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Business Online Terms and Conditions

Sunrise Banks' Business Electronic Banking Services Agreement

SUNRISE BANKS MASTER TREASURY MANAGEMENT SERVICES TERMS AND CONDITIONS

These Master Treasury Management Services Terms and Conditions (“Terms”) describe your rights and obligations as a user of the Treasury Management Services (“Services”), including Online Banking and Mobile Banking Terms. It also describes the rights and obligations of Sunrise Banks (“Sunrise”), as the provider of the Services.  Please read these Terms carefully.  You can request the most current version of these Terms at any time by contacting the Bank at 651-265-5640.  You should print a paper copy of these Terms 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 Services and for ensuring that each Authorized Representative complies with the terms and conditions set forth in these Terms, including the “Authorized Representative Responsibilities” set forth in the “Security Procedures” section below.

DEFINITIONS

Except as otherwise specifically indicated, the following terms shall have the following meanings in these Terms:

Account” means each account Company has with Bank for which Company has requested the Services.  Unless otherwise specified, Accounts may include checking accounts, savings accounts, certificate of deposit accounts and loan accounts linked to Company.

“Agreement” means, collectively, this Agreement and any addendums, attachments, set-up worksheets, procedures or other documents provided to you or Company by Bank relating to the 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 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.

“Services” means the services described in these Terms, requested on behalf of Company and agreed to by Bank, including as applicable, but not limited to, basic Online Banking and Mobile Banking services, Treasury Management Services including Bill Pay services and Mobile Deposit services, E-Statement services (as applicable).

Check” means (i) a draft, payable on demand and drawn on or payable through or at an office of a bank, whether or not negotiable, that is handled for Forward Collection or return, including a substitute check (as defined in Regulation CC) and a traveler’s check; and (ii) does not include a noncash item or an item payable in a medium other than United States dollars.

Check Image” means an electronic or digital image of the front and back of an original Check or substitute check that is created by a depositor, a bank or other participants in the check collection process.

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 these Terms and directed to Bank to perform certain Services from time to time designated and offered by Bank.

“Contact Number” is 651-265-5640.

“Forward Collection” means the transfer by a bank of a Check to a collecting bank for settlement or the paying bank for payment.

“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 these Terms 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 Services.

“Operating Procedures” shall mean the procedures governing the Services that are established and disseminated to Company from time to time by Bank or a third party (such as National Automated Clearing House Association (“NACHA”)), including (for example) but not limited to the NACHA Rules, and any user guides.

Security Information” means any Authorized Representative’s user name 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.

“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, Bill Pay, and Mobile Deposit Services.

You” or “your” means the person enrolling for Bank’s Business Electronic Bank Services and thereby agreeing to these Terms, both on your behalf and, on behalf of your Company as its Authorized Representative.

WHAT THESE TERMS COVER

These Terms govern Company’s use of Bank’s Services.  Bank offers the Services under these Terms only in association with one or more Accounts maintained by Company at Bank.  The terms, provisions and conditions of these Terms 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 Services complies with the terms and conditions set forth in these Terms and any other Account Documentation.  If there is a conflict between the terms and conditions of these Terms and any other Account Documentation between Company and Bank, these Terms will control with respect to the Services.

Operating Procedures.  The Services to which these Terms applies may be further described or referenced in Operating Procedures which are available to Company with respect to some or all of the Services. The Operating Procedures may also contain additional terms and conditions applicable to the 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 these Terms and when Bank provides or makes available to Company an Operating Procedure to Company it becomes a part of and is incorporated into these Terms. 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 SERVICES

Subject to the terms and conditions of these Terms, Company may authorize its Authorized Representatives to, use Online Banking and Mobile Banking to obtain 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 TransfersAuthorized 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 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 Services through Bank’s Mobile Banking software on their Mobile Device. Mobile Banking is subject to the additional terms and conditions contained in these Terms.

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 these Terms.

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 these Terms.

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 these Terms.

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 these Terms and any other Account Documentation, limitations, security procedures and requirements provided or established by Bank in connection with such Treasury Management Services.

  • ACH Origination Services. Authorized Representatives designated by Company may request Bank to execute ACH originations (credit or debit entries) on Company’s behalf.
  • EZ Deposit Services. Authorized Representatives designated by Company may initiate remote deposits of checks to Company’s Accounts using Bank’s remote deposit service. 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.
  • 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).
  • Wire Transfer Services. Authorized Representatives designated by Company may request Bank to initiate and approve wire transfers on Company’s behalf.

The types of Services the 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 Services or remove features or 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.

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 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 Services Bank approves Company using from time to time and the dates on which Bank approves Company’s use of such Services. For the purpose of these Terms, Bank will be deemed to have approved Company’s use of a Service on the date Bank completes the activation of the Service for Company on Bank’s system, and once that occurs, Bank will be providing such Service to Company’s designated Authorized Representatives.

ACCESS TO SERVICES

Enrollment Instructions and Modifications.  To enroll and access the 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 Services, add or delete Account(s), remove or replace an Authorized Representative, or modify overall use parameters or limits on a 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 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 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 these Terms 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 Representative.

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 Services, to the extent allowed by the terms and conditions of these Terms and the Account Documentation governing such Account.  Please refer to the specific Account Documentation for Company’s Accounts and 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 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 these Terms, 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 e-mails 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 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 these Terms for another business affiliated with Company, and if Company wants to link the accounts of the other business to the Services covered by these Terms, 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 Services using one common user name 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 these Terms.

Accessing and Using Services.  To access Company’s Accounts and 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, elsewhere in these Terms with respect to specific products (such as Mobile Deposit) 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 these Terms.  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 these Terms or Company’s other Account Documentation.

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 these Terms and the Account Documentation governing Company’s Account(s).  

No Extension of Credit.  If a 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 these Terms 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 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 (including ACH or wire transfers) 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 Services and to cover any fees Company is obligated to pay under these Terms. 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 these Terms, 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 these Terms by debiting any Account of Company at Bank.

System Availability.  Subject to the terms of these Terms, Company’s Authorized Representatives will generally be able to access Company’s Accounts and the 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 Services.  Company and its Authorized Representatives are also responsible for all related costs associated with accessing the 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 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 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 these Terms, 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 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 Services or 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 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 Services under these Terms at its sole discretion and without notice, provided 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 these Terms, or earlier upon demand by Bank.

FEES

In consideration for the Services provided, Company agrees to pay such fees as may be charged by Bank pursuant to these Terms, the Account Documentation for any of the Services, or Bank’s standard fee schedule, are available upon request. Applicable fees assessed in connection with the Services will appear on Company’s regular periodic statement(s) for the Account(s). Applicable fees may be charged regardless of whether the 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 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 Services, these Terms, any and all fees and charges not covered under the schedule of fees for any requested or required special service or handling as well as any charges incurred by the Bank from a Federal Reserve Bank or other agency for the transfer of funds, communications charges, transfer fees, correspondent’s charges or other similar charges, 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 these Terms, the Account Documentation for any of the Services, or its standard fee schedule.  Company will be notified of such changes as required by law.

SECURITY PROCEDURES

You acknowledge 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 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 five 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 reset his or her Security Information by selecting ‘forgot your password?’ on the password page if the access is not locked, or if the access is locked, a twenty-four-hour period has surpassed. During business hours, you may also contact the Bank at the Contact Number for assistance.

Enhanced Security ProceduresSome of the 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 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 Services.

It is Company’s responsibility to protect itself and to be vigilant against e-mail 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 e-mail, provide any information to the e-mail sender, click on any links in the e-mail, 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.

Acknowledgment of Commercially Reasonable Security Procedures.   Company also agrees to comply, and instruct its Authorized Representatives to comply, with such other security and authentication techniques and procedures as Bank may require from time to time to access Company’s Accounts and the Services through Online Banking and Mobile Banking.  Bank may also require additional security procedures to initiate certain transactions.  These additional security procedures may require special hardware, software or third-party services.  Bank may also require the use or activation of specific Internet browser software features, plug-ins and add-ons, such as JavaScript support and “cookies”, in order to utilize Online Banking and Mobile Banking.  Finally, Bank may acquire detailed information concerning the computer or computers Company’s Authorized Representatives use to access Online Banking and Mobile Banking, including unique internal and network identifiers for Company computer(s), in order to enhance and facilitate secure access to Online Banking and Mobile Banking.

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 user names, 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 Services, constitute commercially reasonable security procedures under applicable law for the initiation of the 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 access IDs, passwords or security tokens will be issued; (b) that each Authorized Representative shall have his or her own access ID, Password and security token (if applicable); and (c) that Authorized Representatives shall not share access ID, 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 access ID), 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, 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 Services has been revoked.

Authorized Representative ResponsibilitiesWhile 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 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 these Terms 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 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 specifically agrees that it is bound by any and all actions taken by its Authorized Representatives in their use of any of the Services described in these Terms. Company also agrees to indemnify and hold Bank harmless from any losses, costs or damages (including reasonable attorney fees and other costs of defense) which are incurred by Bank by reason of its reliance on instructions provided by such Authorized Representatives.

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 Services or the networks through which Company accesses or uses the 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 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 Services will be uninterrupted or error free, that defects will be corrected, or that the Services are free of viruses or other harmful components.  COMPANY ACKNOWLEDGES AND AGREES THAT COMPANY’S USE OF THE SERVICES(S) SHALL BE AT COMPANY’S SOLE RISK, AND THAT THE SERVICES ARE PROVIDED BY BANK ON AN “AS IS” AND “AS AVAILABLE” 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 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 Services.  Company’s liability for any unauthorized transactions (including errors) will be determined based on the terms set forth in these Terms 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 these Terms 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 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 these Terms, 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 sixty (60) 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 these Terms, Bank shall be entitled to rely solely on the information, representations and warranties provided by Company and its Authorized Representatives pursuant to these Terms.  Except as otherwise specifically provided by law, Bank shall be responsible only for performing the services expressly provided for in these Terms.  Company acknowledges that Bank’s fees for Services are very small in relation to the amounts of transfers initiated through these Services and consequently Bank’s willingness to provide such Services is based on the liability limitations contained in these Terms.  In addition to greater limitations on Bank’s liability that may be provided elsewhere in these Terms, Bank’s liability related to any Service shall be limited exclusively to actual proven damages arising directly from its own gross negligence or willful misconduct.  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 these Terms, 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 these Terms 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 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, these Terms, 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) Bank’s debiting or crediting the account of any person as requested by Company under these Terms; (v) any failure to act or delay by any financial institution other than Bank; (vi) Company’s breach of any of Company’s representations, warranties, covenants or other agreements or responsibilities under these Terms or any other agreement between Company and Bank, including, but not limited to, the Account Documentation, or (vii) 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 these Terms.

