
In the event of any inconsistency between the name and
account number or identifying number in a Payment
Order or other Instruction, Bank may, in its discretion,
make the electronic funds transfer based solely upon the
account number or identifying number set forth in such
Payment Order or other Instruction, and Customer shall
be responsible for any and all Losses incurred as a result
of any such inconsistency. Customer is solely responsible
for the content of each Payment Order and the accuracy
and completeness of the information contained therein.
Bank will rely on the information contained in the
Payment Order in carrying out your instructions. No
instructions or other restrictions accompanying your
Payment Order shall be effective unless expressly
accepted and agreed to in writing by Bank. Bank may in
its sole discretion, but is not obligated to, require
evidence of the authority of the person submitting the
Payment Order to act on your behalf before accepting it
for processing.
6. Security Procedures. Customer acknowledges
and agrees that it has received and reviewed the Security
Procedures offered by Bank that apply to the Wire
Transfer Services and Payment Orders and that
Customer's use of the Wire Transfer Services constitutes
the Customer's acceptance of those Security Procedures
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as commercially reasonable and otherwise subject to the
terms addressing use of Security Procedures in Schedule
1 of this Agreement.
7. Unauthorized Payment Orders. Customer
agrees to notify the Bank of any unauthorized Payment
Order, any payment to a Beneficiary not intended by the
Customer, any payment in an amount greater than the
amount intended by the Customer and any Payment
Order duplicative of a Payment Order previously sent by
the Customer, along with the relevant facts relating to the
error, immediately but no later than the next Business
Day after the Customer receives notice from the Bank (or
its Provider) with information that the Payment Order
was accepted by the Bank or that an Account was debited
with respect to the Payment Order. The Customer shall
be liable to the Bank for any losses Bank incurs as a result
of the Customer's failure to discover the error and notify
the Bank. This duty on the part of the Customer to
discover errors and notify the Bank shall also apply to
amendments to Payment Orders.
8. Payment by Customer. Customer authorizes the
Bank to debit its Account(s) as designated in the Set Up
Form and Assignment of Security Procedures to initiate
wire transfers based on the Payment Orders received by
Bank and Customer agrees to pay to the Bank the amount
of each Transfer no later than the date the Transfer is
processed by the Bank even if sufficient funds are not in
the Account and it otherwise creates an overdraft of each
wire transfer. The Customer expressly acknowledges and
agrees that for purposes of this Section, future dated wire
transfers and international wire transfers are "processed"
by the Bank on the date the Payment Order is received by
the Bank, even though the date on which the related
Transfer is affected may be a later date. If any Transfer
creates an overdraft in an Account, then Customer agrees
to promptly pay Bank on demand and in immediately
available funds, the amount of any such overdraft with
interest thereon at Bank's then existing overdraft rate for
the period involved until such overdraft is paid in full, and
Customer further agrees that Bank may debit any other
Customer Account for such payment. The foregoing
payment obligations will survive termination of the
Agreement and this Article.
9. Intermediary Banks. Customer shall specify
routing Instructions for wire transfers in any Payment
Order communicated to Bank. If no such specification is
made, Customer hereby instructs Bank to send Transfers
through such correspondent(s) as deemed appropriate by
Bank in its sole discretion after consulting standard bank
references as to correspondent relationships. In
executing any wire transfers, the Bank shall use whatever
funds transfer system, communications system, and
intermediary bank is designated by the Customer, except
where the Bank in good faith concludes that use of such
funds transfer system, communication system, or
intermediary is not feasible or would involve undue delay,
in which case the Bank shall use such of the funds transfer
systems and communications systems in which Bank
participates, and such intermediaries, agents or
sub -agents as Bank determines to be appropriate in
connection with any such wire transfers. To the fullest
extent permitted by law, (i) any such funds transfer
system, communications system, or intermediary, agent
or sub -agent shall not be a Supplier, and shall be deemed
to be the agent of the Customer, and the Bank shall not
be liable for any errors, negligence, suspension or default
of any of them or for any failure to identify the beneficiary
or any mispayment by any of them, and (ii) Bank shall not
be liable for any errors, mutilations, delay, misdelivery or
failure of delivery in the transmission of any Transfers in
connection with such Transaction or for any suspension
of any means of transmission or for any imposition of any
censorship, exchange control or other restriction, all such
risk being borne by the Customer.
10. Transfers in Foreign Currency. Any request for
the Transfer of funds in a currency other than U.S. Dollars
shall require the Customer to first validly purchase such
foreign currency from the Bank or Bank shall purchase
such amount from Bank's affiliate or correspondent bank.
Unless otherwise agreed between Bank and Customer,
the value of any such wire transfer shall be reported to
Customer in the U.S. Dollar equivalent of the amount of
foreign currency transferred. Any loss of exchange arising
from a subsequent cancellation of such wire transfer
request or because of a rejection of delivery for any
reason shall be charged to Customer's Account. The
Customer agrees that if the Bank utilizes the services of
other banks for the purpose of giving effect to any
request or order for the Transfer of funds in foreign
currency, then the Bank does so for the account of and at
the risk of the Customer.
11. International Wire Transfers. For the wire
transfer Service as it pertains to international Transfers:
(a) The Bank may issue separate Security Procedures and
directions relating to the origination of international wire
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Transfers by Customer which shall replace or be in
addition to those for domestic Transfers; (b) International
Transfers are completed at Customer's sole risk and
responsibility, including reimbursement of the Bank's
fees, expenses, and legal fees, and subject to all laws or
decrees of any domestic or foreign government, taxing or
postal authority, or other agency at the time the Transfer
is made; (c) In the event that there is a delay in wire
transmission or an interruption in a wire transmission,
the Bank will request the intermediary institution(s)
honor the stated value date, but the Bank has no
responsibility for the actual value applied for crediting
funds to the payee; (d) for international Payment Orders,
the Bank does not guarantee that its correspondents or
agents can or will make payment in U.S. Dollars, nor does
the Bank guarantee that there will not be a charge made
by some other bank or banker effecting any Transfer
initiated by the Bank; and (e) Customer understands that
each intended Beneficiary or a Transfer initiated by the
Bank at Customer's request will be compared to a list
published and updated by the U.S. Department of
Commerce Office of Antiboycott Compliance or Special
Designated Nationals and Blocked Persons List as
published and updated by the Office of Foreign Assets
Control of the U.S. Treasury Department (collectively, the
"OFAC List"). If the name of the intended Beneficiary of
a Payment Order is contained on the OFAC List, the Bank
will, under no circumstances, transmit the requested
Payment Order. Customer agrees that the Bank is under
no obligation to transmit a Payment Order when the
name of the intended Beneficiary is on the OFAC List, and
furthermore, Customer agrees that the Bank will not be
held liable for any damages, direct or indirect, occasioned
by the Bank's refusal to transmit a Payment Order to an
intended Beneficiary whose name appears on the OFAC
List or hold such amount of funds as required by
Applicable Laws. Bank's Fees only cover our costs for
international wire transfers; additional costs or fees over
which we have no control may be incurred during
processing and you agree to pay any such additional costs
or fees. In addition, foreign countries and their
subdivisions, any intermediary bank and the beneficiary's
bank may charge transfer taxes and other transfer fees
that will reduce the amount received by the beneficiary.
12. Returned Wires (Incoming and Outgoing). In the
case where wire detail (i.e. the information in the
Payment Order received) does not match account
information for any incoming Transfer, the funds will be
returned to the originator and you may be subject to Fees
for such return. In the case where your outgoing wire
detail (i.e. the information in the Payment Order that you
originate to pay to a third party) does not match account
information for any outgoing Transfer, the receiving bank
may return the Payment Order and you may be charged
Fees by Bank and/or a fee by the receiving bank.
Schedule 5: ACH ORIGINATION
SERVICES
ACH Origination is a Service that permits Customer (or its
TPSP (defined below) as permitted by Bank) to initiate
credit or debit ACH Transfers. Unless otherwise defined
in this Agreement, capitalized terms used in this Schedule
shall have the meanings provided in the Operating Rules.
The term "Entries" shall have the meaning provided in the
Operating Rules and shall also mean the data received
from Customer hereunder from which Bank prepares
Entries, each of which shall be deemed Customer's
Payment Order. Customer (as "Originator") has
requested to initiate Entries through the Bank (as
"Originating Depository Financial Institution" or "ODFI")
for the deposit ("Credit") and/or payment ("Debit") of
money to and from the accounts of Receivers maintained
at Bank and at other Depository Financial Institutions
("RDFls"), by means of the Automated Clearing House
system ("ACH System"). Unless otherwise agreed by Bank
in writing all such ACH Transfers shall settle in the United
States.
1. Operating Rules/Regulations. Customer will
comply with the Operating Rules in existence as of the
date of this Agreement and as amended from time to
time. The duties of the Customer set forth in the
following paragraphs of this Agreement in no way limit
the requirements of complying with the Operating Rules.
2. Customer Authorizations and Records
Retention. Before the initiation by Customer of the first
Credit Entry or Debit Entry to a Receiver's account, the
Customer will obtain from each of its Receiver's an
authorization to make one or more Entries to the
Receiver's account. Each Entry thereafter will be made
pursuant to such authorization, and Customer will not
initiate any Entry after such authorization has been
revoked or the arrangement between Customer and such
Receiver has terminated. Customer will retain the
original or a copy of each authorization, notice and other
document required to be given to the Receiver under the
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Operating Rules and will, upon request of Bank, furnish
such original or copy to Bank within three (3) days of
Bank's request, which shall be at the sole cost and
expense of Customer.
3. Delivery of Entry Information.
a. Customer delivery of Entries. Customer or a
Customer Vendor may transmit Entries to Bank either
via IBS, Direct File Transfer or other System as
permitted by Bank from time to time. For the
purposes of this Schedule any Customer Vendor shall
be deemed a Third Party Service Provider as defined
in the Operating Rules (a "MP"). Customer may also
use IBS or other System to provide the information to
create the Entries based upon the Applications made
available to the Customer via IBS or other System.
"Applications" are the features of the ACH
Origination Services that allow a Customer to provide
via IBS or other System the information relating to an
Entry that Bank may then use to generate the ACH
File. The Entries transmitted by Customer shall (i) be
to the location and in compliance with the formatting
requirements set forth by the Bank and as may be
changed from time to time by Bank; (ii) not have an
Effective Entry Date that is more than five (5)
Business Days from the receipt of the Entry by Bank
(with Collected Funds remaining in the Account until
such future settlement date); and (iii) be in
compliance with the requirements of this Agreement
including, but not limited to, the Security Procedures
and the Operating Rules. Entries shall be deemed
received by Bank, in the case of Electronic
Transmission, when the transmission in compliance
with the Agreement is completed.
b. Future Dated ACH Origination. The Customer will
deliver each Entry or file of Entries to Bank no later
than the established Cut -Off Time. All Entry
information so delivered shall be in the medium
required by the Bank and the format required by the
Operating Rules. Unless otherwise agreed by Bank in
writing:
Credit Entries. The Bank may require Credit
Entries to be delivered on or before two
Business Days prior to the effective date of
the Entries contained within the file. Bank
currently allows Entries to be received from
Customer on the last Business Day prior to
the effective entry date; provided, that Bank
reserves the right to change this procedure at
its sole discretion upon notice to Customer.
ii. Debit Entries. Debit Entries are to be
delivered on or before one Business Day prior
to the effective Entry Date of the Entries
within the file.
iii. Delays. If Entries are not timely delivered by
Customer as set forth above there may be a
delay in settlement, and in such event,
Customer agrees that Bank will be held
harmless in the event settlement does not
occur on the effective Entry Date.
c. Same Day ACH Origination. Customer will deliver
each same day ACH Entry or file of same day ACH
Entries to Bank no later than the Cut -Off Time on the
settlement date. Same day ACH Entries must comply
with the Operating Rules and Bank's requirements
and restrictions as disclosed to Customer from time
to time.
4. Effective Date for Entries. The effective date with
respect to an Entry shall mean the Business Day upon
which the Entry is to be posted to the account of
Customer's customer.
5. Rejection of Entries. Bank may reject any Entry for
any reason in good faith, including, but not limited to
those Entries that either; (i) do not comply with the
Agreement, (ii) exceeds the amount of the Available
Balance in Customer's Account or exceeds the daily
ACH limits established by Bank for Customer from
time to time, or (iii) Bank reasonably believes violates
Applicable Laws. Bank shall notify Customer by of
such rejection no later than the Business Day such
Entry would otherwise have been transmitted by
Bank to the ACH Operator, or in the case of an On -Us
Entry, its Effective Entry Date. Notices of rejection
shall be effective when given. Bank shall have no
liability to Customer by reason of the rejection of any
Entry or the fact that such notice is not given or not
given at an earlier time than that provided for herein.
6. Cancellation of Amendment of Entries. Customer
agrees that it has no right to cancel or amend an Entry
after it has been submitted to Bank. However, if a
request for cancellation or amendment is received by
Bank prior to transmitting the Entry to the ACH
Operator, Bank may use reasonable efforts to act on
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such a request but shall have no liability if such
request is delayed or not executed.
7. Reversal of Entries. Customer may initiate a
Reversing Entry to correct an Erroneous Entry
("Reversal") and the Reversal must be transmitted to
the Bank within twenty-four (24) hours of the
discovery of such duplication or error so that it may
be timely transmitted to the ACH Operator.
Notwithstanding the foregoing, the Reversal must be
transmitted to the Receiving ACH Operator in such
time as to be transmitted or made available to the
RDFI by midnight of the fifth (5th) Business Day
following the Settlement Date of the Erroneous Entry.
Bank may charge Customer and Customer shall
reimburse Bank for any expenses, including internal
employee time, legal expenses, losses, or damages
that Bank may incur in effecting or attempting to
affect Customer's request for the Reversal.
8. Inconsistency of Name and Account Number
Customer acknowledges and agrees that, if an Entry
describes the Receiver inconsistently by name and
account number, payment of the Entry transmitted
by Bank to the RDFI may be made by the RDFI (or by
Bank in the case of an On -Us Entry) on the basis of the
account number supplied by Customer, even if it
identifies a person or entity not consistent with the
named Receiver, and Customer remains obligated to
pay the amount of the Entry to Bank notwithstanding
the inconsistent nature of the information provided
to Bank.
9. Security Procedures.
Customer acknowledges and agrees that it has
received and reviewed the Security Procedures
offered by Bank that apply to the ACH Origination
Services and Payment Orders and that Customer's
use of the ACH Origination Services constitutes the
Customer's acceptance of those Security Procedures
as commercially reasonable and otherwise subject to
the terms addressing use of Security Procedures in
Schedule 1 of this Agreement.
10. Settlement by Customer for Entries. Customer will
maintain an Account at Bank to be used as a
"Settlement Account" with balances sufficient to
offset any Entries submitted and against which any
rejected Entries may be credited or debited. Bank will
either charge or credit Customer's Settlement
Account for any Credit or Debit Entry initiated by
Customer on the Settlement Date. Customer will
reimburse with good and immediately available funds
in the amount required by Bank if, after settlement
has been made by Bank, any Debit Entry is rejected,
if any adjustment memorandum that relates to any
such Debit Entry is received by Bank, or if an overdraft
is created in any of Customer's Accounts to pay for
any of Customer's Entries. Such reimbursement will
be made on the date such rejection or memorandum
is received by Bank. Customer shall maintain a
sufficient Available Balance to pay Bank the amount
of each Entry transmitted by Bank on the date the
Entry is transmitted by Bank to the ACH Operator. In
the event Customer does not have sufficient funds in
the designated Account, Bank may debit any other
Customer Account or create an overdraft in
Customer's Account to pay for such Entries. Bank
may provisionally credit Customer for Debit Entries
on the Effective Entry Date of such Debit Entry,
provided, however, that Bank may reverse such Entry
if final payment is not received by Bank by the next
Business Day. CUSTOMER SPECIFICALLY ACKNOWLEDGES
THAT IT HAS RECEIVED NOTICE OF THE OPERATING 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 OR DEBITED AND CUSTOMER SHALL NOT BE DEEMED
TO HAVE SETTLED THE RECEIVER THE AMOUNT OF THE ENTRY.
11. Pre -Funding. Bank reserves the right to require
Customer to pre -fund an Account maintained at Bank
prior to the Settlement Date, or in the case of a Same
Day ACH Credit Entry on the Settlement Date, of the
ACH File for payment of any ACH Entries ("Pre -
Funding". Customer will provide immediately
available funds sufficient to pay all Credit Entries
initiated by Customer prior to initiating any Entries
for which pre -funding is required. Bank will not be
obligated to process, transmit, or settle for the Credit
Entries received from Customer if an Available
Balance is not on deposit if Customer is put on Pre -
Funding. Bank may require Pre -Funding at any time
without notice to Customer, provided, that Bank shall
endeavor to provide notice to Customer prior to
placing Customer's ACH Service on Pre -Funding. In
the case of ACH Credit Entries originated by
Customer, sufficient Available Funds must be in the
Pre -Funding Account before Customer transmits the
ACH File to Bank, and, in all instances, a minimum of
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two (2) Business Days prior to Settlement Date, or
Customer's ACH Credit Entries may not be processed.
In the case of ACH Debit Entries originated by
Customer, sufficient Available Funds must be in the
Pre -Funding Account before Customer transmits the
ACH File to Bank, and, in all instances, prior to
Settlement Date, or Customer's ACH Debit Entries
may not be processed. Bank is under no obligation to
hold the ACH File until Available Funds are in the
Account and then process same ACH File, although
Bank may do so at its discretion. When the Bank
holds the ACH File until the account is funded, if the
account is funded after the effective date of the
original file transmission, the effective date will be
changed by the Bankto the earliest available Business
Day and the ACH File will be processed. Bank is under
no obligation to contact Customer in the event of
insufficient Available Funds to process Customer's
requested Entry. Should Bank process an ACH File
against an Account with insufficient Available Funds,
Bank is under no obligation to process subsequent
ACH Files against an Account with insufficient
Available Funds
12. Erroneous Entry. If the Customer discovers that any
Entry it has initiated was in error, it must notify the
Bank in writing of such error and must comply with
the security procedures. The Bank will utilize its best
efforts on behalf of Customer, consistent with the
Operating Rules to correct the Entry, subject to the
terms of Schedule 1 of this Agreement. In all such
cases, it shall be the responsibility of the Customer to
notify its affected customers that an Entry has been
made, which is at variance with the customer's
authorization or is otherwise erroneous. The
Customer is responsible for the creation of reversing
entries.
13. Rejected or Returned Entry. In the event any Entries
are rejected or returned by the ACH Operator for any
reason whatsoever, it shall be the responsibility of
Customer to remake and resubmit such Entries or
otherwise to resolve the rejection or return in
accordance with the Operating Rules, provided,
however, the Bank shall remake such Entries in any
case where rejection by the ACH Operator was due to
mishandling of such Entries by the Bank and sufficient
data is available to the Bank to permit it to remake
such Entries. The Customer shall retain and provide
the Bank on request all information necessary to
remake any files of Entries for three (3) Business Days
after midnight from the day Entries are made to
Customer's Account. In all other instances, Bank's
responsibility will be to receive rejected and returned
Entries from the ACH, perform necessary processing,
control and settlement functions, and to forward
such Entries to the Customer.
14. Representations, Warranties and Indemnification.
With respect to each and every Entry initiated by
Customer, the Customer represents and warrants,
and will be deemed to have made the same at the
time each Entry is initiated by Customer, that a) each
Entry complies with this Agreement and the
Operating Rules, b) no warranties of an Originator
and ODFI have been or shall later be breached, c)
each Entry shall in no way violate any Applicable
Laws, including the Electronic Fund Transfer Act and
Regulation E, d) each person shown as the Receiver
on an Entry received by Bank from Customer has
authorized the initiation of such Entry as required by
the Operating Rules, (e) such authorization is
operative at the time of transmittal or settlement by
Bank as provided herein, (f) Entries transmitted to
Bank by Customer are limited to those types of Debit
Entries or Credit Entries given by Customer at the
time of Set Up for ACH Services, and (g) Customer
shall be bound by and comply with the Operating
Rules as in effect from time to time, including,
without limitation, the rule regarding making
payment of an Entry by the RDFI to the Receiver
provisional until receipt by the RDFI of final
settlement for such Entry.
15. Bank's Responsibilities. In the performance of the
services required by this Agreement, Bank shall be
entitled to rely solely on the information,
representations and warranties provided by
Customer pursuant to this Agreement, and shall not
be responsible for the accuracy or completeness
thereof.
16. Customer's Rights to Refund for Debit Entries.
Customer acknowledges the right of a Receiver to
obtain a refund of the funds debited from Receiver's
account by such customer's sending of a notice to the
Receiving Bank within applicable regulatory
timeframes Such Receiver's notice must state the
error, and demand that the amount of the Debit Entry
be credited back to Receiver's account. Customer
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agrees to promptly reimburse Bank for all funds
Customer has received when Receiver follows the
procedures described in this Section.
17. THIRD PARTY SERVICE PROVIDERS. If Customer hires,
employs or engages a TPSP in connection with any
ACH Service, such Customer Vendor is Customer's
agent. Customer shall notify Bank of the name of any
Customer Vendor to whom it delegates its duties or
responsibilities under this Agreement before
Customer's Vendor initiates any Transactions or
performs an obligation authorized or required under
this Agreement. Customer agrees that it shall be
solely responsible for ensuring its' Vendor complies
with Customer's obligations under this Agreement
(including Security Procedures). Customer is bound
by all acts of such Customer Vendor. Customer
confirms that it grants authority to those Customer
Vendors so identified in accordance with this Section
to legally bind Customer with respect to its use of the
ACH Origination Services. Customer is liable for
(i) Customer Vendor's actual failure to comply with
any of Customer's obligations under this Agreement,
(ii) all fees, costs and expenses owed to each
Customer Vendor for its services on Customer's
behalf, and (iii) any claims, damages, costs and
expenses incurred by Customer or Bank as a result of
Customer Vendor's failure to perform, delay or error
in performing services on Customer's behalf or
comply with the Operating Rules. Notwithstanding
the foregoing, Customer understands and agrees that
Bank may refuse to accept any Instructions from such
Customer Vendor for any reason, but in no event shall
Customer or Customer Vendor have a cause of action,
legal or equitable, against Bank for such refusal.
18. TERMINATION OF ACH ORIGINATION SERVICES. In addition
to Bank's right to terminate Services under this
Agreement, Bank reserves the right to immediately
terminate in its sole good faith discretion, all or part
of the ACH Services upon providing written notice to
Customer, including, but not limited to, if the
Customer in Bank's sole good faith discretion has an
excessive number of Return Entries
19. Unauthorized Requests. The Customer is solely
responsible for all requests received by the Bank. If
at any time the Customer suspects that an
unauthorized request has been made or that
Customers access codes and/or login information
have or may have become known to any
unauthorized person or party, THE CUSTOMER MUST
IMMEDIATELY PROVIDE TELEPHONE NOTICE TO
TREASURY MANAGEMENT SUPPORT AT THE
NUMBER INDICATED ON THE "CONTACT US" PAGE
AT THE END OF THIS AGREEMENT, TO BE FOLLOWED
AS SOON AS POSSIBLE, BUT NO LATER THAN THE
END OF BUSINESS DAY, AFTER TELEPHONE
NOTIFICATION TO THE ADDRESS INDICATED IN
CONTACT US PAGE BELOW.
20. ACH Daily Limits and Restrictions. The maximum
daily ACH limit equals the amount of Credit Entries
and Debit Entries transmitted by customer to Bank on
a Business Day as well as the aggregate value of limits
that may be transmitted with a common settlement
day. This limit is subject to review at a minimum
annually by Bank and may be changed at any time by
Bank in its sole discretion. Bank may restrict the type
of Entries that Customer may originate by Standard
Entry Class ("SEC") Code in Bank's sole discretion.
Customer can request the limit be reviewed at any
time.
21. Provisions Applicable to ACH Third Party Senders.
With respect to each and every Entry initiated by
Customer, Customer represents and warrants to
Bank and agrees that (a) Customer shall initiate
Entries as a Third -Party Sender only in compliance
with the provisions of this section after prior written
approval by Bank, (b) in any case in which Customer
acts as a Third -Party Sender with respect to the
initiation of Entries on behalf of other Originators or
Third -Party Senders, the Originator has agreed to
assume the responsibilities of an Originator underthe
Operating Rules, and Customer makes the warranties
and assumes the liabilities of an Originating
Depository Financial Institution as provided in the
Operating Rules, (c) each person shown as the
Receiver on an Entry received by Bank from Customer
has authorized the initiation of such Entry and the
debiting or crediting of its account in the amount and
on the Effective Entry Date shown on such Entry, (d)
such authorization is operative at the time of
transmittal or at the time of debiting or crediting by
Bank as provided herein, (e) Entries transmitted to
Bank by Customer are limited to PPD and CCD unless
separately approved by Bank in writing, (f) Customer
shall perform its obligations under this Agreement in
accordance with all Applicable Laws, (g) Customer
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shall be bound by and comply with the Operating
Rules as in effect from time to time. Customer
specifically acknowledges that it has received notice
of the Operating Rules. Customer shall indemnify
Bank against any claim, loss, liability or expense
(including attorneys' fees and expenses) resulting
from or arising out of any breach of any of the
foregoing representations or agreements, (h)
Customer shall comply with Operating Rule
requirements related to annual compliance audits
and risk assessments and will implement a risk
management program based on the results of those
assessments, and (i) Customer will establish data
security policies, procedures and systems with
commercially reasonable authentication,
authorization and encryption protocols.
23.1 Customer Acting as Third -Party Sender.
Due Diligence; Bank Approval of Originators. In any
case in which Customer proposes to act as a Third -
Party Sender with respect to the initiation of Entries
on behalf of other Originators, Customer shall
perform due diligence on each proposed Originator
and provide a summary of the results of the due
diligence to Bank upon such form, and in such format,
as Bank may from time to time require. Customer's
responsibilities shall include, but not be limited to,
the following:
a. Performing an initial check on the name of the
proposed Originator against the OFAC List prior
to entering into any agreement to provide ACH
services to such Originator and repeating such
check monthly, or as often as the OFAC List is
updated, to ensure no match is found;
b. Implementing and administering the
requirements of Bank's Customer Identification
Program ("CIP") for ACH Originators as may be
adopted and provided to Customer from time to
time;
c. Obtaining general information on the proposed
Originator including name, address, taxpayer
identification or social security numbers, copies
of corporate organization documents, identity of
owners, type of business, purpose for the
Transactions and similar general information.
This information must be compiled and provided
to Bank as required by Bank;
d. Obtaining sample copies of ACH authorizations,
customer contracts and related materials to be
used by the Originator;
e. Setting and enforcing Transaction exposure
limits;
f. Auditing and testing Originator authorization
processes and quality;
g. Monitoring forward and return Transaction
volumes, dollars and rates; and
h. SEC Code specific risk management requirements
and warranties as required by the Operating
Rules.
Bank will review the due diligence information provided
by Customer and approve, deny or request additional
information regarding the proposed Originator in a timely
fashion. Customer will not transmit Entries from the
proposed Originator until receipt of Bank's written
approval.
