This Business Electronic Banking Services Agreement (“Agreement”) describes your rights and obligations as a user of the Business Electronic Banking Services made available to you through Online Banking and Mobile Banking. It also describes the rights and obligations of Sunrise Banks (“Sunrise”), as the provider of the Business Electronic Banking Services. Please read this Agreement carefully.
By clicking the “I Agree” button or otherwise evidencing your acceptance of this Agreement, you are acknowledging and agreeing, on behalf of yourself and the Company, that (1) you are authorized by Company to enroll and use Bank’s Business Electronic Banking Services in connection with Company’s Accounts, and (2) the terms of this Agreement will apply to and govern your use of Bank’s Business Electronic Banking Services, including any amendments and supplements to this Agreement or any changes thereto. If you do not agree to the terms and conditions of this Agreement, do not click the “I Agree” button below. If you do not accept and agree to all of the terms, you will not be entitled to use the Business Electronic Banking Services. You can request the most current version of this Agreement at any time by contacting the Bank at (651) 265-5640. You should print a paper copy of this Agreement and retain a copy for your records.
Company shall be responsible for notifying Authorized Representatives of the relevant terms applicable to their use of the Business Electronic Banking Services and for ensuring that each Authorized Representative complies with the terms and conditions set forth in this Agreement, including the “Authorized Representative Responsibilities” set forth in the “Security Procedures” section below.
Except as otherwise specifically indicated, the following terms shall have the following meanings in this Agreement:
“Account” means each account Company has with Bank for which Company has requested Business Electronic Banking Services. Unless otherwise specified, Accounts may include checking accounts, savings accounts, certificate of deposit accounts and loan accounts linked to Company.
“Agreement” means, collectively, the Sunrise Business Electronic Banking Services Agreement and any addendums, attachments, set-up worksheets, procedures or other documents provided to you or Company by Bank relating to the Business Electronic Banking Services, as may be amended or supplemented from time to time.
“Alerts” means the Alerts service, which allows Authorized Representatives to request and receive certain messages about eligible Account(s).
“Authorized Representative” means any persons the Company authorizes to use the Business Electronic Banking Services to access and or initiate transactions on an Account who may or may not be authorized signers on that Account.
“Bill Pay” means the Business Electronic Banking Service that enables the scheduling of bill payments using a personal computer or mobile device. “Business Day” means Monday through Friday, excluding Federal holidays as determined by the Federal Reserve.
“Business Electronic Banking Services” or “Services” means the services described in this Agreement, requested on behalf of Company and agreed to by Bank, including as applicable, but not limited to, basic Online Banking and Mobile Banking services, Bill Pay services, Mobile Deposit services, E-Statement services, and Cash Management Services (as applicable).
“Company” means the business entity that owns each Account and its Authorized Representatives.
“Company Instruction” means an instruction of Company issued by an Authorized Representative in accordance with this Agreement and directed to Bank to perform certain Business Electronic Banking Services from time to time designated and offered by Bank.
“Treasury Management Services” means Bank’s commercial treasury management services that Company may request and be approved by Bank to receive from time to time, including ACH origination services, wire transfer services, positive pay services, EZ Deposit Services and Mobile Deposit Services.
“Cut-Off Times” means the time by which a transaction must be completed through a Business Electronic Banking Service in order to be processed on the same Business Day. The Cut-Off Time for each Business Electronic Banking Service, if any, shall be provided to Company as part of this Agreement or the Account Documentation for the applicable Business Electronic Service, as may be modified by Bank from time to time upon notice to Company.
“EZ Deposit Services” means the remote check deposit services utilizing a magnetic ink character recognition scanner.
“Mobile Banking” means any Business Electronic Banking Service that Bank provides, and that Company subscribes to, enabling you to obtain Account information or initiate transactions to or from Company’s Accounts through your Mobile Device.
“Mobile Deposit Services” means the remote check deposit services utilizing a Mobile Device.
“Mobile Device” means a cellular telephone or similar wireless communication device, including, but not limited to, a tablet or similar device, onto which you have downloaded software or a mobile application provided by Bank (“Software”) for the purpose of accessing Mobile Banking. A “Mobile Device” may also include a cellular telephone, tablet or similar wireless communication device that is capable of conducting banking transactions through SMS text messaging or by accessing Mobile Banking using a mobile browser.
“Online Banking” means the website and web pages accessible through www.sunrisebanks.com that may be used to access Company’s Accounts and the Business Electronic Banking Services.
“Operating Procedures” shall mean the procedures that are established and disseminated to Company from time to time by Bank governing the Business Electronic Banking Services, including any user guides.
“Security Information” means any Authorized Representative’s username and password and a combination of enhanced security features which may be comprised of a token and a secure access code, extended validation (EV) certificates, and any other security features that Bank may add or change as Bank deem necessary. Security Information is intended to prevent unauthorized access to Company’s Accounts and to assist Company in ensuring that the website Company’s Authorized Representatives are visiting is the correct, authentic Online Banking website.
“You” or “Your” means the person enrolling for Bank’s Business Electronic Bank Services and thereby agreeing to this Agreement, both on your behalf and, on behalf of your Company as its Authorized Representative.
What this Agreement Covers
This Agreement governs Company’s use of Bank’s Business Electronic Banking Services. Bank offers the Business Electronic Banking Services under this Agreement only in association with one or more Accounts maintained by Company at Bank. The terms, provisions and conditions of this Agreement do not replace, but supplement, any and all other agreements (whether now or in the future), signature cards, and Account resolutions that govern any Account maintained by Company at Bank (whether now or in the future) or any other Bank services utilized by Company (whether now or in the future) (collectively “Account Documentation”). Company shall be responsible for ensuring that each Authorized Representative with access to the Business Electronic Banking Services complies with the terms and conditions set forth in this Agreement and any other Account Documentation. If there is a conflict between the terms and conditions of this Agreement and any other Account Documentation between Company and Bank, this Agreement will control with respect to the Business Electronic Banking Services.
Operating Procedures. The Business Electronic Banking Services to which this Agreement applies may be further described or referenced in Operating Procedures which are available to Company with respect to some or all of the Business Electronic Banking Services. The Operating Procedures may also contain additional terms and conditions applicable to the Business Electronic Banking Services. Company’s use of a Service after Bank provides Company or makes available to Company an Operating Procedure which pertains to such Service will constitute Company’s agreement to adhere to and be legally bound by the terms, conditions, requirements, instructions, and information in such Operating Procedure. Each Operating Procedure is an integral part of this Agreement and when Bank provides or makes available to Company an Operating Procedure to Company it becomes a part of and is incorporated into this Agreement. Bank’s records on when Bank provides or makes available to Company an Operating Procedure to Company will be deemed correct and accurate.
Description of Business Electronic Banking Services
Subject to the terms and conditions of this Agreement, Company may authorize its Authorized Representatives to, use Online Banking and Mobile Banking to obtain Business Electronic Banking Services and perform authorized transactions in connection with Company’s Accounts, including the following:
Basic Account Services. Authorized Representatives may view, print and download balance and transaction information and engage in any other administrative and account management activities permitted by the Company.
Internal Funds Transfers. Authorized Representatives may request one-time and recurring transfers between designated Company Accounts accessible through Online Banking and Mobile Banking, and transfers may be requested for the current day or a date in the future. Company is limited to six preauthorized automatic transfers or withdrawals during the calendar month out of checking and savings Accounts. Transfers made via Online Banking or Mobile Banking are included as preauthorized or automatic transfers subject to these limitations. Any transfers done in excess of these limits must be done in person at Bank. Company is not permitted to transfer more than the available balance from its Accounts; Bank may not act on any transfer instructions if sufficient funds are not available in the designated Account at the time of the transfer request.
Stop Payment. Designated Authorized Representatives may initiate stop-payment requests via Online Banking only for paper checks Company has written (non-electronically) on Company’s demand Account(s) (not paper drafts sent via the Bill Pay Service or other types of transfers initiated through one of the Business Electronic Banking Services). Bank’s ability to process a stop payment request will depend on whether the check has been presented for payment. Payees may present checks for payment to their bank before Bank has a reasonable amount of time to process Company’s stop payment request. Bank will not be able to process any stop payment requests if, before the stop payment request was ordered, Bank has already negotiated the check or otherwise become legally obligated for its payment. For each stop payment item, Company must provide the check number or range of check numbers, account number, and reason. If any information Company provides is inaccurate or insufficient, or if Bank does not have a reasonable opportunity to act upon the stop payment order before payment is made, Bank will not be responsible or liable in any way if the order cannot be executed. Sending a stop payment request through Online Banking is considered a written request and will be effective for six months unless such request is terminated in writing by Company prior to expiration. If a designated Authorized Representative notifies Bank a check are lost or stolen, a stop payment order may be valid for a longer period of time not to exceed five (5) years. Designated Authorized Representatives may renew stop payment orders for an additional six month period by reentering the stop payment order prior to expiration. Company is solely responsible for monitoring all expiration dates of stop payment orders. All stop payment requests are subject to verification. Bank’s customary stop payment fee will be assessed as a direct debit to the applicable Account for each stop payment order or renewal thereof. The fee is generated and charged when the order is initially placed by Company.