COMMUNICATIONS; NOTICES

Periodic Statements. The periodic statements issued by Bank for Company’s Account(s) will reflect any transfers to and from Company’s Account(s) via use of any of the Services requested by Company and approved by Bank hereunder, along with any fees assessed in connection with such Services.  Company agrees to notify Bank of any discrepancy between Company’s records and the information in the periodic statement within a reasonable time not to exceed sixty (60) days after the statement is first sent or made available to Company.  If Company fails to notify Bank of any such discrepancy within sixty (60) days after such periodic statement is first sent or made available, Company shall be precluded from asserting any claim against Bank arising from such discrepancy. Company may elect to receive E-Statements, subject to certain fees and the terms set forth below.

Notices.   Any written notice required hereunder shall be given by first class U.S. Mail, postage prepaid, by receipted hand delivery, electronically or by any other means agreed upon in writing by both parties and if, to Bank, at the address set forth below and, if to Company, at the most recent address shown for Company in Bank’s records.  If any notice instructions are given, the provisions of such shall govern the method and location for giving notice.  Any notice mailed shall be presumed received on the third Business Day after mailing thereof.

If to Bank:

Sunrise Banks
200 University Avenue West
St. Paul, MN 55103

Update Notice.  Company shall provide written notice to Bank of any changes to the information previously provided by Company to Bank, including, but not limited to, any additional locations, any change in business, any new business, the identity of principals and/or owners, the form of business organization, type of goods and services provided and method of conducting sales.  Such notice must be received by Bank within 5 Business Days of the change.  Company shall provide any additional information requested by Bank within 5 days of such request.  Bank retains the right to: (i) review Company’s business activities from time to time to confirm Company is conducting business as stated by Company at the time of the execution of these Terms and (ii) re-price or terminate any Services based on changes to information previously provided to Bank by Company.

Use of External Email Address.  Bank may send messages to Company’s designated external email address and notify Company that responses to Company’s payment inquiries or Company Service inquiries are available, or as otherwise described within these Terms. Email is not a secure method of communication to Bank and Company should not send confidential, personal or financial information by external email to Bank. If, for any reason Company’s external email address changes or becomes disabled, please contact Bank immediately so that Bank can continue to provide Company with automated messages.

Recording.  Company and Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with these Terms may be recorded and retained by either party by use of any reasonable means, provided, however, that neither Bank nor Company has any duty to record any such conversations or transmissions or to retain any such recordings which it has made at its own discretion.

Privacy and Confidentiality.  All information gathered from Company in connection with using the Services will be governed by the privacy and confidentiality provisions of Company’s other Account Documentation governing Company’s Account(s).  Bank may disclose Company’s information to Bank’s service providers in order to carry out Company Instructions.  In addition, Bank may disclose information in order to comply with laws, government agency rules or orders, court orders, subpoenas, or other legal process, or in order to give information to any government agency or official having legal authority to request such information.  At Bank’s discretion, Bank may disclose to affiliated companies’ information about Company’s Accounts and transactions Company has made to or from Company’s Accounts.  This section does not limit, alter, or amend Bank’s information handling practices and privacy policy.  By requesting the Services, Company agrees that Bank may disclose Company’s information with third parties as described above.

MISCELLANEOUS

Compliance with Operating Procedures and Law; Prohibited Use of the Services.  Services may only be used in accordance with these Terms, any supporting schedules and addendums, the Operating Procedures and the Account Documentation. Company agrees not to use or attempt to use the 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 these Terms. Company acknowledges and agrees that Bank has no obligation to monitor Company’s use of the Services for transactions and activity that is impermissible or prohibited under the terms of these Terms; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of these Terms 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 ProvidersBank may use third-party service providers acting on Bank’s behalf to assist Bank in offering one or more of the Services provided herein.  Company agrees that Bank has the right under these Terms to delegate to such third-party service providers some or all of the rights and performance obligations that Bank has under these Terms, and that Bank’s third-party service providers will be third-party beneficiaries of these Terms and will be entitled to all the rights and protections that these Terms 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 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.  These Terms shall be governed by and construed in accordance with applicable U.S. federal laws and the laws of the state of Minnesota, as well as (to the extent applicable, other rules, guidelines and requirements established by entities with authority over services provided under these Terms, such as the Board of Governors of the Federal Reserve, and the Electronic Check Clearing House Organization.  Minnesota state and federal courts will be the only courts where legal actions regarding these Terms 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.  These Terms 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 these Terms shall be determined to be invalid, illegal or unenforceable to any extent, the remainder of these Terms shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

Taxes.  Company is responsible for all tariffs, duties or taxes (excluding U.S. federal, state and local taxation of the income of Bank) imposed by any government or governmental agency in connection with any payment order executed pursuant to these Terms.

Attorney’s Fees. In the event of any adversarial proceeding between the parties concerning these Terms, 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 Services to be provided by Bank hereunder and/or adjustment of any limits set by these Terms.  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 these Terms or the 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 these Terms 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 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 Services according to the provisions hereof.

Force Majeure.  Bank shall not be liable for any damage, cost, loss, liability or delay caused by a force majeure event, including but not limited to, accident, strike, labor dispute, fire, flood, war, riot, terrorist act, government restrictions, exchange or market rulings, extraordinary market volatility, suspension of trading, equipment breakdown, electrical, telephone, Internet, or mechanical failures, acts of nature, any cause which is attributable to a third party, or any other cause or event that was beyond Bank’s reasonable control.  Company agrees that the fees charged for the performance of the Services shall be deemed to have been established in contemplation of these liability limitations.

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 these Terms, 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 propriety rights in the Services or access or use the Services in any manner that is inconsistent with these Terms or the Operational Procedures.

Web-Linking Practices. Bank may provide access to information, products or services offered on other third party web sites. Bank is not responsible for, nor does Bank control, the content, products, or services provided by linked sites. Bank does not endorse or guarantee the products, information or recommendations provided by linked sites, and is not liable for any failure of products or services advertised on those sites. In addition, each third party site may provide less security than Bank and have a privacy policy different than that of Bank.  Company’s access, use and reliance upon such content, products or services is at Company’s own risk.

Internet Disclaimer. For any 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 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 these Terms, Bank may amend the terms of these Terms 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 Services following the effective date of the amendment shall constitute Company’s agreement to such amendments.

Assignment.  Bank may assign these Terms or any of its rights and duties hereunder without prior notice to or consent by Company, but Company may not assign these Terms or any of the rights or duties hereunder to any person without Bank’s prior written consent.

Termination.  These Terms shall remain in full force and effect from the date hereof until such time as these Terms is terminated by either party as hereinafter provided:

  1. These Terms or one or more of the 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 these Terms or one or more of the 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 these Terms, (v) fails to perform its obligations under these Terms 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 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 Services or Bank believes that Bank will suffer a loss or other damage if these Terms and/or applicable Service(s) is/are not terminated.

Any termination of these Terms or one or more 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 these Terms that are necessary to give effect to the purposes of these Terms shall survive its termination.

Bank’s election to terminate these Terms 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 Services under these Terms will be at Bank’s sole discretion and must be agreed upon in writing by an authorized representative of Bank.

Upon termination of these Terms, 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 these Terms or one or more of the Services, (i) Company will promptly pay to Bank all sums due or to become due under these Terms, and (ii) Company shall have no further right to make use of the terminated Services or any system or software which may have been provided in connection with any terminated Services.  If Company terminates a Service, Company authorizes Bank, if applicable to the 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.  These Terms 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.  These Terms shall not be construed to confer any rights or remedies upon any person not a party to these Terms, 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 these Terms are for convenience of reference only and shall not be used to limit the applicability or meaning of any provisions of these Terms.

No Waiver.  No delay or failure on the part of Bank in exercising any of Bank’s rights under these Terms 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 these Terms, no deviation, whether intentional or unintentional, will constitute an amendment of these Terms or will constitute a waiver of any right or duty of either party.

Construction.  These Terms is an agreement between parties who are experienced in sophisticated and complex matters similar to the transactions contemplated by these Terms, 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 these Terms.  Company agrees that these Terms (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.  These Terms supersedes any prior agreements between the parties relating specifically to the ServicesIn the event performance of the Services provided herein in accordance with the terms of these Terms 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 these Terms, then these Terms 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 these Terms 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 these Terms, 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 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 these Terms 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 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 these Terms 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 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 AND CONDITIONS

FOR E-STATEMENTS

Description of E-Statements. Company may elect to have its periodic statements (“E-Statements”) for certain Eligible Account(s) (deposit accounts) delivered to electronically in place of paper disclosures.  Any Company user may select E-Statements at any time through Online Banking.  If Company elects to receive E-Statements, periodic statements that Bank would otherwise deliver by mail will be accessible only through Online Banking.  E-Statements 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 E-Statements 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 E-Statements. 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 E-Statements 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 E-Statements. E-Statements 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 these Terms 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 E-Statements, 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 the 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 the 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 E-Statements. Bank may terminate delivery of E-Statements to Company for one or more Eligible Accounts without notice.  Company may also withdraw your consent to receive E-Statements 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 E-Statements, 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.

ADDITIONAL TERMS AND CONDITIONS FOR MOBILE DEPOSIT SERVICES

General Description of the Mobile Deposit Service.  The Mobile Deposit Service allows Company to make Mobile Deposits to Company’s Sunrise Account (except Health Savings Accounts).  Company may use the Mobile Deposit Service in connection with Accounts enrolled for Mobile Banking.  Mobile Deposits may be made to Accounts by using a supported camera-enabled Mobile Device with our downloadable Mobile Banking software to capture electronic images of paper checks (each, a “Check”) or and to transmit such images and other information required hereby to Bank or our designated processor.  The terms “us” and “our” for this section may be used interchangeably when used in relation to any services performed by a processor on our behalf including, but not limited to, the receipt and processing of images and check data and any notices related thereto.  The Mobile Device must capture a Check Image to be deposited in accordance with the procedures outlined in these Terms and any instructions provided to Company within the Mobile Banking software (“Mobile Deposit Procedures”).  After capture of the Check Images and all other required data and information from the paper Check, Company will transmit for Mobile Deposit the Check Images and all other required data and information from or pertaining to the Check to us using the Software installed on your Mobile Device.  Subject to compliance with the terms, provisions and conditions of these Terms, we will process the Mobile Deposit on the Business Day we receive the Mobile Deposit and enter the Check Images of the Check into the collection process, in accordance with the provisions of our then current Account Documentation pertaining to the Account into which the Mobile Deposit is to be made.  Company acknowledges and agrees that we may discontinue, and/or change the terms of the Mobile Deposit Service or any related content, features, products or services associated therewith, at any time without notice or liability to you or any third party except as required by law.