Contract Requirements. Customer shall enter into an
agreement with each Originator pursuant to which the
Originator is bound by the Operating Rules and assumes
the responsibilities of an Originator under the Operating
Rules. Such agreement must contain an acknowledgment
that Entries that violate the laws of the United States may
not be initiated. Customer shall provide Bank with the
form of agreement to be used by Customer with respect
to this requirement, and Customer shall provide Bank
with any amendments to such form agreement.
23.2 Customer Agreements with Others Acting as
Third -Party Senders.
Due Diligence; Bank Approval of Third -Party Sender
and Originators. In any case in which Customer
proposes to act as a Third -Party Sender with respect
to the initiation of Entries on behalf of another Third -
Party Sender with whom the bank does not have a
direct contractual relationship ("A Nested Third Party
Sender"), Customer shall perform due diligence on
each proposed Third -Party Sender and provide a
summary of the results of the due diligence to Bank
upon such form, and in such format, as Bank may
from time to time require. Customer's
responsibilities shall include, but not be limited to,
the following:
a. Performing an initial check on the name of the
proposed Third -Party Sender against the OFAC
List prior to entering into any agreement to
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provide ACH services to such Third -Party Sender
and repeating such check monthly, or as often as
the OFAC List is updated, to ensure no match is
found;
b. Implementing the requirements of Bank's CIP for
ACH Originators, as may be adopted and
provided to Customer from time to time, with
respect to the proposed Third -Party Sender;
c. Obtaining general information on the proposed
Third -Party Sender including name, address,
taxpayer identification or social security
numbers, copies of corporate organization
documents, identity of owners, type of business,
purpose for the transactions and similar general
information. This information must be compiled
and provided to Bank as required by Bank;
d. Obtaining sample copies of Agreement between
Customer and the additional Third -Party Sender;
e. Ensuring that the Nested Third -Party Sender
complies with annual Nacha Audit and Risk
Assessment requirements. The Nested Third -
Party Sender may not rely on an audit or risk
assessment performed by another Third -Party
Sender; it must conduct its own;
f. Setting and enforcing transaction exposure
limits;
g. Auditing and testing Originator authorization
processes and quality;
h. Monitoring forward and return transaction
volumes, dollars and rates; and
i. SEC Code specific risk management
requirements and warranties as required by the
Operating Rules.
Bank will review the due diligence information provided
by Customer and approve, deny, or request additional
information regarding the proposed Third -Party Sender in
a timely fashion. Customer will not transmit Entries from
the proposed Third -Party Sender until receipt of Bank's
written approval.
Contract Requirements. In any case in which Customer
acts as a Third -Party Sender with respect to the initiation
of entries for another Third -Party Sender, including
instances in which there are multiple Third -Party Senders
in the chain between Customer and the Originator,
Customer shall require that (i) an agreement be entered
into by each party in the chain pursuant to which each
such party agrees to be bound by the Operating Rules,
(ii) each Third -Party Sender shall agree in writing to
assume the responsibilities and make the warranties of
an Originating Depository Financial Institution as
provided in Sections 5.3 and 5.5 of the Operating Rules,
and (iii) the Third -Party Sender whose relationship is with
the Originator enters into an agreement, containing the
provisions set forth in (a)(ii). Each of the aforementioned
agreements must contain an acknowledgment that
Entries that violate the laws of the United States may not
be initiated. Furthermore, each of the agreements shall
require the Third -Party Sender having a contract with the
ultimate Originator to perform the due diligence required
under (a)(i) and provide the results of the same to Bank
for Bank's review and approval or denial of each
proposed Originator. Customer shall provide Bank with
the form of agreement to be used by Customer with
respect to other Third -Party Senders, which must be
agreed upon for use by Bank. Customer shall provide
Bank with any amendments to any such form agreements
prior to their use. Customer shall obtain the prior consent
of Bank with respect to any Third -Party Sender or
Originator on behalf of whom Customer intends to
initiate any Entries.
Schedule 6: Business Bill Pay
You may use Business Bill Pay (the "Bill Pay Service")
to direct Bank to make payments from your
designated checking account to the Payees (anyone
you designate to pay and, Bank chooses to accept, as
a recipient of a bill pay transaction).
1. Administration and Authorized Persons. The
Administrator will be granted access to Business Bill Pay.
The Administrator may request Business Bill Pay access
for additional Authorized Persons. Access rights for
Authorized Persons may be modified by the
Administrator once the Authorized Persons are granted
access in Business Bill Pay. The Administrator will select
desired levels of authority for each Authorized Person.
2. Managing Payees. Authorized Persons are permitted
to add a new payment to a Payee by accessing the
service and entering the appropriate information or
add a new Payee. The Bank reserves the right to
refuse the designation of a Payee for any reason. You
may pay any Payee within the United States
(including U.S. territories). The Bank is not
responsible for payments that cannot be made due to
incomplete, incorrect, or outdated information.
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3. Bill Payment Daily Limits and Restrictions. Transfer
Limitations: All services and transfers offered
through this Agreement may incorporate restrictions
on the dollar -value of transactions. The maximum
daily limits are subject to review and may be
changed at any time by Bank in its sole discretion.
Customer can request the limit be reviewed at any
time. Bank may restrict the type of payments that
the Customer may originate.
4. Payment Processing Dates. Business Bill Pay
functions on a "Due Date Model" wherein you will
select the due date for your payment and Business
Bill Pay will calculate the appropriate processing date
based on whetheryour Payee is designated to receive
payment electronically or by check. The system will
display a calendar indicating the soonest available
due date for your desired payment. Payments made
electronically will result in a debit to your account on
the due date. Draft checks are encoded with your
account number and your account will not be debited
until the check has been presented for payment by
the Payee. The Cut-off time for scheduling of
payments is on the business day immediately
preceding the processing day.
5. Recurring Payments. When a recurring payment is
processed, it is automatically rescheduled by the
system. Based upon your selected frequency settings
for the payment, a processing date is calculated for
the next occurrence of the payment. If the calculated
processing date is a non -business date (generally
weekends and certain holidays), it is adjusted based
upon the following rules: If the recurring payment
"Pay Before" option is selected, the processing date
for the new occurrence of the payment is adjusted to
the first business date prior to the calculated
processing date. If the recurring payment "Pay After"
option is selected, the processing date for the new
occurrence of the payment is adjusted to the first
business date after the calculated processing date.
The system will calculate the Estimated Arrival Date
of your payment. This is only an estimate, so please
allow ample time for your payments to reach your
"Payees." Note: If your frequency settings for the
recurring payment specify the 29th, 30th, or 31st as a
particular day of the month for processing and that
day does not exist in the month of the calculated
processing date, then the last calendar day of that
month is used as the calculated processing date.
6. Cancelling a Payment. A bill payment can be changed
or cancelled any time prior to the cutoff time on the
scheduled processing date. Once processed, you may
not cancel or stop bill or payroll payments delivered
electronically. You may place a stop payment on bill
payments issued by check by contacting the Bank
before the check is presented for payment. The
charge for each stop payment request will be the
current charge for such service as set out in the
applicable fee schedule.
Available Funds. Bank reserves the right to refuse or
cancel any payment(s) if the full dollar value of any
individual payment or of all outstanding payments
submitted for processing is not fully supported by
collected available balances at any point from the time
the payment(s) is scheduled until funds are deducted
from the Customer account.
8. Security Procedures. Customer acknowledges and
agrees that it has received and reviewed the Security
Procedures offered by Bank that apply to the Bill Payment
Service and that Customer's use of the Bill Payment
Service constitutes the Customer's acceptance of those
Security Procedures as commercially reasonable, and
subject to the terms Schedule 1 of this Agreement
addressing Security Procedures.
9. Unauthorized Bill Payment Requests.
The Customer is solely responsible for all Bill Pay Service
requests received by the Bank. If at any time the
Customer suspects that an unauthorized Bill Pay Service
request has been made or that access codes and/or login
information have or may have become known to any
unauthorized person or party, THE CUSTOMER MUST
IMMEDIATELY PROVIDE TELEPHONE NOTICE TO
TREASURY MANAGEMENT SUPPORT AT THE NUMBER
INDICATED ON THE "CONTACT US" PAGE ATTHE END OF
THIS AGREEMENT, TO BE FOLLOWED AS SOON AS
POSSIBLE, BUT NO LATER THAN THE END OF BUSINESS
DAY, AFTER TELEPHONE NOTIFICATION TO THE
ADDRESS INDICATED IN CONTACT US PAGE BELOW.
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT
CERTAIN RISKS ARE INHERENT IN THE TRANSMISSION OF
OR PROVIDING ACCESS TO INFORMATION OVER THE
INTERNET AND THERE CAN BE NO ASSURANCE THAT
INQUIRIES OR TRANSACTION ACTIVITY WILL BE
COMPLETELY SECURE OR FREE FROM DELAYS,
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MALFUNCTIONS, OR OTHER INCONVENIENCES
GENERALLY ASSOCIATED WITH THIS ELECTRONIC
MEDIUM. THE FINANCIAL INSTITUTION MAKES NO
REPRESENTATION, WARRANTY, COVENANT OR
AGREEMENT THAT A SECURITY PROCEDURE WILL BE
EFFECTIVE AND, EXCEPT AS OTHERWISE REQUIRED BY
APPLICABLE LAW, THE FINANCIAL INSTITUTION SHALL
NOT HAVE ANY LIABILITY FOR THE BREACH OF A SECURITY
PROCEDURE OR THE INTEGRITY OF THE SYSTEM OR ANY
SERVICE.
Schedule 7: POSITIVE PAY AND ACH
BLOCK / FILTER
The Bank strongly recommends that all of its customers
take precautions to decrease the risk of unauthorized
Transactions, including but not limited to, the use
Services designed to detect and/or deter check and ACH
fraud, such as Check Positive Pay and ACH Positive Pay
which are automated fraud detection tools that match
Check and/or ACH Transaction information provided by
Customer with Transactions presented to Bank for
payment.
1. Check Positive Pay
a. Issued Checks File for Positive Pay. Each time
Customer issues Checks drawn on its Account(s) enrolled
in Positive Pay, Customer will transmit a file with
information about such Checks to Bank via IBS or other
System (the "Issued Checks File"). The Issued Checks File
shall accurately state the Check number, Check date, and
the exact dollar amount of each Check issued, and any
other information required by Bank from time to time
(collectively, the "Check Information"). The Issued
Checks File must be transmitted and received by the
Bank no later than the Cut -Off Time on the Business Day
Customer issues the first Check included in the Issued
Checks File. Positive Pay is a next day process, which
means the Exception Checks (defined below) being
presented actually cleared Customer's Account the night
before as Checks are presented to the Bank through
regular banking payment systems and provisionally paid.
b. Issues Checks File for Payee Positive Pay. If
Customer subscribes to the Payee Positive Pay Service as
indicated on the Set Up Form, the Issued Checks File must
also include the Payee as it appears on the face of the
Check, and the Payee shall be deemed included as part of
the Check Information. Customer shall transmit the
Issued Checks File to the Bank in a format and medium as
specified by the Bank. The Issued Checks File must be
transmitted and received by the Bank no later than the
Cut -Off Time on the Business Day Customer issues the
first Check included in the Issued Checks File. In the
event of a failure of either Customer's system or the
Bank's System and the Issued Checks File cannot be
received by the Bank or the Bank cannot process the
Issued Checks File, the Issued Checks File shall not be
considered received, even if the Bank is in possession of
the Issued Checks File.
C. Checks subiect to Positive Pay and Payee Positive
Pay Services. The Positive Pay and Payee Positive Pay
Services apply to Checks that are presented for payment
to us through normal interbank clearings. They are not
designed to compare your Issued Checks File against
Checks that are presented in any other manner (e.g., at a
teller window, through an automated teller machine, or
by mail). At our sole discretion, we may attempt to
compare your Issued Checks File with such Checks;
however, we will not be liable for our failure or refusal to
do so. We may pay stale -dated and post-dated Checks
unless you timely submit a stop payment order or notice
of postdating for such Checks.
d. Processing, Exception Checks File. As Eligible
Checks (defined below) are presented to the Bank for
payment, the Check number, date, and dollar amount,
and, if Payee Positive Pay is selected in the Set Up Form,
the Payee, will automatically be compared to information
in the Issued Checks File. Customer acknowledges that
the read rate for payee positive pay is influenced by the
Customer's check stock and printing methods. Customer
may be required to adhere to formatting requirements
provided by the Bank in order ensure accuracy. Customer
agrees that the Bank will pay Eligible Checks that exactly
match the Check Information in the Issued Checks File
without further inspection. If the Check number, Check
date or dollar amount (and payee name as applicable) of
an Eligible Check does not exactly match the information
in the Issued Checks File, that Check (each, an "Exception
Check") will appear on an Exception Report made
available by Bank for review by Customer. Customer
must then decision each of the Exception Checks
presented and provide an Instructions to Bank whether
to pay or return such Exception Check. "Eligible Checks"
are defined as those checks appearing on their face to be
drafted on Customer's Account and presented to the
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Bank through in clearings and at one of the Bank's
branches.
d. Decision of Exception Checks. Subject to System
availability, Customer will receive notice to review for
Exception Checks at the email address established by an
Administrator or other Users as designated by Customer
and as posted by Bank to the System. In the event of the
delay or failure of the ability of the Bank to deliver notice
of review for Exception Checks, Customer remains
responsible for reviewing the information on the System
and reconciling its own Account records on a daily basis.
No later than Cut -Off Time on the same Business Day that
Customer receives notification or information is posted
regarding an Exception Check, Customer must use IBS, or
other System made available by Bank, to make a decision
whether to pay or return the Exception Check. Any
Exception Checks not decisioned by the Cut -Off Time will
be handled according to the default decision type listed
on the Set Up Form.
If Bank receives timely notification from Customer to
return an Exception Check, Bank will stamp the front of
the check with the appropriate reason code and return
the check unpaid through the banking system. Customer
may be required to submit additional documentation
regarding the suspect item (e.g. an Affidavit of Forgery).
In the event that IBS is not operational, alternative modes
of communication will be utilized, including another
System.
e. Failure to use Services. Customer the Bank's Positive
Pay Services are intended to be used to identify and
return Items which Customer suspects, in good faith, are
fraudulent. The Positive Pay services are not intended to
be used as a substitute for Customers placing stop
payment orders on Items which Customer does not wish
to be paid and which are not suspected as being
fraudulent. If the Bank suspects or concludes, in its sole
discretion, that Customer is using the Positive Pay
services in violation of this condition, the Bank may
require Customer to provide evidence that items the
Bank returns pursuant to its instructions were in fact
fraudulent. The Bank will hold Customer liable for losses
the bank sustains on Items returned under the Positive
Pay services which are not established as fraudulent
items.
2. Customer Liability for Issued Checks File.
Customer represents, warrants and agrees that each
Issued Checks File constitutes Customer's statement that
all Checks listed on the Issued Checks File are properly
payable by Bank. By transmitting an Issued Checks File to
Bank, Customer represents and warrants that all Eligible
Checks that match the Check Information on the Issued
Checks File or for which Bank receives an Instructions to
pay (by the default selected or otherwise) constitutes
Customer's acceptance of such Eligible Check as properly
payable and Customer agrees that Bank exercises
ordinary care whenever it pays such Check and Bank may
charge the Authorized Account and shall have no liability
in connection with such Eligible Check. Customer
understands that Customer will be liable under this
provision for Checks fraudulently listed on the Issued
Check File, and for Checks that may not be detected
under the procedures identified by this Agreement, such
as Checks with forged signatures or altered payee names,
and Customer agrees to accept such risk of liability.
Customer hereby assumes sole responsibility for
determining if Checks presented for payment from the
enrolled Account(s) are authorized to be paid from such
enrolled Account(s), however, the foregoing is not
intended to relieve the Bank of its obligation to compare
Check Information under Section 1 above.
3. Over the Counter Check Cashing. The Customer
acknowledges and agrees that the Bank may follow its
normal check cashing procedures for any Check which is
presented for payment in cash over the counter and
drawn on an enrolled Account; provided that a teller may,
but is not obligated to, determine whether Customer has
authorized a Check for payment using the Positive Pay
Service. Customer further acknowledges and agrees that
Bank has no obligation to cash over the counter any
Presented Check that is an Exception Check, and the
Bank's refusal to do so shall not be deemed the wrongful
dishonor thereof.
4. ACH Positive Pay/Blocks
a. Description of Services. The ACH Positive Pay
Service allows Customer to establish the criteria under
which Automated Clearing House Transactions ("ACH
Transactions") associated with Customer's Accounts
(each, an "Enrolled Account") will be paid or rejected by
Bank based upon the initial setup of Customer's
configuration and as such criteria is changed by Customer
from time to time. Any Administrator or, at the
designation of the any Administrator, other Authorized
Persons, will configure approval criteria for ACH
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Transactions or as to ACH Transactions for approved
senders (collectively, "Approved Criteria"). In the event
an ACH Transaction which does not conform to
Customer's Approval Criteria posts to Customer's
Account (an "Exception Item"), Customer will receive a
notice to review (including via email to any Administrator
or Other User) and decision the ACH Transaction through
IBS. Notice of Exception Items will be produced on the
Business Day in which any Exception Items are received
and otherwise be posted to the System. In the event of
the delay or failure of the ability of the Bank to deliver
notice of review for Exception Items, Customer remains
responsible for reviewing the information on the System
and reconciling its own Account records. Customer
acknowledges and agrees that it is Customer's
responsibility to access the System or the applicable
Services in order to view ACH Transactions and
information regarding activity in the System or an
Account, and otherwise take appropriate action in
reaction to any such Notice of an Exception Item and in
compliance with the terms of the applicable Service.
Customer's receipt or lack of receipt of any notice has no
effect on the validity of ACH Transactions or information.
b. Customer Responsibilities. Customer is
responsible for reviewing all ACH Transaction activity and
for decisioning Exception Items by the Cut -Off Time each
Business Day ("Pay/Return Decision"). Customer will be
required to complete a Written Statement of
Unauthorized Debit for each Exception Item Customer
designates for return and non-payment. Customer's
Account will be credited by the opening of the Business
Day following the return. ACH Transactions for which the
Customer is the ACH Originator (i.e., ACH Origination
Offsets) may not be returned. In the event Customer
does not communicate the Pay/Return Decision on an
Exception Item in accordance with the Cut -Off Time, Bank
shall pay or return the ACH Debit in accordance with
Customer's Instructions. All ACH Debits paid by Bank shall
be posted to Customer's designated Account. Customer
agrees that the return of any ACH Debits posting to an
Account shall not be deemed a wrongful dishonor.
C. ACH Block. An ACH Block permits Customer to
place a block on an Account where Customer may not
want ACH Transactions allowed. ACH Debit Entries
received prior to the setup of the ACH Block service
(including ACH Positive Pay) may be posted to Customer's
deposit account(s) in accordance with the Operating
Rules.
S. Customer Information. Customer understands
and acknowledges that, in order for Bank to perform the
Services hereunder, Customer must provide all
information required by Bank, including without
limitation, the Instructions, in a timely manner, and such
information must be accurate and complete. In the event
that any such information is not timely, accurate and/or
complete, Bank may be unable to reject an ACH Debit
Entry (as defined in the Operating Rules) in accordance
with Customer's Instructions, and, in this event and
notwithstanding anything to the contrary in the
Agreement, Bank shall not be liable for its failure to return
such ACH Debit Entry or ACH Credit Entry.
6. Entries not Subject to Debit Protection Services.
This Schedule in no way restricts Bank from charging the
Enrolled Account for (i) the settlement activity related to
the origination of ACH Credit Entries (as defined in the
Operating Rules) authorized by Customer, (ii) any fees or
other amounts owed by Customer to Bank or to a third
party selected by Bank from time to time to provide
specific services; or (iii) internal ACH Debit Entries
originated through and by Bank.
7. Limitation on Liability; Indemnification.
In addition to the limits on Bank's liability as set forth in
the Agreement, in no event shall Bank be liable for any
Losses relating to paying a Check that was not properly
payable, wrongful dishonor of a Check or Bank's or
Customer's actions with respect to payment or return of
any Check (under the UCC or otherwise) in accordance
with the terms of this Schedule. Customer agrees that
Bank exercises ordinary care whenever it rightfully pays
or returns an Exception Check consistent with the terms
of the Agreement or Customer's Instructions. Customer
expressly agrees that Customer's failure to timely direct
Bank to return any Eligible Checks in accordance with the
terms hereof will constitute acceptance by Customer of
such Eligible Checks and each such Eligible Check will be
properly charged against the Account on which it is
drawn; the Bank shall have no liability in connection with
such Eligible Checks. In addition to Customer's
indemnification obligations in the Agreement, Customer
agrees to indemnify and hold harmless the Bank against
any and all Losses resulting directly or indirectly from: (a)
claims or actions by third parties arising out of Customer's
use of the Positive Pay Services, including any claim by a
third party arising out of Bank's dishonor of Check as part
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of performing the Positive Pay Services as directed by
Customer, and (b) as a result of Bank's failure to honor
any ACH Entry (as defined in the Operating Rules),
including return or rejection of any ACH Debit Entry, to an
Enrolled Account in accordance with Customer's
Instructions.
Customer acknowledges that its failure to use services
included in Schedule 6 above could substantially increase
the likelihood of undetected fraudulent activity on
Customer's Account(s) and that it is not unreasonable
under the circumstances for the Bank to require
Customer to use these services as appropriate upon
request. Customer agrees that if it fails to implement
these services following the Bank's request that it do so,
Customer will be precluded from asserting any claim
against the Bank for paying an unauthorized altered,
counterfeit, or other fraudulent item that these services
are designed to detect or deter, and the Bank will not be
required to re -credit Customer's Account(s) or otherwise
be liable to Customer for paying such item.
Third Party Suppliers — The Bank may use third
Suppliers to provide some or all of the Services under the
terms of this schedule. To the extent any Services in this
Schedulue are dependent on the Bank's ability to obtain
or provide access to a third party network or distribution
system and in addition to Banks limits on liability above,
Customer agrees that if the network or system is not
available for any reason, or in the event the Bank
determines in its sole discretion that it is unable to
continue providing third party network or system access,
the Bank may discontinue the Services related to such
networks or systems, or it may provide the Services
through an alternative third party network or system. The
Bank shall have no liability for any errors or the
unavailability of any Supplier network or system used in
providing the Services contemplated under this Schedule.
Schedule 7: SWEEP SERVICES
If Customer has elected to receive Sweep Services as set
forth in this Schedule in more detail below (each, and
collectively, referenced to as the "Sweep Services")
Customer authorizes Bank and Bank agrees to
automatically transfer money from one or more of
Customer's Accounts designated in the Set up Form
("Sweep Account(s)") as follows: (i) using the Dynamic
Business Sweep to sweep funds to a separate interest-
bearing account (the "Deposit Account") held by
Customer with Bank; (ii) to and/or from a loan account
maintained by Customer with Bank (the "Loan Account");
or (iii) for investment in a Repurchase Agreement
(defined below) in accordance with the terms of this
Agreement. If Customer has elected to receive, and Bank
has agreed to provide, the Dynamic Business Sweep or
the Repurchase Agreement Sweep Service, Customer has
designated the balance it wants to maintain in
Customer's Sweep Account(s) on the Set Up Form (the
"Target Balance") and specific to the Repurchase
Agreement Sweep Service on the Set Up Forms, the
maximum daily investment amount (the "Investment
Amount" which Investment Amount is subject to Bank's
prior approval). Bank, without notice to Customer, shall
have the right to increase or decrease the Target Balance
and the Investment Amount without notice to Customer
(including over IBS or other System), and, with the prior
written consent of Bank and after completing new Set Up
Forms, Customer may change the Target Balance and/or
the Investment Amount. Any amount of Collected Funds
in the Sweep Account that exceeds the Target Balance
("Excess Funds") shall automatically be earmarked for
transfer. A Master Account under the terms of a ZBA
relationship may be used as the Sweep Account. The
Sweep Services described herein are provided by Bank to
Customer solely as bona fide treasury management
services. Bank does not undertake any fiduciary
obligation to Customer with respect to Sweep Services.
Bank's duties to act for Customer are solely mechanical
and administrative in nature.
1. Loan Sweep
1. Applicability. The Loan Sweep may be available
when customer maintains a Sweep Account at Bank
and Bank also has extended a loan to Customer that
is eligible for participation in the Loan Sweep Service.
Following completion of the required Documentation
and acceptance and approval of the Service by Bank,
at the end of each Business Day, after giving effect to
all debits and credits to the Sweep Account, there
may remain in any or all Sweep Accounts a balance of
Collected Funds that is either (a) less than the Target
Balance or (b) in excess of Target Balance.
Accordingly, Customer will desire to borrow and the
Bank will desire to lend funds under the terms of the
Loan Agreement ("Loan Advance") in an amount
(which is the lesser of (i) the amount by which the
Collected Funds balance is less than the Target
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Balance or (ii) the amount which is available to be
borrowed under the Loan each, the "Loan Amount").
There may be Excess Funds remaining in the Sweep
Account(s)which Customer desires to remit to the
Bank for application against the outstanding balance
of the Loan ("Repayment Transaction"). Customer
must select either of the Loan Sweep Service options
on the Implementation Materials:
(i) One Way Sweep — Loan Account to Sweep
Account or Sweep Account to Loan Account, or
(ii) Two Way Sweep — Loan Account to Sweep
Account and Sweep Account to Loan Account.
If there are Excess Funds in the Sweep Account,
Customer desires to remit to the Bank for
application against the outstanding balance of
the Loan (a "Repayment Transaction"). For
purposes of this Service, the term "Transaction"
shall mean either a Loan Advance Transaction or
a Repayment Transaction, as applicable.
2. Initiation of Transactions.
a. After the close of business of each Business Day,
the Bank will determine (following the
movement of an ZBA transactions) whether the
amount of Collected Funds in the Sweep Account
is less than or greater than the Target Balance.
b. If the Bank determines that the amount of
Collected Funds in the Sweep Account is less than
the Target Balance, the Bank will initiate a Loan
Advance Transaction, by charging the Loan in the
Loan Amount and by crediting the Sweep
Account in the Loan Amount, but only if all of the
following are true: (i) Customer has not repaid or
canceled the Loan; (ii) no default has occurred
under the provisions of any Loan Agreement or
this Agreement; (iii) no Act of Insolvency has
occurred; (iv) the Bank has not made demand for
payment under the Loan; (v) the Bank is not
otherwise excused or prohibited under the
provisions of any Credit Agreement or applicable
law from making an advance to Customer; and
(vi) there is available credit under the terms of
the Loan.
c. If the Bank determines that there are Excess
Funds, the Bank will initiate a Repayment
Transaction by debiting the Account and
crediting the Loan in the lesser of: (i) the amount
of the Excess Funds; or (ii) the outstanding
principal balance of the Loan.
d. If Customer and the Bank have entered into any
other agreement that authorizes the Bank to
transfer any or all of the Excess Funds from the
Account to another deposit or investment
account, the provisions of this Agreement shall
supersede the provisions of such other
agreement.
e. Customer hereby authorizes Bank to originate
the Transactions as set forth above.