Loan Payment. The loan payment function allows Company’s designated Authorized Representatives to initiate one-time and recurring loan payments from Company’s deposit Accounts to Company’s loan Accounts accessible through Online Banking or Mobile Banking.
Loan Advances. The loan advance function allows Company’s designated Authorized Representatives to initiate loan advances from Company’s loan Accounts to Company’s deposit Accounts accessible through Online Banking or Mobile Banking.
Export. The export function enables Company’s designated Authorized Representatives to extract transaction history from an Account and export it to Quicken, QuickBooks, Excel, OFX or a spreadsheet application, as may be modified from time to time.
Mobile Banking Services. Authorized Representatives designated by Company may access and use most of the Business Electronic Banking Services through Bank’s Mobile Banking software on their Mobile Device. Mobile Banking is subject to the additional terms and conditions contained in this Agreement.
Bill Pay Services. Authorized Representatives designated by Company may initiate bill payments through Bank’s Bill Pay Service. The Bill Pay Service is subject to the additional terms and conditions contained in Bill Pay Addendum.
E-Statement Services. The Company may elect, and designate additional Authorized Representatives, to receive notices regarding Company’s Accounts electronically. The Company will be required to enroll through Online Banking and agree to the additional E-Statement services terms and conditions contained in this Agreement.
Alert Services. Authorized Representatives designated by Company to request and receive certain messages about eligible Account(s) (checking accounts). The Alerts Service is subject to the additional terms and conditions contained in this Agreement.
Treasury Management Services. If Company has requested and Bank has approved Company for one or more of the Treasury Management Services described below, Company may permit its designated Authorized Representatives to access such Treasury Management Services through Online Banking and Mobile Banking. Access to and use of such Treasury Management Services through Online Banking or Mobile Banking shall be subject to the terms of this Agreement and any other Account Documentation, limitations, security procedures and requirements provided or established by Bank in connection with such Treasury Management Services.
Description of Business Electronic Banking Services
- ACH Origination Services. Authorized Representatives designated by Company may request Bank to execute ACH originations (credit or debit entries) on Company’s behalf. Use of the ACH origination services is subject to Company’s execution and acceptance of a separate ACH Origination Agreement.
- EZ Deposit Services. Authorized Representatives designated by Company may initiate remote deposits of checks to Company’s Accounts using Bank’s remote deposit service. Use of Bank’s remote deposit services is subject to Company’s execution and acceptance of a separate remote deposit services agreement. Remote Deposit Services may only be accessed through Online Banking, not Mobile Banking.
- Mobile Deposit Services. Authorized Representatives designated by Company may perform deposits to Company’s deposit Account(s) accessible through Mobile Banking using the Mobile Deposit Service. To activate this service, an Authorized Representative must be enrolled initially through Online Banking. Designated Authorized Representatives then must download the Bank mobile app onto their Mobile Device. Additional end user terms may apply to the mobile app. The Mobile Deposit Service is subject to additional terms and conditions and your use of such services will constitute your acceptance to these additional terms and conditions.
- Positive Pay Services. Authorized Representatives designated by Company may use Bank’s positive pay services through Online Banking and Mobile Banking to help identify and block unauthorized checks drawn against Company’s Account(s). Use of positive pay services is subject to Company’s execution and acceptance of a separate positive pay agreement.
- Wire Transfer Services. Authorized Representatives designated by Company may request Bank to initiate wire transfers on Company’s behalf. Use of wire transfer services is subject to Company’s execution and acceptance of a separate wire transfer agreement.
The types of Business Electronic Banking Services Bank offers through Online Banking and Mobile Banking are detailed on the Online Banking website and within the Mobile Banking software. Bank may, from time to time in its sole discretion, introduce new features and Business Electronic Banking Services or remove features or Business Electronic Banking Services. Bank will update the Online Banking website and Mobile Banking software accordingly upon any change in features available through Online Banking or Mobile Banking.
Business Electronic Banking Services Approval. Company’s approval for use of any Business Electronic Banking Service may be subject to underwriting criteria established by Bank from time to time. If Bank requires application of underwriting criteria for Company’s approval for use of a Business Electronic Banking Service, Bank will communicate to Company the nature and content of that criteria and the information Company will be required to provide to Bank. Company agrees to provide to Bank such financial, business, and operating information as Bank may reasonably request in connection with Bank’s underwriting review and approval process. Bank is under no obligation to approve the use of any Business Electronic Banking Service. The decision to approve Company’s use of any Service is within Bank’s sole discretion. Bank’s records will be conclusive as to the Business Electronic Banking Services Bank approves Company using from time to time and the dates on which Bank approves Company’s use of such Business Electronic Banking Services. For the purpose of this Agreement, Bank will be deemed to have approved Company’s use of a Business Electronic Banking Service on the date Bank completes the activation of the Business Electronic Banking Service for Company on Bank’s system, and once that occurs, Bank will be providing such Business Electronic Banking Service to Company’s designated Authorized Representatives.
Access to Business Electronic Banking Services
Enrollment Instructions and Modifications. To enroll and access the Business Electronic Banking Services through Online Banking and Mobile Banking, Company will first be required to designate a representative of Company to serve as the Authorized Representative, including accounts to have access to and account access rights. The Company will also be able to add or remove other Authorized Representatives in the future upon written request to Bank.
To modify Company’s desired Business Electronic Banking Services, add or delete Account(s), remove or replace an Authorized Representative, or modify overall use parameters or limits on an Service-level basis for each Account, a representative of Company with signing authority will be required to request such changes in writing to Bank.
Authorized Representatives. Bank will rely on Company’s authentication to establish the identity and authorities of each additional Authorized Representative. The Company agrees to designate Authorized Representative(s) to act on Company’s behalf, who shall have the authority to authorize actions necessary in the use of the Business Electronic Banking Services – actions necessary include, and are not limited to, acceptance of requisite terms and conditions or other agreements that facilitate enrollment in, or the subsequent use of, the Business Electronic Banking Services. Company agrees that Bank shall not be under a duty to inquire as to the authority or propriety of any transaction made by Authorized Representative(s).
If additional Authorized Representatives are appointed by Company, Company is representing and warranting that they will be acting on Company’s behalf and that they will be bound by this Agreement and any other separate agreement governing the Account. For each Authorized Representative, Company may assign access privileges – transactional or inquiry only – for each linked Account. Company understands and agrees that assigning of transactional access to an Authorized Representative will allow the Authorized Representative to transfer funds, perform account maintenance and view account transactions for the linked Accounts. Inquiry only access allows an Authorized Representative to view account transactions. Company agrees that Authorized Representatives are fully authorized to act in the authority of any rights granted to them by Company.
Company agrees that it will follow any Authorized Representative appointment procedures Bank provides. This provision takes precedence over any conflicting provision in any other agreement Company has with Bank. Bank may discontinue offering Authorized Representative services or permitting Authorized Representatives to access Company’s Account at any time without prior notice.
Company agrees that only Authorized Representatives designated by Company in writing will be permitted to act on behalf of Company to communicate with or provide instructions to Bank concerning the matters governed by the Agreement. Bank shall be entitled to rely on any instructions believed by it in good faith to be provided by one of the Authorized Representatives of Company. All electronic communications that meet Bank’s requirements of establishing Company’s identity and acceptance of the electronic communications will be deemed to be valid and authentic and Company intends and agrees that those electronic communications will be given the same legal effect as written and signed paper communications. Company agrees that electronic copies of communications are valid and Company will not contest the validity of the originals or copies, absent proof of altered data or tampering.
It is the responsibility of Company to notify Bank in writing of any changes to those individuals designated as the Authorized Representatives for Company. Until Bank receives such notice and has had a reasonable opportunity to act on it, Bank shall continue to rely on all information provided by such Authorized Representatives.