Eligibility.  To use the Mobile Deposit Service, an Authorized Representative must first download the Bank mobile application to a mobile device, and then contact the Bank to be granted the ability to then access the Mobile Deposit Service.  Only Accounts in good standing and enrolled in Mobile Banking will be eligible for the Mobile Deposit Service. Accounts with excessive returned checks or ACH transactions, negative balances, other negative account history or any other criteria we may establish from time to time will not be granted access to use the Mobile Deposit Service. Accounts granted access to the Mobile Deposit Service may be denied future transactions if the Accounts are no longer in good standing.

Checks Deposited and Security Interest.  When using the Mobile Deposit Service, Company hereby agrees that Company will only scan and deposit Checks as that term is defined in Regulation CC.  Company cannot deposit money orders using the Mobile Deposit Service. Company agrees it will not use the Mobile Deposit Service to deposit any Checks that:

  1. are payable to any person or entity other than Company,
  2. are prohibited by Bank’s then-current Procedures pertaining to the Mobile Deposit Service or are in violation of any law, rule or regulation,
  3. evidence alteration or that Company knows or suspects, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the account on which the Checks are drawn,
  4. have been previously endorsed by a bank (or other institution) and are either “substitute checks” (as defined in Regulation CC or other applicable federal law or regulation) or “image replacement documents” that purport to be substitute checks, without Bank’s prior written consent,
  5. are drawn on financial institutions that are located outside of the United States or territories of the United States,
  6. are not payable in US Dollars, and
  7. are not acceptable to Bank for deposit into an Account as provided in the Account Documentation.

Checks described in clauses (1) through (7) are each a “Prohibited Check”.  If you deposit a Prohibited Check, Company agrees to indemnify and reimburse Bank for, and hold Bank harmless from and against, any and all losses, costs and expenses (including reasonable attorneys’ fees) we may incur associated with any warranty, indemnity or other claim related thereto.  Company grants Bank a security interest in all its Accounts or other deposits (whether general or special) at Bank, and in all funds in such Accounts or other deposits, to secure Company’s obligations to Bank under these Terms.  This security interest will survive termination of these Terms.

Scanning of Checks and Transmission of Check Images.  Company shall properly use all Software required by these Terms or otherwise, required for or related to, the use of the Mobile Deposit Service.  Before capturing a picture of the Check Images, Company shall endorse the Check with the Company’s name and the legend “For Mobile Deposit Only.” Endorsements must be made on the back of the draft or check within 1½ inches from the top edge, although Bank may accept endorsements outside this space.  A check payable to two payees must be endorsed by both payees.  Any loss Bank incurs from a delay or processing error resulting from an irregular endorsement or other markings by Company will be Company’s responsibility.  Once Company has endorsed the Check, Company shall then capture the Check Images of the Checks to be deposited via Mobile Deposit and transmit the Check Images and any other required data and information from or pertaining to such Checks to Bank or the Processor in accordance with the Procedures.  Bank reserves the right to amend the Procedures, with or without prior notice to Company.  To ensure accuracy, Company shall key the amount of each Check and any other information required using the Software prior to transmitting the Mobile Deposit in accordance with the Procedures.

Limits and Cut-Off Times.  Bank reserves the right to impose limits on the amount(s) and/or number of Mobile Deposits transmitted using the Mobile Deposit Service and to modify such limits from time to time (collectively defined as the “Limits”). Company may send multiple Mobile Deposits to Bank or Processor throughout the day, not to exceed the Limits.  Bank may, at its option, refuse to accept a Mobile Deposit that exceeds the Limits, or accept and process the Mobile Deposit. To be eligible for processing on the day transmitted, Mobile Deposits must be received by or before 5:00 p.m. (Central) on a Business Day (the “Cut-Off Time”).  A Mobile Deposit is considered received when the Mobile Deposit Service generates a confirmation message.  For purposes of determining when funds shall be made available following a Mobile Deposit, Bank records shall be determinative.  A Mobile Deposit that is transmitted after the Cut-Off Time shall be deemed to have been received at the opening of Bank’s next Business Day.  Bank reserves the right to change Limits and the Cut-Off Time.  All such changes shall be effective immediately and may be implemented prior to Company’s receipt of notice thereof except as otherwise required by law.  Please contact Bank at any time to verify the Limits and the Cut-Off Time.

Maintenance and Destruction of Original Check.  Company shall securely store all original Checks for a period of twenty (20) days after receipt of notice from Bank that the Mobile Deposit containing the Check Images has been accepted (such period the “Retention Period”).  During the Retention Period, Company shall take appropriate security measures to ensure that: (a) only Company shall have access to original Checks, (b) the information contained on such Checks shall not be disclosed, (c) such Checks will not be duplicated or scanned more than one time and (d) such Checks will not be deposited or negotiated in any form.  Company will promptly (but in all events within five Business Days) provide any retained Check (or, if the Check is no longer in existence, a replacement Check or a sufficient copy of the front and back of the Check) to Bank as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check. If not provided in a timely manner, such amount will be reversed from your Account.  Promptly after such period expires, Company must destroy the original check by first marking it “VOID” and then destroying it by cross-cut shredding or another commercially acceptable means of destructionAfter destruction of an original check, the image will be the sole evidence of the original check.  Company hereby indemnifies Bank for, and holds Bank harmless from and against, any and all claims, demands, actions, causes of action, losses and damages, of whatever nature or kind, and regardless of the theory upon which the same is (are) based, caused directly or indirectly by, arising out of, related to, in connection with or resulting wholly or partially from, the destruction of original Checks by Company.  Company agrees to never re-present the original Check, and understands it is responsible if anyone is asked to make a payment based on an original Check that has already been paid.

Image and MICR Quality.  Check Images of each Check shall be of such quality that the following information can clearly be read and understood by sight review of such Check Images: (1) the amount of the Check; (2) the payee of the Check;(3) the signature of the drawer of the Check; (4) the date of the Check; (5) the Check number; (6) the information identifying the drawer and the paying bank (or other institution) that is preprinted on the Check, including the magnetic ink character recognition (“MICR”) line; and (7) all other information placed on the Check prior to the time the Check Images of the Check are captured, such as any required identification written on the front of the Check and any endorsements applied to the back of the Check.  Company shall ensure the Check Images transmitted to Bank include the full-field MICR encoding on each Check.  Company shall be responsible for the inspection of all Check Images to ensure the legibility of the Check Image including without limitation the dollar amount and signature of the person who signed the Check (the “drawer”), and for ensuring that any and all information on a paper Check is accurately captured and legible in the resulting Check Image and otherwise complies with any Check Image quality standards and guidelines that may be established by American National Standards Institute, ECCHO Rules, the Federal Reserve, other applicable regulatory agency or clearinghouse, or that Bank may provide from time to time. Company acknowledges that current image technology may not capture all security features (e.g. watermarks) contained in the original paper checks, and agrees to assume any and all losses resulting from claims based on security features that do not survive the image process.

Receipt of Mobile Deposit.  After Bank receives a Mobile Deposit, it will review the Check Images and other information contained therein. For each Mobile Deposit that Bank determines is eligible for processing as described in these Terms, Bank will: (i) create a substitute Check that Bank will present directly or indirectly to (a) the institution on which the original Check to which the Check Images relate is drawn, or (b) the institution at or through which the Check is payable (each, the “Paying Institution”); (ii) include the Check Images in an electronic file for presentment directly or indirectly to the Paying Institution; or (iii) present or post any Check Images for which we are the Paying Institution.  Company agrees it shall be solely liable, and Bank shall not have any liability whatsoever, for any Mobile Deposit or Check Images or other information contained therein that are not received by Bank in accordance with these Terms or for Mobile Deposits or Check Images or other information contained therein that is intercepted or altered by an unauthorized third party.  Bank has no obligation to accept a Mobile Deposit, and may reject any Mobile Deposit or Check Images or other information contained therein submitted by Company.  Bank shall have no liability to Company for rejecting a Mobile Deposit or Check Image or other information contained therein or for the failure to notify Company of such rejection.  Upon receipt of a Mobile Deposit from Company, Bank may examine such Mobile Deposit and the Check Images and other information contained therein to ensure Company has complied with these Terms and followed the Procedures.  If Bank determines Company has not complied with these Terms or followed the Procedures or if errors exist in the Check Images or other information contained in the Mobile Deposit, Bank may, in its sole discretion, either reject the Mobile Deposit or elect to correct the error and accept and process the corrected Mobile Deposit (a “Corrected Mobile Deposit”).  As a form of correction, Bank may credit Company’s Account for the full amount of the Corrected Mobile Deposit and make any necessary adjustments to the Account to correct the error.  Bank may, at its option, also perform a risk management analysis of one or more Mobile Deposits submitted by Company to detect potentially fraudulent Checks, and, in Bank’s sole discretion, may reject any such Mobile Deposit or the Check Images or other information contained therein.  If after examination of a Mobile Deposit and the Check Images and other information contained therein, Bank determines Company has complied with these Terms and processed and transmitted the Mobile Deposit in accordance herewith and with the Procedures, Bank shall accept the Mobile Deposit for deposit to Company’s Account. Notwithstanding the fact that Bank has accepted a Mobile Deposit for processing, any credit made to a Account shall be provisional, and Company shall remain liable for any errors, inaccuracies, breach of warranties and any other loss sustained by, or claim made against, Bank.

Availability of Funds.  Mobile Deposits made using our Mobile Deposit service do not fall under the standard provisions of Regulation CC – Expedited Funds Availability Act. As such, longer hold periods may apply. In general, if a Check Image of an Item Company transmits through the Mobile Deposit Service is received and accepted before the Cut-Off Time on a Business Day, Bank considers that day to be the day of deposit. Otherwise, Bank will deem the deposit made on the next Business Day we are open.  Funds deposited using the Mobile Deposit service will generally be made available within three to five Business Days from the day of deposit. Bank may make such funds available sooner based on such factors as Company’s credit worthiness, the length and extent of the business relationship with Bank, transaction and experience information, and such other factors Bank deems relevant.  Company acknowledges that all credits given by us for a Check are provisional, subject to verification and final settlement.