3. Incorporation. All Representations and Warranties
that are included in any documentation of all
previous Loan agreements between the Bank and
Customer are hereby affirmed and remade by
Customer upon each Loan Advance Transaction made
under the terms of this Agreement. Customer agrees
that all conditions precedent in the Loan Agreement
must be satisfied prior to making any Loan Advance.
2. Dynamic Business Sweep
1. Definitions. For the purpose of this Dynamic
Business Sweep Service, the terms have the following
meaning:
a. "Dynamic Business Sweep" — Product consists of
two components, a Transaction DDA Account for
check writing purposes, and an investment
sweep account with an objective to provide a
return on investment.
b. "Transaction DDA" means a demand Account
maintained at the Bank by Customer for check
writing and other transaction oriented purposes.
c. "Investment Sweep Account" means Customer
balances in the Dynamic Business Sweep
Program in excess of the Transaction DDA Target
Balance, which have been swept from the
Transaction DDA in accordance with Section 3
below.
2. Terms of Dynamic Business Sweep
a. Authorization to establish Accounts. Upon
completion of the Set Up Form and
implementation by Bank, Customer authorizes
the Bank to open an Investment Sweep Account
for Customer.
b. Authorization to process sweep Transactions.
i. Customer authorizes the Bank as its
agent to debit or credit Customer's
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Transaction DDA for any debit or credit
Transactions into or from the Transaction
DDA in accordance with the terms of this
Agreement and this Schedule. Should the
Transaction DDA lack an Available
Balance to cover presentments made,
Customer authorizes the Bank to transfer
funds from the Investment Sweep
Account to cover such presentments.
ii. Customer authorizes the Bank to invest
balances in excess of Customer's Target
Balance into the Investment Sweep
Account. All such Transactions for the
Investment Sweep Account shall be
made in accordance with the sweep
procedures described in sub -section 3
below.
iii. Customer agrees that it will otherwise
not have any access to the Investment
Sweep Account.
3. Sweep Procedure. Customer authorizes the Bank to
transfer funds between the Transaction DDA and the
Investment Sweep Account as described below:
a. Review of Account: The Bank shall review the
balance of Collected Funds in the Transaction
DDA after the Cut -Off Time each Business Day to
calculate necessary transfers to or from the
Transaction DDA.
b. Collected Funds balance Above Target Balance: If,
upon review of the Transaction DDA, the Bank
determines that the Collected Funds in the
Transaction DDA exceed the Target Balance, the
Bank shall transfer from the Transaction DDA to
the Investment Sweep Account, in minimum
increments of one cent ($.01), an amount of
funds equal to the excess of the Transaction DDA
Account balance over the Target Balance.
c. Collected Funds balance Below Target Balance: If,
upon review of the Transaction DDA, the Bank
determines that the balance of Collected Funds is
less than the Target Balance, the Bank shall
transfer from the Investment Sweep Account, in
minimum increments of one cent ($.01), an
amount of funds equal to the difference between
the Transaction DDA balance and the Target
Balance or the entire balance in Customer's
Investment Sweep Account, whichever is less.
d. Termination: Upon termination of the Service, all
of the funds in the Investment Sweep Account
will be transferred to the Transaction DDA.
4. FDIC Insurance. Funds in Customer's Transaction
DDA and Investment Sweep Account are deposits
insured by the FDIC up to the maximum amount
permitted by law for funds held in transaction
Accounts in the same ownership capacity.
3. Repurchase Sweep
1. Applicability. This Repurchase Sweep Service (or,
for purposes of this Section, the "Services") sets
forth the terms and conditions on which the Bank
("Selle►") will from time to time sweep funds
from Customer's ("Buyer's") designated Sweep
Account and use such funds to purchase
securities owned by Seller ("Securities"), with a
simultaneous agreement by Buyer to transfer to
Seller such Securities on the next Business Day,
against the transfer of funds by Seller to Buyer's
account. For purposes of this Section, each such
transaction shall be referred to herein as a
"Transaction" and, unless otherwise agreed in
writing, shall be governed by this Agreement. The
terms of this Agreement, together with this
Schedule 7, supersede and replace any existing
agreements between the parties containing
terms and conditions for sweep repurchase
transactions, including any "Master Repurchase
Sweep Agreement" entered into by and
between Buyer and Seller.
2. Definitions.
a. "Confirmation" has the meaning specified in
Paragraph 3(c) hereof;
b. "Income" means, with respect to any Security at
any time, any principal thereof and all interest,
dividends, or other distributions thereon;
c. "Price Differential" means, with respect to any
Transaction as of any date, the aggregate amount
obtained by daily application of the Pricing Rate
for such Transaction to the Purchase Price for
such Transaction on a 360 day per year basis for
the actual number of days during the period
commencing on (and including) the Purchase
Date for such Transaction and ending on (but
excluding) the date of determination (reduced by
any amount of such Price Differential previously
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paid by Seller to Buyer with respect to such
Transaction). The Pricing Rate is not necessarily
related to the yield on the Purchased Securities;
d. "Pricing Rate" means, the per annum percentage
rate disclosed by the Seller from time to time on
each Confirmation and is subject to change on a
daily basis;
e. "Purchase Date" means, each date on which
Purchased Securities are to be transferred by
Seller to Buyer;
f. "Purchase Price" means on the Purchase Date,
the price at which Purchased Securities are
transferred by Seller to Buyer;
g. "Purchased Securities" means, the Securities
transferred by Seller to Buyer in a Transaction
hereunder;
h. "Repurchase Agreement" means an agreement
whereby Buyer purchases undivided fractional
ownership interests in Securities owned by Seller,
and Seller agrees to repurchase such Securities at
the Repurchase Price.
i. "Repurchase Date" means, the date on which
Seller is to repurchase the Purchased Securities
from Buyer;
j. "Repurchase Price" means, the price at which
Purchased Securities are to be transferred from
Buyer to Seller upon termination of a
Transaction.
3. Sweep Procedures; Confirmation; Transaction
Termination.
a. Buyer authorizes and instructs Seller to initiate a
Transaction after the Cut -Off Time each Business
Day to purchase Securities with an aggregate
Purchase Price equal to the sum of (i) the amount
equal to the Excess Funds, plus (ii) the amount of
any Price Differentials payable to Buyer but not
otherwise included in such Collected Funds. The
Repurchase Date for each Transaction shall be
the next Business Day following the Purchase
Date. Buyer authorizes Seller to transfer the
Purchase Price for each Transaction from the
Sweep Account as described above. Seller shall
not be obligated to sell an interest in Securities to
Buyer or otherwise sweep the Investment
Amount on any Business Day, even if the balance
in the Sweep Account contains Excess Fund and
without notice to Customer, shall have the right
to increase or decrease the Investment Amount
that will be allowed to be invested in Securities.
b. On the Purchase Date for each Transaction, the
Purchased Securities shall be noted on the books
of the Seller's Custodian as securities sold under
an agreement to repurchase.
c. Seller shall promptly deliver to Buyer a written
confirmation of each Transaction (a
"Confirmation"). The Confirmation shall describe
the Purchased Securities (including CUSIP
number, if any), identify Buyer and Seller and set
forth: (i) the Purchase Date, (ii) the Purchase
Price, (iii) the Investment Amount, (iv) the
Repurchase Date, (iv) the Pricing Rate or
Repurchase Price and (v) any additional terms or
conditions of the Transaction not inconsistent
with this Agreement. The Confirmation will be
delivered by United States Mail as directed by
Customer in the Set Up Form; provided, that Bank
may deliver the Confirmation electronically to
any Administrator or by posting on the site for
the Service. The Confirmation, together with this
Agreement, shall constitute conclusive evidence
of the terms agreed between Buyer and Seller
with respect to the Transaction to which the
Confirmation relates, unless with respect to the
Confirmation specific objection is made promptly
after receipt thereof. In the event of any conflict
between the terms of such Confirmation and this
Agreement, this Agreement shall prevail.
d. At the opening of business each Repurchase
Date, all outstanding Transactions shall terminate
and Seller shall repurchase all Purchased
Securities. At that time, Seller shall pay Buyer, by
credit to the Sweep Account, the Purchase Price
of the Purchased Securities repurchased, which
shall be the same as the Purchase Price paid
under Paragraph 3(a).
4. Handling of Purchased Securities. The Purchased
Securities in each Transaction will have a market value
that equals or exceeds the Purchase Price and shall be
held by Seller or maintained through an account at
another institution under the control of Seller and will not
be delivered out to Buyer.
S. Price Differential. On each Business Day, Seller will
pay to Buyer, by credit to the Sweep Account or by
inclusion in the Purchase Price for Transactions initiated
that day, the aggregate amount of all accrued and unpaid
Price Differentials for repurchases of Purchased
Securities.
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6. Income Payments. Seller shall be entitled to receive
an amount equal to Income paid or distributed on or in
respect of the Securities, to the full extent it would be so
entitled if the Securities had not been sold to Buyer.
Buyer shall receive a payment of Income upon repurchase
of the Securities from Buyer paid to the Sweep Account.
7. Security Interest. Although the parties intend that all
Transactions hereunder be sales and purchases and not
loans, in the event any such Transactions are deemed to
be loans, Seller shall be deemed to have pledged to Buyer
as security for the performance by Seller of its obligations
under each such Transaction, and shall be deemed to have
granted to Buyer a security interest in, all of the Purchased
Securities with respect to all Transactions hereunder and
all Income thereon and other proceeds thereof.
8. Payment and Transfer. Unless otherwise mutually
agreed, all transfers of funds hereunder shall be in
immediately available funds. All Securities
transferred by one party hereto to the other party
(i) shall be transferred on the book -entry system of a
Federal Reserve Bank or other custodian appointed
by Bank from time to time, or (ii) shall be transferred
by any other method mutually acceptable to Seller
and Buyer.
9. Segregation of Purchased Securities. To the extent
required by Applicable Laws, all Purchased Securities
in the possession of Seller shall be segregated from
other securities in its possession and shall be
identified as subject to a Transaction. Segregation
may be accomplished by appropriate identification
on the books and records of the holder, including a
financial or securities intermediary, custodian or a
clearing corporation.
10. Required Disclosure for Transactions in Which the
Seller Retains Custody of the Purchased Securities.
Seller is not to substitute other securities for those
subject to this Agreement and therefore must keep
Purchased Securities segregated at all times, unless in
this Agreement Buyer grants Seller the right to
substitute other securities. If Buyer grants the right
to substitute, this means that Purchased Securities
will likely be commingled with Seller's own securities
during the trading day. Buyer is advised that, during
any trading day that Purchased Securities are
commingled with Seller's securities, they may be
subject to liens granted by Seller to third parties and
may be used by Seller for deliveries on other
securities transactions. Whenever the securities are
commingled, Seller's ability to resegregate substitute
securities for Buyer will be subject to Seller's ability
to satisfy any lien or to obtain substitute securities.
11. Intent. The parties recognize that each Transaction is
a "repurchase agreement" as that term is defined in
Section 101 of Title 11 of the United States Code, as
amended (except insofar as the type of Securities
subject to such Transaction or the term of such
Transaction would render such definition
inapplicable), and a "securities contract" as that term
is defined in Section 741 of Title 11 of the United
States Code, as amended (except insofar as the type
of assets subject to such Transaction would render
such definition inapplicable).
12. Disclosure Relating to Certain Federal Protections.
The parties acknowledge that they have been advised
that:
a. in the case of Transactions in which one of the
parties is a broker or dealer registered with the
Securities and Exchange Commission ("SEC")
under Section 15 of the Securities Exchange Act
of 1934 ("1934 Act"), the Securities Investor
Protection Corporation has taken the position
that the provisions of the Securities Investor
Protection Act of 1970 ("SIPA") do not protect
the other party with respect to any Transaction
hereunder;
b. in the case of Transactions in which one of the
parties is a government securities broker or a
government securities dealer registered with the
SEC under Section 15C of the 1934 Act, SIPA will
not provide protection to the other party with
respect to any Transaction hereunder; and
c. FDIC INSURANCE. Customer acknowledges that
Bank is a bank with its deposits insured by the
Federal Deposit Insurance Corporation ("FDIC").
Buyer acknowledges that the Transactions and
Purchased Securities are:
• Not FDIC Insured;
• Not deposits of Seller; and
• Subject to investment risks, including the
possible loss of the principal amount
invested.
In the event of the failure of the Bank or Bank closure,
the availability of FDIC insurance will be determined
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after giving effect to all sweeps scheduled to occur
under this Agreement before the cut-off time
established by the FDIC, which may be earlier than
the Cut -Off Time specified in this Agreement. Any
funds remaining in the Sweep Account after the
FDIC's Cut -Off time will be deposits insured up to the
maximum amount permitted by law for deposits in
the same type of account and same ownership
capacity. The Buyer will have a secured claim against
the Seller for the value of any Purchased Securities
that have not been repurchased by the Seller as of the
FDIC's cut-off time. Buyer may become an unsecured
creditor of Bank if the market value of the Securities
purchased falls below the purchase price plus the
amount of Income due to Buyer.
d. In the case of Transactions in which one of the
parties is a financial institution, funds held by the
financial institution pursuant to a Transaction
hereunder are not a deposit and therefore are
not insured by the Federal Deposit Insurance
Corporation or the National Credit Union Share
Insurance Fund, as applicable.
3. Bank Discretion; Limitation on Liability. The
authority granted to Buyer by Seller to perform any of the
Sweep Services in this Schedule shall continue until the
termination of the Agreement or this Schedule. The
Seller may perform the Sweep Services each Business Day
or at some other frequency selected by the Seller.
Notwithstanding any terms in the Agreement to the
contrary, the Seller shall not be liable for the Customer's
loss of any interest income or payment of interest
resulting from the Seller's failure or delay in (i) investing
the Buyer's funds in a Repurchase Agreement, the
Purchased Securities, interest bearing deposit account or
other Sweep Service or (ii) repayment of any loans or
extension of credit to Customer using a Sweep Service.
The Seller shall not be obligated to sell an interest in
Securities to the Buyer or otherwise sweep the amount of
Collected Funds to another Sweep Service on any
Business Day, even if the balance of Collected Funds in
the Sweep Account or other Account exceeds the Target
Balance.
4. Termination. In addition to the termination rights set
forth in the Agreement, either party may terminate any
or all of the Sweep Services under this Schedule
immediately by either: (a) giving prior notice in writing to
the other party, and (b) in the event of the unavailability
of any of the Sweep Services options described above,
including Seller discontinuing offering any of the Sweep
Services. Notice is effective upon receipt; provided,
however, that the Seller shall have a reasonable amount
of time to act on such notice.
Schedule 8: REMOTE CHECK
PROCESSING
1. Background. Under the terms of this Schedule, Bank
offers Customer the ability to remotely deposit
checks to an Account, including through IBS, (or other
online System as offered from time to time) the use
of Scanner Equipment, (defined below) or through a
Mobile App (collectively, the "Remote Deposit
Services" or "Services") or through the use and
delivery of an X9.37 file. Bank will notify Customer if
and when the Remote Deposit Services become
available for use.
2. Customer Obligations. Customer represents and
warrants that with respect to each Check processed
by Customer hereunder and the corresponding
Electronic Item: (i) the Electronic Item is a digitized
image of the front and back of the Check and
accurately represents all of the information on the
front and back of the Check as of the time Customer
converted the Check to an Electronic Item; (ii) the
Electronic Item contains all endorsements applied by
parties that previously handled the Check in any form
for forward collection or return; and (iii) the
Electronic Items are submitted with all transfer and
presentment warranties made under Applicable Laws
and the Account Agreement.
3. Definitions. For purposes of this Schedule, the
terms below are defined as follows:
a. "Authorized Equipment" means equipment that
has been approved by Bank for use with the Software and
Service to scan Checks for deposit, and which may include
a Mobile Device.
b. "Check" means a draft that is payable on
demand, drawn on or payable through or at an office of a
United States Financial Institution, whether negotiable or
not, U.S. Treasury Checks, money orders and travelers
cheques, and payable or endorsed to Customer, and
specifically does not include any Ineligible Items. Note:
Bank processing of items that do not meet this definition
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shall not constitute a waiver by Bank or obligate it to
a.
As part of the Services, Bank will accept for
process nonconforming items in the future. Bank may
deposit to the designated Account those
discontinue processing of nonconforming items at any
Electronic Items that are transmitted to Bank in
time, without cause or prior notice.
compliance with this Agreement and this Service
c. "Electronic Item" means a digitized image of a
Schedule. Electronic Items shall be deemed
Check, an Image Exchange Item, or any other electronic
received upon successful receipt of the
version of a Check or other electronic item (such as items
transmission of such images that are complete,
processable through the automated clearinghouse (ACH)
usable, and adhere to the specifications set forth
system) approved by Bank for processing through the
in the Documentation. If the Electronic Items are
Services. Bank reserves the right to review and approve
not complete, are not useable, or do not adhere
any Electronic Items that are designed in the future.
to such specifications, the images may not be
d. "Image Exchange Item" means a digitized image
processed by Bank, in which event Customer's
of a Check cleared and settled directly with a Payor
deposit will be adjusted and notification will be
Financial Institution without conversion to a Substitute
provided. Customer agrees that the Bank may
Check.
limit the dollar amount or number of Electronic
e. Ineligible Items: means each of: Checks that are
Items that may be deposited on any day or a
not payable to you or third party checks (checks not
monthly basis, and that such limits may differ
payable to the legal business name and/or trade name for
depending on the Authorized Equipment used by
the business checking account where the funds are being
Customer.
deposited); Checks or items containing obvious alteration
b.
For all Electronic Items processed by Bank for
to any of the fields on the front of the check or item, or
Customer pursuant to the Services, Bank may act
which you know or suspect, or should know or suspect,
as the reconverting bank, converting digitized
are fraudulent or otherwise not authorized by the owner
images of Electronic Items into Substitute Checks
of the account on which the check or item is drawn; U.S.
and presenting the Substitute Checks to
savings bonds and other non -check items, Items drawn
established endpoints for payment.
on banks outside the U.S., Items drawn in a foreign
c.
Bank will provide Customer an e-mail notification
currency, paper draft without MICR printing, remotely
of Customer's transmission of Electronic Items as
created checks, Checks drawn against a line of credit; and
outlined in the Documentation; provided, that
substitute checks.
Bank shall have no liability for any failure or delay
f. "Payor Financial Institution" means the United States
in providing such notification.
Financial Institution ordered in a Check to make payment
d.
Customer's Electronic Items will be processed
to the payee(s) named on the Check.
after Bank has received Customer's transmission
g. "Regulation CC" means 12 C.F.R. Part 229, as it may be
of the Electronic Items and verified that the
amended from time to time.
specifications are met as required above. Unless
h. Scanner Equipment means the scanner identified in the
Bank notifies Customer otherwise, Bank will
Documentation for use with the Services.
provide same day credit to the Account for all
i. "Substitute Check" means a paper reproduction of a
Electronic Items transmitted by Customer and
Check that satisfies the requirements and definition of
received by Bank in accordance with the
"substitute check" set forth in Regulation CC.
requirements of this Agreement and the
j. "United States Financial Institution" means (i) a bank
Documentation, and prior to the Cut -Off Time
chartered by any state government located in the United
established by Bank; which may be modified by
States or under the National Bank Act any person; (ii) a
Bank from time to time.
Federal Reserve Bank; (iii) a Federal Home Loan Bank; and
e.
If a Payor Financial Institution returns an
(iv) to the extent it acts as a payor, the U.S. Treasury or
Electronic Item to Bank, Bank will charge the
the U.S. Postal Service.
Account for the amount such returned item, and
may either (i) return the item to Customer, or (ii)
4. SERVICE TERMS AND CONDITIONS
re -present it to the Payor Financial Institution
before returning it to Customer. Electronic Items
1. Bank's Responsibilities.
may be returned as Image Exchange Items, rather
than Substitute Checks, as agreed by the parties.
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If a Payor Financial Institution or other third party
makes a claim against Bank or seeks a re -credit
with respect to any Check processed hereunder,
Bank may provisionally freeze or hold aside a like
amount in the Account pending investigation and
resolution of the claim.
f. Bank may suspend immediately the Services or
the processing of any Check or corresponding
Electronic Item if Bank has reason to believe that
there has been a breach in the security of the
Services, fraud involving Customer's Account or
such Check, or any uncertainty as to the
authorization or accuracy of Electronic Items.
Bank reserves the right at any time to process
Electronic Items on a collection basis.
2. Customer Responsibilities.
a. Customer is solely responsible for the quality,
completeness, accuracy, validity and integrity of
the image. Customer is solely responsible if
Customer, intentionally or unintentionally,
submit fraudulent, incorrect or illegible images to
Bank or if Mobile Deposit is used, by authorized
or unauthorized persons, to submit fraudulent,
unauthorized, inaccurate, incorrect or otherwise
improper or unusable images to Bank.
b. Customer will implement Security Procedures so
that no individual will be allowed to initiate
electronic transmissions or submit Electronic
Items using the Services without proper
authorization, supervision, and safeguards, and
agrees to take all reasonable steps to maintain
the confidentiality of the Security Procedures and
any related security features.
c. Customer may use only Authorized Equipment in
connection with the Software. Unless otherwise
provided in an addendum to this Agreement or in
a separate agreement, Customer, and not Bank,
shall be responsible for ordering, obtaining and
maintaining all Authorized Equipment.
d. Customer will use the Authorized Equipment and
the Services, including the entering, processing
and transmittal of items, in accordance with the
Documentation. Without limiting the foregoing,
Customer will comply with all Security
Procedures described in the Documentation, and
will not bypass, override or disable any security
mechanisms in the Authorized Equipment or
Services. Customer will be responsible for cost of
equipment and/or replacement of such, if
authorized equipment is damaged due to
negligence on their part.
e. Customer will ensure that no financial institution
(depositary, collecting or payor), drawee, drawer
or endorser with respect to a Check processed by
Customer will receive presentment or return of,
or otherwise be charged for, the Check,
corresponding Electronic Item, and/or other
paper or electronic representation of the Check
such that such person will be asked to make
payment based on an item that it already has
paid.
f. Customer will retain each Check for a reasonable
period of time, but in no event fewer than 30
days after such Check has been digitized and
processed. Customer will store the Checks in a
secure container located in an area that restricts
the possibility that the non-public information
contained in the Checks can be accessed by
unauthorized persons, or that the Checks could
be accidentally reprocessed and deposited at a
future date. Customer will promptly provide any
retained Check (or, if the Check is no longer in
existence, a sufficient copy of the front and back
of the Check) to Bank as requested to aid in the
clearing and collection process or to resolve
claims by third parties with respect to any Check.
Subsequent to the aforementioned retention
period, but no later than 60 days after processing,
it is the responsibility of Customer to destroy the
original Checks in a manner that will prevent the
disclosure of the non-public information (e.g.,
Account numbers) contained in the Checks and
prevent redeposit.
g. In the event of lost, mistaken, incomplete or
unusable Electronic Items, or in the event of
claims of fraud, alteration, counterfeit or
otherwise, Customer shall cooperate fully with
Bank in providing information, including access to
such records.
h. In the event that communication, equipment or
software outages prevent Customer from
electronically transmitting Electronic Items to
Bank, whether or not the fault of Customer, Bank,
or a third party, the Customer will physically
transport Checks and deposits to the closest
office of Bank and make such deposits until such
time that the outage can be identified and
resolved. Customer agrees to bear all of its
expenses associated with this contingency plan.
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Upon request, Customer will grant Bank the
opportunity to conduct audits of Customer's
compliance with this agreement. Such audits
may include, when appropriate, onsite
evaluations of Customer's physical and
information security controls. In the event
Customer security controls do not meet
commercially reasonable standards, Bank
reserves the right to provide notice to Customer
immediately terminating the Service.
If a file contains items ineligible for the service,
the Bank will reject those items, i.e.: illegible
checks, foreign checks, items previously
converted to Substitute Checks, unreadable
MICR, etc. The Bank will notify Customer of any
such exception items when they occur.
3. Requirements: Each Check image must provide all
information on the front and back of the original
Check at the time presented to Customer by the
drawer, including, but not limited to, information
about the drawer and the paying bank that is
preprinted on the original Check, MICR information,
signature(s), any required identification written on
the front of the original Check and any endorsements
applied to the back of the original Check. The image
quality must meet the standards established by the
American National Standards Institute, the Board of
Governors of the Federal Reserve, and any other
regulatory agency, clearing house or association.
4. Endorsements and Procedures: Customer agrees to
restrictively endorse any items transmitted through
the Service as "For Remote Deposit Only to "Insert
Bank Name"" or "For Mobile Deposit Only" or as
otherwise instructed by Bank. If Customer does not
endorse deposits as requested, Customer's item may
be rejected. If Customer's deposit is rejected
Customer will not be able to resubmit the deposit via
Remote Deposit and must deposit it at a branch
location. Customer agrees to follow any and all other
procedures and Instructions for use of this Service as
the Bank may establish from time to time. Any loss
that Bank incurs from a delay or processing error
resulting from an irregular endorsement or other
markings by Customer will be Customer's
responsibility. The Bank has no responsibility or
liability for any fees incurred due to the rejection of
transmitted items for missing/incomplete
endorsements.
5. Receipt of Deposit: All images processed for deposit
through Mobile Deposit will be treated as "deposits"
under Customer's current Deposit Account
Agreement and Disclosure with us and will be subject
to all terms of the Deposit Account Agreement and
Disclosure. When we receive an image, we will
confirm receipt via email to Customer. We shall not
be deemed to have received the Electronic Item for
deposit until we have confirmed receipt to Customer
by email. Confirmation does not mean that the image
contains no errors. Bank is not responsible for any
image that Bank does not receive. Following receipt,
Bank may process the image by preparing a
Substitute Check or clearing the item as an image.
Bank reserves the right, at Bank's sole and absolute
discretion, to reject any Electronic Item for remote
deposit into Customer's Account. Customer should
check the status of Customer's items within Online
Banking.
6. Original Checks: After Customer receives
confirmation that Bank has received an image,
Customer must securely store the original Check for
30 days after transmission to us and make the original
Check accessible to us at Bank's request. Upon our
request from time to time, Customer will deliver to us
within 3 business days, at Customer's expense, the
requested original Check in Customer's possession. If
not provided in a timely manner, such amount will be
reversed from Customer's Account. Within 60 days
of deposit, Customer must destroy the original Check
by destroying it by cross -cut shredding or another
commercially acceptable means of destruction.
After destruction of an original Check, the image will
be the sole evidence of the original Check. Customer
agrees that Customer will never re -present the
original Check. Customer understands that Customer
is responsible if anyone is asked to make a payment
based on an original Check that has already been
paid.
7. Limitation on Liability; Indemnification.
In addition to other limitations on Bank's liability in the
Agreement, in no event shall Bank be liable for (i) any data
that is lost or destroyed in connection with the use of the
Services, Software or transmitting a File, Checks or
Electronic Images to Bank, (ii) the Customer's inability to
use the Services, Software or transmit a File to Bank due
to a mechanical failure of the Customer's hard drives,
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personal computers, servers or other systems or
hardware, (iii) the Customer's inability to communicate
with Bank via the Internet resulting from a problem with
an Internet Service Provider or Online Service Provider or
otherwise or any files or transmissions not received by
Bank, or (iv) unknown hazards of Internet use, including,
but not limited to interception of any information relating
to the Customer or its Transactions. Bank recommends
that the Customer have appropriate security measures
for Internet use, including, a proxy server and/or firewalls
to control and protect Internet access. Customer
acknowledges that in addition to any other damages Bank
may be entitled to collect from Customer under the
Agreement this Schedule or Applicable Laws, Bank will be
entitled to consequential damages for Customer's breach
of its obligations set out in the Customer Obligations
section of this Schedule, including Customer's obligation
to securely safe keep and subsequently destroy the
Checks which Customer deposits through the Service.