If an Account has more than one Authorized Representative, each Authorized Representative has the right to provide Bank with Company Instructions, conduct any transaction, make any decision, obtain any information or make any request associated with the Account and related Business Electronic Banking Services, to the extent allowed by the terms and conditions of this Agreement and the Account Documentation governing such Account. Please refer to the specific Account Documentation for Company’s Accounts and Business Electronic Banking Services for more details.
To the extent Bank receives conflicting instructions from one or more Authorized Representatives of Company, Bank shall be entitled to rely on the most recent set of instructions received from Company, and may otherwise rely on any other instructions provided by an Authorized Representative in writing, through the Business Online Banking System or otherwise, that Bank determines to be the most recent instructions.
If Bank believes that an Account’s security or Bank’s security may be at risk as a result of an Authorized Representative, Bank may, in its sole discretion, terminate the Authorized Representative’s access to Online Banking and Mobile Banking, an Account, or a Business Electronic Banking Service, or prevent the individual from being an Authorized Representative, without prior notice to such Authorized Representative or Company.
The authority of an Authorized Representative will terminate: (a) after Bank is notified of Company’s dissolution, (b) in the case of Accounts owned by sole-proprietors, upon Bank’s receiving written notice of the death or incapacity of the sole-proprietor from a court of competent jurisdiction or from a source that Bank considers official and reliable, (c) in Bank’s sole discretion if Company or an Authorized Representative breaches any provision of this Agreement, or (d) when an Authorized Representative ceases to be enrolled in Online Banking and Mobile Banking. For termination of authority of an Authorized Representative pursuant to (a) or (b) above, such termination of authority will not be effective until Bank actually receives the required notice and has had a reasonable opportunity to act on it.
Signatures. If any authorized signer of Company faxes or emails any scanned document to Bank signed, Company agrees that it was its intention that: (a) Company’s faxed/scanned signature is an electronic signature under applicable federal and state law, (b) the fax/scan be an original document, and (c) Company intends on conducting business with Bank by electronic records, electronic contracts, and electronic signatures.
Multiple Signer Accounts. Company’s designation of an Account that requires multiple signatures as an Account accessible through Business Online Banking constitutes Company’s agreement to waive this requirement on transactions initiated through the Business Electronic Banking Services.
Displaying Accounts. Use of Online Banking and Mobile Banking requires at least one eligible deposit account with Bank. If Company enrolls in Online Banking and Mobile Banking, Account(s) on which Company is named as the owner will be displayed and eligible for access through Online Banking and Mobile Banking.
Linking Accounts of Additional Businesses. If an authorized signer of Company is also authorized to enter into this Agreement for another business affiliated with Company, and if Company wants to link the accounts of the other business to the Business Electronic Banking Services covered by this Agreement, the authorized signer may link the accounts of Company and the other business so that Company and the other business, at their own risk, may enable Authorized Representatives to access the accounts of both Company and the other business via the Business Electronic Banking Services using one common username and password. Company can do this only if Company is authorized to link the accounts and to use all the functions of Business Online Banking System for each account of the other business. Company further agrees to inform Bank if Company’s authority over any linked account of the other business ceases. Bank is not liable if Company’s authority over any account ceases until Bank is informed of the change in authority using the “Notices” requirements of this Agreement.
Accessing and Using Business Electronic Banking Services. To access Company’s Accounts and Business Electronic Banking Services through Online Banking or Mobile Banking, each Authorized Representative must have Security Information and the required hardware and software. Company and its Authorized Representatives must also comply with any other security procedures and policies Bank may establish from time to time.
Effective Cut-Off Time for Transactions Initiated Through the Business Electronic Banking System. Except as otherwise stated on the Online Banking website, within the Mobile Banking software or in the Account Documentation governing Company’s Accounts, a transaction completed through Online Banking or Mobile Banking before the Cut-Off Time applicable to the Service on a Business Day will be posted to Company’s Account the same day. All transactions completed after the transaction Cut-off Time on a Business Day or at any time on a non-Business Day will be posted on the next Business Day. Transferred funds will be available for withdrawal on the Business Day they are posted to Company’s Account.
Limitations on Frequency and Dollar Amounts of Transfers. Company’s ability to initiate transfers between Company’s Accounts and to transfer funds from Company’s Accounts to third parties using a Business Electronic Banking Service may be limited by federal law, by the Account Documentation governing Company’s Account(s) and by other disclosures Bank may provide to Company in connection with this Agreement. Company should refer to the Account Documentation governing Company’s Account(s) and any additional disclosures Bank provides to Company for these restrictions. Transfers made through Online Banking and Mobile Banking are included in calculating the permissible number of transfers authorized under Company’s Account Documentation. Company agrees that Bank may, without notice or other obligation to Company, refuse to make any transfer for security reasons or as otherwise expressly provided in this Agreement or Company’s other Account Documentation.
Business Electronic Banking Service Exposure Limits. Company shall comply with the applicable exposure limits for each Business Electronic Banking Service as set forth in the Account Documentation for any such Service. Such limits may be modified from time to time by Bank at its sole discretion with notice to Company.
Authorization to Transfer Funds. Company expressly authorizes Bank to debit the appropriate Account in the amount of any fund transfer initiated through Online Banking or Mobile Banking. Company agrees that Bank may treat any such funds transfer from an Account the same as a duly executed written withdrawal, transfer, check or loan advance and that Bank may treat any such funds transfer to an Account the same as a deposit or loan payment, all in accordance with the terms of this Agreement and the Account Documentation governing Company’s Account(s).
No Extension of Credit. If an Business Electronic Banking Service involves a debit to any of Company’s Accounts or any other account Company maintains with Bank, Company must have available in such accounts sufficient amounts to enable Bank to make the debit. Nothing in this Agreement will constitute or be deemed a commitment by Bank to extend credit to Company, or to grant to Company overdraft privileges. Bank will not have any obligation to make any funds available to Company to effect any payment being made by Company or to enable Company to use any one or more of the Business Electronic Banking Services. Any obligation to extend credit to Company or to otherwise make funds available to Company must be set out in a separate agreement executed by Bank through a person authorized to make credit decisions on Bank’s behalf.
Multiple Transfers and Insufficient Funds. If more than one funds transfer is made at or about the same time and the available funds in the applicable Account do not cover all of such funds transfer requests, Bank at its option may execute as many of such funds transfer requests as possible within the dollar limits of such available funds, including any overdraft coverage, in any order convenient to Bank and in its sole discretion. If there are insufficient funds available in the Account and processing a funds transfer request would result in an overdraft, Bank shall have the right, in Bank’s sole discretion to refuse or cancel any transaction generated on the Account. Company agrees to maintain sufficient available funds in the Account(s) to support any transactions initiated using the Business Electronic Banking Services and to cover any fees Company is obligated to pay under this Agreement. If at any time there are not sufficient available funds in Company’s Account(s) to cover all outstanding transactions and other payment obligations of Company under this Agreement, Company agrees to immediately pay Bank, on demand, the amount of any deficiency in such outstanding transactions and obligations. Bank may, without prior notice or demand, obtain payment from Company for any of its obligations under this Agreement by debiting any Account of Company at Bank.
System Availability. Subject to the terms of this Agreement, Company’s Authorized Representatives will generally be able to access Company’s Accounts and the Business Electronic Banking Services through Online Banking and Mobile Banking seven days a week, twenty-four hours a day, although some or all services may not be available occasionally due to emergency or scheduled system maintenance. Bank shall do its best to post notice of any extended periods of non-availability on the Online Banking website, but Bank will not be responsible for any claims related to such inability to access or utilize Online Banking or Mobile Banking under such circumstances.
Hardware and Software Requirements. Company and its Authorized Representatives are solely responsible for acquiring and maintaining the computer, computer equipment, Mobile Devices, and other electronic devices necessary to access the Business Electronic Banking Services. Company and its Authorized Representatives are also responsible for all related costs associated with accessing the Business Electronic Banking Services including, but not limited to, wireless carrier service or Internet service charges, and shall be responsible for any defect, malfunction or interruption in service or security due to hardware failure, Company’s or an Authorized Representative’s choice of Internet service provider or wireless carrier, or Company’s or an Authorized Representative’s choice of systems, computer services or Mobile Devices. To access Bank’s Business Electronic Banking Services through Mobile Banking, Authorized Representatives must use a Mobile Device and software that meets all technical requirements for the proper delivery of Mobile Banking services and obtain and maintain secure access to the Mobile Banking services. Bank is not responsible for, and you and Company hereby release Bank from, any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using your Mobile Device, electronic mail or the Internet. Bank is not responsible for, and you and Company hereby release Bank from, any and all claims or damages resulting from, or related to, defects in or malfunctions of your Mobile Device, or failures of or interruptions in any electrical, wireless carrier or Internet services.