Representations and Warranties.  Company represents and warrants: (1) Company shall only deposit Checks that are authorized by these Terms, the Procedures and the Account Documentation; (2) each Check Image is a true and accurate rendition of the front and back of the original Check, without any alteration, and the drawer of the Check has no defense against payment of the Check and no party will submit the original check for payment; (3) the amount, payee(s), signature(s), and endorsement(s) on the Check Image and on the original Check are legible, genuine, and accurate; (4) Company will not deposit or otherwise endorse to a third party the original Check and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the original Check or a paper or electronic representation of the original Check such that the person will be asked to make payment based on an item that has already been paid; (5) there are no other duplicate Check Images of the original Check; (6) the original Check was authorized by the drawer in the amount stated on the original Check and to the payee(s) stated on the original Check; (7) Company is authorized to enforce and obtain payment of the original Check; (8) Company will use Mobile Deposit for lawful purposes and in compliance with all applicable laws, rules and regulations and (9) Company further warrants it will only transmit acceptable items for deposit and have handled the original items in accordance with applicable laws, rules and regulations.

Returned Checks.  If Checks remotely deposited by Company using the Mobile Deposit Service are dishonored or otherwise returned unpaid by the drawee bank (or other institution), or are returned by a clearing agent for any reason, including, but not limited to, issues relating to the quality of the Check Images, Company understands and agrees that, since Company either maintains the original Check or has destroyed the original Check in accordance with these Terms, the original Check will not be returned, and Bank may charge your Account for any and all returned Checks, along with any returned check fees authorized by the Account Documentation.  Company understands and agrees that any returned Checks may be in the form of an electronic or paper reproduction of the original Check or a substitute Check.  Unless otherwise instructed by Bank, Company agrees not to deposit the original Check if the Check Images were previously transmitted using the Mobile Deposit Service and returned for any reason.  Bank may debit any of Company accounts with Bank to obtain payment for any Check that has been rejected or returned, for any adjustment related to such item or for any warranty claim related to such item, whether or not the rejection, return, adjustment or warranty claim was timely made.

Confirmation: Deposit Account Reconciliation.  Bank will provide notice of receipt of Mobile Deposits to a Company Account on the periodic statement for such Account.  Company is responsible for detecting and reporting to Bank any discrepancy between Company records and the records Bank provides to Company.  If Company does not detect and notify Bank of such a discrepancy within 30 days of receipt of any terminal printout, mailed report or periodic statement, whichever is received first, then such transactions shall be considered correct, and Company shall be precluded from asserting such error or discrepancy against Bank.

Mobile Deposit Indemnification Obligations.  Company agrees to indemnify and hold harmless Bank against any and all claims, actions, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and expenses arising from Company’s use of the Mobile Deposit Services and/or breach of these Terms.  Company agrees to indemnify Bank’s technology partners, including but not limited to Wausau Financial Systems, Inc. (“Wausau”) and hold harmless Wausau, its affiliates, officers, employees and agents, from and against any third party claims, suits, proceedings, actions or demands, including to claims of another financial institution, business entity or governmental authority, and all losses, liabilities, damages, fines, penalties, costs and expenses, including court costs and reasonable attorney fees and expenses, arising from such claims, to the extent such claim is related to Company’s use of the Mobile Deposit Services, or Wausau applications, unless such claim directly results from an action or omission made by Wausau in bad faith. This paragraph shall survive termination of the Bank electronic banking services agreement with Company.

End User Agreement.  Bank’s primary licensor for the Mobile Deposit Services is WAUSAU, which has provided Bank (and within these End User Agreement terms, “Sunrise Banks”) the right to enter into the following end user agreement (the “End User Agreement”) with Company (and within these End User Agreement terms, “you” or “your” for the use of the WAUSAU Software (defined below). By enrolling in our Mobile Deposit Services, and during such time as Bank maintains its rights to license the WAUSAU Software, you hereby agree as follows:

GENERAL. Access to Sunrise Banks’s Mobile Deposit Services via your Mobile Device is powered by the mobile technology solution owned by WAUSAU. WAUSAU is not the provider of any of the financial services available to you through the “WAUSAU Software” (defined below), and WAUSAU is not responsible for any of the materials, information, products or services made available to you through the WAUSAU Software.

OWNERSHIP. You acknowledge and agree that WAUSAU is the owner of all rights, title and interest in and to the mobile technology solution made available to you hereunder, including but not limited to any downloaded software and the computer programs contained therein, as well as any accompanying user documentation, and all subsequent copies, updates or versions thereof, regardless of the media or form in which they may exist (all of which is collectively referred to herein as the “WAUSAU Software”). You may not use the WAUSAU Software unless you have first accepted the terms of this End User Agreement.

LICENSE. Subject to the terms and conditions of this End User Agreement, you are hereby granted a personal, nonexclusive, nontransferable license to use the WAUSAU Software (in machine readable object code form only) in accordance with the terms of this End User Agreement and for the sole purpose of enabling you to use and enjoy the benefits of Sunrise Banks’ services made available via the WAUSAU Software. This is not a sale of the WAUSAU Software. All rights not expressly granted to you by this End User Agreement are hereby reserved by WAUSAU. Nothing in this license will entitle you to receive hard-copy documentation, technical support, telephone assistance, or updates to the WAUSAU Software. This license may be terminated at any time, for any reason or no reason, by you or WAUSAU, Inc. Upon termination, you agree to immediately destroy all copies of any WAUSAU Software which has been downloaded to your Mobile Device or otherwise in your possession or control.

RESTRICTIONS. You shall not: (i) modify, revise or create any derivative works of the WAUSAU Software; (ii) decompile, reverse engineer or otherwise attempt to derive the source code for the WAUSAU Software; (iii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the WAUSAU Software; or (iv) remove or alter any proprietary notices, legends, symbols or labels in the WAUSAU Software, including, but not limited to, any trademark, logo or copyright.

UPDATES. The terms of this End User Agreement will govern any updates that replace and/or supplement the original WAUSAU Software, unless such update is accompanied by a separate license in which case the terms of that license will govern.

TEXT MESSAGES. Text messaging is conducted between you and Sunrise Banks. You and Sunrise Banks are solely responsible for the content transmitted through text messages sent between you and Sunrise Banks. You must provide source indication in any text messages you send (e.g., mobile telephone number, “From” field in text message, etc.) You are responsible for any text message fees charged by your mobile communications service provider.

CONSENT TO USE OF DATA. You agree that WAUSAU may collect and use technical data and related information, including but not limited to technical information about your Mobile Device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services (if any) related to the WAUSAU Software. WAUSAU may use this information, as long as it is in a form that does not personally identify you, to improve its products or provide services or technologies.

EXPORT RESTRICTIONS. You may not use or otherwise export or re-export the WAUSAU Software except as authorized by United States law and the laws of the jurisdiction in which the WAUSAU Software was obtained. In particular, but without limitation, the WAUSAU Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the WAUSAU Software, you represent and warrant that you are not located in any country or on any such list. You also agree that you will not use the WAUSAU Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles or chemical or biological weapons.

U.S. GOVERNMENT RESTRICTED RIGHTS. The WAUSAU Software is commercial computer software subject to RESTRICTED RIGHTS. In accordance with 48 CFR 12.212 (computer software) or DFARS 227.7202 (commercial computer software and commercial computer software documentation), as applicable, the use, duplication, and disclosure of the WAUSAU Software by the United States of America, its agencies or instrumentalities is subject to the restrictions set forth in this End User Agreement.

DISCLAIMER OF WARRANTY. THE WAUSAU SOFTWARE IS PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT. NO WARRANTY IS PROVIDED THAT THE WAUSAU SOFTWARE WILL BE FREE FROM DEFECTS OR VIRUSES OR THAT OPERATION OF THE WAUSAU SOFTWARE WILL BE UNINTERRUPTED. YOUR USE OF THE WAUSAU SOFTWARE AND ANY MATERIAL OR SERVICES OBTAINED OR ACCESSED VIA THE WAUSAU SOFTWARE IS AT YOUR OWN DISCRETION AND RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THEIR USE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WAUSAU OR ITS AFFILIATES OR LICENSORS BE LIABLE FOR ANY DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE WAUSAU SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH ANY CLAIM IS BASED. IN ANY CASE, WAUSAU INC.’S LIABILITY ARISING OUT OF THE USE OR INABILITY TO USE THE WAUSAU SOFTWARE SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES PAID BY YOU FOR THIS LICENSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

MISCELLANEOUS. This End User Agreement constitutes the entire agreement between you and WAUSAU concerning the subject matter hereof. This End User Agreement will be governed by and construed in accordance with the laws of the state of California, excluding that body of laws pertaining to conflict of laws. If any provision of that portion of this Agreement is determined by a court of law to be illegal or unenforceable, such provision will be enforced to the maximum extent possible and the other provisions will remain effective and enforceable. All disputes relating to this End User Agreement are subject to the exclusive jurisdiction of the courts of California and you expressly consent to jurisdiction and venue thereof and therein. This End User Agreement and all related documentation are and will be in the English language. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded.

ADDITIONAL TERMS AND CONDITIONS FOR EZ DEPOSIT SERVICES

The EZ Deposit Service provides a payment application to convert Company’s eligible paper Check transactions into either Check Images Substitute Checks for deposit at Bank.

Definitions.  Terms not defined in this section have the meaning given in these Terms. “ANS X9” means the standards and specifications for paper-based and imaged-based payments as defined by the American National Standards Institute, as may be amended from time to time. “Check 21 Act” means the Federal Check Clearing for the 21st Century Act. “Check Capture” means the conversion of a paper Check or deposit document to electronic format by the means of a check scanning device and software. “Collecting Bank” means any bank handling a Check for collection except the Paying Bank. “Depository Bank” means (i) with respect to a Check handled for Forward Collection, draws the Check on a Consumer Account; or a bank to which a Check is transferred for deposit in an account at such bank, even if the Check is physically received and endorsed first by another bank. “Forward Collection” means the transfer by a bank of a Check to a Collecting Bank for settlement or the Paying Bank for payment. “FRB” means the applicable Federal Reserve Bank. “Image Exchange Network” means a company, bank, the FRB or other entities that operate networks for the purpose of receiving and forwarding Check Images and Substitute Checks for collection. “Indemnifying Bank” means a bank that is providing an indemnity under section 6 of the Check 21 Act with respect to a Substitute Check. “Reconverting Bank” means (i) the bank that creates a Substitute Check; or (ii) if a person other than a Bank creates a Substitute Check, the first Bank that transfers or presents such Substitute Check.

Rules

Rules Governing Transactions.  Except as otherwise provided in this section, Bank and Company will transmit and process electronic entries initiated by Company in accordance with the rules of the Check 21 Act, Regulation CC (12 CFR 229), ANS X9, the FRB, the Expedited Funds Availability Act, UCC Articles 3 and 4 of the UCC, and any network association agreements as are currently in effect and as amended from time to time (the “Rules”).  Company agrees to be bound by and held subject to the Rules as well as the provisions contained herein.