Bank strongly recommends that the Customer take the
necessary measures to ensure that the Customer
performs daily back-ups of data used in connection with
the Services. In addition to its indemnification obligations
elsewhere in the Agreement, Customer agrees to
indemnify and hold Bank harmless from and against any
and all Losses relating to or arising in connection with
Bank accepting and/or processing for deposit any Check
based on electronic Images and MICR Data in File
received by Bank, including, without limitation any
missing or improper endorsement or endorsement by
Bank of any such Check or Substitute Check as
contemplated by this Agreement, any Losses due to an
accepted Check having previously been paid or any check
or item not properly payable to Customer; provided,
however, that Customer shall not be obligated to
indemnify Bank for claims, losses or damages attributable
to Bank's gross negligence or willful misconduct. This
indemnity will survive the termination of the Agreement.
8. Representation and Warranties.
BANK DOES NOT WARRANT THAT THE USE OF THE
SERVICES, SCANNER PRODUCT OR MOBILE APP WILL BE
UNINTERRUPTED OR ERROR FREE. CUSTOMER EXPRESSLY
AGREES THAT IT SHALL HAVE NO CLAIM OR CAUSE OF
ACTION AGAINST BANK OR ANY PROCESSOR, AND BANK
SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER,
FOR ANY BREACH BY ANY MANUFACTURER OF ANY
MANUFACTURER'S WARRANTY AVAILABLE FOR THE
SCANNER EQUIPMENT OR MOBILE APP.
9. Returned Deposits
Any credit to Customer's Account for Checks deposited
using Mobile Deposit is provisional. If original Checks
deposited through Mobile Deposit are dishonored,
rejected, returned unpaid by the drawee bank, or are
rejected or returned by a clearing agent or collecting
bank, for any reason, including, but not limited to, issues
relating to the quality of the image, Customer agrees that
an original Check will not be returned to Customer and
that we may charge back the amount of the original Check
and provide Customer with an image of the original
Check, a paper reproduction of the original Check, or a
Substitute Check. Customer will reimburse Bank for all
Losses caused by, or relating to, the processing of the
returned item. Without Bank's approval, Customer shall
not attempt to deposit or otherwise negotiate an original
Check if it has been charged back to Customer. Bank may
debit any of Customer's Accounts to obtain payment for
any item that has been rejected or returned, for any
adjustment related to such item or for any warranty claim
related to such item, whether or not the rejection, return,
adjustment or warranty claim was made timely. Unless
otherwise agreed in writing by Bank and Customer, Bank
will process any returned Electronic Items as described
in Section 229.31 of Regulation CC.
10. Funds Availability
Funds from using the Services are not available for
immediate withdrawal and are subject to the Bank's
Funds Availability Policy. Electronic Items are considered
deposited with Bank after they have been received and
processed pursuant to the terms of these Remote Deposit
Services.
11. Holds on Deposits. In addition to any other rights
Bank may have with respect to Customer's Accounts,
Bank may hold and use funds in any Customer Account
following termination of the Agreement and these
Services for such time as Bank reasonably determines
that any Electronic Item processed by Bank prior to
termination may be returned, charged back or otherwise
cause Losses or other action for which Bank may be
responsible. Without limitation of the forgoing,
Customer acknowledges that under Regulation CC, the
UCC, and the Rules of any Network that the Image
Exchange Items and Substitute Checks may expose the
Bank to claims for several years following the processing
of an Image Exchange Item or Substitute Check.
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Schedule 9: LOCKBOX SERVICES
1. Services. Following execution of the appropriate Set Up
Form accepted by Bank and implementation of the
Services by Bank, Customer shall instruct those of its
clients whom Customer desires to use the Services to
forward Checks, drafts, money orders, and other
negotiable instruments, remittances, including invoices
and instruments for the payment of money (collectively,
"Remittances"), to a post office box or other lockbox
established and maintained by Bank for Customer (a
"Lockbox"). Customer shall instruct such clients not to
forward cash or other items of intrinsic value to the
Lockbox, and as between Customer and the Bank,
Customer assumes full responsibility for all cash and
other items of intrinsic value forwarded to the Lockbox.
2. Access to the Lockbox. The Bank shall have sole access
to the Lockbox and shall, on each day that both the Bank
and U.S. Postal Service are open for business to conduct
substantially all of their usual business, collect mail
(including Remittances) from the Lockbox. Unless
otherwise notified in writing by Customer as stated
below, the Bank shall process all Remittances received in
the Lockbox for deposit to an Account of Customer which
designates as payee(s) any name or names which appear
on the Lockbox Implementation Questionnaire (or such
other Set Up Form that Bank may provide Customer from
time to time) completed between the Bank and Customer
or which, in the Bank's sole judgment and discretion,
appropriately resemble such names. The Bank shall
return cash remittances to Customer's Account at the
Bank that is stated on the Lockbox Implementation
Questionnaire and forward other items of intrinsic value
received in the Lockbox to Customer; provided, that Bank
shall have no liability for any items of intrinsic value that
Customer or any of Customer's clients claim have been
sent to or received in the Lockbox. The Bank shall also
forward at Customer's expense, in accordance with
Customer's written notification, items specifically
described in the Lockbox Implementation Questionnaire
which are received in the Lockbox and which Customer
does not wish to have processed, provided, however, that
in no event shall Bank be liable to Customer or any third
party for Losses resulting from its failure to honor
Instructions enclosed with or appearing on an item
asserting, in substance, that such item represents
payment of a specific part or all of an obligation, or which
states that it corresponds to any particular invoice or like
document not enclosed with the item.
3. No Examination of Items. Bank will not be responsible
for examining an Item to determine whether the item
includes a notation such as "paid in full", "payment in
full", "without recourse" or any similar statements or
other instructive endorsements. Bank shall process and
forward for presentment all Remittances received in the
Lockbox other than those forwarded to Customer
pursuant to Section 2 above or otherwise excluded from
the terms of this Agreement; provided that Bank may
remove from processing and forward to Customer any
such Remittance which includes notations as indicated
above (or similar notations or directions on such
Remittance). The Remittances, which are processed and
forwarded for presentment by Bank, are referred to
hereinafter as "Items of Payment". In the event that an
invoice does not accompany an Item the Bank shall
forward the Item to the Customer.
4. Endorsement. Bank shall endorse all Items of Payment
as follows, or in such form as the Bank may deem
necessary to perform this Service:
>Bank of First Deposit Routing Number<
CREDIT TO WITHIN NAMED PAYEE
ABSENCE OF ENDORSEMENT GUARANTEED
>Bank of First Deposit Routing Number<
5. Deposit to Customer's Account. All Items of Payment
shall be credited to the Account in accordance with
Bank's funds availability schedule then in effect, a copy of
which has been provided to Customer. An Item of
Payment shall not be deemed to have been received or
deposited with Bank until it has been removed from the
Lockbox and processed pursuant to Bank's current
processing procedures ("Procedures"). Notwithstanding
anything herein to the contrary, in the event that any
Item of Payment credited to the Account is returned
unpaid to Bank, or is dishonored by Bank upon which it as
drawn, Bank will debit the Account for the entire amount
credited to the Account in respect of such Item of
Payment together with any applicable service charge.
Items of Payment returned unpaid will not be re-
deposited and will be forwarded to Customer and the
applicable service charge will be imposed, unless
otherwise instructed in writing by Customer. Customer's
relationship to the Bank as a depositor will commence
only when Items are credited to Customer's Account.
Prior to such time, Bank will be a bailee as to the Items in
Bank's possession.
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6. Instructions. Bank shall use due and ordinary care to
follow Customer's Instructions as reflected in the Lockbox
Implementation Questionnaire, or any amendment
thereto, with respect to the processing and forwarding of
copies of Items, invoices, correspondence, envelopes,
advices and item listings. In order to become effective,
Customer's written Instructions intended to alter
information made part of the Lockbox Implementation
Questionnaire must (i) be received by Bank in writing
pursuant to the notice provisions herein, (ii) make specific
reference to the Lockbox Implementation Questionnaire,
and (iii) give Bank a reasonable period of time to act
thereon.
7. Online Images. If Customer wants to include in the
Services the ability to view over the internet (including
over IBS or other System) items and related invoices that
have been received at the Lockbox and a report of
exception items and instruct Bank over the internet to
accept or reject exception items, then Customer will elect
Image Lockbox on the Lockbox Implementation
Questionnaire and the Services will include Image
Lockbox.
8. Copies of Documentation. All Items forwarded to
Customer by Bank for any reason whatsoever shall be
directed to Customer's designated address as provided to
Bank. Bank will maintain a copy of Remittances for a
period designated by Customer on the Lockbox
Implementation Questionnaire. Bank shall endeavor
upon receipt of Customer's written request and payment
of Bank's costs and expenses, to make available to
Customer such microfilm or microfiche records or
reproductions thereof. Bank shall not be responsible for
any inability to provide Customer such records for any
reason.
9. Limitations of Liability; Indemnity. In addition to the
terms elsewhere in the Agreement limiting Bank's
liability, the Bank shall not incur any liability whatsoever
for or in connection with any cash or other property
(collectively, "Property") received in any Lockbox, and
Customer agrees to indemnify and hold the Bank
harmless from an against any Losses relating to the
receipt or alleged receipt by Bank of any such Property.
Bank shall have no liability for mail not bearing the
complete address designated by Bank to Customer.
10. Termination. In the event of termination in
accordance with the applicable provisions of this
agreement, Customer shall notify Customer's clients to
discontinue use of the Lockbox, and Bank shall forward to
Customer, at Customer's expense, all unprocessed
Remittances, items, related invoices and correspondence
received or in possession of Bank following termination.
The PO Box may not be assigned to Customer. Any mail
received in the Lockbox addressed to Customer after the
termination date will be sent to the address specified by
Customer for a period of 60 days after the termination
date. Customer agrees to pay Bank's fees and charges for
forwarding any mail. Thereafter the obligations of Bank
pursuant hereto shall terminate.
Schedule 10 : ZERO BALANCE
ACCOUNTING ("ZBA") SERVICES
Each Affiliate joined to this Agreement as a Customer
hereby designates the Customer identified as
"Customer" in this Agreement as its agent (in such
capacity, such Customer shall also be referred to in this
Schedule as the "Agent") to undertake the actions,
duties and responsibilities of Agent under this Schedule.
This Schedule will govern the Multiple Entity Zero
Balance Account Services described below (the "ZBA
Services").
1. ZBA Relationships. In connection with the ZBA
Services, the Agent may establish one or more Zero
Balance Accounting relationships (each, a "ZBA
Relationship") between the Accounts of one or more of
the Customers (which may include interest -bearing
Accounts if permitted by Bank), as further described in
the schedule for the ZBA Services. Each ZBA Relationship
shall consist of a single master Account maintained with
the Bank in the name and tax identification number of a
Customer (such Account, the "Master Account", and the
designated owner thereof, the "Master Account
Customer" for the related ZBA Relationship) and one or
more sub Accounts maintained by any Customer (which
may include the Master Account Customer) with the
Bank in the name and tax identification number of such
Customer (each such sub Account, a "Child Account",
and the designated owner of each Child Account, a "ZBA
Customer" for the related ZBA Relationship). Each ZBA
Customer for a ZBA Relationship hereby grants the
Master Account Customer for such ZBA Relationship the
unconditional and irrevocable authority to (i) add to
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such ZBA Relationship new Child Accounts in the name
of and under the tax identification number of any other
Customer and (ii) remove any existing Child Account
from such ZBA Relationship. Only the Agent may
establish a new ZBA Relationship. Only the Agent, on
behalf of the related Master Account Customer and ZBA
Customer(s), or the related Master Account Customer,
on behalf of the related ZBA Customer(s), may modify an
existing ZBA Relationship, including establishing and
modifying the amount of the Target Balance (as defined
below).
2. ZBA Services. At the close of each Business Day
following the day on which the ZBA Services commence,
(i) if the balance in any Child Account exceeds the Target
Balance (i.e., the balance that the Customer wants to
maintain in the Child Account at the end of each
Business Day), then the Bank will transfer the amount of
the balance in excess of the Target Balance from such
Child Account to the related Master Account, and (ii) if
the balance in any Child Account is less than the Target
Balance, then the Bank will transfer funds from the
related Master Account to such Child Account in an
amount which will increase the balance in such Child
Account to the Target Balance. Each Customer agrees
that each transfer of funds described in the foregoing
sentence from a Child Account or Master Account shall
constitute an authorized funds transfer by the related
ZBA Customer or Master Account Customer owning such
Child Account or Master Account, respectively. Each
Customer acknowledges and agrees that the Bank shall
have no obligation or responsibility regarding the
application or use of any funds transferred in
accordance with the terms of this Schedule.
Representations and Warranties. Each Customer
(including the Agent) hereby represents and warrants to
Bank that the transfer of funds described herein, and the
commingling of funds resulting therefrom, does not
violate any law or regulation applicable to the Agent,
such Customer or the funds in the Master Account(s)
and Child Account(s). Bank, in providing the ZBA
Services, is acting and relying upon the foregoing
representations and warranties, and the Customers
agree that the Bank's reliance and actions taken based
on the foregoing representations and warranties do not
constitute negligence or willful misconduct.
4. Indemnity, Covenant Not to Sue. In addition to the
other indemnities set forth in this Agreement, with
respect to each ZBA Relationship, the Agent, the related
Master Account Customer and the related ZBA
Customer(s) each agree, jointly and severally, to
indemnify the Bank for any and all overdrafts in the
related Master Account or other liabilities incurred by
the Bank, resulting from any transfers from such Master
Account to the related Child Account(s) as described in
this Schedule. Each Customer and the Agent covenant
with the Bank that neither will sue the Bank in
connection with any disputes between themselves or
amongst any of the Customers in connection with the
ZBA Services or this Schedule. The provisions of this
Section will survive termination of the Agreement.
5. Termination. Any ZBA Relationship may be terminated
by the Agent or Bank at any time by providing 10 days'
prior written notice of termination to the other parties.
The Bank may immediately terminate the ZBA Services
or any ZBA Relationship upon written notice to the
Agent (including email or other electronic notice) (i)
upon the occurrence of an overdraft in the related
Master Account, after giving effect to any transfer
required hereunder from such Master Account to any
related Child Account after notice and a reasonable
opportunity to cure, or (ii) as otherwise provided in this
Agreement.
6. Guaranty by Agent. To induce the Bank to provide the
ZBA Services to the Customers, the Agent absolutely,
irrevocably and unconditionally guaranty to the Bank the
full and prompt performance and payment when due
(by acceleration or otherwise), of all obligations,
agreements, covenants, liabilities, expenses,
representations and warranties of any Customer to
Bank, whether now existing or hereafter arising, under
or in connection with this Schedule (collectively, the
"Obligations"). The liability of the Agent under this
guaranty shall be absolute and unconditional
irrespective of any lack of genuineness, validity, legality
or enforceability of any document, agreement or
instrument relating thereto or any assignment or
transfer thereof. This is a continuing guaranty and shall
remain in full force and effect and be binding upon the
Agent and its successors and permitted assigns, if any.
This guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment or
performance of the Obligations of any Customer, or any
part thereof, is, upon the insolvency, bankruptcy or
reorganization of such Customer or otherwise pursuant
to applicable law, rescinded or reduced in amount or
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must otherwise be restored or returned by Bank, all as
though such payment or performance had not been
made. Agent authorizes Bank, without notice or demand
and without affecting the Agent's liability hereunder,
from time to time to renew, extend, accelerate,
compromise, settle, restructure, refinance, refund or
otherwise change the amount and time for payment or
performance of the Obligations, or otherwise change the
terms of the Obligations or any part thereof. The
obligations of the Agent hereunder are those of a
primary obligor, and not merely a surety, and are
independent of the Obligations. Agent unconditionally
waives any right to require the Bank to (a) proceed
against any Customer or any other obligor in respect of
the Obligations provided the Bank has first given notice
of default to the Customer and the Agent and the
Customer has failed to cure such default within two (2)
days of the date of such notice; (b) proceed against or
exhaust any security held directly or indirectly on
account of the Obligations; or (c) pursue any other
remedy in the Bank's powers whatsoever. Agent hereby
waives (i) notice of acceptance of this guaranty and of
any extension of any loan or other financial
accommodation by Bank to any Customer; (ii)
presentment and demand for payment of any of the
Obligations; (iii) protest and notice of dishonor or
default to the Agent or to any other party with respect
to any of the Obligations; and (iv) all other notices to
which Agent might otherwise be entitled. Agent agrees
to pay all reasonable attorneys' fees and charges, the
reasonable allocated cost of internal legal services, and
all other reasonable costs and expenses which may be
incurred by the Bank in the enforcement of this
guaranty.
7. General Provisions. Each Customer hereby authorizes
the Agent to request and consent to any waiver or
assignment hereunder for and on behalf of such
Customer. Agent and each Customer agree to advise
Bank promptly of any consolidation, merger, sale or
conveyance of Agent or such Customer or any principal
part of its assets, or the sale or conveyance of any
controlling interest in Agent or such Customer to the
extent Agent or such Customer is no longer affiliated
with Agent and the remaining Customers (either by
common ownership or control), and upon any such
occurrence, Bank shall have the right to immediately
terminate this Schedule and the ZBA Services with
respect to such Customer upon receipt of such notice. In
addition to the amendment provision in Schedule 1 of
the Agreement, it is agreed that this Schedule may be
amended in writing signed by Bank and Agent. In
addition, Agent may, on behalf of all Customers, add
additional Customers to the ZBA Services (each, a "New
Customer") via an amendment, in a form and substance
acceptable to Bank, binding each such New Customer
hereto, and to otherwise act for and on behalf of each
Customer as described in this Schedule.
Schedule 11: Currency Vault Services.
These Currency Vault Service terms set forth how
Customer may place orders with Bank for United States
coin and currency ("Cash Orders") and deliver coin and
currency for deposit with Bank ("Deposits"), and
contract with a third party to maintain a smart safe for
to hold deposits and Cash Orders, each as described
further below (collectively, the "Services").
Armored Deposit Services. Armored Deposit Services
allow customers to make deposits of US currency & coin
(collectively, "Currency") to Customer's Account(s) by
delivery to one or more designated cash vault locations
approved by the Bank (each, a "Vault").
Implementation of Services. Customer must separately
contract with an approved third -party armored courier
("Courier") to deliver deposits consisting of coin and
currency to Bank's cash vault from Customer's
designated locations which are approved through to Set
Up Forms (each, a "Location"). Bank reserves the right
to approve all Customer Locations. The courier acts as
the Customer's legal agent; and Vendor, and is not a
Supplier of Bank.
Submitting Deposits. Customer will provide any deposits
in tamper proof bags. Bank assumes no liability arising
from the pick-up and delivery of these bags by the
Courier. Except for deposits made in a Smart Safe
(defined below) upon pick-up by the Courier the
contents within the deposit bag remain the property of
the Customer and are not considered Deposits until
received at a Vault. Customer agrees that all Currency
that is in the possession of the Courier legally remains in
the Customer's possession until it is physically released
to and accepted by one of the Bank's Vaults.
Credit to Customer's Account. Customer will work with
its Courier to resolve any discrepancy between what
Customer believes it delivered to the Courier and what
was accepted by the Bank. Credit to Customer's
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Account will not be provided prior to verification of
Deposits. The Courier will verify funds provided in the
deposit bag and will be capable of providing electronic
information regarding the amount of Currency
deposited. This information will be provided to Bank by
the Courier. Customer agrees that any discrepancy
between Customer's records and the Bank's records is
waived and the Bank is released from liability for the
discrepancy unless the claim is made by Customer within
thirty (30) days of the date of the disputed Deposit.
Bank agrees to credit Customer's banking Account upon
receipt of electronic information from the Courier.
Amounts received prior to the Bank's cutoff will be
credited same day. Amounts received after cutoff or on
a non -Business day will be credited on the next Business
Day.
Verification of Deposits. Bank's acceptance of a Deposit
constitutes signing for a declared amount; therefore, the
Deposit will not be processed until the contents have
been verified. Bank's findings with respect to the
contents of the Deposit shall be conclusive and binding.
Furthermore, to the extent there is a conflict between
the Bank's records regarding the Deposit and verified
amount and the Customer's records regarding the
Deposit and declared amount, the Bank's records shall
control. Customer acknowledges and agrees that any
credits to the Account based on the declared amount of
the Deposit are provisional until verified by Bank. Bank
will notify Customer if there is a discrepancy between
the declared amount and the verified amount. The
Account will be adjusted accordingly (up or down as the
circumstances require) by Bank. Bank reserves the right
to refuse to provide provisional credit for any Deposits
at its reasonable discretion. Until Bank acknowledges
acceptance of a Deposit by signing Carrier's receipt
book, Bank incurs no liability for loss of any Deposit Bag
or other pouches or bags that are delivered. Bank shall
not be liable to Customer as an insurer of such property.
Change Order Delivery. Change Order Services allow
Customer to order Currency for pick-up by a Courier at a
Vault (a "Change Order") to deliver to one of Customer's
locations.
Ordering Currency. Customer will use an approved
third -party Change Order system ("Change Order
System"), established and maintained by Loomis or
some other Courier, to place Change Orders with Bank.
Customer agrees to the responsibilities contained in this
Agreement with respect to the Change Order System
and Bank may act and rely upon any Instruction received
over the Change Order System that is apparently
originated by Customer. All Orders must be submitted
by the designated Cut-off time for delivery on the next
Business Day. This information will be provided to Bank
from the Courier. Any Order is subject to approval by
Bank dependent on funds available in Customer's
Account at the time of request. When the Courier or
other third -party Servicer communicates a Change Order
to Bank, Bank then agrees to debit Customer's Account
for the amount of the Change Order.
Upon receipt of Customer's Change Order request, Bank
will physically count and bundle the Currency ordered
by Customer and make the Change Order available to
the Courier or any person the Courier has certified is
authorized to act on its behalf for delivery to Customer's
designated Location. Bank shall not be liable for any
loss resulting from any fraud or misrepresentation with
respect to any person's purported authority to act on
behalf of Customer or Courier. A signed receipt or scan
of the shipping manifest by the Courier or its
representative at the Vault will serve as
acknowledgement of their acceptance of the Change
Order on Customer's behalf, which receipt shall, in each
instance, be conclusive evidence of the amount received
by the Courier or its representative and a complete
discharge of Bank as to the amount delivered or said to
be delivered by Bank to the Courier or its
representatives, without regard to whether the Courier
or its representative makes actual physical delivery of
the Change Order to Customer
Discrepancies; Reliance on Courier. Customer must
promptly notify Bank of any discrepancies in the Change
Order, missing Change Orders or other problems with
the Change Order, within one (1) Business Day after
receipt of the Change Order (or date on which such
Change Order was to be received), and provide
documentation to support any such discrepancy as
requested by Bank. Customer agrees that, absent
manifest error, Bank's count of the Change Order is final
and conclusive. In the event that Bank duplicates a
Change Order, it is Customer's responsibility to refuse
delivery of the duplicate Change Order. If delivery of a
duplicate Change Order is accepted, Customer assumes
all liability for the protection of the funds in the
duplicate Cash Order until such time as said funds are
returned to Bank for credit. Bank assumes no liability
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whatsoever in connection with the loss of any
duplicated Change Order. Bank assumes no liability for
actions of the Courier. Any disputes arising from the
Courier's actions will be handed directly between
Customer and the Courier. In the event an error occurs
regarding the amount of cash withdrawn and Bank
reports the misstated amount on Customer's Account,
Bank will subsequently adjust the balance to reflect the
true amount which was withdrawn.
Smart Safe (SafePoint).
The SafePoint service allows Customer to receive
provisional credit for Currency placed in a validated safe
(provided by Customer's Courier) (a "Smart Safe" or
"Safe") installed at Customer's specified Locations to
facilitate the deposit of Currency into Customer's
Accounts with Bank (each, a "Deposit").
Courier Contract. Customer will lease an approved Safe
from Loomis or other Courier approved by Bank.
Customer must enter into a contract with Loomis or
other approved Courier is fully responsible for:
The acquisition by lease or purchase of the Safe, -
Delivery of Currency in the Safe to Bank's cash vault;
The installation and servicing of the Safe and any
necessary building modifications or enhancements, -
Any subsequent removal of the Safe;
Registering the Safe's Location with Bank;
Preparing Deposits to the Safe; and
Maintaining insurance coverage forthe Safe and its
contents.
Bank assumes no liability arising from the purchase,
installation or maintenance of the Safe by Customer
and Bank assumes no liability for the Customer's
relationship with Loomis or other Courier who
maintains the Safe or delivers Safe contents to Bank's
Vault.
Deposits into Smart Safe. Customer shall place Currency
into the Vault to be held in a secure segregated cassette
to hold for further credit and deposit into Customer's
Accounts at Bank (the "Deposit Cassette"). Customer
understands and agrees that Customer will not have any
access to the Deposit Cassette in the Safe that is
installed at the Location. Loomis (including its
successors and assigns, "Loomis"), or a Courier retained
by Loomis, shall have the only access to the Currency
placed into the Deposit Cassette of each Safe. Customer
acknowledges and agrees that the amount of the
Deposit shall not be considered final unless and until the
amount of Currency is received by Bank and reconciled
as set forth below. Customer shall indicate to Bank on
the Set Up Forms those Locations that will use the
Services, either the receipt of Currency or the site of a
Safe, and agrees to provide Bank with no less than thirty
(30) days prior written notice of any addition, change or
removal of a Location. Customer acknowledges and
agrees that Courier will include the address of each of
Customer's Locations using the Services in the Safe File
Totals (defined below).
Information from Safes, Deposit Schedule. The Safe will
be capable of providing electronic information regarding
the amount of Currency deposited and will confirm the
amount of currency contained within in a file sent to
Bank at the end of each Business Day (the "Safe File
Total"). Such Currency amounts are subject to
limitations imposed at the Bank's discretion and
Customer will adopt a Courier transport schedule
necessary to maintain the value of Safe contents within
these limitations. The transport of Currency from
Customer's Locations to Bank's cash vault will occur no
less frequently than once every week unless specifically
agreed to by Bank in writing.
When Loomis or other Courier communicates the Safe
File Total to Bank, upon receipt of the Safe File Total
Bank agreesto provisionally credit Customer's Account.
When Bank grants such credit to Customer, the
Currency in the Safe then becomes the property of
Bank. In the event an error occurs regarding the
amount of Currency and Bank reports the misstated
amount on Customer's Account, Bank will subsequently
adjust the balance to reflect the true amount which was
deposited into the Safe upon receipt of the Currency by
Bank. Customer agrees to indemnify Bank for any
Losses sustained by Bank as the result of any
adjustments made to Customer's Account.