Equipment & Software. To access and use one or more of the Business Electronic Banking Services, Bank may require that Company have certain systems, equipment, computers, hardware, software, mobile devices, telecommunications equipment and services, Internet access and services, and/or Service Equipment and Service software, “Company System”. Company is responsible at Company’s sole expense for; (a) obtaining the Company System; (b) properly maintaining, in accordance with the vendors recommendations, the Company System in good working order and ensuring that the Company System continuously meets all of Bank’s applicable requirements as stated in this Agreement, the Operating Procedures or as otherwise provided to Company; (c) the performance, functionality, input, output and connectivity of the Company System; (d) any damage to the Company System, whether in connection with use of the Business Electronic Banking Services or otherwise, and all necessary repairs and/or replacements; (e) having all maintenance, repairs, upgrades and replacements required herein performed by properly trained personnel, whether they are employees of Company or third-party employees; (f) implementing reasonable measures to protect the security of the Company System against unauthorized access to and/or use of the Business Electronic Banking Services or Business Electronic Banking Services data and information entered or delivered through the Company System. At Bank’s request, Company will allow Bank or Bank’s designated representative to inspect or review the Company System to ensure compliance with the system requirements. Such inspections or reviews will be conducted during normal business hours and in a reasonable manner so as not to disrupt Company’s normal business operations. Bank shall have no responsibility for failures, interruption or other defects in the Business Electronic Banking Services, which are occasioned by an incompatible, improperly installed or improperly maintained Company System. Bank may add to, modify, or replace software programs used in conjunction with providing the Business Electronic Banking Services under this Agreement at its sole discretion and without notice, provided Business Electronic Banking Services rendered to Company are not substantially negatively affected or obligations altered. From time to time Bank may deem it necessary to hold training or retraining classes for Company. Company agrees that Company will require appropriate personnel to participate in such training. Due to periodic upgrades in software, new releases may be issued. If there is a fee associated with a new release, Company will pay this fee. Company is responsible, at Company’s cost, for the installation, maintenance, and support of any new releases of software. Company will immediately return to Bank any software and associated documentation upon cancellation of the Service or termination of this Agreement, or earlier upon demand by Bank.
In consideration for the Business Electronic Banking Services provided, Company agrees to pay such fees as may be charged by Bank pursuant to this Agreement, the Account Documentation for any of the Business Electronic Banking Services, or Bank’s standard fee schedule, are available upon request. Applicable fees assessed in connection with the Business Electronic Banking Services will appear on Company’s regular periodic statement(s) for the Account(s). Applicable fees may be charged regardless of whether the Business Electronic Banking Services was used during the billing cycle. Company agrees to pay such charges and authorizes Bank to deduct the calculated amount from Company’s applicable Account(s) for these amounts even if such deduction causes an overdraft in such Account(s). If an Account is closed and Company has another account with Bank, Bank may charge that account for fees owed for using Business Electronic Banking Services. Any account fees associated with Company’s Accounts will continue to apply. Company is also responsible for the costs of any communication lines and any data processing charges payable to third parties. In addition to the service charges or fees, Company agrees to pay all taxes, tariffs and assessments levied or imposed by any government agent in connection with the Business Electronic Banking Services, this Agreement, and/or the software or equipment made available to Company (excluding any income tax payable by Bank.) Bank may also recover payment in any other permissible manner, including judicial actions, or from property which secures obligations Company owes Bank. Bank reserves the right to change the fees at any time in its sole discretion by modifying the terms of this Agreement, the Account Documentation for any of the Business Electronic Banking Services, or its standard fee schedule. Company will be notified of such changes as required by law.
You acknowledges receipt of the security information and agree to comply with the security procedures set forth below and such other security procedures as Bank may provide to Company from time to time (collectively “Security Procedures”).
The purpose of the Security Procedures is to verify the authorization and authenticity of requests submitted to Bank by Authorized Representatives through Online Banking and Mobile Banking. In connection with any transfer request, Company shall be responsible for its compliance with the Security Procedures.
Creation of Required Security Information. Company or Bank will assign an Access ID and temporary password for each Authorized Representative. The Bank may issue a multi-factor token (if requesting certain Business Electronic Banking Services) to access Online Banking and Mobile Banking. During enrollment for Online Banking, each Authorized Representative will be asked to create a new password, enable their token (if applicable), and receive and enter a secure access code.
Upon three unsuccessful attempts to access Online Banking and Mobile Banking using incorrect Security Information, an Authorized Representative will be locked out of Online Banking and Mobile Banking. The Authorized Representative may contact Bank to unlock access to Online Banking and Mobile Banking and reset his or her Security Information. The Authorized Representative may also unlock access to Online Banking and Mobile Banking and reset his or her Security Information by selecting ‘forgot your password?’ on the password page.
Enhanced Security Procedures. Some of the Business Electronic Banking Services allow Company to set transaction limitations and establish internal controls. Company’s failure to set such limitations and implement such controls increases Company’s exposure to, and responsibility for, unauthorized transactions. If Company elects not to adopt or follow these enhanced security procedures, Company hereby represents that it has been advised that such enhancements are the recommended method for transfer requests and Company expressly accepts all liability for and agrees to indemnify Bank from and against any and all resulting claims, demands, loss, liability, or expense, including attorneys’ fees and costs, resulting directly or indirectly from any losses that should arise as a result of Company’s election not to adopt such enhanced security procedures.
Company Responsibility to Secure Company Security Information. You agree to safely keep, and instruct Company’s Authorized Representatives to safely keep, Company’s Security Information, not to record Company’s Security Information or otherwise disclose or make Company’s Security Information available to anyone other than Authorized Representatives of Company’s Account(s). Anyone who has access to Company’s Security Information may have full access to Company’s Accounts and the Business Electronic Banking Services. If anyone uses Company’s Security Information with Company’s permission, Company will be responsible for any transactions performed by that person. If a third party should gain access to Company’s Security Information, Company alone is responsible for changing Company’s Security Information so as to deny the third party’s access to Company’s Accounts.
Although information exchanged through Online Banking and Mobile Banking is protected by advanced encryption techniques, Company is still responsible for protecting Company’s Security Information. Notwithstanding Bank’s efforts to insure that Online Banking and Mobile Banking is secure, Company acknowledges that the Internet is inherently insecure and that all data transfers, including electronic mail, occur openly on the Internet and potentially can be monitored and read by others. Bank cannot and does not warrant that all data transfers utilizing Online Banking and Mobile Banking, or e-mail transmitted to and from Bank, will not be monitored or read by others. Bank does not guarantee that the Security Procedures will be effective. Bank does not represent or warrant that the Security Procedures will detect errors in the transmission or content of payments, transfers or communications initiated through Online Banking and Mobile Banking; Bank will have no liability if such an error occurs; unless such error was directly caused by the gross negligence or willful misconduct of Bank.
Physical and Electronic Security. Company is solely responsible for providing for and maintaining the physical, electronic, procedural, administrative, and technical security of data, systems and computers in Company’s possession or under Company’s control. Bank is not responsible for Company’s computer security and any computer viruses (including, without limitation, programs commonly referred to as “malware,” “keystroke loggers,” “trojans” and/or “spyware”), or problems, malfunctions, or non-authorized transactions resulting from any computer viruses or unauthorized counterparty, or any related problems that may be associated with the use of an online system. Any material downloaded or otherwise obtained is obtained at Company’s own discretion and risk, and Bank is not responsible for any damage to Company’s computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise. Company is solely responsible for maintaining and applying anti-virus software, security patches, firewalls, and other security measures with respect to Company’s operating systems, and for protecting, securing, and backing up any data and information stored in or on Company’s computer systems. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on Company’s computer systems or accessed through Bank’s Business Electronic Banking Services.
It is Company’s responsibility to protect itself and to be vigilant against email fraud, corporate takeover and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” and “pharming”). Company agrees to educate Authorized Representatives, agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. Company acknowledges that Bank will never contact Company by e-mail in order to ask for or to verify account numbers, Security Information, or any sensitive or confidential information. In the event Company receives an e-mail or other electronic communication that Company believes, or has reason to believe, is fraudulent, Company agrees that neither Company nor its Authorized Representatives, agents, and employees shall respond to the email, provide any information to the email sender, click on any links in the email, or otherwise comply with any instructions in the e-mail. Company agrees that Bank is not responsible for any losses, injuries, or harm incurred by Company as a result of any electronic, e-mail, or Internet fraud.