Items Deposited. Company agrees to scan and remotely deposit only Checks which are acceptable to Bank for deposit into an Account at Bank. Company agrees to only deposit “checks”, as that term is defined in Regulation CC, payable to Company. Company understands and agrees that Company will not deposit Checks that are issued by Company or Company’s affiliates drawn on Company’s or affiliates’ accounts, in violation of any law, or any Check that Company suspects or should know to be fraudulent or not authorized by the legal owner of the account on which the Check is drawn.

Restrictive Rules.  In the event that the operating rules of a local or regional check clearing network, or the arrangements between Bank and the FRB or a correspondent bank are more restrictive than, or are at variance with, the Rules, Company agrees to be bound by such more restrictive or varying rules so long as such operating rules do not violate the Rules.

Regulatory Exposure Review.  In connection with this Agreement, Company understands that Bank may request certain financial information relating to Company, in which case Company agrees to provide Bank with such information within a reasonable period of time.

Bank Responsibilities

Treatment as Collecting Bank.  No provision of the Check 21 Act shall be construed as affecting the treatment of a Returning Bank as a Collecting Bank for purposes of section 4–202(b) of the UCC.

Transaction Routing.  Bank will receive, verify and transmit the electronic Checks from Company by such means as Bank deems appropriate to convey Company entries into and through the necessary Image Exchange Networks and Company agrees that Bank, in its sole discretion, will select correspondent banks, Image Exchange Networks and FRB necessary to electronically deliver Company’s electronic checks and deposits.

Establish Deadlines.  Bank reserves the right to change the deadlines for processing as required by vendors, correspondent banks, Image Exchange Networks and FRB.  The currently-established deadlines are:

Personal Computer Transmissions

The Company will transmit files to the Financial Institution Data Center, 200 University Avenue, St. Paul, MN 55103 utilizing the CFC Summit (ACH Web Client).

Remote Processing Deadlines

Transmission of a File:   until 5:00 P.M. central time.  Files transmitted after this deadline will be processed the following business day.  Deadlines are imposed based on “completed” files/transactions.  This includes being scanned, balanced, and submitted by Company as well as in acceptable format (ANS X9 legible).

“Business Day” is a day Bank is open to the public for carrying on substantially all of its business (other than Saturday, Sunday, or listed holidays).

Refer to http://frbservices.org/holidayschedules/index.html for specific dates observed for the current calendar year.

Exceptions:

If Christmas Eve Day (December 24) falls on a processing day, the deadline for submitting files/transactions may be different (typically earlier), as per notification to Company by Bank.

Files/transactions received by Bank subsequent to 5:00 p.m. (Central time) on normal business days (Monday through Friday) may be processed/settled on the same business day, dependent on when Bank’s nightly processing is performed (typically this processing is performed at or around 5:00 p.m. Central time).

Return Items.  Bank will process and return unpaid Checks in accordance with published bank guidelines and schedules as governed by Regulation CC and will, as necessary, convert Check images into Substitute Checks for processing.

Collection of Checks.  Bank is providing an electronic service for the collection of Checks and is not responsible for the available balance of any Account for which a Check is presented.

Rejection of Entries.  If any entry contained in a batch of entries sent to Bank is not in compliance with these Terms or the Rules, Bank may reject the entry or the entire batch of entries, at the sole discretion of Bank.  Bank shall notify Company of such rejection no later than the business day such entry or batch (and the entries contained therein) would otherwise have been transmitted to its vendors, correspondent banks, participating Image Exchange Networks and/or the FRB.

Detecting Errors.  Bank is not responsible for detecting any Company errors contained in any Check or report created and transmitted to Bank by Company.

Bank’s Liability for Failure to Complete Transaction.  So long as Company has properly and completely fulfilled its obligations and duties under these Terms and the Rules, if Bank does not complete a transaction to or from Company’s account on time or in the correct amount, when Company has properly instructed Bank to do so, in accordance with these Terms and the Rules, Bank will be liable to Company for Company’s losses directly and proximately caused thereby, subject, however, to these Terms and certain exceptions.  Bank will not in any event be liable: (i) if a legal order directs Bank to prohibit any transactions with the Account; (ii) If Company’s Account is closed, or if it has been frozen; (iii) if Company, or anyone authorized by Company, commits any fraud or violates any law or regulation; (iv) if any electronic device, telecommunication device, or any part of the EZ Deposit Services is not working properly; (v) if Company has not provided Bank with correct Check Capture information; (vi) if Company has not properly followed the instructions for using EZ Deposit Services; or (vii) if circumstances beyond Bank’s control (such as fire, flood, interruption in telephone service or other communication lines) prevent the transaction, despite reasonable precautions that Bank has taken.

Company Responsibilities

Remote Presentment.  Company agrees and warrants (regardless of whether the warrantee receives the substitute check or another paper or electronic form of the substitute check or original Check) that no Depositary Bank, drawee, drawer, or endorser will receive presentment or return of the substitute check, the original Check, or a copy or other paper or electronic version of the substitute check or original Check such that a Bank, drawee, drawer, or endorser will be asked to make a payment based on a Check that a Bank, drawee, drawer, or endorser has already paid. Company will ensure that controls are in place that will prevent or deter from instances of presenting items to Bank or any other Bank more than once, to include electronic or physical presentment.  Company should indicate via a stamp on the face of a check that it has been electronically presented; however doing so does not ensure that an item cannot be presented more than once by electronic or physical methods.  Company will do everything in its power to ensure that such multiple presentments will not occur.  Company acknowledges that presenting an item more than once may constitute fraud, and Company agrees that it will bear any and all liability for costs (including but not limited to overdraft fees, attorney fees, interest, and any related costs) incurred in the event of such multiple presentment regardless of the circumstances.  Further, Company will indemnify and hold harmless Bank and its agents and affiliates for any loss it may incur due to such.  Bank reserves the right to terminate the EZ Deposit Services without notice to Company if it discovers that an item has been deposited more than once.  Company shall properly use all Software required by these Terms or otherwise, required for or related to, the use of the EZ Deposit Service.  Before capturing a picture of the Check Images, Company shall endorse the Check with the Company’s name and the legend “For Remote Deposit Only.” Endorsements must be made on the back of the draft or check within 1½ inches from the top edge, although Bank may accept endorsements outside this space.  A check payable to two payees must be endorsed by both payees.  Any loss Bank incurs from a delay or processing error resulting from an irregular endorsement or other markings by Company will be Company’s responsibility.  Once Company has endorsed the Check, Company shall then capture the Check Images of the Checks to be deposited via EZ Deposit and transmit the Check Images and any other required data and information from or pertaining to such Checks to Bank or the Processor in accordance with the Procedures.  Bank reserves the right to amend the Procedures, with or without prior notice to Company.  To ensure accuracy, Company shall key the amount of each Check and any other information required using the Software prior to transmitting the EZ Deposit in accordance with the Procedures.

Representations and Warranties.  Company represents and warrants: (1) Company will not initiate an electronic check entry with respect to any customer without first being in possession of a proper Check or Substitute Check, which is made payable to Company; (2) Company shall only deposit Checks that are authorized by these Terms, the Procedures and the Account Documentation; (3) each Check Image is a true and accurate rendition of the front and back of the original Check, without any alteration, and the drawer of the Check has no defense against payment of the Check and no party will submit the original check for payment; (4) all data submitted by Company to Bank is complete and accurate, including but not limited to data contained in the MICR line of the Check; (5) the amount, payee(s), signature(s), and endorsement(s) on the Check Image and on the original Check are legible, genuine, and accurate; (6) Company will not deposit or otherwise endorse to a third party the original Check and no person will receive a transfer, presentment, or return of, or otherwise be charged for, the original Check or a paper or electronic representation of the original Check such that the person will be asked to make payment based on an item that has already been paid; (7) there are no other duplicate Check Images of the original Check; (8) the original Check was authorized by the drawer in the amount stated on the original Check and to the payee(s) stated on the original Check; (9) Company is authorized to enforce and obtain payment of the original Check; (10) Company will use Mobile Deposit for lawful purposes and in compliance with all applicable laws, rules and regulations; (11) Company will not use the equipment provided to it by Bank or its agents in connection with this EZ Deposit Service to send Checks, files or any other transmission to any other Bank and (12) Company further warrants it will only transmit acceptable items for deposit and have handled the original items in accordance with applicable laws, rules and regulations.

Employee Training.  Company agrees to provide adequate EZ Deposit Services training for employees.  Company may contract with Bank’s system provider for annual employee training as deemed necessary by Company.

Operation and Maintenance of Equipment.  Company shall conduct periodic system inspections to ensure the system is operating within ANS X9 Standards and maintain a record of such inspections and the results thereof.

Transmittal of Entries and Security Procedures.  Company agrees that it will comply with the following entry delivery instructions and limitations:

Delivery of Files/Transactions

Delivery Location.  All entries will be initiated via Bank’s EZ Deposit Services website portal.  All Checks will be scanned and submitted for processing in accordance with the Rules and the Agreement.

Format and Content.  Company will ensure that all entries are properly payable as scanned, to include Company’s endorsement of said entries in accordance with the Rules and the Agreement.

Acknowledgement of Delivery.  Company will receive an acknowledgment subsequent to scanning and processing an entry/entries.  Company will record such information as presented for tracking purposes in the event of a problem.

Timing of Delivery.  As is defined in this section above.

Limits on Files/Transactions

At the discretion of the Bank the Company may be subject certain limitations on files and transactions.  Company acknowledges that Bank, in its sole discretion, has the ability to review and reject a transaction.  The deadlines in this section do not apply to this review process.

Bank shall notify Company of such rejection no later than the business day such entry or batch (and the entries contained therein) would otherwise have been transmitted to its vendors, correspondent banks, participating Image Exchange Networks and/or the FRB.

Security Procedures

Bank will provide Company with a link to the Bank website and an initial user name and password.

Company further warrants that no individual will be allowed to initiate entries without proper authorization, supervision and safeguards and agrees to take all reasonable steps to maintain confidentiality of the security procedures and any related security features. Authorized Representatives have the authority to: (a) determine who will be authorized to use the EZ Deposit Services; (b) establish separate passwords for each user; and (c) establish limits on each user’s authority to access information and conduct transactions. Company agrees to: (a) take reasonable steps to safeguard the confidentiality of all passwords; (b) limit access to its passwords to persons who have a need to know such information; (c) closely and regularly monitor the activities of employees who access the EZ Deposit Services; and (d) prohibit its employees and agents from initiating entries without proper supervision and adequate controls.