Customer has access to a third -party system to review
SafePoint activity and any such system shall be deemed
a System under the terms of this Agreement.
Delivery of Currency to Bank. Customer shall have the
responsibility with Loomis to deliver the amount of the
Currency placed into the Deposit Cassette at the
frequency agreed upon by Bank and Customer;
provided, that Currency shall be delivered from each
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Location to Bank no less than weekly, unless specifically
agreed to by Bank in writing. Currency in the Safe that is
reported to the Bank prior this cutoff time will be
provisionally credited to the Customer's banking account
the next Business Day. Currency in the Safe that is
reported after the Cutoff Time, or on a non -Business
Day, will be provisionally credited the next Business Day.
The amount of the Currency received by Bank will be
verified against the amount reported by the Safe File
Total(s) to reconcile the amount of the Deposit.
Customer waives any discrepancy between its records
and Bank's records if a claim is not made within (10)
calendar days from the original deposit date. Customer
agrees that, notwithstanding Bank's participation in the
verification process, Customer must resolve with Loomis
or other Courier, and not Bank, any amounts due to
Customer for either: (a) a discrepancy in the amount of
Currency received by Bank in the Deposit and the
amount reported in the Safe File Total(s) pursuant to the
verification process above, and (b) any failure of Bank to
receive Currency removed from any Vault. In the event
of a discrepancy between the amount of the Currency
received for the Deposit and the amount reported in the
Safe File Total(s), the amount of Currency in the Deposit
shall control. Bank will debit from Customer's Account
the amount of any shortage in the amount of Currency
received in the Deposit, or any failure of Bank to receive
the Currency removed from any Vault by the next
Business Day after such Currency is removed.
Funds Availability of Vault Currency. Notwithstanding
the terms of Bank's Funds Availability Policy, Bank will
make available to Customer the amount of funds that
are reported to Bank by Loomis in the Safe File Totals
prior to the Cut -Off Time on the next Business Day. The
amount of the Deposit will be equal to the information
received by Bank as reported in the Safe File Totals for
each of the Locations. Bank shall not be obligated to
credit to an Account or make available any amounts to
Customer in the event of a failure or delay of Loomis to
deliver the Safe File Totals. Any information received in
the Safe File Totals after the Cut -Off Time shall be
deemed to be received as a Deposit on the next Business
Day.
Limitations on Liability and Indemnification. In addition
to any limits on liability set forth in the General Terms
and Conditions, Customer acknowledges and agrees that
Customer and its Courier, not Bank, shall be liable and
hold the Bank harmless for (a) the amount of any
Change Order that Customer alleges is unauthorized, in
an amount not requested by Customer, or does not
arrive to the Customer's Location specified in the
Change Order, (b) in the event the amount of any
Currency in a Deposit is either not received by Bank, or
the amount of Currency received by Bank is in an
amount different than the amount Customer records as
placed into the Bags, Deposit Cassette or is set forth in
the Safe File Total(s) transmitted to Bank with the totals
in the Safe, and (c) action or omissions on behalf of
Customer by Courier.
Termination; Suspension. In addition to the rights of
termination or suspension set forth in the General
Terms and Conditions, Bank may terminate the Services
at any time that the agreement between Bank and
Loomis, or between Customer and Courier is terminated
or suspended.
Schedule 12: TERMS FOR MULTI -ENTITY
CUSTOMER RELATIONSHIPS
1. General Authority. Each Affiliate that is party to this
Agreement as a Customer hereby authorizes the entity
signing as the "Customer" on the Signature Agreement
(for purposes of this Schedule, the "Primary Customer")
to act as agent for each such Customer in connection
with any and all matters relating to the Agreement,
including, without limitation, administering the Services
and originating Transactions (i.e., ACH, wire or check),
issuing Instructions, transmitting deposit data, executing
Set Up Forms, terminating the Agreement, agreeing to
modifications and amendments to the Agreement, and
receiving notices under the Agreement (which will be
effective against the Customers, even if such notices and
communications are sent only to Primary Customer); any
and all such actions by the Primary Customer shall be
binding on the Affiliate Customers. Bank may
conclusively rely on Primary Customer's authority to act
for itself and to bind the Affiliate Customers with respect
to the foregoing. Primary Customer agrees to notify the
Affiliate Customers of any such notices received,
agreements made and actions taken on behalf of any
such Affiliate Customer.
2. Collections. Each Customer hereby agrees that if any
of its Collections (as defined below) are received
through or in any Lockbox or Account now or hereafter
established in the name of Primary Customer or any
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Affiliate Customer (each, a "Commingled Lockbo)e' or
"Commingled Account", respectively), then the Primary
Customer or such Affiliate Customer is authorized to
receive, endorse, negotiate, deposit, withdraw, transfer
and apply such Customer's Collections and take any and
all other actions with respect thereto, all as the Primary
Customer or such Affiliate Customer deems appropriate.
Each Customer understands that such Collections may
be commingled with the funds of other entities.
Therefore, each Customer hereby disclaims and releases
all right, title and interest in its Collections, and hereby
waives any and all legal claims such Customer may have
against Bank based on conversion or any other legal
theory, regulation or statute, due to such commingling.
Each Customer represents and warrants to Bank that no
Collections of a type that, by virtue of a statutory,
regulatory, contractual or other restriction, cannot be
commingled with other funds or payments will be
submitted to or received in any Commingled Lockbox or
Commingled Account. For purposes of this paragraph,
"Collections" shall mean all Checks and other items
(including remotely deposited Checks), electronic funds
transfers, credit card payments and other amounts
payable to or for the benefit of a Customer and all
proceeds thereof.
3. Centralized Electronic Access. Under the terms of the
Agreement, Bank may provide each Customer with
electronic access to the designated Services using IBS or
other System. The Primary Customer has requested, and
subject to the terms hereof the Bank agrees that the
customer identifier used for IBS or other System
assigned by Bank to Primary Customer and other access
credentials for use of an IBS or other System assigned to
or designated as belonging to Primary Customer
(collectively, the "IBS ID") may be used by Primary
Customer and the Affiliate Customers for purposes of
conducting Transactions and using the designated
Services. Each Customer acknowledges and agrees that
(a) the Bank may rely on and act upon any and all
communications or Instructions it receives through IBS
(or other IBS) under Primary Customer's IBS ID or IBS ID
with respect to such Customer's Accounts as
communications or Instructions of such Customer, and
Bank's reliance shall not constitute negligence or willful
misconduct, (b) such Customer shall be bound by (i) the
use of the Services made through the Primary
Customer's IBS ID with respect to the Accounts of such
Customer, (ii) all communications or Instructions Bank
receives through IBS under Primary Customer's IBS ID
with respect to the Accounts of such Customer, (iii) all
Transactions resulting from such communications or
Instructions, including, without limitation, electronic
funds transfers and other disbursements from such
Customer's Accounts, and (iv) all other actions taken by
the Bank with respect to such communications or
Instructions, (c) Bank shall have no liability or
responsibility to notify an Affiliate Customer of any
other entities with which Primary Customer shares its
IBS ID, and (d) only the employees or other Authorized
Persons of each Customer will use the Services and
conduct Transactions using the IBS ID with respect to the
Accounts of such Customer. Each Customer understands
and agrees that the use of the Services affecting each of
such Customer's Accounts may be reflected on certain
records of the Bank as initiated by Primary Customer
using the IBS ID assigned to Primary Customer and not
as having been initiated by such Customer.
4. Primary Customer Special Obligations. In addition to
any other indemnification obligations set forth herein,
Primary Customer agrees to indemnify and hold the
Bank harmless for any and all Losses that the Bank may
suffer or incur in connection with providing the Services
to the Affiliate Customers or any other matters related
to the Agreement, except for Losses attributable to the
Bank's gross negligence or willful misconduct. In
addition, the Primary Customer agrees that it is liable to
Bank for each Affiliate Customer's performance under,
and compliance with, the terms of the Agreement
(including, without limitation, the payment of Fees and
any overdrafts of any kind or other amounts owed to
Bank for the initiation of any ACH, wire or other
electronic funds transfer), and with regard to such
performance and compliance by any Affiliate Customer,
the Bank may enforce the Agreement directly against
Primary Customer without first being required to seek
enforcement against any Affiliate Customer.
5. Representations; Warranties and Covenants. The
Primary Customer hereby represents and warrants to
Bank that each Affiliate Customer is an Affiliate of
Primary Customer, and that Primary Customer has all
necessary power and authority to act for and on behalf
of each Affiliate Customer in connection with the
Agreement, the Services and Accounts. Each Affiliate
Customer hereby represents and warrants to Bank that
it is an Affiliate of Primary Customer, and that all
necessary action was taken by the Affiliate Customer's
governing body to provide Primary Customer all
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necessary power and authority to act on behalf of
Affiliate Customer in connection with the Services and
Accounts of such Affiliate Customer as contemplated by
the Agreement. Each Customer represents and warrants
to Bank that (a) the execution and delivery of this
Agreement has been authorized by all necessary
corporate and governmental action and does not violate
any provision of law applicable to such Customer, or any
provision of such Customer's organizational
documentation or any other agreement binding upon
such Customer, and (b) the person(s) executing and
delivering this Agreement for and on behalf of such
Customer are duly authorized to do so. Each Customer
agrees that Bank's reliance and actions taken based on
the foregoing representations and warranties do not
constitute negligence or willful misconduct. Further,
each Customer hereby agrees that the Bank will not be
liable and such Customer shall not sue or otherwise
make claims against the Bank for or on Account of any
claim for damages arising out of or relating to the Bank
allowing the arrangements contemplated by this
Agreement, including any fraudulent activity or
Instructions resulting from or relating thereto.
6. Customers; Additional Affiliate Customers and new
Services. Each Affiliate Customer hereby acknowledges
and agrees that, from time to time, the Primary
Customer may, without notice to or consent of the
Affiliate Customers (i) join additional entities
("Additional Affiliate Customers") as parties to the
Agreement by duly completing and executing (on behalf
of itself and the Affiliate Customers) an agreement
substantially in the form hereof and acceptable to the
Bank, at which time, such Additional Affiliate Customers
shall have the same rights and obligations as the Affiliate
Customers, and Primary Customer shall have the same
obligations with respect to such Additional Affiliate
Customers as it has for the Affiliate Customers and/or (ii)
subscribe to additional services ("New Services") via an
Additional Services Supplement in a form acceptable to
the Bank signed by the Primary Customer (on behalf of
itself and the Affiliate Customers, including any
Additional Affiliate Customers), at which time such New
Services shall also constitute Services under the
Agreement and hereunder.
511 Page
07.19.2024
CONTACT US
Citywide Banks, a division of HTLF Bank
303.460.4735 or 877.812.1564
1800 Larimer Street, Suite 100
Denver CO 80202
tmsupport@citywidebanks.com
Premier Valley Bank, a division of HTLF Bank
559.256.7765 or 877.812.1568
255 E. River Park Circle Dr., Suite 180
Fresno, CA 93720
tmsuppor@premiervalleybank.com
Minnesota Bank & Trust, a division of HTLF Bank
952.841.9345 or 877.812.1565
7701 France Avenue South Suite 110
Edina, MN 55435-5297
tmsupport@mnbankandtrust.com
Arizona Bank & Trust, a division of HTLF Bank
480.844.4511 or 877.812.1561
2036 E. Camelback Road
Phoenix, AZ 85016
tmsupport@arizbank.com
Illinois Bank & Trust, a division of HTLF Bank
815.637.7868 or 877.812.1558
4571 Guilford Road
Rockford, IL 61107
tmsupport@illinoisbank.com
Wisconsin Bank & Trust, a division of HTLF Bank
608.203.1268 or 877.812.1559
119 Junction Road
Madison, WI 53717
tmsupport@wisconsinbankandtrust.com
Bank of Blue Valley, a division of HTLF Bank
877.346.1412
11935 Riley Street
Overland Park, KS 66213
tmsupport@bankbv.com
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First Bank & Trust, a division of HTLF Bank
9816 Slide Road
877.835.4183
Lubbock, TX 79424
tmsupport@firstbanktexas.com
New Mexico Bank & Trust,
a division of HTLF Bank
Customer Service 877.812.1560
320 Gold Ave SW Suite 100
Albuquerque, NM 87102
tmsupport@nmb-t.com
Dubuque Bank & Trust,
a division of HTLF Bank
Customer Service 877.251.1953
700 Locust Street, Suite 401
Dubuque, IA 52001
tmsupport@dubuquebank.com
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BUSINESS DEPOSIT ACCOUNT AGREEMENT AND DISCLOSURE
This Business Deposit Account Agreement and Disclosure
governs the commercial deposit accounts (each
individually, or collectively, referred to as your "Account")
you open and maintain with HTLF Bank online or at a
Division identified on the "Contact Us" page below ("Bank,"
"we," "us," and "our"). As used herein, "Customer," "you,"
and "your" refers to those who own the Account, and
anyone authorized to access or use the Account. This
Business Deposit Account Agreement and Disclosure
together with any disclosures or related agreements we
provide regarding your Account including our Regulation
CC Funds Availability Disclosure and any rate sheets,
signature card, fee schedules and other Account opening
documents (each a "Schedule") collectively make up the
agreement ("Agreement"). The Agreement governs your
Account and our relationship with you. If you open multiple
Accounts, you may receive a separate Schedule of
information for each Account, but the Agreement will cover
all your commercial Accounts with the Bank. By opening,
using, or continuing to hold your Account, you
acknowledge receipt of the Agreement, and you accept and
agree to the terms and conditions in the Agreement, as
amended from time to time. See the "Contact Us" page
below for the Bank Division's address, phone number and
other contact information.
HTLF Bank Divisions operate in the respective states we
serve, and our names reflect our deep ties to the
communities we serve. However, the Divisions of HTLF
Bank are the same legal entity as HTLF Bank and are not
separately FDIC insured. The FDIC has currently set its
coverage limit at $250,000 for deposit accounts (checking,
savings, money market, and certificates of deposit), and the
combined amounts you have on deposit with any Division
of HTLF Bank are insured by the same depository
institution. You may qualify for more than $250,000 in
coverage at HTLF Bank if you own deposit accounts in
different ownership categories. For further information on
FDIC Insurance see Section 22 (a) and (b) below.
Please read the Agreement carefully. You should keep a
copy of the Agreement and any information we give you
regarding changes to the Agreement for your records while
you maintain your Account with us. You can get a current
copy of the Agreement at any of our branches or through
our website. See the "Contact Us" page for details.
ARBITRATION DISCLOSURE: This Agreement contains an
arbitration provision under which you and the Bank agree
that you and the Bank may resolve any dispute under this
Agreement, related to your Account, or our relationship
with you on an individual basis through binding
arbitration, and that you will have no right to a jury trial
or to resolve the dispute in court. See Section 22(e) and 23
for details.
1. Definitions of Some Terms. As used in this Agreement,
the terms listed below have the meanings provided:
"Account" means you have opened your Account as a
"commercial account" and not as a "consumer account"
used for personal, family or household purposes, and you
have opened it as a sole proprietor or in the name of a
corporation, partnership, or other business, or
governmental entity. You agree that you will not use the
Account for personal, family, or household purposes.
"Affiliate" means any entity that directly or indirectly,
controls, is controlled by, or is under common control of
either party to this Agreement, respectively.
"Available Balance" means the funds available for your
withdrawal or transfer for all uses for which you may use
funds in the Account under this Agreement. See Section 8
for details on how we determine your Available Balance.
"Beneficial Business Owner" means a natural person who
owns at least 25% of a legal entity or has a controlling
interest in the business' assets.
"Business Day" means every day except Saturday, Sunday,
and federal holidays.
"Card" means any debit card we issue to you that you may
use to access your Account.
"Check" means any check, draft, electronic image, or other
negotiable instrument, including substitute checks,
deposited to or from your Account.
"Credit" means a deposit or other addition to your
Account.
"Debit" means a withdrawal or other deduction from your
Account.
"Debts" means all debts and liabilities owed by Customer
to Bank, whether existing now or in the future, whether
direct or contingent, including, without limitation, amounts
for fees or other obligations arising from Overdrafts,
endorsements, guarantees, loans, attachments,
garnishments, levies, fees related to this Agreement or any
Account you maintain with us or any of our Affiliates.
"Electronic Funds Transfer" and "EFT" means any transfer
of funds you make, request, or authorize through an
Business Deposit Account Agreement and Disclosure07192024 Page
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electronic terminal, telephone, or computer or magnetic
tape for the purpose of ordering, instructing, or authorizing
us to process a Debit or Credit to your Account. EFTS
include, without limitation, ATM transactions, Debit Card
transactions and ACH transactions.
"Hold(s)" means that we put a hold on (or "Freeze") some
or all the funds in your Account, meaning that we may
refuse to: (i) allow withdrawals from the Account; (ii) pay
Items drawn against your Account or process other Debit
transactions to your Account; and (iii) accept deposits to
your Account or process other Credit transactions to your
Account. When we place a Hold on funds in your Account,
your Available Balance is reduced by the amount of the
Hold, which may result in our charging Overdraft Fees. See
Sections 7 and 8 and the Schedule for more information.
"Item" means (i) all orders and instructions for payment,
transfer, or withdrawal of funds from your Account
(whether issued or unissued), (ii) all deposits to your
Account, even if returned unpaid, (iii) any other Debits or
Credits to your Account. This includes, without limitation,
checks or substitute checks and purported substitute
checks; drafts or demand drafts; remotely created checks
and items; image replacement documents; Electronic
Funds Transfer and preauthorized electronic transactions;
in -person withdrawals and transfers; withdrawal slips; any
applicable Account Fees; and any written document
created or authorized in your name that would be a check
or draft but for the fact that is has not been signed; deposit
adjustments; and any photocopy or image of any of the
foregoing.
"Losses" means any losses, costs, liabilities, claims,
damages, or expenses (including reasonable attorneys'
fees and court costs).
"Operating Rules" means rules, regulations and operating
rules and operating guidelines established by any Payment
Network, including the regulations and operating circulars
of the Board of Governors of the Federal Reserve. Payment
Network means any money transfer or electronic payments
system or network, check clearing organization, payment
clearing house, real-time payments system, or Card
association, including NACHA, the Electronic Payments
Association, the Board of Governors of the Federal Reserve,
Visa, Inc. and Mastercard Incorporated, used by us or any
correspondent or intermediary bank or other third party in
connection with your transactions and services provided to
you using an Account.
"Overdraft" means an Item or other event that would
result in a negative Available Balance in your Account.
"Owner" or "Joint Owner" means the person(s) owning the
funds in your Account and who has the power to deal with
the Account in their name.
"Security Procedures" shall have the meaning as set forth
in the Uniform Commercial Code.
"Statement" means any Account statement we provide
relating to your Account which shows transactions that
occurred in the period covered by the Statement.
The meanings of defined terms shall equally apply to the
singular and plural forms of the defined terms. The words
"without limitation" shall follow all references to "include,"
"includes," or "including."
2. Changes to the Agreement. We may change the terms
of this Agreement, including the Fees, benefits, and
features associated with your Account, at anytime. We will
notify you in advance of changes as required by applicable
law. By keeping your Account open following the effective
date of any changes to the Agreement, we will consider this
as your acceptance of the changes.
3. Opening Your Account.
(a) Account Ownership. We may determine your
Account's form of ownership based solely upon the
account agreement form ("Account Agreement") you
submitted.
(b) Authorized Representatives. An "Authorized
Representative" is any person authorized to act on your
behalf regarding the Account. Each Authorized
Representative may act alone performing all the
transactions available to your Account, including: (i) making
deposits or withdrawals by whatever means available
(including Electronic Funds Transfers) from your Account,
(ii) obtaining and releasing information regarding your
Account, and (iii) signing or authenticating any document
in connection with your Account. At our request you must
provide us with documentary evidence satisfactory to us
regarding the authority of any Authorized Representative,
such as a resolution or certificate of authority that we may
require. If you are unable, refuse, or otherwise fail to
provide the information outlined below, we may refuse to
open an Account, block, or close your Account. An
Authorized Representative includes: (i) any person listed on
the Account Agreement or designated in any resolution,
certificate of authority, or other documentation Bank may
require, and any other person or agent acting with actual
or apparent authority to transact business on your Account
or otherwise to act on your behalf, (ii) any person to whom
Business Deposit Account Agreement and Disclosure07192024 Paget
Page 2404 of 2498
you make your unissued Checks or other paper Items or
Account number(s) available for purposes of transacting
business on your Account, (iii) any person to whom you
make available any Security Procedures, access device, or
access information even if you provide such in error or
because of fraud. We are not responsible for monitoring or
restricting the actions of your Authorized Representative.
You have sole liability for all actions, errors, omissions,
wrongdoing of an Authorized Representative concerning
your Account, regardless of whether these actions
exceeded the authority given to the Authorized
Representative. We may rely on the instructions
purportedly received by any Authorized Representative,
and you shall not to hold us responsible for any Losses you
incur from our following the instructions given to us by your
Authorized Representative. We may continue to recognize
your designation of an Authorized Representative or other
authorization related to your Account until we have
received written notice from you modifying or revoking this
authorization and we have had reasonable time to act. If
we receive conflicting instructions from your Authorized
Representatives regarding the Account, we may place a
Hold on the Account until such conflict is resolved to our
satisfaction.
(c) Credit Verification. You and any other Owner or signer
on the Account authorize us to request and obtain one or
more credit reports about you and any other Owner or
signer on the Account or signer on any Account for the
purposes of opening, reviewing, or collecting any Account
opened for you, or for any other legitimate business
purpose. You authorize us to disclose information about
your Account to a credit reporting agency including if your
Account was closed for cause.
(d) Identification Notice. Federal law requires certain
financial institutions to obtain, verify, and record
information that identifies each individual and business
opening an Account to help prevent the funding of
terrorism and money laundering activities. When you open
an Account with the Bank, you must provide us with your
business entity name, principal and local (if different)
address, date of establishment, employer identification
number, and other documents that will allow us to verify
the business and any other information we deem necessary
to open your Account. For each Owner or signer on an
Account, we ask the person's name, address, date of birth,
social security number, and other information that will
allow us to verify identity such as the person's license or
other identifying documents. You agree that the Bank may
seek information about you from third parties to confirm
your identity and for other Account related purposes. We
may require these procedures even if you already have an
existing relationship with the Bank.
(e) Beneficial Business Ownership Information. In addition
to the above information, federal law requires the Bank to
collect information reasonably designed to identify and
verify the Beneficial Business Owners of the legal entity
opening an Account with the Bank. The Bank may
occasionally require that you provide additional
documentation to Bank to verify your identity, the
authority of individuals acting on your behalf, the nature
and purpose of that relationship, and other matters
relating to your Account.
(f) Tax Identification Number. You agree to provide us the
accurate Taxpayer Identification Number for the person or
entity listed on the Account. When you execute a signature
card or open an Account with us, you certify the accuracy
of the Taxpayer Identification Number you provided. To
avoid backup withholding tax, you must provide us with an
Internal Revenue Service ("IRS") employee identification
number ("EIN"), Form-9 or Form W-8BEN. Until we receive
the completed and signed Form(s) W-9 or W-8BEN and
supporting information or documentation, we may either:
(i) not pay interest on your Account, or (ii) pay interest and
comply with the IRS backup withholding requirements. If
you own your Account as a sole proprietor, your estate or
beneficiary must provide us with their TIN upon your death.
If we do not receive this, we may either: (i) stop paying
interest on your Account after the date of your death or (ii)
withhold a portion of the interest earned on your Account
since the date of your death.
(g) Change of Address or Customer Information. You
agree to notify us immediately if any of your personal
information changes, including your name, mailing
address, phone number, email address, Taxpayer
Identification Number, or your residency or citizenship. We
may rely on the information in our records unless and until
we receive notice from you that it has changed including
providing notices to you under the Agreement.
(h) Treasury Management Services Agreement. The
Master Treasury Management Services Agreement and
terms and conditions for Services (collectively, the
"MTMSA") govern those treasury management Services
defined in the MTMSA that we provide to our applicable
customers. If we have executed a MTMSA with you or
otherwise provide you with the Services, the MTMSA
governs the Services, and this Agreement governs your
Accounts. The provisions of the MTMSA will prevail over
any conflict between the Agreement and the MTMSA. By
using any of the Services, you accept and agree to the terms
Business Deposit Account Agreement and Disclosure07192024 Page
Page 2405 of 2498
and conditions of the MTMSA for the Services you use, and
this Agreement continues to govern your Accounts.
4. General Terms for All Accounts.
(a) Fees and Charges; Earnings Credits. You agree to pay
us the fees and charges stated in the Schedules and
applicable to your Account, services related to your
Account, and your deposit relationship with us (collectively,
"Fees"). We may deduct these Fees from your Account
even if it creates a negative balance to your Account. We
may change the Fees and pricing information for your
Account from time to time with notice to you. You may
always obtain a copy of any current Fee Schedule by
contacting us. See the "Contact Us" page for details. Unless
you have made other arrangements to pay the Fees, or the
Bank has agreed to allow you to pay Fees through account
analysis or compensating balances, you authorize us to
debit your Account or any other Accounts you hold with us
or any Affiliate for the payment of any Fees related to your
Account and any other Debts you owe us under the
Agreement regardless of whether the Fee results in an
Overdraft of your Account. For Electronic Funds Transfers,
we may deduct our Fees from the proceeds of such
Transfers. A finance charge may apply to unpaid amounts
due to us. If earnings credit accrues on your Account, you
will receive information regarding the earnings credit rate,
and the Bank will periodically apply your accrued earnings
credit to eligible charges unless the Bank otherwise
indicates in writing. If your earnings credit exceeds your
total maintenance and activity fees for the statement cycle
for your Account, we will not pay the excess credit to you,
and it will not carry forward to the following statement
cycle.
(b) Statements. Unless otherwise provided in the
Schedule for your Account, we will send or make available
monthly Statements to you. You must notify us in writing
within thirty (30) days if you do not receive a scheduled
Statement. We will also occasionally provide you other
information related to your Account, which may include
disclosures, messages, and other information or data
relating to the Agreement or your Account (together these
are referred to as "Communications" or a
"Communication"). Depending on the type of Account, we
will send you Statements to your mailing address or provide
you access to electronic Statements. You must notify us of
your correct mailing address or e-mail address and
updating us of any changes to either address by providing
us with written notice. We will provide Communications to
you by sending them separately to your mailing address,
including them with a Statement or, if authorized, via
electronic communication. Notwithstanding any terms
regarding notices under this Agreement, we will have
delivered mailed Statements and Communications as of the
second Business Day following the day we mailed a
Statement or Communication to your mailing address or as
of the first day we made a Statement or Communication
available to you for viewing via electronic communication.
Unless otherwise prohibited by applicable law, if we
receive Account Information sent to you marked as
returned as undeliverable, we may discontinue mailing
Account Information to you until you provide a valid
address to us, although we will consider them available to
you as set forth in this Section above. We may destroy any
Statements or Communications sent to you and returned
as undeliverable.