Breach of Security Procedures. In the event of a breach of the Security Procedures, Company agrees to assist Bank in determining the manner and source of the breach. Such assistance shall include, but shall not be limited to, providing Bank or Bank’s agent access to Company’s hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedures. Company further agrees to provide Bank with any analysis of such equipment, device, or software or any report of such analysis performed by Company, Company’s agents, law enforcement agencies, or any other third party. Failure to assist Bank shall be an admission by Company that the breach of the Security Procedures was caused by a person who obtained access to transmitting facilities of Company or who obtained information facilitating the breach of the Security Procedure from Company and not from a source controlled by Bank.
Company agrees that the Security Procedures, including, without limitation, use of (a) assigned codes, user names, and/or passwords; (b) Secure Socket Layer (SSL) with at least 128-bit encryption; (c) multi-factor authentication that utilizes usernames, Passwords and security tokens for certain transactions; (d) challenge-response mechanism for forgotten passwords; (e) required sign-on every 180 days; (f) minimum password length settings; (g) time-out limits to log inactive users of Online Banking and Mobile Banking, or (h) transaction dollar limits or other means, or method of authentication or identification used in connection with the Business Electronic Banking Services, constitute commercially reasonable security procedures under applicable law for the initiation of the Business Electronic Banking Services Company utilizes. Company authorizes Bank to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until Company has notified Bank, according to notification procedures prescribed herein, that the Security Procedures or any Security Information has been stolen, compromised, or otherwise become known to persons other than Company or Company’s Authorized Representatives and until Bank has had a reasonable opportunity to act upon such notice. Company agrees that the initiation of a transaction or instructions using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction or instruction notwithstanding any particular designation by Company of authorized persons or signature requirements identified on any signature card or other documents relating to Company’s deposit account maintained with Bank, and Company agrees and intends that the submission of transactions and instructions using the Security Procedures shall be considered the same as Company’s authorized written signature in authorizing Bank to execute such transaction or instruction. Company acknowledges and agrees that Company shall be bound by any and all transactions initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by Company, to the fullest extent allowed by law. Company further acknowledges and agrees that the Security Procedures are not designed to detect error in the transmission or content of communications or transaction initiated by Company and that Company bears the sole responsibility for detecting and preventing such error.
Company also agrees that (a) no group or shared user names, passwords or security tokens will be issued; (b) that each Authorized Representative shall have his or her own user name, Password and security token (if applicable); and (c) that Authorized Representatives shall not share user names, Passwords or security tokens with each other. Company agrees Company is responsible for obtaining, configuring and maintaining a secure malware free computing environment including, without limitation, installing and maintaining up-to-date firewall and anti-virus and anti-spyware/malware software. Where Company has the ability to change or modify Security Information from time to time (e.g., a password or User Name), Company agrees to change Security Information frequently in order to ensure the security Online Banking and Mobile Banking. Company agrees to notify Bank immediately if Company believes that any Security Information has been stolen, compromised, or otherwise become known to persons other than Company or Company’s Authorized Representatives or if Company believes that any transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of security, Bank may issue Company or its Authorized Representatives new Security Information or establish new Security Procedures as soon as reasonably practicable, but Bank shall not be liable to Company or any third party for any delay in taking such actions. Company agrees to indemnify, defend all claims, and hold Bank harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, caused by Company’s, Company’s employees’, or Company’s agents’ failure to keep the Security procedures or Security Information confidential and secure. Company further agrees to notify Bank immediately, according to notification procedures prescribed by Bank, if the authority of any Authorized Representatives shall change or be revoked. Company shall recover and return to Bank any security tokens in the possession of any of Company’s Authorized Representatives whose authority to use the Business Electronic Banking Services has been revoked.
Authorized Representative Responsibilities. While Bank’s service provider continues to evaluate and implement the latest improvements in Internet security technology, Authorized Representatives of the Business Online Banking system also have responsibility for the security of their information and should always follow the recommendations listed below:
— Passwords should not be associated with any commonly known personal identification information, such as social security numbers, address, date of birth, names of children, etc., and should be memorized and not written down.
— Online Banking is best viewed and is most secure when using one of the supported browsers and operating systems.
— Your Security Information must be kept confidential. You must follow Bank’s specific parameters for establishment and use of Security Information and change passwords frequently to ensure that the information cannot be guessed or used by others.
— Be sure others are not watching you enter information on the keyboard when using Online Banking and Mobile Banking.
— Never leave your computer or Mobile Device unattended while logged on to the Online Banking and Mobile Banking. Others may approach your computer or Mobile Device and gain access to Company’s account information if you walk away.
— Click Logoff when you are finished using Online Banking and Mobile Banking to properly end your session. Once a session has been ended, no further transactions can be processed until you log on to Online Banking or Mobile Banking again.
— Close your browser when you are finished, so that others cannot view any account information displayed on your computer.
— Keep your computer free of viruses. Use virus protection software to routinely check for a virus on your computer. Never allow a virus to remain on your computer while accessing Online Banking and Mobile Banking.
— Limit corporate access times to normal business hours
— Prevent key logger, spyware and phishing attempts
— Try to have a designated computer and designated Mobile Device used specifically for Online Banking and Mobile Banking purposes
— Report all crimes to law enforcement officials immediately.
Reliance on Security Procedures and Information. Company agrees to be bound by any Company Instructions Bank receives through Online Banking or Mobile Banking, even if the instructions are not authorized by Company, if it includes Security Information or is otherwise processed by Bank in accordance with Bank’s Security Procedures. If Company uses any method other than the Security Procedures set forth in this Agreement to communicate, deliver, or transmit information to Bank, by doing so Company rejects the Security Procedure set forth herein, chooses an alternative security procedure, agrees that such alternative security procedure may not be found to be commercially reasonable, and agrees to be bound by any resulting transaction, whether or not authorized, that was issued in Company’s name and accepted by Bank using the alternative security procedure selected by Company.
Modification of Security Procedures. Bank reserves the right to modify, amend, supplement, or cancel any or all Security Procedures, and/or to cancel or replace any Security Information, at any time and from time to time in Bank’s discretion. Bank will attempt to give Company reasonable notice of any change in Security Procedures; provided that Bank may make any change in Security Procedures without advance notice to Company if Bank, in Bank’s judgment and discretion, believe such change to be necessary or desirable to protect the security of Bank’s systems and assets. Company’s implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute Company’s agreement to the change and Company’s agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.
Responsibilities; Liability and Limitations
Company’s Acknowledgment. Company acknowledges (i) the inherent risks and responsibilities associated with conducting business via the Internet and that there can be no assurance that inquiries or transaction activity will be completely secure, despite any security procedures established by Bank such as firewalls, passwords, and data encryption. Company also understands that access to Online Banking and Mobile Banking will not be free from delays, malfunctions, or other inconveniences generally associated with this electronic medium and Company agrees Bank is not responsible for any such delays, malfunctions, or inconveniences; (ii) Company and its Authorized Representatives are responsible for maintaining all equipment required for its access to and use of the Business Electronic Banking Services; (iii) Company is authorizing Bank and Bank’s affiliates and agents to allow Company access to Accounts via the Internet; and (iv) Company is authorizing Bank, and any third party on Bank’s behalf, to serve as agent in processing transaction instructions received from Company via the Internet and to post such transactions to Company’s designated Accounts. Company will be solely responsible for the timeliness, accuracy and adequacy of the data entered as well as the completeness of any instruction entered.
Company Additional Responsibilities. Company is responsible for actions that may be taken by anyone using Online Banking and Mobile Banking after signing in with Company’s Security Information, except as otherwise set forth herein or in the Account Documentation governing Company’s Accounts. Bank is entitled to rely and act upon Company Instructions received using Company’s Security Information. Company is further responsible for keeping Company’s Security Information confidential and for ensuring that each Authorized Representative has signed off from Online Banking and Mobile Banking when a session is complete to prevent unauthorized persons from using Online Banking and Mobile Banking.
Company further agrees that Company and its Authorized Representatives will: (i) not use Online Banking or Mobile Banking for any activity or use that may disrupt the Business Electronic Banking Services or the networks through which Company accesses or uses the Business Electronic Banking Services; and (ii) not access or attempt to access any account for which Company has no access authorization, or duplicate, modify, distribute or display any of the data or files from any such account.