Correctness of Data.  Company will be responsible for the correctness, both as to content and form, of all information submitted to Bank.  If any information is not readable, out of balance or unprocessable, or otherwise inaccurate, incomplete or inadequate, it is the sole responsibility of Company to correct and resubmit the information to Bank.  Company further acknowledges that it bears the responsibility for input of dollar amounts of all items transmitted, and that procedures will be established to ensure that the correct dollar amount is entered as per the legal amount of each check processed (which is the handwritten amount).  Company further warrants that it will bear any and all liability for costs incurred by any party related to improperly entered amounts, those costs to include overdraft and/or returned item fees, attorney fees, interest and any related costs.

Maintain Image Standards.  Company agrees that images that do not meet ANS X9 standards are not allowed transmission into the Check network and Bank, its correspondent banks, participating Image Exchange Networks and the FRB may reject and return to Company any and all items that fail to meet established industry standards without any liability for such rejection and/or return.  Company acknowledges that Bank may reject the entire batch of entries if an entry contained therein is not in compliance with the Rules.  Proper use of software and hardware provided by Bank will ensure ANS X9 standards.

Reports.  Company agrees that it may utilize the check capture reporting function within the software to track transaction counts and dollar amounts which accompany the batch of original Checks retained by Company.

Daily Item Balancing.  Company agrees that it will balance posted and unposted transactions transmitted from the previous business day and immediately notify Bank of any error discovered.  Bank will make every effort to assist Company in resolving transmission and posting errors, but all adjustments will be made in accordance with Bank’s depository agreements with Company and Regulation CC.

Maintain Deposit Account.  Company will open and maintain an Account with Bank, to which Bank will credit amounts received in collection of electronic entries.  All such credits are provisional and Bank may charge the Account, as well as any other account of Company with Bank, for the amount of a returned or rejected electronic debit entry.  Company authorizes Bank to debit the Account on the day the returned or rejected electronic debit entry is received by Bank or thereafter.

Contingency Plan.  Company agrees that in the event that communications, equipment or software outages prevent Company from transmitting electronic transactions, whether or not the fault of Company, Bank or a third party, Company will transport checks and deposits to closest office of Bank and make deposits until such time that the outage can be identified and resolved.

Record Retention.  Company agrees to maintain the original paper Checks for a period not to exceed 60 days from date of deposit in a secure container located in an area that restricts the possibility that the non-public information contained in said original paper Checks can be accessed by unauthorized persons, or that the original paper Checks could be accidentally reprocessed and deposited at a future date.  Subsequent to the aforementioned retention period, it is the responsibility of Company to destroy the original paper Checks in a manner that will prevent the disclosure of non-public information (e.g. account numbers) contained on the Checks.  Company agrees to maintain acceptable quality, permanent and electronically accessible records of all transactions in accordance with the Rules and any other published state and federal requirements and include check and deposit images, front and back, posting date, amount, serial number and routing and transit numbers, which records shall be made available to Bank or to those regulatory agencies having jurisdiction over Bank upon request.

Available Funds.  Bank may provisionally credit Company’s Account for deposits made by Company, but such funds are not available for withdrawal unless they constitute Available Funds.  For the purposes of determining the time for which funds may be held by Bank under Regulation CC, the place of deposit shall be Sunrise Banks, N.A.

Authorized Equipment, Software, and Vendors

Equipment Ownership.  To utilize the EZ Deposit Services, Company agrees to use the equipment (i.e. one or more scanning devices) and software as provided by Bank.  All equipment provided by Bank to Company shall remain the property of Bank and shall be returned to Bank in proper working order upon termination if this Agreement.  Company shall pay Bank an initial fee upon entering into this Agreement and a monthly service fee for the use of such equipment and software.  Company agrees that Bank is not responsible for problems or errors caused by Company installing and using unauthorized equipment or software, or by installing authorized equipment or software related to this service without the necessary assistance from Bank personnel or its approved vendors.  Company authorizes Bank to file one or more financing statements in the appropriate governmental offices to reflect Bank’s interest in equipment provided to Company under these Terms.

System Requirements.  Company agrees to furnish and use computer equipment and software that is compatible with Bank’s EZ Deposit Services equipment and software, and that is approved by Bank.  Minimum and recommended system requirements are as set forth below:

Pre-Assessment Inventory on PC

First, you will perform a pre-assessment inventory of your Workstation PC to ensure it has enough hard drive space and memory available, the proper third party applications and patches are installed, and all other necessary components are verified before beginning installation. Use this list to verify the PC requirements.

  • Operating System: Windows Vista, Windows 7, or Windows 8
  • Memory (RAM): Minimum of 512MB RAM
  • Processor Speed (CPU): Pentium IV or compatible 2.4 GHz or higher processor
  • Hard Drive Space: Minimum 1GB
  • Scanner Connections / Ports: One available USB 2.0 port
  • Other PC Components:
  • Keyboard and mouse
  • CD ROM or DVD drive 12x or faster
  • 100MB Network Interface Card
  • Super VGA (1024×768) or higher resolution video adapter and monitor
  • Software Dependencies: The following software components are necessary for the applications to operate correctly and should be loaded or installed prior to the remote capture installation process.
  • Internet Explorer 9.x
  • Microsoft .NET Framework 1.1 with Service Pack 1
  • Adobe Reader 5.0 or 6.0 (only required if wish to read reports in .PDF)

Computer Security: Maintain network security that conforms to generally recognized information security industry standards and best practices and at all times maintain minimum network security that includes:

  • a current security suite with virus and malware protection that is set to update on a regular basis but no less frequently than weekly, and
  • network firewall provisioning and intrusion detection, either as part of the security suite or the operating system.

Windows Login Rights: The following Windows rights are required to access the relevant functions for remote capture.

Administrator Rights: Users will require local administrator access to the workstation to install the security policy.

Power User Rights: Users will require power user rights to operate the client application and allow the system to cache information during capture.

Bank shall have no liability or responsibility for any damages, losses, claims or causes of action experienced by Company as a result of any software or equipment used in conjunction with the EZ Deposit Services and transactions contemplated by this section, and Company’s sole recourse with respect to any such damages, losses, claims or causes of action shall be against the provider of such software and equipment.

Equipment Care.  Company agrees to maintain equipment provided by Bank in a responsible manner and in an environment conducive to such system’s operating requirements and as per equipment vendor recommendations.  Company will notify Bank in a timely manner of any problems with such equipment.

Limited Sublicense.  Bank hereby grants Company a non-transferable and non-exclusive sublicense for use of the EZ Deposit Services, subject to the terms and conditions set forth herein.  Company acknowledges and agrees that the EZ Deposit Services are valuable, confidential, and proprietary property of the Bank and/or its vendors and Company agrees not to transfer, assign, further sublicense, distribute, copy, reverse compile, modify, alter or dispose of the EZ Deposit Services

ADDITIONAL TERMS AND CONDITIONS FOR ACH ORIGINATION

The ACH Service permits the Company to initiate debit and credit entries to accounts maintained at Sunrise and other financial institutions by means of the Automated Clearing House (the “ACH”) Network. The Company authorizes Bank to originate Entries on behalf of the Company to receivers’ accounts.

Definitions.  Unless defined in these Terms, capitalized terms shall have the meanings provided in the Rules (as defined below). “Effective Entry Date” means the date included in any Entry as the date upon or after which such Entry is to be effective. “Entry” has the meaning given in the Rules, except that it shall also include an “On-Us Entry.” “Rules” means the rules of the National Automated Clearing House Association and Appendices to the rules of the National Automated Clearing House, as amended from time to time. “On-Line” refers to use of the Internet website designated by Bank used to transmit or receive electronic transactions, instructions, notices or other communication but does not include transmissions by telephone, fax, in person, regular mail, express mail or e-mail. “On-Us Entry” means a debit or credit Entry to an account maintained at Bank.

Compliance with the Rules.  The Company acknowledges receipt of a copy of, or availability of, the Rules.  The Company agrees to be bound by the Rules. The Company represents and warrants that it will comply with the Rules and applicable laws, U.S. law, regulations and regulatory requirements and that it will not transmit any Entry or engage in any act or omission that violates or causes Financial Institution to violate the Rules, applicable laws, U.S. law, regulations or regulatory requirements, including, without limitation, regulations of the Office of Foreign Asset Control (OFAC), sanctions or executive orders. The Company shall be responsible for ensuring OFAC compliance with regards to the files and Entries they initiate.

Transmittal of Entries and Physical and Electronic Security Procedures. Company shall transmit any and all debit or credit Entries to Bank in accordance with the Rules and these Terms.  Company shall transmit Entries in a manner complying with the ACH Origination Services worksheet.  Company acknowledges that these Terms do not detect errors in the transmission or content of the Entry.  No security practice or procedure for the detection of any such error has been agreed upon between Bank and Company.

Company shall prevent and safeguard against unauthorized transmissions, disclosures and access to the following (all of which are referred to herein as “Security-related Items”): information (including but not limited to security procedures, passwords and user identifications), systems and equipment that interface with, connect to or allow access to Bank, its information, systems and equipment.  Company shall establish, maintain and enforce physical and logical commercially reasonable security practices, techniques and procedures with respect to access, storage and maintenance to safeguard against unauthorized transmissions and unauthorized access to Security-related Items.  Such practices, techniques and procedures shall be no less than the Security-related requirements set forth in these Terms and in the Rules.

Without limiting the foregoing, Company warrants that no individual will be allowed to initiate transfers without proper authorization.  If Company suspects, knows, believes or has reason to believe that an unauthorized individual has transmitted or attempted to transmit one or more Entries or that the security procedures or other Security-related Items have otherwise been compromised, Company agrees to immediately notify Bank and agrees that any Entry received by Bank before or within a reasonable time after such notice to Bank shall be treated as authorized by Company.

Company hereby authorizes Bank to transmit any Entry received by Bank from Company in accordance with the Rules and these Terms and to credit or debit the amount of such Entry to the accounts specified by the Company. Company shall be solely and exclusively responsible for any errors in the Entries submitted to Bank, including, but not limited to, any Entries submitted containing errors or omissions by Company’s employees, agents or contractors; any Entries submitted through fraudulent misconduct, embezzlement, theft, or fraud by Company’s employees; or reflecting any theft, fraud or misconduct of the parties in the underlying ACH Entry.