(c) Freezing Your Account, Blocking or Delaying
Transactions. You agree that we may reject, freeze,
reverse, or delay any transaction to or from your Account
or place a Hold on some or all of the funds in your Account
in order to protect you or the Bank or to comply with
applicable law, including when (i) we believe your Account
may be subject to irregular, fraudulent, illegal or
unauthorized activity, (ii) we receive conflicting
information or instructions regarding Account ownership,
control or activity, or (iii) we otherwise believe that such
action is necessary to avoid Losses or reduce risk to us or
you. We will have no liability for any actions we take
hereunder or for any costs or Fees incurred by any delay,
and we may take such action without prior notice unless
prohibited by applicable law but with prompt notice to you
thereafter. This paragraph does not imply that the Bank has
an obligation to monitor Accounts or transactions.
(d) Unauthorized Transactions and Errors. You agree to
carefully examine and reconcile your Account Statements.
You must promptly and carefully review all Statements or
Communications we provide to you, (together referred to
as "Account Information") and report any transactions that
you did not authorize or other errors or problems with your
Account like the payment of an unauthorized (including
counterfeit) check, Item or other activity charged to your
Account; unauthorized access; an unauthorized or
incorrect debit or other charge to your Account; an altered
Check charged to your Account; a Check with a missing or
unauthorized signature; erroneous fee charges, credits,
debits, or other entries including ACH entries; missing or
incorrect deposits and other credits; and other problems
with or activity in your Account, or errors in your Statement
Business Deposit Account Agreement and Disclosure07192024 Page
Page 2406 of 2498
(each, an "Account Issue"). You agree to implement,
maintain, and enforce commercially reasonable
procedures to prevent fraud, misuse, and the unauthorized
use of the Account. You must promptly and carefully
examine and reconcile all Account Information available to
you and notify us of any Account Issue as soon as possible
and to cooperate with us at your expense in any
investigation of an Account Issue, including providing an
appropriate affidavit or filing a police report as we may
reasonably request. We may delay acting on the Account
Problem until we complete our investigation. If you fail to
cooperate with us, we will have no liability for the Account
Issue. Your failure to exercise reasonable care in examining
your Account Information or provide reasonably prompt
notice to us may affect any rights you may have against us
with respect to the Account Issue.
You must notify us of any claim you may have with respect
to any Account Issue within a reasonable time under the
circumstances but not to exceed 30 days after the date we
sent or otherwise made available to you the Account
Information indicating the Account Issue. If you fail to
notify us promptly within this timeframe: (i) it will
constitute your failure to exercise reasonable care and
promptness in examining your Account Information, (ii) any
Item charged to your Account is fully enforceable against
you, (iii) we will have no obligation to re -credit or refund
the amount of the Account Problem; (iv) you will hold the
Bank harmless for the amount of such losses that we could
have reasonably prevented, (v) we will have no liability for
any subsequent Items we pay in good faith which contain
an unauthorized signature or alteration by the same person
unless you notify us within ten (10) calendar days after you
have first learned of such Account Issue with the Account
Information, and (vi) we will consider the Account
Information to correctly reflect your transactions, such as
deposits, withdrawals, refunds, imposition of fees, interest
or dividends, and other debits and credits to your Account
unless you notify us in writing. You can notify us of any
Account Issues by calling or writing the Bank at the phone
number and address provided on this Agreement. We may
provisionally credit your Account during our investigation
regarding an Account Issue for all or a portion of the
amount claimed but we have no obligation to do so. We
may reverse this credit if: (i) you fail to submit or sign
documents required by us, (ii) you fail to cooperate fully
with our investigation of the claim or our efforts to recover
funds related to the claim, or (iii) we determine that the
transaction that gave rise to the claim was proper. If you or
we (or both of us together) make an error on your Account,
we may fix that error without first notifying you including
the amount paid on your Items for the incorrect amount,
an incorrectly added deposit to your Account, or we apply
a deposit to the wrong account.
(e) Security Interest and Setoff. You grant us a lien on, and
security interest, in all Accounts owned by you and held
with us to secure payment of any Debts you owe us,
including any Fees we may have against you. If you fail to
pay any Debt you owe us when that Debt becomes due, we
may enforce our lien and security interest without demand
and without notifying you in advance unless applicable law
requires otherwise. You agree that this includes the right to
set-off against all future deposits to your Account, including
deposits of government benefits, subject to applicable law.
Our enforcement of our right to deduct funds from your
Account through set-off or our lien and security interest in
your Account will reduce your Available Balance and may
result in Overdrafts, interest penalties, early withdrawal
penalties or other Fees to you. You agree that we have no
liability for any Item dishonored because we set-off a Debt
against your Account, and you have insufficient funds left
to pay the Item. Our rights under this paragraph do not
apply if you hold the Account in a representative, agency,
or fiduciary capacity. The rights granted in this paragraph
are in addition to any other rights of the Bank, including the
rights the Bank has under other security documents with
you.
(f) Interest. If your Account earns interest, we will pay
interest at the annual rate of interest specified on the
applicable Schedule we provide to you. The Schedule sets
forth the frequency of interest payments, the frequency of
interest compounding and crediting, the interest accrual
basis, the balance on which interest will be paid, and any
minimum balance requirements. If your Account has a
variable interest rate, we have the right to change the rates
and Fees in accordance with the terms of the Schedule,
without limits and without notice. The applicable Schedule
will indicate the early withdrawal penalty for certificate of
deposit Accounts, if any. Interest begins to accrue no later
than the Business Day we receive credit for the deposit of
noncash Items (for example, checks). For deposits made by
cash or Electronic Funds Transfers, interest begins to
accrue on the Business Day of your deposit.
S. Electronic Funds Transfers. The following terms apply
to Electronic Funds Transfers you initiate from your
Account, and we receive into your Account. If you have
entered into a separate agreement for Electronic Funds
Transfers with Bank, that separate agreement will govern
such Services, the origination of Payment Orders (defined
below), and control if inconsistent with the terms below.
The instructions you provide to us for such payments or
Electronic Funds Transfers (including amendments and
Business Deposit Account Agreement and Disclosure07192024 Pages
Page 2407 of 2498
cancellations) shall have the same meaning as "Payment
Orders" as defined in the Uniform Commercial Code.
(a) Submitting and Accepting Payment Orders: Resection.
We may accept a Payment Order pursuant to the terms of
this Agreement in our sole discretion. We may refuse to
accept any Payment Order for any reason, including your
failure to maintain a sufficient balance in an Account or
failure to use the Security Procedures when originating the
Payment Order. If we reject any Payment Order, we will
attempt to notify you through a status report on one of our
electronic information reporting systems or by other
reasonable means within a reasonable time, but we will
have no liability to you based on any failure or delay in
providing such notice. We will also attempt to notify you if
we receive a return of an Electronic Funds Transfer, but we
will have no liability to you based on any failure or delay in
providing such notice. We have no obligation to re -send an
Electronic Funds Transfer that is returned to us if we
complied with the original Payment Order.
(b) Security Procedures. You agree to submit Payment
Orders in compliance with the Security Procedures
established by the Bank and made available to you. We
offer certain Security Procedures for the origination of
Payment Orders and sending Electronic Funds Transfers,
and you must review and choose from among these
Security Procedures. You must choose a commercially
reasonable Security Procedure for the type, amount, and
frequency of Payment Orders you originate. By originating
a Payment Order and using an Electronic Funds Transfer
service, you agree that the Security Procedures you choose
constitute a commercially reasonable method of
preventing unauthorized Payment Orders. We may process
any Payment Order (including any cancellation or
modification of a Payment Order) that we in good faith
believe you or your Authorized Representatives have
transmitted or authorized if we receive such Payment
Order in compliance with your Security Procedures even if
you have not authorized it. You will have the obligation to
pay us the amount of such Electronic Funds Transfers made
based upon such Payment Orders, even if you have not
authorized them. If you initiate a Payment Order to the
Bank that varies from the Security Procedures, and if the
Bank accepts the Payment Order in good faith, you will
have the obligation to pay such Payment Order even if you
have not authorized it. You will have the obligation to pay
any Payment Order even if the Bank does not verify it in
compliance with the Security Procedures if you issued the
Payment Order or otherwise benefited from the Electronic
Funds Transfer. You acknowledge that the Security
Procedures verify the authenticity of the Payment Order
and do not detect errors.
(c) Processing Payment Orders. If a Payment Order
identifies a beneficiary by both name and identifying
number, and the name and number identify different
persons or account holders, a financial institution may
process the Payment Order solely on the identifying
number. If a Payment Order identifies an intermediary
bank or beneficiary bank by both name and an identifying
number and the name and number identify different
entities, the financial institution may process the Payment
Order solely on the identifying number. In the absence of
specific written instruction, Bank will choose the Payment
Network processor and intermediary banks as necessary to
carry out your Payment Order and shall have no liability for
selecting such Payment Network or intermediary bank in
good faith.
(d) Cancellation or Amendment. You may not cancel,
amend, or modify Payment Orders you submit for outgoing
Electronic Funds Transfers after you have submitted it to
the Bank. If the Bank receives an amendment or
cancellation request before the Bank has executed the
Payment Order, we may make a reasonable effort to act on
your request, but we have no obligation to do so. If the
Bank acts on a cancellation or amendment instruction, you
will indemnify the Bank from any Losses we incur related to
the cancellation or amendment. The Bank will have no
liability to you or any third party if it does not complete the
requested cancellation or amendment, and you will have
the obligation to pay the Payment Order as transmitted.
(e) Credits Received from Electronic Funds Transfers. Any
credit we receive for you from an ACH credit entry, wire
transfer, or other Electronic Funds Transfer received to
your Account remains provisional until we receive final
settlement for such transaction through a Federal Reserve
Bank. If we do not receive final settlement, we may refund
of the amount credited to your Account in connection with
such Electronic Funds Transfer, or you will otherwise
reimburse us if you have insufficient funds in your Account
and the originating party making payment to you by such
entry will not constitute payment to you for such Electronic
Funds Transfer. We do not have to notify you of any receipt
of Electronic Funds Transfers other than the notice you
receive in your Statement, and we will not give you notice
of receipt of an ACH entry, wire transfer, or other Electronic
Funds Transfer received in your Account.
(f) Payment. You agree to pay us the amount of any
Electronic Funds Transfer we execute on any Payment
Order accepted in good faith. You also agree to pay us the
amount of any charges applicable to Electronic Funds
Business Deposit Account Agreement and Disclosure07192024 Page
Page 2408 of 2498
Transfer including those assessed by a Payment Network or
other third party.
(g) Transfers in Foreign Currency and International Wire
Transfers. Any Payment Order initiated in a currency other
than U.S. Dollars shall first require that you validly purchase
such foreign currency from the Bank or its correspondent
bank. Unless otherwise agreed between the Bank and you,
the Bank will report to you the value of any such Electronic
Funds Transfer in the U.S. Dollar equivalent of the amount
of foreign currency transferred. We will charge any loss of
exchange arising from a subsequent cancellation of such
Payment Order or because of a rejection of delivery for any
reason to your Account. You agree that if the Bank utilizes
the services of other banks for the purpose of giving effect
to any Payment Order in foreign currency, then the Bank
does so at your risk.
The Bank's Fees only cover costs of for international wire
transfers; we may incur additional costs or fees we have no
control over during processing, and you agree to pay any
such additional costs or fees. In addition, foreign countries
and their subdivisions, any intermediary bank and the
beneficiary's bank may charge transfer taxes and other
transfer fees that will reduce the amount received by the
beneficiary. You must comply with all laws relating to the
transfer of funds to or from foreign countries, individuals,
or agencies. Noncompliance may result in the delay of wire
transfers, fines equivalent to a percentage of the principal,
or confiscation of the entire principal amount of the wire
transfer if an attempt is made to transfer funds to a
sanctioned individual, agency, or country.
(h) International Wire Transfers. For Payment Orders to
execute an international Electronic Funds Transfer: (i) the
Bank may issue separate Security Procedures and
directions relating to the origination of international wire
transactions by Customer which shall replace or
supplement those for domestic wire transfers, (ii) you
accept the sole risk and responsibility for international
Electronic Funds Transfers including reimbursement of the
Bank's fees, expenses, and legal fees, and subject to all laws
or decrees of any domestic or foreign government, taxing
or postal authority, or other agency at the time you initiate
the Electronic Funds Transfer, (iii) in the event that there is
a delay in wire transmission or an interruption in a wire
transmission, the Bank will request the intermediary
institution(s) honor the stated value date, but the Bank has
no responsibility for the actual value applied for crediting
funds to the payee, (iv) for international Payment Orders,
the Bank does not guarantee that its correspondents or
agents can or will make payment in U.S. Dollars, nor does
the Bank guarantee that some other bank or banker will
make a charge affecting any Electronic Funds Transfer
initiated by the Bank, and (v) Customer understands that
each intended beneficiary or an Electronic Funds Transfer
initiated by the Bank at Customer's request will be
compared to a list published and updated by the U.S.
Department of Commerce Office of Antiboycott
Compliance or Special Designated Nationals and Blocked
Persons List as published and updated by the Office of
Foreign Assets Control of the U.S. Treasury Department
(collectively, the "OFAC List"). If the name of the intended
beneficiary of a Payment Order appears on the OFAC list,
the Bank will, under no circumstances, transmit the
requested Payment Order. Customer agrees that the Bank
has no obligation to transmit a Payment Order when the
name of the intended beneficiary appears on the OFAC List,
and furthermore, Customer agrees that the Bank will have
no liability for any damages, direct or indirect, arising from
the Bank's refusal to transmit a Payment Order to an
intended beneficiary whose name appears on the OFAC List
or holding such amount of funds as required by applicable
laws.
(i) Liability. In addition to our limits on liability elsewhere
in this Agreement, if the Bank fails to exercise ordinary care
resulting in a failure, delay, or improper execution of a
Payment Order, the Bank's liability shall be limited to an
amount equal to interest losses attributable to such failure,
delay or improper execution calculated by using a rate
equal to the average Federal Funds rate for that period;
provided, however we shall have no liability if such failure,
delay, or improper execution arises from any Payment
Network.
(j) Reliance on Information In Payment Order. You have
the sole responsibility for the content of each Payment
Order and the accuracy and completeness of the
information contained therein. The Bank will rely on the
information contained in the Payment Order when
processing your instructions. No instructions or other
restrictions accompanying your Payment Order shall be
effective unless expressly accepted and agreed to in writing
by the Bank. The Bank may in its sole discretion require
evidence of the authority of the person submitting the
Payment Order to act on your behalf before accepting it for
processing but has no obligation to do so.
(k) Returned Wire Transfers (Incoming and Outgoing). In
the case where wire transfer instructions or Payment Order
details do not match account information for any incoming
Transfer, the Bank will return funds to the originator, and
we may charge you Fees for such return. If your outgoing
wire Payment Order details do not match account
information for any outgoing Electronic Funds Transfer, the
Business Deposit Account Agreement and Disclosure07192024 Page
Page 2409 of 2498
receiving bank may return the funds, and we or the
receiving bank may charge you Fees.
6. Posting Order. Posting order is the order in which we
apply Credits and Debits, including Fees, and other Items to
your Account. The posting order impacts your Available
Balance and may impact whether your Account becomes
overdrawn and the amount of Overdraft Fees you incur.
We have the right to post Items to your Account in any
order we decide, and we may change our posting order at
any time without notice to you.
(a) End -of -Day Processing. We receive Items at different
times throughout the Business Day, but we generally treat
them as if we received all Items at the same time at the end
of the Business Day. We then post the Items to your
Account using automated systems that group Items into
categories based on the Item type. We generally post all
Items within a category using the posting order or orders
that apply to that category before we post any Items
assigned to the next category. Items may not post to your
Account in the order in which they occurred, we received
them, or which Items appear in your Account history,
including your Statements. We often do not receive or post
debit Items on the same day you initiate or authorize them.
(b) General Categories. Order of Posting. The following
describes a summary of the order in which we generally
post Items to your Account. It represents the most common
types of Items within each category, but we may process
other Items to your Account although not specifically listed
below.
(i) Deposits and other credits to your Account. We will
post Deposits and other Credits we receive prior to our
identified cutoff times, which we reference in our
Regulation CC Funds Availability Disclosure to your
Account before we post any withdrawals or other
debits to your Account.
(ii) Debits (Excluding Checks). After posting all
deposits, we will post all debits, except for checks, to
your Account. We organize these debits into
categories and post them in the following order: (i)
ATM debit transactions and withdrawals with our
Tellers, (ii) Card transactions, (iii) wire transfers and
other Items that cannot be returned or recalled, and
(iv) ACH transactions. Within each category, we post
Items in order of the date and time associated with
each transaction ("timestamp") from earliest to latest.
We timestamp each transaction based upon either the
time of preauthorization, or the time we processed the
transaction without pre -authorization.
(iii) Check Transactions. We will post all checks drawn
against your Account next. We organize checks into
categories and post them in the following order: (i)
checks payable from funds on deposit with us
(sometimes referred to as "on -us" checks) and
presented to us for cash payment, and (ii) all other
checks. Within each category, we post all checks
without a check number first in order from lowest to
highest dollar amount, which include checks with
illegible or otherwise unavailable check numbers. We
next post checks with check numbers in order from
lowest check number to highest check number.
(iv) Fees. We will post Overdraft Fees at the time the
overdrawn Item posts. Other Fees will post at the close
of business when they occur, and we assess them.
7. Insufficient Funds and Overdrafts. Insufficient funds
mean you do not have enough funds in your Account to pay
for a withdrawal or Debit Item presented against your
Account. If you have insufficient funds in your Account to
cover any withdrawal or Debit Items presented against
your Account, we will handle such Items in accordance with
our Overdraft procedures described in Section 9 below or
in accordance with any other agreement you may have
with us such as an agreement for an Overdraft protection
program. An Overdraft occurs when the Available Balance
in your Account has insufficient funds to cover a
transaction, but we pay it anyway. We have no obligation
to pay any transaction if your Available Balance has
insufficient funds to cover it, and we may choose to return
the transaction unpaid in our sole discretion, and we may
charge you a Fee. See Section 8 below, for more
information on how we determine your Available Balance.
Even if we have paid Overdraft Items in the past, we have
no obligation to do so in the future. Our payment of an
Overdraft does not represent an application for credit or
our approval of an extension of credit.
(a) Avoiding Overdrafts. You must maintain sufficient
funds in your Account to cover your Items and your use of
the Account. We have options available to help you keep
track of your Items, including through Online Banking and
Mobile Banking, Low Balance and Negative Balance Alerts,
Overdraft Transfer, and an unsecured line of credit
attached to your Account. We also offer several options
that may help you manage Overdrafts including Overdraft
Privilege, as described below.
(b) Fees. We may assess a Fee on each Item that will
overdraw your Account whether we pay it or not (including
a second or subsequent request for payment presented for
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the same transaction), which we refer to as an "Overdraft
Fee." We will assess an Overdraft Fee for each Item we pay
that overdraws your Account or while your Account
remains overdrawn. If we return a transaction unpaid for
insufficient funds for any reason, we may charge you a Fee.
Please refer to the applicable Schedule for more
information about these Fees.
(c) Your Responsibility. You must promptly pay the
amount of any Overdraft or any other negative Account
balance along with any applicable Fees. You agree to
immediately deposit funds into your Account sufficient to
cover any Overdraft plus applicable Fees. If you have a Joint
Account, all Joint Owners will have joint and several liability
for any Overdraft plus applicable Fees, regardless of which
Owner initiated the transaction that resulted in the
Overdraft. If you do not meet these obligations, we may
charge you additional Fees, close your Account, revoke any
Overdraft Privileges you may have, report you to a credit
reporting agency, or all of these. You authorize us to use
the funds from any subsequent deposit to your Account to
pay any Overdraft and resulting Fees, including any federal
or state benefits if permitted by applicable law. If you do
not want your benefits applied in this way, you can change
your direct deposit instructions with your benefits payor at
any time.
8. Your Available Balance. Your Available Balance
represents the most current record we have of the amount
of money in your Account you currently have available for
withdrawal. We update your Available Balance throughout
the Business Day. Your Available Balance will increase when
Credits to your Account become available for use based on
our Regulation CC Funds Availability Disclosure. Your
Available Balance will decrease when withdrawals and
other Debits (including Fees) post to your Account for
payments made against it. Holds and pending Items
received throughout the Business Day can also reduce your
Available Balance. You must always monitor your Accounts
carefully because we may charge you Fees in the event you
overdraw your Account. We may not receive some of your
transactions for payment and post them to your Account
for debiting promptly after you initiate them, but you still
must keep track of them to ensure that you have a
sufficient Available Balance when we receive those
transactions for payment, and we post them to your
Account.
(a) Pending Transactions. Your Available Balance only
reflects transactions once we become aware of them. It
may not include every transaction you have initiated, such
as your outstanding checks or recurring payments that you
have scheduled in advance. If you review your Account
during the day, you may see some transactions as
"pending." Pending transactions reduce your Available
Balance, but they have not yet posted to your Account for
payment. Once we make payment on the Item, pending
transactions will post to your Account as described in
Section 6 above. However, we may still return a pending
transaction unpaid if you have an insufficient Available
Balance to pay it during end -of -day processing.
(b) Holds. Holds placed on your Account can also reduce
your Available Balance. While your Account funds have a
Hold on them, you have no access to those funds for
withdrawal or to pay other Items received. We may place
Holds on your Account for a variety of reasons, including
levies or garnishments on your Account, when you make a
purchase with your Card, or in accordance with the
Regulation CC Funds Availability Disclosure. For Card
purchases, the merchant requests the Bank to authorize
the transaction to ensure that your Account has sufficient
funds, and the Bank places a Hold on your Account for the
purchase amount the merchant provides. It may take
several days before your Card purchase posts to your
Account, and that may also cause an Overdraft if you have
insufficient funds in your Available Balance to cover it at
that time, even if you had sufficient funds in your Available
Balance when the Bank authorized your Card transaction.
We generally do not show Holds or distinguish between
available and unavailable funds in your Account balance on
your Statement, so when you review your Statement, it
may appear that you had sufficient funds in your Account
to pay for an Item for which you incurred a Fee.
(c) Bank -Initiated Transactions. Certain Bank -initiated
transactions may also reduce your Available Balance,
including: (i) any lien on or security interest in your
Account, (ii) any set-off we may exercise against your
Account, (iii) any deduction we may make from your
Account because of a dispute, legal process, reversed
deposit or other reason; (iv) any Item if we receive notice
that the Item will be presented for payment or collection
against your Account, (v) any checks we certify, or (vi) any
other deduction to your Account permitted by the
Agreement.
(d) Determining Overdrafts. We may look at your
Available Balance to determine whether payment of an
Item will create an Overdraft at any time between the time
we receive the Item and the deadline for us to act on the
Item. We have no obligation to make this determination
more than one (1) time during this period. Please note that
we occasionally authorize a transaction at a time when
your Available Balance has sufficient funds to cover it, but
because other transactions post before it and reduce your
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Available Balance, the transaction creates an Overdraft
when we post it to your Account. If we get a batch or
multiple batches of Items in a Business Day, and if one,
some, or all those Items would overdraw your Account if
paid, we will generally post Items in accordance with the
procedures described in Section 6. This may result in larger
dollar Items being processed before small dollar Items,
even though this would have the effect of reducing your
Available Balance more quickly.
9. Overdraft Privilege; Other Overdraft Protection
Options.
(a) Overdraft Privilege. If you maintain your Account in
good standing, we may offer your Account Overdraft
Privileges, an automated service for approving your
Overdrafts up to a pre -determined limit. With Overdraft
Privilege, the Bank may in its sole discretion pay certain
Items that overdraw your Account, such as checks, Card
transactions, and automatic bill payments. If we choose to
pay an Item that overdraws your Account with Overdraft
Privilege, we will charge you a fee for the Overdraft. You
also have the option to cancel Overdraft Privilege and
direct the Bank to return Items that would cause an
Overdraft, but you may have responsibility for any
applicable returned Item fees. Maintaining your Account in
good standing includes, at minimum: (i) making regular
deposits consistent with your past practices, (ii) promptly
returning your Account to a positive balance in the event
your Account becomes overdrawn, (iii) not defaulting on
any loan or other obligation to us, and (iv) having no legal
or administrative order or other legal process against your
Account. See the applicable Schedule for your Account for
details on your Overdraft Privilege options. Overdraft
Privileges do not constitute a line of credit, and Overdraft
payments remain at the Bank's discretion and are not
guaranteed. We may cease our payment of Overdrafts with
Overdraft Privilege at any time without prior notice or
cause.
(b) Fees and Charges. We will continue to charge you all
applicable Overdraft Fees and include them in the
Overdraft Privilege coverage limit. You must promptly pay
the total Overdraft Privilege balance on your Account and
applicable Fees to remain in good standing.
(c) Other Overdraft Protection Options. You may also
choose other options to avoid Overdraft Fees. With
"Overdraft Transfers" you may choose to have Overdraft
protection from another checking or savings Account from
which we will automatically transfer funds to cover
Overdrafts. We also offer lines of credit products that may
provide Overdraft protection by advancing funds to cover
Overdrafts subject to availability on the line. For more
information regarding availability of these options please
contact us.
10. Deposits to Your Account. The following terms apply
to deposits and other credits to your Account.
(a) Making Deposits. You may make deposits in person at
one of our branches, by mail, electronically, or by any other
means we make available to you. In addition to any other
warranties you provide to us under applicable law or under
the Agreement regarding Items you deposit or cash, for
each Item that you deposit or cash you warrant that: (i) all
signatures on the Item are authentic and authorized, (ii)
you have the right to enforce the Item, (iii) the Item has no
changes or alterations, (iv) the Item is valid, and (v) there
are no claims made against the Item. You authorize us to
accept all transfers, checks, and other Items for deposit to
your Account from anyone at any time if made payable to
you or to your order. We will have no responsibility for a
deposit until we have received and accepted it. We may
refuse to accept all or any part of any deposit in our sole
discretion at any time, even after we initially accept it, or
we may impose conditions on any deposit. We will verify
Items deposited before we issue any deposit receipts.
(b) Remotely Created Checks. A "remotely created check"
is a check created by the payee and not signed by the
account Owner. You agree that you will not create any
remotely created checks unless we separately agree in
writing to allow such activity. If you attempt to deposit a
remotely created check in your Account, we may accept it
for deposit, refuse it, or accept it as a conditional deposit
until we collect the amount, in which case our Regulation
CC Funds Availability Disclosure will not apply. When you
deposit a remotely created check in your Account, you
warrant and agree that: (i) you have received express and
verifiable authorization to create the check in the amount
and to the payee that appears on the check, (ii) you will
maintain proof of the authorization for at least two (2)
years from the date of the authorization, and supply us the
proof if we ask, (iii) if the check is returned, you owe us the
amount of the check, regardless of when the check is
returned, and (iv) you will pay all costs incurred by the Bank
in depositing the check in your Account. We may take funds
from your Account to pay the amount you owe us, which
will reduce your Available Balance and may result in
Overdrafts. In the event a warranty claim is made pursuant
to Regulation CC in relation to a remotely created check
you present to us, we have the right to charge any of your
Accounts.
Business Deposit Account Agreement and Disclosure07192024 Page10
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(c) Notice of Deposits. We do not have to notify you of any
order to deposit funds to your Account other than the
notice you receive in your Statement.