Disclaimer of Warranties. To the fullest extent permitted by law, Bank makes no warranties of any kind related to the Business Electronic Banking Services, either express or implied, including but not limited to, implied warranties of merchantability or fitness for a particular purpose. Bank does not warrant that the Business Electronic Banking Services will be uninterrupted or error free, that defects will be corrected, or that the Business Electronic Banking Services are free of viruses or other harmful components. COMPANY ACKNOWLEDGES AND AGREES THAT COMPANY’S USE OF THE BUSINESS ELECTRONIC BANKING SERVICES(S) SHALL BE AT COMPANY’S SOLE RISK, AND THAT THE BUSINESS ELECTRONIC BANKING SERVICES ARE PROVIDED BY BANK ON AN “AS IS” BASIS.
Information Processing and Reporting. Bank will not be responsible for determining the accuracy, timeliness or completeness of any information or Company Instructions that Company or others provide to Bank. Company agrees to maintain adequate backup files of the data Company submits for a reasonable period of time in order to facilitate any needed reconstruction or reprocessing of Company’s transactions (e.g., due to a telecommunication failure). If Bank is unable to provide a Business Electronic Banking Services for any reason, Bank will take reasonable steps to resume processing.
Unauthorized Transactions and Errors. Bank’s Security Procedures are not designed for the detection of errors (e.g. duplicate payments or errors contained in Company Instructions). Bank will not be obligated to detect errors by Company or others, even if Bank takes certain actions from time to time to do so. It is Company’s responsibility to notify Bank immediately at 651-265-5640) if Company believes any Security Information has been lost, stolen or otherwise made available to an unauthorized person, or that someone has viewed, downloaded, or deleted electronic records from Company’s Accounts without Company’s permission, or if Company suspects any fraudulent or unauthorized activity (including errors) on Company’s Accounts. Company further agrees to comply with all notification requirements set forth in any other Account Documentation governing Company’s Account(s) or Business Electronic Banking Services. Company’s liability for any unauthorized transactions (including errors) will be determined based on the terms set forth in this agreement and Company’s other Account Documentation. Company agrees to promptly repay any amount erroneously credited to any of Company’s Accounts, and Company authorizes Bank to initiate a debit transfer to any such account to obtain payment of any erroneous credit.
Data and Information Supplied by Company. Company shall transmit or deliver data and other information in the format and on the media as provided for in this Agreement and the set of detailed instructions establishing the Operating Procedures governing the Service, if applicable or as otherwise required by Bank in conjunction with rendering the Business Electronic Banking Services selected by Company. Company shall have the sole responsibility of ensuring the accuracy and correctness of the data transmitted. Company acknowledges and agrees that Bank shall not examine the data for correctness and that Bank shall not have any responsibility for detecting errors in the data transmitted by Company. The data transmitted by Company must be legible, correct and complete. Bank shall not process, nor will Bank be liable to Company for failure to process, the data if it is not in the format specified by Bank or if the data is incomplete. Bank shall not be liable for errors or omissions caused by data that is rejected as the result of Company’s failure to provide the data in accordance with the standards specified in this Agreement, other Account Documentation or applicable instructions. Company agrees that Company shall be solely liable for, and Bank shall not have any liability whatsoever to Company for, any data or other information that is not received by Bank or for any data or other information that is intercepted or altered by an unauthorized third party. Company agrees that Bank has no obligation to accept any data or other information and, therefore, may reject any data or other information transmitted or delivered by Company in connection with a Service.
Data Review. Company has sole responsibility for confirming the accuracy and validity of all information, data, entries, and processing services prepared by Bank and delivered to Company in connection with any Service. Company agrees to carefully review all records and other information provided or made available to Company by Bank and to report any discrepancies within thirty (30) days of Company’s receipt of the record or other information showing such discrepancies. Company’s failure to promptly report to Bank within such specified time the existence of any discrepancies in any record or other information constitutes Company’s acceptance of the record or other information as valid and accurate and shall preclude Company from asserting against Bank any claims arising from or any loss caused by the discrepancy.
Limitations of Bank’s Liability and Obligations to Company. 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 Company and its Authorized Representatives pursuant to this Agreement. Except as otherwise specifically provided by law, Bank shall be responsible only for performing the services expressly provided for in this Agreement, and shall be liable only in the event of loss due to its gross negligence or willful misconduct in performing those services. In no event shall Bank have any liability for any consequential, special, incidental, punitive or indirect loss or damage which Company may incur or suffer in connection with this Agreement, whether or not the likelihood of such damages was known or contemplated by Bank and regardless of the legal or equitable theory of liability Company may assert. Without limiting the foregoing, Bank shall not be liable for and Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission or communications facilities, equipment failure, war, act of terror, emergency conditions, or other conditions beyond Bank’s control. To the extent allowed by law, Bank shall not be liable for and shall be excused from failing to process or any delay in processing a transfer (i) if, in Bank’s sole discretion, processing a transfer would violate or contribute to the violation of any law, regulation or regulatory requirement; or (ii) if processing a transfer, in Bank’s sole discretion, would cause it to engage in an unsafe and unsound practice. Without limiting the generality of the foregoing, in no event will Bank’s liability for any loss, cost, or liability arising from Bank’s gross negligence or willful misconduct exceed the average monthly charge for the Service in question for the month preceding the date or loss, except as otherwise required by UCC Article 4A. Any claim, action or proceeding by Company to enforce the terms of this Agreement or to recover for any Service-related loss must be commenced within one year from the date that the event giving rise to the claim, action or proceeding first occurs. Company agrees to cooperate with Bank in any loss recovery efforts Bank undertakes to reduce any loss or liability that arises in connection with the Business Electronic Banking Services. Company acknowledges that Bank’s Service fees have been established in contemplation of: (a) these limitations on Bank’s liability; (b) Company’s agreement to review statements, confirmations, and notices promptly and to notify Bank immediately of any discrepancies or problems; and (c) Company’s agreement to assist Bank in any loss recovery efforts.
Current Day Balance Information and Current Day Transactions. Company acknowledges that account information regarding the current day may change. For instance, over the counter items may not be reflected and interruptions in communications can occur and Bank shall not be responsible for current day balance or current day transaction information. Company acknowledges that Company’s decisions based on Bank’s information on current day balances and current day transactions must take into consideration information that is known or should be known to Company and to Company’s employees and not known to Bank or not reflected in the current day balance or transaction information Company obtains from Bank.
Company Indemnification Obligations. Company hereby indemnifies Bank and each of its parents, subsidiaries and affiliates and their respective officers, directors, employees, service providers, agents, insurers and attorneys (each an “Indemnified Party” and, collectively, the “Indemnified Parties”) for, and holds each of the Indemnified Parties harmless from and against, all actions, causes of action, claims, damages, liabilities and expenses (including reasonable attorneys’ fees) of any nature or kind (including those by third parties) arising out of, or related to, this Agreement, including all actions, causes of action, claims, damages, liabilities and expenses arising out of, related to or resulting from (i) Company’s failure to report required changes, (ii) Company’s transmission of incorrect, illegible, duplicate or fraudulent data to Bank (iii) Bank’s action or inaction in accordance with, or in reliance upon, any instructions or information received from any person reasonably believed by Bank to be an Authorized Representative of Company, (iv) Company’s breach of any of Company’s representations, warranties, covenants or other agreements or responsibilities under this Agreement or any other agreement between Company and Bank, including, but not limited to, the Account Documentation, or (v) any acts or omissions of Company or any third party or otherwise; provided, however, Company is not obligated to indemnify Bank for any damages solely and proximately caused by Bank’s gross negligence or willful misconduct. The terms of this paragraph shall survive the termination of this Agreement.
Compliance with Operating Procedures and Law; Prohibited Use of the Business Electronic Banking Services. Business Electronic Banking Services may only be used in accordance with this Agreement, any supporting schedules and addendums, the Operating Procedures and the Account Documentation. Company agrees not to use or attempt to use the Business Electronic Banking Services (a) to engage in any illegal purpose or activity that would violate or cause Bank to violate any applicable law, rule or regulation or the Operating Procedures, (b) to breach any contract or agreement by which Company is bound, (c) to engage in any internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, (d) to engage in any activity or business that would result in Company being or becoming a “money service business” as defined in the Bank Secrecy Act and its implementing regulations, or (e) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement. Company acknowledges and agrees that Bank has no obligation to monitor Company’s use of the Business Electronic Banking Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement or applicable law.
OFAC Compliance. Company agrees that it will review all proposed transfers initiated from Company’s Accounts by Company’s Authorized Representative prior to submitting the same to Bank for processing to assure that the processing of the same will not result in a violation of any of the laws administered by the Office of Foreign Assets Control (“OFAC”) or rules or regulations issued thereunder. OFAC provides a resource for names to screen Company’s payees and Authorized Representatives against its prohibited lists at http://www.ustreas.gov/offices/enforcement/ofac/.”