Company’s Representations, Warranties and Agreements.  Company represents and warrants that each Entry provided to Bank complies in all respects with the Rules and this Agreement.  Company acknowledges and agrees that, pursuant to the Rules, Bank makes certain warranties to the ACH Operator and other financial institutions and that such warranties are made in reliance on: (i) the representations and warranties of Company, including but not limited to those contained in this section of this Agreement and (ii) Company’s agreement to be bound by the Rules and applicable law.  Company shall indemnify Bank against any claims, alleged claims, loss, liability or expense (including attorneys’ fees and expenses) resulting directly or indirectly from, related to or arising out of:  (i) any breach of Company’s warranties or this Agreement; (ii) Company’s failure to exercise ordinary care in connection with its duties hereunder; (iii) any action by the Receiving Depository Financial Institution (“RDFI”) upon an unauthorized or erroneous Entry initiated by Company; (iv) any actions by a service provider or agent of the Company that results in a breach of this Agreement by Company; (v) to the extent that it involves Bank, any litigation by an ACH Operator, an RDFI or any Company Receivers asserting noncompliance on Company’s part with the Rules, laws, regulations or regulatory requirements.  Without limiting the foregoing, the Company warrants: (1) each Entry is authorized pursuant to the Rules and the authorization has not been revoked; (2) each credit Entry is timely and accurate; (3) each debit Entry is for a sum which, on the Settlement Date will be due and owing to the Company from the party whose account will be debited, is for a sum specified by such party or is to correct a previously transmitted erroneous credit Entry; (4) no Entry has been reinitiated in violation of the Rules; (5) if the Company generates RCK, POP, BOC, ARC, WEB, TEL or IAT Entries, all the special warranties that apply in the ACH Origination Services worksheet have been complied with; (6) all the additional warranties in the ACH Origination Services worksheet will be complied with; and (7) the Company has used commercially reasonable procedures to verify that all information contained in an Entry, including but not limited to routing numbers, is accurate and valid.

Bank Obligations.  Bank shall, in accordance with the Rules, process, transmit and settle for any Entry.  Bank shall have no obligation to transmit an Entry if Company fails to comply with the Rules or these Terms.  Bank may rely on any and all information it receives from an Authorized User of the Company or authorized non-Company affiliated agents, as set forth in the ACH Origination Services worksheet, all account signers, and any person Bank, in good faith, reasonably believes to be acting on behalf of Company, whether or not such person was authorized by Company.

File Limits.  Company shall comply with the file limits as set forth in the ACH Origination Services worksheet.  Such limits may be modified from time to time by Bank at its sole discretion with notice to Company.  Bank reserves the right to require Company to pre-fund an account maintained at Bank at least one day but not more than three days prior to the Settlement Date of the ACH file. Pre-funding places a hold on Company’s Account assuring there are available funds for the ACH file. Bank shall determine whether pre-funding is required based on criteria it establishes. Bank will communicate directly to Company if pre-funding is required. Bank may at its discretion require a reserve account or line of credit to be established.

Cancellation or Amendment of an Entry.  Company shall have no right to cancel or amend any Entry after its receipt by Bank.  However, Bank shall use reasonable efforts to act on a request by the Company to cancel an Entry before transmitting it to the ACH Operator or crediting or debiting an On-Us Entry.  Any such request shall comply with this Agreement.  Bank shall have no liability if it fails to effect the cancellation.  Company shall reimburse, indemnify and hold harmless Bank for any expenses (including attorneys’ fees), losses or damages Bank incurs in effecting or attempting to honor Company’s request for the cancellation of an Entry.

Rejection of Entries.  Bank may reject any Entry, including an On-Us Entry, that does not comply with the requirements of the Rules or these Terms, and may reject any Entry if Company is not otherwise in compliance with these Terms or the Rules.  Bank shall notify Company using the most recently provided contact information for Company of such rejection no later than the Business Day such Entry would otherwise have been transmitted by Bank to the ACH Operator or, in the case of an On-Us Entry, the day before its Effective Entry Date.  Notices of rejection shall be effective when given.  Bank shall have no liability to Company by reason of the rejection of any such Entry or the fact that such notice is not given at an earlier time than that provided for herein.

Provisional Credit Notice.  In the case of a credit Entry, credit given by the RDFI for the Entry is provisional until the RDFI has received final settlement through a Federal Reserve Bank or has otherwise received payment.  If the RDFI does not receive such payment for the Entry, the RDFI is entitled to a refund from the Receiver in the amount of the credit to the Receiver’s account, and Company will not be considered to have paid the amount of the credit Entry to the Receiver.

Reversals.  Company may reverse a File or Entry pursuant to the Rules.  If Company reverses an Entry or File, Company shall indemnify Bank against any claim, alleged claim, demand, loss, liability or expense (including attorney’s fees) resulting directly or indirectly from such reversal.

Notice of Returned Entries and Notifications of Change.  Bank shall notify Company in accordance with the ACH Origination Services worksheet of the receipt of a returned Entry or Notification of Change (NOC) from the ACH Operator no later than one Business Day after the Business Day of such receipt.  Bank shall have no obligation to retransmit a returned Entry if Bank complied with the terms of this Agreement with respect to the Entry.

Entries Returned as Unauthorized: Re-Initiated Entries.

Entries Returned as Unauthorized. In the event that an Entry is returned as unauthorized or authorization revoked, Company will contact the necessary parties and resolve any dispute. During this process Company may ask Bank to request from the RDFI a copy of the “Written Statement of Unauthorized Debit”.  Bank will make its best effort to obtain the form and will deliver it to Company when received. Company agrees not to re-originate any transaction returned as unauthorized or as authorization revoked unless the customer re-authorized the Entry or Entry stream.

Re-Initiated Entries. Company may re-initiate any Entry, other than an RCK Entry, that was previously returned only if (a) the Entry was returned for insufficient or uncollected funds; (b) the Entry was returned for stopped payment and re-initiation has been separately authorized by Receiver after the Company (or Bank) receives the Return Entry; or (c) Company has taken corrective action to remedy the reason for the return. Company must enter “RETRY PYMT” in the Company Entry Description of all re-initiated Entries. Company may re-initiate and Entry within one hundred eighty (180) days after the Settlement Date of the original Entry. Company is prohibited from re-initiating an Entry that has been returned for insufficient funds or uncollected funds more than two (2) time following the return of the original Entry. Company will comply with the formatting requirements for re-initiated Entries as set forth in the Rules.

Return Rate Monitoring.  In the event the rate of unauthorized transactions exceeds 0.5%, the Administrative Debit Return (No Such Account, Invalid Account Number, Account Closed) rate exceeds 3%, or the overall Debit Return rate exceeds 15%; the Company will share the data requested by Bank based on the Rules and will immediately begin the process of bringing the rates below the required percentages.

Liability.  In the performance of the ACH Services, Bank shall be entitled to rely solely on the information; representations and warranties provided by Company and shall not be responsible for the accuracy or completeness of such information.  Bank shall have no duty to investigate the Entries submitted by Company to determine accuracy or legitimacy of the Entries.  To the extent allowed by law, Bank shall not be liable for and shall be excused from failing to transmit or any delay in transmitting an Entry (i) if such transmittal would result in Bank’s having exceeded any limitation upon its intra-day net funds position established pursuant to present or future Federal Reserve guidelines; (ii) if, for any reason, the ACH Operator fails or declines to process an Entry; (iii) if, in Bank’s sole discretion, processing an Entry would violate or contribute to the violation of  any present or future risk control program of the Federal Reserve or any Rule, law, regulation or regulatory requirement;  or (iv) if processing an Entry, in Bank’s sole discretion, would cause it to engage in an unsafe and unsound practice.

Rules Enforcement.  In the event that a Report of Possible Rules Violation is filed on Company, Company will take appropriate steps to correct the problem within the time frames suggested by Bank.  In the event that a fine is levied against Bank for a violation of the Rules, Company agrees to make Bank whole for the value of the fine.

Time Periods and Deadlines.  Notwithstanding anything herein to the contrary, all deadlines and time periods related to the ACH Services are automatically extended to the extent necessary for compliance with the laws of the United States, including, but not limited to, programs administered by OFAC, or other laws, including but not limited to the laws and payment system rules of the receiving countries. This may result in delays in processing, settlement, and/or availability if, for example, Bank determines that enhanced scrutiny or verification is necessary.

Inconsistency of Name and Account Number.  Company acknowledges and agrees that, if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry may be made on the basis of the account number even if it identifies a person different from the named Receiver, and Company’s obligation to pay the amount of the Entry to Bank is not excused in such circumstances.

ACH Rule Compliance Review.  Company agrees to review its compliance with the Rules on a periodic basis. Bank has a right to request the details of the review.  In addition to the foregoing, Bank has the right, upon reasonable notice to Company, to conduct its own audit of Company’s compliance with the Rules and these Terms.

ADDITIONAL TERMS AND CONDITIONS FOR BILL PAY SERVICES

Bill Pay permits Company’s designated Authorized Representatives to use Internet-enabled devices to direct payments from Company’s designated Accounts (“Bill Pay Account”) to third parties Company wishes to pay. Each Bill Pay Account must be a checking account. Through the Bill Pay Service, Company can pay bills from the Bill Pay Account to businesses or individuals (“Payees”). All payments made will be deducted from the Bill Pay Account. All payments must be payable in U.S. dollars to a Payee located in the continental United States (including U.S. Territories and APOs/AEOs). Instructions for setting up Payees and bill payments can be found at www.sunrisebanks.com.

Bill Paying Process

Single Payments.  A single payment will be processed on the Business Day that Company designates as the payment’s date, dependent on the payment type, provided the payment is submitted prior to the daily cut-off time on that date.  The daily cut-off time is 3:00 pm Central.  A single payment submitted after the cut-off time on the designated process date will be processed on the next Business Day.  If Company designates a non-Business Day as the payment’s processing date, the payment will be processed on the first Business Day following the designated processing date.

Recurring Payments.  When a recurring payment is processed, it is automatically rescheduled by Bank’s system.  Based upon the selected frequency settings for the payment, a processing date is calculated for the next occurrence of the payment.  If the calculated processing date is a non-Business Day, the payment will be processed on the first Business Day following the designated processing date.  If the frequency settings for the recurring payment specify the 29th, 30th, or 31st as a particular day of the month for processing and that day does not exist in the month of the calculated processing date, then the last calendar day of that month is used as the calculated processing date.

In both cases, Bank’s system will calculate the estimated arrival date of a payment. This is only an estimate, and Bank does not guarantee payment on such date.