(d) Collection Items. We may handle checks and other
paper Items as "collection items" instead of deposits. This
means that instead of accepting the Item for deposit into
your Account, we will send the Item to the issuer's bank for
payment and credit your Account when we receive
payment for the Item. We may charge a Fee for this service;
see the applicable Schedule for your Account for details. If
the collection Item is returned unpaid, we will return it to
you.
(e) Check Cashing. We may refuse to cash a check or other
noncash Item payable to you and require you to deposit the
Item into your Account instead of cashing it. If we cash a
check or other noncash Item for you, we may put a Hold on
your Account for a corresponding amount until we collect
it or must release it under applicable law.
(f) Crediting of Deposits; Returns. We will credit all non -
cash Items deposited to your Account subject to our receipt
of final payment by the payor bank. When you make a non -
cash deposit and we credit your Account for that deposit,
this credit is provisional (temporary) until we receive
payment on it. We may reverse or otherwise adjust any
deposit or other Credit erroneously made to your Account
at any time and without prior notice to you. We may charge
back or otherwise Debit your Account or other Accounts
you hold with us for any deposited Item returned unpaid
for any reason, even if you have made withdrawals against
it, if we do not receive final payment of any Item or there is
another problem related to the Item (for example, that the
Item was altered or forged). If your Available Balance has
insufficient funds to cover the amount of the returned Item
plus any applicable Fees, it may create an Overdraft. You
authorize us to do one or all of the following with respect
to a returned Item without prior notice and at any time: (i)
charge your Account or any other Accounts you have with
us for the amount of the returned Item, any interest paid
on that Item and any other fee we pay or incur, (ii) put a
Hold on your Account or any other Accounts you have with
us for the amount of the Item until we resolve the claim or
problem, (iii) resubmit the Item for payment by any means
or attempt to collect the Item by other means, and (iv) pay
any claim related to the Item.
If we return an Item, the party that presented the item for
payment may have the right to make a second or
subsequent request for payment. If we receive such a
second or subsequent request for payment, we will treat
the request as a separate Item different from the Item(s)
previously presented. This means that if a second or
subsequent request for payment is made, and it again
exceeds the available balance on your Account atthattime,
we may either pay or return the Item. If we pay the Item,
we may charge an Overdraft and Returned Item Fee. In
connection with the return of an Item, we will have no duty
to question the facts asserted to assess the timeliness of
any claim or to assert any defense. If a charged back Item
becomes lost in the process of collection or unavailable for
return, we may rely upon a photocopy of the Item or upon
any other generally accepted notification of return of the
Item.
(g) Restriction on In -Branch Deposits. Large cash deposits
present a safety issue for Bank employees and customers;
therefore, Bank reserves the right to refuse cash deposits
to your Account that are presented at a branch location
that exceed an amount the Bank may establish from time
to time.
(h) Deposit Reconciliation. The amount shown on your
deposit slip or otherwise provided when you make your
deposit determines the amount of your deposit. After you
make your deposit, we may verify the accuracy of the
deposit amount, although we may not do so in every case.
If our verification determines an inaccurate deposit
amount, we may adjust your Account for any discrepancy
by Credit or Debit. If you discover an error in your Account,
we may adjust only if you notify us of the discrepancy
within thirty (30) days of the date of your Account
statement that shows the deposit. If you do not notify us of
the error during this notice period, we will consider the
deposit amount as final. We may change our standard
adjustment amount at any time without notice to you.
11. Withdrawals From Your Account. The following terms
apply to withdrawals from and other debits to your
Account:
(a) Making Withdrawals. You may make withdrawals from
your Account in any manner permitted by us for the type
of Account that you have opened. When you ask for a
withdrawal in person, we may require you to show
identification or other evidence satisfactory to us proving
that you are authorized to make withdrawals. We may
restrict withdrawals and transfers from your Account as
provided in this Agreement, applicable Schedules, or
applicable law. We do not have to allow you to make a
withdrawal from your Account if you have insufficient
funds in your Available Balance to cover the full amount of
the withdrawal. We may also refuse to allow a withdrawal
if we have a Hold on the Account, including a dispute or
other legal process, you have pledged the Account as
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collateral for a debt, you have not presented any required
documentation, or you fail to repay any Debt to us.
(b) Electronic Check Conversion. You may authorize a
merchant or other payee to make a one-time electronic
payment from your Account using information from one of
your checks to pay for purchases or pay bills. The merchant
or other payee uses the check information, along with the
transaction amount, to initiate an ACH Debit transaction.
The transaction transfers electronically through the ACH
system and debit the funds directly from your Account and
deposited automatically into the merchant or payee's
account. When you use information from your check to
make an Electronic Funds Transfer, funds may be
withdrawn from your Account as soon as the same day you
make your payment. A description of the transaction will
appear on your Statement. We will not include checks used
in these types of transactions with your Statement or
otherwise return them to you. This type of Electronic Funds
Transfer is governed by the Electronic Funds Transfer Act
and subject to the Electronic Transaction Disclosure and
Error Resolution Notice.
(c) Checks Re -Presented Electronically. If we receive a
deposited Item as returned unpaid, we may choose to
redeposit the Item either in its original form or by
converting it to an electronic payment and redepositing it
as an ACH entry without notice to you. Checks re -presented
electronically will not be included with your Statement or
otherwise returned to you. This type of check conversion
does not create an Electronic Funds Transfer subject to the
terms of the Electronic Transaction Disclosure and Error
Resolution Notice.
(d) Pre -Authorized Drafts. If we cannot enforce
presentment and transfer warranties on remotely created
checks drawn on your Account under the Federal Reserve
Board's Regulation CC, and you have voluntarily given
information about your Account (such as our routing
number and your Account number) to a party seeking to
sell you goods or services without physically delivering the
check to the party, we will consider any Debit to your
Account initiated by the party to whom you gave the
information as authorized by you.
(e) Non -Customer Check Cashing Fee and Identification. If
a non -customer of the Bank presents a check drawn against
your Account for payment over the counter, we may
require identification meeting our standards, and we may
charge the person a service charge for cashing the check.
We may refuse to cash the check and we will have no
liability to you for wrongful dishonor in refusing to cash the
check if: (i) the person attempting to cash the check refuses
to comply with our identification standards or refuses to
pay a service charge, or (ii) we have reason to believe or
suspect that the person attempting to cash the check has
no rights to the funds or some other problem with the
check exists.
(f) Large Cash Withdrawals. We may place reasonable
restrictions on the time and method of any large cash
withdrawal, including by cashing a check. This may include
requiring advance notice before we allow such a
withdrawal. We may also impose other conditions for
making large cash withdrawals, and we may refuse the cash
withdrawal if you do not agree with these conditions.
(g) Notice Requirement. We may require you to give at
least seven (7) days written notice prior to any intended
withdrawal from a savings, negotiable order of withdrawal
("NOW"), or money market Account. Although we usually
pay withdrawals or checks without notice on these
Accounts, doing so does not mean that we give up this
right.
12. Checks and Items. The terms and conditions of this
Section may apply to checks and other Items that are drawn
against your Account, Items that you cash or deposit, or
both.
(a) Endorsements. We may require an endorsement for
the deposit, transfer, or negotiation of a non -cash Item you
cash or deposit in your Account. You should endorse all
checks and other non -cash Items deposited to your
Account payable to the order of us for deposit only. All
endorsements must appear on the back of the check or
other Item within the first 1-1/2 inches from the left side of
the Item when looking at it from the front. We may refuse
to deposit, pay, or cash any Item or accept any Item for
deposit if we cannot verify to our satisfaction that the Item
has all necessary endorsements. We may accept Items
without such endorsement, with non -conforming
endorsements, or otherwise do not meet our endorsement
requirements. We will have no liability to you for accepting
such Items, and you will be responsible for any Losses
incurred by us due to the return of the Item or any delay in
processing the Item. You authorize us to supply your
endorsement to any Items you present to cash that we
accept for collection or deposit to your Account. You also
authorize us to collect any Item payable to you but missing
an endorsement and agree that we do not have to supply
your endorsement before collecting the Item.
(b) Review of Items and Signatures. You understand that
we use automated collection and payment procedures like
most other banks so that we can process the greatest
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volume of Items at the lowest possible cost to our
customers, and our procedures provide for inspection of
Items, including signatures, only in certain limited
circumstances. We may not maintain signature cards for
any Account, and regardless of whether we maintain
signature cards, we have no obligation to inspect any Item
for the presence or authenticity of any signature.
Considering this, you agree that we have exercised ordinary
care in using such procedures and in paying an Item if we
examine only those Items that we have identified for
review based on our internal criteria as updated from time
to time. If we inspect an Item drawn against your Account,
we may use your signature provided on the signature card
or other documentation on file in doing so. You authorize
us to store and use the information on your signature card
in any reasonable form we deem necessary, including any
digitized signature capture process. If we return an Item
because we believe it did not match a signature on file, we
will have no liability to you even if the Item was authorized.
We will have no liability to you if we fail to detect a forgery
of your signature or an alternation of one of your Items if
the forgery or alteration would prevent a reasonable
person from detecting it. We will have no responsibility for
reviewing the number or combination of signatures on or
with an Item drawn against your Account, even if you
specify that you require multiple signatures for Items
drawn against your Account or specify any other signature
requirements, and you agree that such requirements are
for your internal control purposes only.
(c) Non -Handwritten Signatures. A "non -handwritten
signature" is any mechanically reproduced signature,
including without limitation facsimile signatures or other
forms of mechanically reproduced signature (such as
desktop publishing, digitized, or computer software
generated signatures). If you use non -handwritten
signatures, we will treat these as your signature or
endorsement and not as a forgery or unauthorized
signature regardless of whether you acted with or without
negligence. You agree you will have the sole responsibility
for maintaining security of any non -handwritten signature
and any device by which you affix a non -handwritten
signature. You bear the entire risk for the unauthorized use
of such non -handwritten signatures or device regardless of
whether you acted with or without negligence. You further
agree to indemnify and hold us harmless from and against
all Losses we or you may suffer or incur because of the
unlawful use, unauthorized use, or misuse by any person of
any such facsimile or mechanically reproduced signature or
the device by which it is affixed. If you use any form of
facsimile or mechanically reproduced signature device, you
agree to deliver a sample to us if we request it.
(d) Check Legends and Notations, Amount of Check. We
have no obligation to act on, or for failure to notify you of,
any "restrictions" on an Item (including without limitation
legends, notations and other restrictive or conditional
language such as "Void after 90 Days," "Paid in Full," or
similar statements). We may pay any Item drawn against
your Account regardless of any such restrictions printed on
it. If the numeric amount on an Item drawn against your
Account does not match an amount written out in words,
the written amount shall prevail over the numeric amount
when paying that Item.
(e) Dates on Items. We reserve the right to pay or return
Items drawn against your Account without notice to you
and without any liability to you, regardless of whether an
Item has a date more than six (6) months in the past or the
Item has no date. If you date a check in the future (referred
to as a "post-dated" check) and the check is presented for
payment before the date of the check, we may pay it or
return it unpaid in our sole discretion. We will have no
responsibility to you for any Losses you sustain if we pay
the check.
(f) Use of Check Images and Substitute Checks. For each
original check that you deposit, you authorize us (and any
collecting bank, returning bank, Federal Reserve Bank, or
processor that subsequently receives the original check) to
create an electronic image ("check image") of the original
check and to process that check image for collection,
payment, and return. You further authorize the destruction
of the original of the imaged check. We may in our sole
discretion determine the way we collect or return a check
image. We may (i) present or transfer the check image to
the paying bank, a Federal Reserve Bank, a check clearing
house, image exchange network or other collecting bank or
returning bank; or (ii) create a substitute check and collect
such substitute check instead of the check image as
governed by the Check Collection for the 21st Century Act
referred to here as the "Check 21 Act". We may collect a
check image or a substitute check through one or more
check clearinghouses, through one or more Federal
Reserve Banks, or pursuant to an exchange agreement with
another depository institution. In such cases, you agree
that the rules of the clearinghouse, Federal Reserve Bank
or exchange agreement will govern the processing of the
check image or substitute check. You agree that we may
debit your Account for any of the following items: (i) a
check image of an original check drawn on your Account
and presented for payment or collection, or (ii) a returned
check image of an original check that was deposited by you.
In these situations, we may debit your Account without
receipt or review of the original check associated with the
check image. In our sole discretion, we may return to a
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presenting bank, returning bank or paying bank, or post to
your Account, a paper copy or paper representation of an
original check, including without limitation an image
replacement document (IRD) or a photocopy, drawn on or
returned to your Account that does not otherwise meet the
technical or legal requirements for a substitute check. You
agree that a check image received or created by the Bank
in the check deposit, collection, or return process will
constitute a "check" and/or an "item" for all purposes
under this Agreement and applicable law. In addition, we
may truncate and replace with a substitute check any check
that you deposit with us or draw on your Account. You
authorize us to pay, process, or return a substitute check in
the same manner as "check" or "item" under this
Agreement. The Check 21 Act and the terms of this
Agreement, to the extent not modified by the Check 21 Act,
govern substitute checks. You agree to indemnify and hold
harmless us, our employees and agents from any loss,
claim, damage, or expense that you or any other person
may incur directly or indirectly from any action taken by us
to process a check image or substitute check instead of the
original check, including the destruction of the original
check, as described above, to the extent permitted by
applicable law.
(g) Foreign Items/Foreign Currency. A "Foreign Item" is an
Item drawn on a financial institution not chartered in the
U.S. or payable in a foreign currency. We may accept
Foreign Items for deposit or collection. Our Regulation CC
Funds Availability Disclosure does not apply to any Foreign
Item we accept for deposit or collection. If we accept a
Foreign Item for deposit or collection, we will determine
the actual amount you receive by using our exchange rate
in effect at the time we receive payment for the Item. You
accept all risks associated with foreign currency fluctuation
(exchange rate risk) and with any late return of the Item,
and you will have responsibility for any Losses incurred by
us because of our processing a Foreign Item. If we receive
a return on a Foreign Item we accepted for deposit or
collection for any reason, we will charge your Account at
the applicable exchange rate in effect at the time of the
return, which may exceed the exchange rate originally used
for the deposit.
(h) Lost or Destroyed Items. We will have no liability for
the loss or destruction of an Item or notice of nonpayment
in transit or not in our possession. If an Item you cash or
deposit is lost or destroyed, you agree to cooperate with us
in recreating it. If you fail to cooperate with us, we may at
any time without notice to you reverse or otherwise adjust
any Credit made to your Account for the lost or destroyed
Item. If we cannot collect on any Item you cash or deposit
because it is lost or destroyed through no fault of ours: (i)
we will have no responsibility to you for the actions or
inactions of any collecting or returning back, and (ii) we
may deduct the amount of that Item from your Account
and reverse any interest we paid in connection with the
deposit.
(i) Checking Sub -Accounts. For accounting purposes, each
checking Account may consist of two (2) sub -Accounts: a
transaction sub -Account to which we post all financial
transactions, and a holding sub -Account into which we
transfer Available Balances above preset levels daily. We
may transfer funds between these sub -Accounts for our
internal accounting records. Both sub -Accounts are treated
as a single Account for purposes of your deposits and
withdrawals, access and information, tax reporting, Fees,
FDIC insurance coverage, and payment of interest, if
applicable.
(j) Checks and Forms. You must use checks and other
documents on forms we provide to you, or we approve. You
must comply with our specifications for such Items. We will
have no liability for the untimely return of any Item you
have issued or any presentment -related problem resulting
from the failure of an Item to conform in any respect to our
specifications. We will have no responsibility for Losses that
result from improper printing on documents we did not
approve. We may refuse to accept for deposit or pay checks
in a form that we cannot process using our customary
equipment.
(k) Lost or Stolen Checks. If you lose or someone steals
your unissued checks, or someone is issuing unauthorized
paper Items against your Account, you must immediately
notify us of this in writing. If we become aware of or
suspect any such problem, we may take one or more of the
following actions: (i) close your Account and open a new
account, (ii) dishonor any check you indicate or we believe
lost or stolen, or (iii) pay such a check, provided you instruct
us to pay it and given the number of that check. Unless
otherwise provided by applicable law, you will have liability
for any Losses that result from your failure to use ordinary
care in safeguarding your unissued checks.
M. Stop Payment Orders. You may request us to place a
stop payment order ("Stop Payment") on checks and other
Items drawn or charged against your Account. We may
charge you a Fee each time you request a Stop Payment.
The content of a Stop Payment must include: (i) your name,
(ii) the date of the Item, (iii) the Account number on which
the Item is drawn, (iv) the exact amount of the Item, (v) the
Item number (or range of numbers if applicable), (vi) the
name of the payee, and (vii) any other information we
request. We may process a Stop Payment using only a
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portion of this required content. We will have no liability
for failing to honor a Stop Payment based upon incorrect or
incomplete information we rely on in processing a Stop
Payment. We will send you a confirmation letter detailing
your Stop Payment. You must notify us immediately of any
inaccuracies in the confirmation letter. We will only process
a Stop Payment if we receive it in a time and manner giving
us reasonable opportunity to act upon it before we pay,
accept, or otherwise become accountable for the Item(s)
covered by the Stop Payment. We will verify that we have
not already paid the Item before processing the Stop
Payment. Unless otherwise provided, each valid Stop
Payment processed by us will expire six (6) months after
the date you request the Stop Payment. We may pay any
Item covered by a Stop Payment after it expires with no
duty to notify you except for identifying the Item as paid on
your Statement. You may renew a Stop Payment for an
additional six (6) month period following the date it would
otherwise expire if you renewed it before the Stop Payment
expires. We will treat each renewal as an additional Stop
Payment, and we may charge a Fee. We shall have no
obligation to advise you of an expiring Stop Payment. You
may not stop payment on an official bank check, certified
check, cashier's check, or teller's check issued by us or
request us to Stop Payment on any Item if we have already
paid, accepted, or otherwise become accountable for the
Item. You agree to indemnify the Bank for any Losses we
incur due to your Stop Payment and our refusal to pay the
Item. You assign to us all rights against the payee or other
holder of the check and agree to cooperate with us in any
legal actions that we may take against such parties.
If you have told us in advance to make regular payments
from your Account, you can stop any of these payments by
contacting us in time for us to receive your request three
(3) Business Days or more before the scheduled payment.
Once you place a Stop Payment on a preauthorized
transfer, Bank will not make any more preauthorized
transfers to the designated recipient of your payment.
13. Account Ownership. We offer the following types of
Account ownership. We may rely solely on our records to
determine the form of ownership of your Account.
(a) Joint Accounts. Each Joint Owner can perform all actions
available to an Owner of any Account. The Joint Owner may
make deposits and withdrawals, issue Stop Payments, close
the Account, transfer funds to or from the Account, pledge
the Account as collateral for any obligation, and otherwise
transact on the Account. The Joint Owner may also make
changes or give instructions on the Account, including but
not limited to enrolling in services, adding other signers to
the Account, and providing a power of attorney. Any act by
a Joint Owner constitutes an act by each Joint Owner
represents the ratification and approval of all Joint Owners.
Each Joint Owner has joint and several ownership. This
means each Joint Owner has full and personal liability
under the terms of the Agreement including liability for
Overdrafts and Debit balances, regardless of which Joint
Owner benefited from or initiated the transaction. We have
the right to endorse any checks, drafts, or other orders for
payment made out to any of the Joint Owners and deposit
these Items into the joint Account. Each Joint Owner
consents to the Bank sharing confidential information with
the other Joint Owners including but not limited to
information related to garnishments and set-off liabilities
of other Joint Owners that may result in Debits to the
Account.
Unless the Bank agrees otherwise in writing or applicable
state law requires other treatment, all Joint Owners will be
treated as joint tenants with rights of survivorship. Upon
the death of a Joint Owner, their interest in the Account will
transfer to the remaining Joint Owner(s) and the
decedent's estate will have no rights to the Account. If Joint
Owners are treated as joint tenants without right of
survivorship (sometimes referred to as "tenants in
common"), upon the death of a Joint Owner the
proportionate ownership interest in the Account will pass
to their estate subject to the right of the Bank to act upon
the written instructions of any or all the remaining Joint
Owners. We will pay the Account balance in equal shares
upon a Joint Owner's death unless a prior written
agreement with the Bank defines unequal ownership
shares in the Account. We have no obligation to release
funds upon the death of a Joint Owner until we receive all
required legal documents.
14. Death or Incompetence. You must notify us
immediately if any Account Owner or other person
permitted to transact on your Account dies or a court has
declared incompetent. We may continue to honor checks
and other Items and instructions on the Account from such
person until we have knowledge of the death or
incompetent status, receive any documentation we
request to verify the death or incompetence, and have a
reasonable opportunity to act on that information. When
we receive notice of death or incompetence, we may freeze
or place a Hold on your Account and refuse to permit
withdrawals or accept deposits. We may not release your
funds until we receive documentation designating the
owner of the funds. We may accept and comply with court
orders and take direction from any court -appointed
representatives, guardians, or conservators from other
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states outside the state where the Account or the Account
Owner resides. In the case of an Account owned by a sole
proprietorship, we may place a Hold on the Account and
refuse to permit withdrawals or accept deposits until we
receive any documentation we reasonably request and
determine who is entitled to the funds.
15. Changes of Account Type. We may convert your
Account to another type of deposit Account we offer (e.g.,
change the Account type from a savings account to a
demand account, or change the product within the same
Account type) at any time subject to any notice required by
applicable law. If you have a high volume of activity,
inappropriate activity, or a negative balance or if we stop
offering the type of Account you have, we may convert
your Account to another type of Account designed to
accommodate your needs. We will provide information
about any new Account we open for you when we convert
your Account.
16. Notices to Bank.
(a) To You. Notice to any Owner constitutes notice to all
Owners of your Account. All Statements, notices, and other
communications and writings we send to you regarding the
Agreement, a service, or your Account (collectively,
"Notices") are effective when sent to the address we have
on record for the Account or to such address designated by
any Owner of the Account. We may also provide Notices by
a message included in your Statement. If you have agreed
to electronic delivery, we may provide Notices to you by
email, posting on our website, or such other electronic
methods as permitted under applicable law. We have no
responsibility for Notices lost while not in our possession
(e.g., lost in the mail or by you after delivery). If we receive
any Notices returned as undeliverable, we may discontinue
sending Notices to you, but the information contained in
such Notices will remain effective and available to you on
the date we would have mailed or otherwise provided to
you pursuant to the Bank's notification process (e.g., by
email or posting on our website, if you have agreed to
electronic notices) and will bind you as of the date set forth
in such Notice. You agree that the procedures described
herein establish an acceptable method of delivery of
Notices to you, and you will indemnify and hold us harmless
for following these procedures.
(b) To Bank. You must send notices to the Bank under this
Agreement in writing to the address set forth on the
"Contact Us" page or to such address as Bank otherwise
specifies in writing. Notices sent to Bank become effective
(i) upon receipt, if sent by overnight courier or hand
delivery, or (ii) within five (5) days if sent by U.S. Mail. You
agree that Bank shall have a reasonable time to act on any
notice that requires Bank to make changes in how you can
access or use the Account.
17. Communicating with You. By opening and maintaining
your Account with us, you give us and other companies
working on our behalf to service your Account your express
consent to make informational, servicing and collection
calls, and text messages to any phone number you provide
while you have an Account with us or any number you have
called us from, including calls to mobile phones and home
landline telephones. You also agree that we and other
companies working on our behalf to service your Account
may make calls concerning your Account by using an
automatic telephone dialer and leave pre-recorded voice
messages. These calls or messages may cause you to incur
fees from your cellular provider or other service provider.
If you give us an email address, you also consent to our
contacting you by email. To the extent permitted by
applicable law, we may deliver communications by
electronic means if you have agreed to electronic notices,
rather than by mail or other means. You acknowledge and
agree that telephone calls and other electronic
communications that we have with you may be monitored
and recorded.
18. Legal Process. We may restrict your Account upon
receipt of any legal process without advance notice (unless
required by applicable law) to you and without any liability
to you for doing so. "Legal process" means any document
that appears to have the force of law that requires us to
restrict, place a Hold on, or pay out funds from your
Account. Legal process includes any subpoena,
garnishment, levy, government request for information,
forfeiture, seizure, bankruptcy, administrative, or other
order from a court or government agency relating to your
Account. We may accept and act on any legal process we
believe valid including providing information about your
Account and restricting or placing a Hold on your Account
until we determine who has the legal right to the funds in
the Account. This may include requiring a court order
telling us where to pay the funds or pay funds from your
Account pursuant to such legal process. We will retain our
security interest and right of set-off against any legal
process, and we may charge any fees or expenses we incur
in responding to any legal process against your Account as
Fees.
19. Inactive and Dormant Accounts. An Account becomes
"inactive" when you have initiated no activity with your
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Account. If your Account becomes inactive for six (6)
months, and if permitted by applicable law, we may charge
an inactivity Fee until your Account becomes active again
or we close it. See the Fee Schedule for your Account for
details. The Bank reserves the right to close an Account if it
is inactive for a certain time and you have a zero balance,
including new Accounts that you have not funded. If your
Account remains inactive for a period of three (3) years, we
will consider it dormant, and we may charge the dormancy
Fee as set forth in the applicable Schedule for your Account,
but we will not charge you a Fee for inactivity and
dormancy. Unless prohibited by applicable law, we reserve
the right to cease paying interest (if applicable) and to stop
sending Statements on Accounts that are dormant. We will
escheat dormant Accounts to the applicable state authority
(in the state of Customer's last address of record with Bank)
as unclaimed property in accordance with state law, and
subject to applicable law, we may charge an escheatment
Fee if this occurs. See the Fee Schedule for your Account
for details.
20. Termination; Closing Your Account.
(a) Termination of the Account. You or the Bank can close
your Account at any time, for any reason, without advance
notice. We may ask that you provide your request to close
your Account in writing. After you or we close the Account,
if the Account has a positive balance, we will mail you a
check for the final balance, reduced by any amount you
owe us. You remain responsible for any outstanding
transactions, service charges or Fees, or Overdrafts
incurred before, during, or after we close the Account.
After we or you close your Account, we may accept a debit
or credit to your Account, even if doing so results in your
Account becoming overdrawn. Alternatively, if we receive
a debit or credit to your Account after it has closed, we may
in our sole discretion return to the payee any debit or
return to the originator any additional deposits or
electronic credits, including but not limited to, Social
Security, pension payments, and automatic payroll
deposits, and you will have liability for any associated
charges or Fees.
(b) Our Right to Close. We may require you to close your
Account and to open a new Account if: (i) a change in
Owners occurs, (ii) we receive information of a forgery or
fraud reported or committed involving your Account, (iii)
any Account checks become lost or stolen, (iv) you have too
many transfers from your Account, or (v) you have violated
any provision of our Agreement with you.
(c) Recurring Transactions. If you have arranged for
recurring transactions to your Account with a third party
whether in the form of Credits or Debits, you must notify
this third party to stop these transactions once your
Account closes. We may receive funds or other Credit
transactions intended for your Account after it closes, but
this does not mean your Account remains "open." We will
have no liability to you if you do not receive any regularly
scheduled deposit or if we do not make a regularly
scheduled payment for you due to your failure to notify
that party in a timely fashion of your Account closure.