Third-Party Service Providers. Bank may use third-party service providers acting on Bank’s behalf to assist Bank in offering one or more of the Business Electronic Banking Services provided herein. Company agrees that Bank has the right under this Agreement to delegate to such third-party service providers some or all of the rights and performance obligations that Bank has under this Agreement, and that Bank’s third-party service providers will be third-party beneficiaries of this Agreement and will be entitled to all the rights and protections that this Agreement provides to Bank. In the event any third-party service provider is unavailable or Bank determines, in its discretion, that Bank cannot continue providing any third-party service provider network access, Bank may discontinue the related Business Electronic Banking Services or may provide such service through an alternate third-party service provider. In such situations, Bank will have no liability for the unavailability of access. Bank will not be responsible for any services Company receives from third-party service providers unless required by applicable law.
Governing Law; Venue. This Agreement shall be governed by and construed in accordance with applicable U.S. federal laws and the laws of the state of Minnesota. Minnesota state and federal courts will be the only courts where legal actions regarding this Agreement can be brought. Company waives in all disputes any objection that it may have to the location of the court considering the dispute.
Counterparts; Severability. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. In the event that any provision of this Agreement shall be determined to be invalid, illegal or unenforceable to any extent, the remainder of this Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
Attorney’s Fees. In the event of any adversarial proceeding between the parties concerning this Agreement, the substantially prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs in addition to any other relief to which it may be entitled.
Due Diligence Information and Audit. Bank may from time to time request information from Company in order to evaluate a continuation of the Business Electronic Banking Services to be provided by Bank hereunder and/or adjustment of any limits set by this Agreement. Company agrees to provide the requested due diligence and financial information immediately upon request by Bank, in the form required by Bank. Company authorizes Bank to investigate or reinvestigate at any time any information provided by Company in connection with this Agreement or the Business Electronic Banking Services and to request reports from credit bureaus and reporting agencies for such purpose. Upon request by Bank, Company hereby authorizes Bank to enter Company’s business premises for the purpose of ensuring that Company is in compliance with this Agreement and Company specifically authorizes Bank to perform an audit of Company’s operational controls, risk management practices, staffing and the need for training and ongoing support, and information technology infrastructure. Company hereby acknowledges and agrees that Bank shall have the right to mandate specific internal controls at Company’s location(s) and Company shall comply with any such mandate. In addition, Company hereby agrees to allow Bank to review available reports of independent audits performed at Company location related to information technology, the Business Electronic Banking Services and any associated operational processes. Company agrees that if requested by Bank, Company will complete a self-assessment of Company’s operations, management, staff, systems, internal controls, training and risk management practices that would otherwise be reviewed by Bank in an audit of Company. If Company refuses to provide the requested financial information, or if Bank concludes, in its sole discretion, that the risk of Company is unacceptable, or if Company refuses to give Bank access to Company’s premises, Bank may terminate the Business Electronic Banking Services according to the provisions hereof.
Ownership of Website. The content, information and offers on Bank’s website are the intellectual property of Bank and/or its service providers and the unauthorized use, reproduction, linking or distribution of any portions is strictly prohibited. Company agrees not to copy, display, distribute, download, license, sub-license, modify, publish, repost, reproduce, reuse, sell, transmit, create a derivative work from or otherwise use for public or commercial purposes, the information and materials on the website, except as provided in this Agreement, without Bank’s express written permission. Unless otherwise noted, all other trademarks, service marks, and logos used on Bank’s website are the trademarks, service marks or logos of Bank, or others as indicated. Company shall be responsible for ensuring that no Authorized Representatives of Company engage in any conduct that would violate the proprietary rights in the Business Electronic Banking Services or access or use the Business Electronic Banking Services in any manner that is inconsistent with this Agreement or the Operational Procedures.
Internet Disclaimer. For any Business Electronic Banking Services described in the Agreement utilizing the Internet, Bank does not and cannot control the flow of data to or from Bank’s networks and other portions of the Internet. Such flow depends in large part on the performance of Internet Business Electronic Banking Services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt Company’s connections to the Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, Company’s ability to connect to the Internet, or Bank’s ability to connect to the Internet on Company’s behalf.
Amendment. Except as otherwise provided in this Agreement, Bank may amend the terms of this Agreement at any time, in its sole discretion, by giving notice to Company at the last address shown for Company on Bank’s records, by posting notice online, or as otherwise permitted by law. Company’s continued use of the Business Electronic Banking Services following the effective date of the amendment shall constitute Company’s agreement to such amendments.
Assignment. Bank may assign this Agreement or any of its rights and duties hereunder without prior notice to or consent by Company, but Company may not assign this Agreement or any of the rights or duties hereunder to any person without Bank’s prior written consent.
Termination. This Agreement shall remain in full force and effect from the date hereof until such time as this Agreement is terminated by either party as hereinafter provided:
1. This Agreement or one or more of the Business Electronic Banking Services may be terminated at any time by either party following thirty (30) days prior written notice;
2. Either party shall have the right to terminate this Agreement or one or more of the Business Electronic Banking Services immediately by giving written notice to the other if such other party: (i) ceases to conduct its business in the ordinary sense, (ii) becomes insolvent or has any substantial part of its property become subject to any levy, seizure, assignment or application for sale for, or by, any creditor or government agency, (iii) is a party to an acquisition, (iv) in the reasonable judgment of the party seeking termination, experiences an adverse change in its financial condition or business which impairs the ability of such party to perform its obligations under this Agreement, (v) fails to perform its obligations under this Agreement or defaults under any other agreement between the parties or (vi) makes any warranty or representation which proves to be false or misleading.
Bank may further terminate or suspend the Business Electronic Banking Services immediately if: (a) the confidentiality of the Security Procedures are compromised; (b) Bank has reason to believe that an unauthorized transaction has taken or may take place involving Company’s Account(s) or a Service; (c) Company or Bank closes Company’s accounts; or (d) in Bank’s sole discretion, Bank determines that Company has abused the Business Electronic Banking Services or Bank believes that Bank will suffer a loss or other damage if this Agreement and/or applicable Service(s) is/are not terminated.
Any termination of this Agreement or one or more Business Electronic Banking Services shall not affect any of Bank’s rights and Company’s obligations with respect to transfer requests initiated by Company and received by Bank prior to the effective time of such termination, or the payment of obligations of Company with respect to services performed by Bank prior to the effective time of such termination, or any other obligations that shall survive termination. The provisions of this Agreement that are necessary to give effect to the purposes of this Agreement shall survive its termination.
Bank’s election to terminate this Agreement is in addition to any and all other remedies that may be available to Bank and will not affect any obligations Company may have to Bank. Any reinstatement of the Business Electronic Banking Services under this Agreement will be at Bank’s sole discretion and must be agreed upon in writing by an authorized representative of Bank.
Upon termination of this Agreement, any property or rights of a party in the possession of the other party, tangible or intangible, shall be returned to owner thereof within thirty (30) days after the later to occur of (i) termination of the Agreement or (ii) the last date that such party receives any such property or rights.
Upon termination of this Agreement or one or more of the Business Electronic Banking Services, (i) Company will promptly pay to Bank all sums due or to become due under this Agreement, and (ii) Company shall have no further right to make use of the terminated Business Electronic Banking Services or any system or software which may have been provided in connection with any terminated Business Electronic Banking Services. If Company terminates a Service, Company authorizes Bank, if applicable to the Business Electronic Banking Services Company is terminating, to continue making transfers Company has previously authorized and to continue to charge monthly fees until such time as Bank has had a reasonable opportunity to act upon Company’s termination notice.
Maintain Insurance. It is recommended by Bank that Company maintain sufficient liability insurance coverage associated with any Service, including employee theft of funds and identity theft of information processed using any Service.
Successors. This Agreement and all the terms and provisions herein shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
No Third Party Beneficiaries. This Agreement shall not be construed to confer any rights or remedies upon any person not a party to this Agreement, whether as a third party beneficiary or otherwise, against Company or Bank, their respective successors, assigns and affiliates.
Captions and Headings. The captions and headings contained in this Agreement are for convenience of reference only and shall not be used to limit the applicability or meaning of any provisions of this Agreement.
No Waiver. No delay or failure on the part of Bank in exercising any of Bank’s rights under this Agreement shall constitute a waiver of such rights, and no exercise of any remedy hereunder by Bank shall constitute a waiver of its right to exercise the same or any other remedy hereunder. Except for changes made in accordance with this Agreement, no deviation, whether intentional or unintentional, will constitute an amendment of this Agreement or will constitute a waiver of any right or duty of either party.