(d) Returning Your Account Balance. We will return the
remaining balance in your Account after it closes subject to
the following conditions: (i) we may Hold any remaining
Account balance until you claim it and determine you have
the right to receive it, except as provided by applicable
state law governing unclaimed property, and (ii) we will
subtract any Fees, claims, set -offs, or other amounts from
your Account balance before we return it to you. To return
your Account balance, we may mail you a check for the
applicable remaining Account balance to your last known
mailing address.
21. Protection Against Fraud and Unauthorized
Transactions.
(a) Internal Controls, Notice of Lost Checks or Devices. You
have the responsibility to protect: (i) your Account
Information, Account number(s) and other information
related to your Account; (ii) any access device we provide
for your Account (such as a Card) or equipment that may
allow access to your Account; and (iii) your checks and
other paper Items. You agree to institute and maintain
reasonable and effective procedures to prevent fraud,
misuse, and unauthorized use of your Accounts and to
ensure the security of your checks and check stock, account
numbers, security procedures, access devices, access to the
Accounts and your internal procedures including those
anti- fraud measures the Bank provides or makes available
on our Website or through customer communications
("Anti -Fraud Measures"). You represent and warrant that
you maintain and enforce effective internal controls
including Anti -Fraud Measures to ensure that you
authorize the personnel who use the Accounts. You must
notify us as soon as possible of any known or suspected
loss, theft, or unauthorized use of your checks or any Card,
code, or access device. Until the Bank has received and has
had a reasonable opportunity to act on such notice, the
Bank may maintain debits and honor transactions affecting
your Account when using any such checks, Card, code, or
device except as otherwise provided by applicable law. The
Bank may close the Account, permit withdrawals by you or
Business Deposit Account Agreement and Disclosure07192024 Page17
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issue new evidence of an Account on such conditions as the
Bank may require.
(b) Risk of Loss and Controlling Risk. You understand
unauthorized Items provide a growing risk of losses. In
addition to the Anti -Fraud Measures you can implement on
your own, we offer a variety of Services designed to assist
you in reducing or minimizing the incidence of check, ACH,
and other fraud and unauthorized activity in your Accounts.
To the extent you choose not to use one of these Services
or fail to implement or take Anti -Fraud Measures
reasonable for your Accounts, and the use of that Service
or Anti -Fraud Measure could reasonably have prevented
the incidence of fraud, unauthorized activity or loss
suffered by you, you will assume the risk of such fraud,
unauthorized activity, or loss incurred, and you will hold the
Bank harmless for such fraud, unauthorized activity or loss.
22. General Terms.
(a) FDIC Insurance. The Federal Deposit Insurance
Corporation ("FDIC") insures your deposits up to the
applicable limits under the FDIC insurance coverage rules
based on the category of Account ownership. You may
obtain more information and tools to determine federal
deposit insurance coverage from the FDIC on its web site at
www.fdic.gov or by calling 1-877-ASK-FDIC or 1-800-925-
4618 (for the hearing impaired). Your deposits will be
insured based upon your Account relationship with Bank.
Please note the divisions of HTLF Bank are the same legal
entity as HTLF Bank and are not separately FDIC insured.
The bankers at the Bank can also provide you with
information about the FDIC insurance coverage on your
Accounts.
(b) Special Provisions for Pass Through Accounts. If you
open an Account on behalf of the legal or beneficial
owner(s) of the funds in the Account (for example as a
trustee, agent, nominee, guardian, executor, custodian, or
funds held in some other capacity for the benefit of others),
those legal or beneficial owner(s) may receive "pass -
through" insurance from the FDIC. This means that the
funds held on behalf of each legal or beneficial owner(s) in
the Account may qualify for the full FDIC deposit insurance
coverage. To ensure that the legal or beneficial owner(s) of
the funds qualify for the appropriate amount of FDIC
deposit insurance coverage as depositors, you must
provide a record of the interests of the actual Owner(s) in
accordance with the requirements if the Bank fails. You
may obtain more information and tools to determine
federal deposit insurance coverage from the FDIC on its
web site at www.fdic.gov or by calling 1-877-ASK-FDIC or 1-
800-925- 4618 (for the hearing impaired).
(c) Indemnity, Limits on Liability. For the purposes of this
Section, "Bank," "we," and "us" includes us and our
affiliates, officers, directors, employees, and agents. You
agree to indemnify us and hold us harmless from any and
all Losses resulting directly or indirectly from, arising out of
or in any way connected with: (i) your use of the Account
and any transaction on the Account, (ii) the Agreement and
your performance under the Agreement or your breach of
any terms of the Agreement, including failure to comply
with applicable law, and (iii) services we provide to you
under the Agreement or pursuant to your instructions, -
provided, that you shall have no obligation to indemnify us
for any Losses resulting from our gross negligence, willful
misconduct or bad faith.
You agree that we will only be liable to you to the extent
we acted with gross negligence or willful misconduct and
those actions resulted in a direct financial loss to you. We
will have no liability for: (i) errors or omissions that do not
result in a financial loss to you, (ii) any Losses that result
from our use of customary banking practices or for any
Losses provided that we have acted in good faith and with
ordinary care, (iii) any action we have authority or
permission to take by the Agreement (including without
limitation making deductions to your Account or putting a
Hold on your Account), even if this results in your Account
having insufficient funds or causes an Overdraft or
otherwise causes you to incur Fees, expenses, or damages,
(iv) your misconduct, errors or negligence or an act or
failure to act of any person not directly within our control,
(v) anything we do in following your instructions or for not
following such instructions if we reasonably believe that
this would expose us to potential loss or civil or criminal
liability, or conflict with customary banking practices or
applicable law, and (vi) any Losses arising out of the
systems and software utilized by you to initiate or process
banking transactions. IN CONNECTION WITH YOUR
ACCOUNT AND THE AGREEMENT, YOU AGREE THAT WE
WILL HAVE NO LIABILITY FOR INDIRECT, INCIDENTAL,
SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE
DAMAGES OR LOST PROFITS REGARDLESS OF THE CLAIM
OR FORM OF ACTION AND EVEN IF YOU OR WE HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR
LOSSES OR COULD REASONABLY FORESEE SUCH DAMAGES
OR LOSSES.
If we fail to stop payment on an Item, or pay an Item
bearing an unauthorized signature, forged drawer's
Business Deposit Account Agreement and Disclosure07192024 Page18
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signature, or forged endorsement or alteration, our
liability, if any, shall be limited to the face amount of the
Item. Neither you or we will be deemed to be in default of
any of the obligations required to be performed under the
Agreement or be liable to the other for any failure, error,
malfunction or delay in carrying out any of our obligations
under the Agreement because of circumstances beyond
your or our reasonable control, including, without
limitation, any act of God, natural disasters, accident,
equipment failure, system failure, labor dispute, pandemic,
the potential violation of any guideline, law, rule,
regulation, order or decree of any government authority or
an emergency that prevents us from operating normally, or
the failure of any third party to provide any service used in
connection with providing services to you under the
Agreement. Without regard to care or lack of care by you
or us, you agree that you cannot commence any claim, legal
action or proceeding against us regarding your Account or
this Agreement unless you do so within one (1) year from
the date that the event giving rise to the claim first
occurred, regardless of when you first learned of that
event. This Section will survive closing of your Account and
termination of the Agreement.
(d) Assignability. You agree that you may not sell, assign,
or pledge your Account, give a lien or security interest in
your Account, or otherwise transfer your Account or a
portion of your Account to a third party, except with our
prior written consent. If you transfer your rights in an
Account as set forth above without our written consent,
that transfer will not have valid or binding effect on the
Bank. Any pledge or grant of security interest in your
Account we approve remains subject to any right we have
under this Agreement and applicable law. If you request to
assign or otherwise transfer ownership of your Account, we
may require the Account be closed and a new account
opened in the name of the transferee, assignee, or pledgee.
We may prevent you from withdrawing or transferring
funds from your Account if you transfer ownership of your
Account.
The Bank may sell or assign its rights and obligations under
this Agreement, including your Account, without your
consent including, but not limited to: (i) any merger,
consolidation, or acquisition involving the Bank or its
parent company, or the sale or transfer of all or
substantially all of the assets or stock, or (ii) the sale or
other disposition of the Bank's assets or liabilities to which
this Agreement or your Account relates. The Bank will use
reasonable efforts to notify you of any such sale or
assignment if required by applicable law.
(e) Governing Law: Jury Trial Waiver.
(i) Except as otherwise provided in the Arbitration
Provision herein, the laws and regulations the state of
the branch or retail office's location where you opened
your Account governs this Agreement without regard
to such state's choice of law or conflict of law
principles. If you open your Account by mail initiated
by an application taken over the phone, the internet,
or electronically, and we have a branch or retail office
in your state of residence at the time you open your
Account, the laws and regulations of your state of
residence when you open your Account, without
regard to such state's choice of law or conflict of law
principles shall govern this Agreement. If we do not
have a branch or retail office located in your state of
residence when you open your Account, and you open
your Account by mail initiated by an application taken
over the phone, the internet, electronically, or in
person by a Bank representative outside of a branch,
then you agree that (i) this Account is deemed opened
in the State of Colorado, (ii) all applicable funds are
deemed to be deposited into and withdrawn or
transferred from the Account located in Colorado, (iii)
our agreement to open this Account, and all decisions
we make now and in the future concerning or affecting
this Account, occur in Colorado. Therefore, the laws
and regulation of the State of Colorado shall govern
this Agreement and your Account and will remain
subject to Colorado laws even if we subsequently open
a branch or retail office in your state without regard to
Colorado choice of law or conflict of law principles. All
applicable preemptions afforded to national banks by
the laws and regulations of the United States of
America shall always govern this Agreement.
(ii) Claims and Disputes Not Submitted to Arbitration.
With respect to all claims and disputes that are not
submitted to arbitration pursuant to the Arbitration
Agreement (Section 23), YOU AND WE EXPRESSLY
AND IRREVOCABLY AGREE TO WAIVE ANY RIGHT TO
A TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW
and you consent to service of process, personal
jurisdiction and venue in the state where your Account
was opened and waive the right to claim that it is an
inconvenient forum. You acknowledge that we would
Business Deposit Account Agreement and Disclosure07192024 Page19
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not have opened or maintained any Account for you if
this waiver of jury trial were not part of the Agreement.
(f) Entire Agreement. The Agreement including any
Schedule and any other document we specifically
incorporate herein in writing, constitutes the entire
agreement between you and us regarding your Account
and supersedes any prior oral or written representations,
conditions, warranties, understandings, proposals, or
agreements regarding your Account.
(g) Monitoring. You understand that supervisory
personnel may randomly monitor customer service
telephone conversations to ensure that you receive
accurate, courteous, and fair treatment. In addition, we
may monitor, record, and retain telephone conversations,
electronic messages and other data transmissions between
you and us at any time and without notice, unless
applicable law requires otherwise. We will have no liability
for doing or failing to do so.
(h) Illegal Activities. You agree to comply with applicable
law, including without limitation economic sanctions and
anti -money laundering laws and all regulations issued by
the Office of Foreign Assets Control of the U.S. Department
of the Treasury. You agree not to use your Account for any
illegal activity, including unlawful internet gambling or the
purchase of goods or services in violation of the law. We
may refuse any gambling transaction, whether lawful or
not. We may also refuse any transaction that we
reasonably believe may involve illegal or suspicious activity.
If we suspect that you or anyone else is using your Account
for illegal activities, we may close your Account, put a Hold
on your Account and any other Accounts you have with us
or both without notifying you in advance, unless otherwise
required by applicable law.
(i) Third -Party Beneficiary. Unless otherwise expressly set
forth herein, no person will be deemed to be a third -party
beneficiary under the Agreement.
(j) Survival. The applicable terms of the Agreement
continue in effect after we or you close your Account or
after this Agreement is terminated.
(k) Severability. If a court finds any provision of the
Agreement invalid or unenforceable, such finding shall not
make the rest of the Agreement invalid or unenforceable.
If feasible, any such offending provision shall be deemed to
be modified to be within the limits of enforceability or
validity; however, if the offending provision cannot be so
modified, it will be stricken from the Agreement and all
other provisions of the Agreement in all other respects will
remain valid and enforceable. Notwithstanding any
contrary provision in this Agreement, if a court finds the
Class Action Waiver in Section 23(c) below illegal or
unenforceable, the agreement to arbitrate will also be
unenforceable.
(1) Waiver. If we fail to exercise any of our rights under the
Agreement, that failure will not waive that right or any
other right, and we may still enforce our rights in the
future.
(m) Conflicts. If the Agreement conflicts with any
statements made by one of our employees or agents, the
terms of the Agreement will control. To the extent that
terms of this Agreement directly conflict with the terms of
any other written agreement between you and us relating
to any Accounts or services provided by us, the specific
terms of such other agreement shall control.
(n) Captions and Headings. Captions, headings, and
subheadings used in the Agreement are only for reference
purposes and are not intended to limit the meaning or
scope of the terms and conditions of the Agreement.
(o) English Language. English shall control the language of
the Agreement. We may translate the Agreement, or any
documents or materials related to it into another language
for the purposes of convenience. However, any
discrepancy between English language materials and
materials in another language, the English language version
prevails and controls unless applicable law provides
otherwise.
(p) Fiduciary Relationship. Our relationship to you
concerning your Account is that of debtor and creditor. No
fiduciary, quasi -fiduciary, or special relationship exists
between you and us.
23. Arbitration Agreement.
(a) Disputes Subject to Arbitration. Upon the election of
either of us, you and we will resolve any dispute relating in
any way to your Account or transactions on the Account or
otherwise arising under this Agreement (a "Dispute") by
the dispute resolution procedures described herein,
including binding arbitration in accordance with the terms
of this Section (the "Arbitration Agreement"). A "Dispute"
shall include any dispute, claim or controversy of any kind,
whether in contract or in tort, legal or equitable, now
existing or hereafter arising, relating in any way to any
Business Deposit Account Agreement and Disclosure07192024 Page20
Page 2422 of 2498
aspect of this Agreement, your Account, any transactions
therein, and your deposit relationship with us. A "Dispute"
includes any disagreement about whether the terms of this
Arbitration Agreement are enforceable or valid, the
meaning of this Arbitration Agreement, and whether a
claim or disagreement is a Dispute subject to binding
arbitration credit obligation. For clarification and without
limiting any of the foregoing or following provisions in this
Section, the arbitrator shall decide what is subject to
arbitration unless prohibited by law and shall have the
power to rule on his or her own jurisdiction, including any
objections with respect to the existence, scope, or validity
of the arbitration agreement or to the arbitrability of any
claim or counterclaim.
(b) How to Resolve a Dispute. If you and we cannot settle
a Dispute through informal discussions or negotiation, the
parties agree first to try in good faith to settle the Dispute
by mediation administered by the American Arbitration
Association under its Consumer Mediation Procedures
before resorting to arbitration, litigation, or some other
dispute resolution procedure. If you and we cannot resolve
a Dispute informally or through mediation, you and we
agree to submit to binding arbitration as described herein;
provided, however, that any party may require that a Small
Claims Court resolve a Dispute if the Dispute and related
claims are fully within that jurisdiction. Either may demand
arbitration before the initiating the judicial proceeding, or
during a judicial proceeding, but not more than 60 days
after service of a complaint, third party complaint,
crossclaim, or any answer thereto, or any amendment to
any of such pleadings. Any party who fails or refuses to
submit to arbitration following a demand by any other
party shall bear all costs and expenses incurred by such
other party in compelling arbitration of any Dispute.
(c) Jury Trial and Class Action Waiver. YOU UNDERSTAND
THAT DISPUTES SUBMITTED TO ARBITRATION ARE NOT
RESOLVED IN COURT BY A JUDGE OR JURY. TO THE EXTENT
ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE TO
WAIVE ANY RIGHT TO A TRIAL BY JURY AND ANY RIGHT
TO PARTICIPATE IN A CLASS ACTION ON A
REPRESENTATIVE BASIS WITH RESPECT TO ANY DISPUTE
ARBITRATED PURSUANT TO THIS ARBITRATION
AGREEMENT. No party may join or consolidate disputes by
or against others in any arbitration, or to include in any
arbitration any dispute as a representative or member of a
class, or to act in any arbitration in the interest of the public
or in a private attorney general capacity.
(d) Governing Rules. Any arbitration proceeding will be: (i)
governed by the Federal Arbitration Act (title 9 of the
United States Code), notwithstanding any conflict choice of
law provision in any of the documents between the parties,
and (ii) conducted by the American Arbitration Association
("AAA") in accordance with the AAA's consumer dispute
resolution procedures (the "Rules"). You may obtain Rules
and forms from the AAA at adr.org or by calling (800) 778-
7879 or such other toll -free support phone number posted
on the AAA's website. In any arbitration proceeding,
discovery will occur in accordance with the Rules. If there is
any inconsistency between the terms hereof and the Rules,
the terms and procedures set forth herein shall control. For
clarification, the arbitrator shall have the discretion to
award fees to a prevailing party if permitted by the
Agreement or statute; or a single arbitrator may arbitrate
using the AAA rules if the AAA is unavailable or unwilling to
conduct the arbitration. The parties will mutually agree
upon the location of the Arbitration proceedings, or if they
cannot agree, then at a location selected by the AAA in the
state of the applicable substantive law primarily governing
the Dispute. To the maximum extent practicable, the AAA,
the arbitrators and the parties shall take all action required
to conclude any arbitration proceedings within 180 days of
the filing of the Dispute with the AAA.
(e) No Waiver of Provisional Remedies, Self -Help. This
Arbitration Agreement does not limit your or our rights
with respect to, and we can each exercise any lawful rights
or use other available remedies to do any of the following:
(i) preserve or obtain possession of property, (ii) exercise
self-help remedies including set-off and repossession
rights, or (iii) obtain provisional or ancillary remedies such
as injunctive relief, garnishment or attachment; whether
before, during, or after the pendency of any arbitration
proceeding. This paragraph does not constitute a waiver of
the right or obligation of any party to submit any Dispute
to arbitration hereunder, including those arising from the
exercise of the actions detailed in this paragraph; however,
the arbitrator will have no right or power to enjoin or
restrain any party.
(f) Conflicts; Survival. If more than one agreement for
arbitration by or between the parties potentially applies to
a Dispute, the arbitration provision in the document that is
most directly related to the subject matter of the Dispute
shall control. This Arbitration Agreement shall survive the
closing of the Account and the termination, amendment, or
expiration of the Agreement or any relationship between
the parties.
Business Deposit Account Agreement and Disclosure07192024 Page21
Page 2423 of 2498
BUSINESS DEPOSIT ACCOUNT AGREEMENT AND DISCLOSURE
Arizona Bank & Trust
877.280.1857
Bank of Blue Valley
877.280.1862
Citywide Banks
877.280.1859
Dubuque Bank & Trust
877.280.1851
First Bank & Trust
877.280.1864
Illinois Bank & Trust
877.280.1853
Minnesota Bank & Trust
877.280.1860
New Mexico Bank & Trust
877.280.1856
Premier Valley Bank
877.280.1863
Wisconsin Bank & Trust
877.280.1855
CONTACT US
2036 East Camelback Road
Phoenix, AZ 85016
11935 Riley Street
Overland Park, KS 66213
1800 Larimer Steet, Suite 100
Denver, CO 80202
700 Locust Street, Suite 401
Dubuque, IA 52001
9816 Slide Road
Lubbock, TX 79424
4571 Guilford Road
Rockford, IL 61107
7701 France Avenue South, Suite 110
Edina, MN 55435
320 Gold Ave SW Suite 100
Albuquerque, NM 87102
255 East River Park Circle, Suite 180
Fresno, CA 93720
119 Junction Road
Madison, WI 53717
ArizBank.com
BankBV.com
CitywideBanks.com
DubuqueBank.com
FirstBankTexas.com
IllinoisBank.com
MNBankandTrust.com
NMB-T.com
PremierValleyBank.com
Wisconsin BankandTrust.com
Business Deposit Account Agreement and Disclosure07192024 Page22
Page 2424 of 2498
■�i _ ■iili >i•i `
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Commercial
Banking Services
Recommendation
:�`"•_'
Jennifer Larson
Chief
Financial Officer
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Reassess Banking Options
• Fees and Interest
• Account Structures
• Online Platform Capabilities
• Customer Support Options
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Green Late
CREDIT UNION
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Co NIlJh�ITY
1J CRED]T1ON
I:fs1► ■:�
Page 2428 of 2498
Jennifer Larson, Chief Financial Officer
DeMoss, Finance Manager
Keith Strey, Finance Project Manager
Joe Pregler, Chief Security Officer
Kate Weidemann, Finance Accountant
• Ability to meet current and projected service requirements
• Capacity to provide wide range of online services
• Experience of assigned staff
• Quality of references
Criteria
--
Availability & Quality of 35 Points 33 Points
Service (35%)
Branch Locations 4 1
After Hours Customer Yes No
Service
33 Points
1
No
Page 2430 of 2498
• Cost per identified activity and aggregate service costs
• Interest Rate/Effective Interest Rate
• Net Revenue: Interest Less Fees
Cost(25%) 25 Points 22 Points 20 Points
Cost
Interest Rate*
Effective Interest Rate
Effective Int Above Current
Net Revenue: Interest Less
Fees
$0 — Waived
13-Week T-Bill plus 5 bps
4.57%
4.57%
$7471427.44
$747,427.44
$113, 607.59
�ed Funds less 50 bps
4.63%
4.63%
$7571803.74
$644,196.15
72,888.95
Fed Funds rate less 75
bps
4.38%
4.26%
$693,817.16
$620,928.21
L
* September 2024 Fed Funds Rate Page2431 of2498
• Addressed required items in section 6 of RFP
• Conversion/implementation plan
Tech nology/I n novation
(20%)
Online Data
19 Points 17 Points 17 Points
3 years
Vendor Account Change Yes
Verification
18 months
w
18 months
M
Page 2432 of 2498
Efficiency, Common Equity Tier 1 Capital, Net Charge -Off, Net Interest Margin, and Return on
Assets Ratios
Financial
Strength/Stability (15%)
Efficiency Ratio
Common Equity Tier 1
Capital
Net Charge -Off Ratio
Net Interest Margin
Return on Assets Ratio
13 Points 12 Points 13 Points
59.06%
10.97%
0.81%
3.29%
0.40%
56.59%
A; •N
1.31%
1.76%
0.17%
81.61%
32.50%
0%
4.26%
0.39%
Page 2433 of 2498
Addressed all items in RFP
Addressed all items in 4 Points 5 Points 5 Points
RFP(5%)
Page 2434 of 2498
Total Points 96 Points 89 Points 88 Points
Page 2435 of 2498
DB&T $0
Green State $113, 608
Capra $72,889
$747,427
$693,817
$757,804
$747,427
$644,196
$620,928
*As computed using an average annual balance of $17,293,835 in the General Checking
Page 2436 of 2498
..Iovw
DB&T
RECOMMENDED
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THE CITY OF
jPD�Uj—B El
Miistcrpiece on the Mississippi
Commercial Banking Services
Recommendation
Jennifer Larson
WML hief Financial Officer
nsI
AwY.
1E,
2007: Awarded
Reassess Banking Options
Interest
Account Structures
Platform Capabilities
Customer Support Options
Page 2441 of 2498
i
� r y
Y
TIMELINE
u� *� 8/6/24: RFP Released
9/3/24: Proposals Due
1 0/1 -1 0/3/24: Interviews
10/10/24: Committee Evaluation
1 1 /04/24: City Council Award
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embank '
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CAPRA
BANK"
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COLLINs
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COMMLJPSITY
MidWestOne J'CR m]T LiN I� GreenState ON
Bank® _ ,.
CREDIT UNION
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Page 2443 of 2498
Jennifer Larson, Chief Financial Officer
Brian DeMoss, Finance Manager
Keith Strey, Finance Project Manager
Joe Pregler, Chief Security Officer
Weidemann, Finance Accountant
10
= wa 0
!.
Page 2444 of 2498
• Ability to meet current and projected service requirements
• Capacity to provide wide range of online services
• Experience of assigned staff
• Quality of references
Availability & Quality of 35 Points 33 Points
Service (35%)
Branch Locations 4
After Hours Customer Yes No
Service
33 Points
No
Page 2445 of 2498
• Cost per identified activity and aggregate service costs
• Interest Rate/Effective Interest Rate
• Net Revenue: Interest Less Fees
Cost(25%) aff 25 Points 22 Points
Cost $0 — Waived $1 13,607.59
Interest Rate* F4'5
-Week T-Bill plus 5 bps Fed Funds less 50 bps
7% 4.63%
Effective Interest Rate 4.57% 4.63%
Effective Int Above Current $747,427.44 $757,803.74
Net Revenue: Interest Less $747,427.44 $6441196.15
Fees
* September 2024 Fed Funds Rate
20 Points
72,888.95
Fed Funds rate less 75 bps
4.38%
4.26%
$693,817.16
$620,928.21
Page 2446 of 2498
• Addressed required items in section 6 of RFP
• Conversion/implementation plan
Technology/Innovation
(20%)
Online Data
Vendor Account Change
Verification
19 Points 17 Points
EM
3 years 18 months
No
17 Points
18 months
No
Page 2447 of 2498
• Efficiency, Common Equity Tier 1 Capital, Net Charge -Off, Net Interest Margin, and Return on Assets Ratios
Financial Strength/Stability
13 Points
12 Points
13 Points
(15%)
Efficiency Ratio
59.06%
56.59%
81.61 %
Common Equity Tier 1
10.97%
8.35%
32.50%
Capital
Net Charge -Off Ratio
0.81 %
1.31 %
0%
Net Interest Margin
3.29%
1.76%
4.26%
Return on Assets Ratio
0.40%
0.17%
0.39%
Page 2448 of 2498
Addressed all items in 4 Points 5 Points 5 Points
RFP(5%)
Page 2449 of 2498
Total Points 96 Points 89 Points 88 Points
Page 2450 of 2498
DB&T $0 $747,427 $747,427
Green State $1 13,608 $693,817 $6441196
Capra $72,889 $757,804 $620,928
*As computed using an average annual balance of $17,293,835 in the General Checking
Page 2451 of 2498
All existing account fees waived
1 3-Week T-Bill plus five basis points
Waived FDIC insurance assessment
Waived deposit ticket fees
3-Year online transaction history
Proactive fraud alerts
Accessibility: 4 Branch locations
Customer Service 8 a.m. — 7 p.m.
Page 2452 of 2498
i
I I -
ACTION REQUESTED
Award five-year banking
services agreement to DB&T
• Waived fees
High interest revenue
Robust online banking
Proactive fraud prevention
Exceptional customer service
Multiple branch locations
fi s
R p
I
I
THE CIUBat
Jenny Larson ishefienhefs)
DChief Financial Officer I City of Dubuque
City Hall 150 W. 13th St., Dubuque, IA, 52001
7'7-7
Masterpiece on the Mississippi 0: 563.589.4322 (M-Th 7:15am - 5pm & Fri. 7:15am- noon)
Finance & utility Billing Hours: Monday — Thursday 7 am — 5 pm and Friday 7am —1 pm
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Page 2454 of 2498