Construction. This Agreement is an agreement between parties who are experienced in sophisticated and complex matters similar to the transactions contemplated by this Agreement, is entered into by both parties in reliance upon the economic and legal bargains contained herein, and shall be interpreted and construed in a fair and impartial manner, without regard to such factors as the party which prepared the instrument or drafted any provision thereof, the relative bargaining powers of the parties or the domicile of any party.
Entire Agreement. The terms of the Account Documentation are incorporated by reference and made a part of this Agreement. Company agrees that this Agreement (including the exhibits, schedules, set up worksheets and Addenda), Operating Procedures and the Account Documentation are the entire statement of the terms and conditions between Company and Bank, which apply to the subject matter hereof. This Agreement supersedes any prior agreements between the parties relating specifically to the Business Electronic Banking Services. In the event performance of the Business Electronic Banking Services provided herein in accordance with the terms of this Agreement would result in a violation of any present or future statute, regulation or government policy to which Bank is subject, and which governs or affects the transactions contemplated by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, provided that any such amendment does not affect in any manner materially adverse to either party both the economic and legal substance of the transactions and services contemplated by this Agreement and Bank shall incur no liability to Company as a result of such violation or amendment. No course of dealing between Bank and Company will constitute a modification of this Agreement, regardless of whatever practices and procedures Bank and Company may use.
Additional Terms for Mobile Banking
To use Mobile Banking, an Authorized Representative must first be enrolled in Online Banking. The same Security Information that is in place for an Authorized Representative’s Online Banking access will apply to Mobile Banking.
Mobile Banking is offered as a convenience and supplemental service to the Business Electronic Banking Services available through Online Banking. It is not intended to replace access to Online Banking from a personal computer or other methods used for managing Company’s Accounts. Many services that are described in this Agreement or available through Online Banking will be available with Mobile Banking. Such services will be subject to the same terms and limitations described in the Account Documentation. However, not all Business Electronic Banking Services may be available through Mobile Banking.
Once Company has enrolled an Authorized Representative for Mobile Banking, Company’s designated Accounts and payees (or billers) enrolled for Online Banking will also be accessible through Mobile Banking. Mobile Banking services and the Mobile Deposit Service may be added, reduced or modified by Bank from time to time without prior notice except as required by law. By an Authorized Representative using these services when they become available, Company agrees to be bound by the rules that will be made available to Company concerning these services. Bank may also modify, reduce or expand the geographic areas in which Bank offers Mobile Banking or any of its functions or services. Bank reserves the right to refuse to make any transaction Company’s Authorized Representatives request through Mobile Banking.
Subject to the terms and conditions of this Agreement and other Account Documentation, Company’s designated Authorized Representatives may also use Mobile Banking to make mobile deposits of checks to Company’s Accounts using Bank’s Mobile Deposit Service. To activate the Mobile Deposit Service, Company must designate which Authorized Representatives are permitted to use the Mobile Deposit Service and those Authorized Representatives must then separately enroll through Mobile Banking. This service is subject to additional terms and conditions, and an Authorized Representative’s use of such service will constitute Company’s acceptance to these additional terms and conditions. For additional information about this service, please click on the link for the Mobile Deposit Service available through Mobile Banking.
Bank does not guarantee functionality of Mobile Banking (or any Software that Bank provides with respect to Mobile Banking) on all Mobile Devices, on all communication networks, in all geographic regions, or at all times. Bank may elect to discontinue Mobile Banking (or any of the Business Electronic Banking Services that Bank provides, from time to time, through Mobile Banking) at any time. If Bank chooses to discontinue Mobile Banking, Bank will provide Company reasonable notice. Bank makes no representation that any content or use of Mobile Banking is available for use in locations outside of the United States. Accessing Mobile Banking from locations outside of the United States is at Company’s own risk.
Additional Terms for eStatements
Description of eStatements. Company may elect to have its periodic statements (“eStatements”) for certain Eligible Account(s) (deposit accounts) delivered to electronically in place of paper disclosures. The primary Administrative User may select eStatements at any time through Online Banking. If Company elects to receive eStatements, periodic statements that Bank would otherwise deliver by mail will be accessible only through Online Banking. eStatements can also be downloaded or printed. Bank may, at its option, offer additional options and preferences for the delivery of various types of communications related to Eligible Accounts.
In most cases, enrolling Eligible Account(s) for eStatements will automatically mean Bank will no longer mail paper statements for those accounts. In some cases, Bank may continue to send paper statements and disclosures in addition to eStatements. Details on the effect of E-Statement enrollment on delivery of paper statements and disclosures are provided on the E-Statement web pages available through Online Banking.
If Company has previously elected to receive paper check images with its periodic statements for its deposit accounts, upon enrollment in eStatements Company will no longer receive paper check images. Instead images of the individual checks will be posted to Eligible Account(s) through Online Banking. An Authorized Representative may request that a photocopy of a cancelled check be mailed to Company. Additional fees for photocopies may apply. Please consult your Account Agreements governing your Eligible Account(s) for additional terms and fee information.
Accessing your eStatements. eStatements will be presented through Online Banking, and may also be accessed through Mobile Banking. Company will need to ensure that its computer software meets the requirements set forth in this Agreement and the E-Statement disclosures in order to view, print, and/or save your online statement and legal notices. Periodic statements for Eligible Account(s) will be available online up to a maximum of 24 months. There may be a gap in the historical statements available online for some types of Eligible Accounts if Company does not enroll immediately at the time the account is first opened. Following enrollment in eStatements, Company may begin viewing periodic statements online beginning with the next statement cycle. Company will continue to have the option to request historical statements, for which fees may apply; please refer to the applicable Account Agreement for details.
Changing Statement Delivery Method. At any time, Company may change the way Bank sends communications for certain Eligible Account(s) by changing Company delivery preferences on the Online Banking website. Available options may vary depending on the type of Eligible Account. Bank may also offer other methods for changing delivery options from time to time, either directly or through a Bank affiliate. Authorized Representatives with access to Bank electronic documents in Online Banking Upon Company’s request to change a statement-delivery option, such change will take effect in the next statement cycle. When Company requests Bank stop sending mailed (paper) statements, Bank will send an email every statement cycle to let Company know that Company’s current statement is ready to be viewed online, unless Bank provides alternate guidance at the time you change your statement-delivery option. Changing the way Bank sends Company account statements for an Eligible Account also authorizes Bank to send other disclosures and communications concerning Eligible Accounts using the same method. Bank reserves the right to communicate in writing using the U.S. Postal Service, no matter what other options Company has chosen. For Eligible Accounts that are in default or subject to the automatic stay in bankruptcy, Bank may, at its sole option, elect to discontinue delivering online statements.
Termination of eStatements. Bank may terminate delivery of eStatements to Company for one or more Eligible Accounts without notice. Company may also withdraw your consent to receive eStatements at any time by contacting Bank at (651) 265-5640 or by selecting paper statements through Online Banking. If Company withdraws its consent to receive eStatements, Company may be assessed a fee for each periodic statement delivered by mail. Please refer to the Account Agreement governing such Eligible Account for paper statement fee information or contact us at (651) 265-5640 for any questions regarding these fees.
Additional Terms and Conditions for Alerts
Description of Alerts. Authorized Representatives may receive Alerts through email message(s), text message(s), phone calls, or any other means Bank may make available from time to time. Each Alert Company elects to receive will be effective after set up of the alert parameters and delivery points using the Alerts service.
Registration for Alerts. To receive Alerts, Company can add an Alert through Online or Mobile Banking.
Email Security and Delivery Timing. Company agrees that Alerts may not be encrypted, and may include names and information pertaining to Eligible Account(s). Receipt of any Alert may be delayed, or prevented by factors affecting Company’s or Authorized Representatives’ Internet service provider, phone operator, and other relevant entities. Bank offers Alerts solely as a convenience to Company, and neither guarantees the delivery or the accuracy of the contents of any Alert. Bank will not be liable for losses or damages arising from (a) non-delivery, delayed delivery, or wrong delivery of any Alert; (b) inaccurate content in an Alert; (c) Company’s use or reliance on the contents of any Alert for any purposes. Bank reserves the right to terminate any request from Company for any Alert, at any time. The information in any Alert may be subject to certain time lags and/or delays. Company agrees to be responsible for managing the types and timing of Alerts.
Termination of Alerts. Either Company or Bank may terminate or suspend use of the Alerts option at any time without notice. Company may delete Alerts through Online or Mobile Banking.