Cancelling a Payment. A bill payment can be changed or cancelled any time prior to the cutoff time on the scheduled processing date through Bill Pay. Bank’s ability to process a stop payment request will depend on the payment method and whether or not a check has cleared. Bank may also not have a reasonable opportunity to act on any stop payment request after a payment has been processed. To stop any payment that has already been processed, Company must contact Bank at the Contact Number. Although Bank will make every reasonable effort to accommodate a stop payment request, Bank will have no liability for failing to do so. Bank may also require Company to present your request in writing within fourteen (14) days. The charge for each stop payment request will be the current charge for such service as set out in the applicable fee schedule contained in the Account Documentation.

Additional Liability Terms for Bill Pay.  With respect to the Bill Pay services: (1) Company will be responsible for any bill payment request made that contains an error or is a duplicate of another bill payment; (2) Bank is not responsible for a bill payment that is not made if bill payment instructions are not properly followed; (3) Bank is not liable for any failure to make a bill payment if Company fails to promptly notify Bank after learning it has not received credit from a Payee for a bill payment; (4) Bank is not responsible for Company’s acts or omissions or those of any affiliate, or Company’s or affiliates’ employee, officer, director, or agent, including, without limitation, any transmission or communications facility, and no such party shall be deemed to be Bank’s agent; (5) Bank is not responsible for any fixed payment made before having a reasonable opportunity to act on a termination notice; and (6) Company remains obligated for any payments made by Bank on Company’s behalf using the Bill Pay Service except as otherwise set forth in these Terms.  Except where expressly stated otherwise, Company is solely responsible and liable for paying its bills and for making alternative arrangements of receiving or paying bills if for any reason, even if it is unable to access services through Online Banking or services are terminated by Company or Bank.

Scheduling Payments. Funds must be available in Company’s Bill Pay Account on the date each bill payment is processed. Bank may make the payment either by transferring funds electronically to the Payee or by mailing the Payee a Check.

No Duty to Monitor Payments, Accounts. Bank is only responsible for exercising ordinary care in processing and sending payments upon authorization in accordance with these Terms.  Bank will not be liable in any way for damages Company incurs for any of the following reasons: there are insufficient funds in the Bill Pay Account to cover payments on the processing date; delays in mail delivery; changes to the Payee’s address or account number (unless Bank has been advised of the change in advance); failure of any Payee to correctly account for or credit the payment in a timely manner; Company errors in entering the Payee address, account number or payment amount; or any other circumstances beyond Bank’s control.

If the session during which Company schedules a payment or transfer ends before the cut-off time on a Business Day, Bank will be considered to have received it on that day. Otherwise, it will be considered received on the following Business Day. For all entries made using Bill Pay, the time recorded by the Bill Pay service will be considered the official time of the transaction.  If the Bill Pay Account does not have sufficient funds to make a payment as of the date the payment is debited to the Bill Pay Account, the Bill Pay service will automatically block future Bill Pay transactions until the Bill Pay Account has sufficient funds to make the payment. Bank will have no obligation or liability if it does not complete a payment because there are insufficient funds in the Bill Pay Account to process a payment. In all cases, Company is responsible for either contacting Bank at 651-265-5640 to make alternate arrangements for the payment or reschedule the payment through the Bill Pay service. In the case of recurring payments, only the payment currently scheduled will be impacted. Recurring payments scheduled for future dates will not be affected.

Authorized Users. Each Authorized Representative may enroll in the Bill Pay service. Each Authorized Representative may choose to use the same Payee list, and may terminate Payee enrollment in the Bill Pay service without affecting the Bill Pay Service for any other person enrolled in that Bill Pay Account. However, any termination of the Bill Pay service will terminate Bill Pay in its entirety.

Bill Pay Limitations.  No single transaction, or aggregate transactions, shall exceed $100,000 per day for payment to a business or organization. No single transaction, or aggregate transactions, shall exceed $5,000 per day for payment to an individual. Separate electronic limits will apply.  Bill Pay may not be used to (a) pay taxes directly to governmental agencies, organizations or institutions or to make other payments directly to governmental agencies, organizations or institutions, (b) pay court-directed alimony, support or other payments, (c) make payments to a person outside of the United States or U.S. territory, or (d) make payments to a Payee, the underlying purpose of which violates any state or federal law, including, but not limited to, an unlawful internet gambling site. Bank reserves the right to refuse to pay any Payee to whom Company may direct a payment. Bank will notify Company promptly if it decides to refuse to pay a designated Payee. This notification is not required if Company attempts to make a prohibited payment or an exception payment.

E-Bills.  E-bills are a feature of Bill Pay that enable Company to receive billing statements electronically if Company authorizes Bank to obtain information from the biller and the biller permits electronic delivery of bills (“Participating Biller”). A billing statement will appear on Bank’s Online Banking web site shortly after it is issued by a Participating Biller.

Authorization. Company must authorize Bank to obtain information from a Participating Biller in order to receive an e-bill. To do so, Company must authorize Bank to use Company user name, password and any other private data that is necessary to set up an e-bill. Company appoints Bank as Company’s agent for the limited purpose of setting up e-bills.

Periodic Statements. If Company has authorized Bank to access Company’s billing information from a Participating Biller, Company will receive a periodic statement from each Participating Biller that Company has authorized Bank to contact. Company’s e-bill will appear on Bank’s Online Banking web site with such frequency as determined by the Participating Biller. It may take up to two billing cycles before Company’s e-bill appears on Bank’s Online Banking website. At all times, Company is responsible for keeping Company’s bills current and paid, including, but not limited to, the period during which Company’s e-bills are being set up.

Notifications and Reminders. Company may set up e-mail alerts so that Company receive an alert when Company e-bill arrives and an alert when payment is due. Notifications and reminders are solely for Company convenience; it is Company responsibility to maintain an accurate e-mail address and to logon to Bank Online Banking web site to check for the delivery or status of e-bills.

Automatic E-Bill Payments. Company may set up automatic payment of e-bills so that a payment is sent in accordance with payment rules that Company specify. If Company cancels an e-bill with an automatic payment rule established, it might take up to two billing cycles for the automatic payments to cease.

Paper Statements. Participating Billers may continue to provide Company with paper copies of bills. Bank is committed to reducing paper usage and waste; however, Bank has no control over Participating Billers and their decisions to continue sending paper bills to Company.

Cancellation of Electronic Bill Notification. The Participating Biller may cancel the presentment of electronic bills at any time. Company may cancel electronic bill presentment at any time. The timeframe for cancellation of Company’s electronic bill presentment may vary from Biller to Biller. It may take up to 60 days, depending on the billing cycle of each Biller. Bank will notify Company’s Participating Biller(s) as to the change in status of Company’s account, and it is Company’s sole responsibility to make arrangements for an alternative form of bill delivery. Bank will not be responsible for presenting any electronic bills that are already in process at the time of cancellation.

Non-Delivery of Electronic Bills. Company agrees to hold Bank harmless should the Participating Biller fail to deliver Company’s statement. Company is responsible for ensuring timely payment of all Bills. Non-Delivery of Electronic Bills. Company agrees to hold Bank harmless should the Participating Biller fail to deliver Company’s statement. Company is responsible for ensuring timely payment of all Bills.

Accuracy and Dispute of Electronic Bill. Bank is not responsible for the accuracy of Company’s electronic bills. Bank is only responsible for presenting the information Bank receives from the Participating Biller.

Expedited Payments.  Expedited Payments are a feature of Bill Pay that, depending on the Payee and the time of day, enables Company to have Company payments initiated and processed immediately. Expedited Payments may be available for same day or next day processing and posting. The system will automatically determine whether the Expedited Payments option is available to Company to make payments to a specific payee, and it will also automatically determine the date by which Company Expedited Payment will be processed. There is an additional fee for Expedited Payments.

Processing Time. Depending on specific payee limitations and the time of day, Company might not be able to set up an Expedited Payment for same day processing, which means that the deliver by date might be delayed until the following Business Day. If Company sets up an Expedited Payment after the cutoff time for same day processing, Company payments will not be processed until the following Business Day; in such a case, the system will automatically notify Company of this additional processing time before Company approves the Expedited Payment.

Limitations. Expedited Payments will not always be available. Depending on the intended payee and the time of day, Company might not have access to Expedited Payments. If Expedited Payments is not available for an intended payee, it will not be presented as an option to Company. Once Company set up an Expedited Payment, Company will never be able to edit or cancel it for any reason.

Confirmation. Company will receive a confirmation screen with reference information after every Expedited Payment Company makes.

Instructions. Company authorizes Bank to follow Company payment instructions. For Expedited Payments, Bank will deduct Company payment(s) from Company’s Bill Pay Account even though the delivery by date might not be until the next Business Day. Company authorizes Bank to charge a convenience fee for each Expedited Payment as a separate transaction, which may result in Company incurring an overdraft charge for the Expedited Payment, as well as an overdraft charge for the convenience fee, if Company does not have sufficient funds in Company’s account to process either the Expedited Payment(s) or the convenience fee. Company further authorizes Bank to make payments by electronic, paper or other means that Bank determines is appropriate.

ADDITIONAL TERMS AND CONDITIONS FOR CHECK POSITIVE PAY SERVICES

Description of Service. The Positive Pay Service is designed to reduce the likelihood that an unauthorized check will be paid against Company’s Authorized Account(s). With the Positive Pay Service, Company can help identify fraudulent checks, as discussed below.

Definitions. Unless otherwise defined herein, words or phrases shall have the meanings set forth in UCC Article 3 – Negotiable Instruments and UCC Article 4 – Bank Deposits and Collections.  “Authorized Account” means the account(s) of Company, maintained at Bank, to which the Positive Pay Service will apply. The Authorized Accounts are listed on Authorization Form. Company can add or remove Authorized Accounts by amending the Authorizing Form in accordance with these Terms. “Authorization Form” means the online client authorization form executed by Company and delivered to Bank. The term “Authorization Form” shall also include any changes, modifications or amendments to such Online Client Authorization Form which are adopted by Company.  Bank reserves the right to request up to five Business Days after written notice to effect such changes, modifications or amendments as requested.  “Available Funds” means funds on deposit in an Authorized Account and available for withdrawal pursuant to Bank’s applicable funds availability policies.  “Check Issue Data” means the complete issue date, serial number, amount, and the payee information (if applicable of each check issued on an Authorized Account.  “Check Issue File” means an electronic file describing checks drawn by Company on an Authorized Account and imported by Company to Bank or individual items manually added by Company within the Service in accordance with these Terms.  “Decision” means the choice to pay or return any Exception Items, which choice shall be made in accordance with these Terms.  The Decision action results in the corresponding charges.  “Exception Item” means a Presented Check that does not match a check included in a Check Issue File and is identified as an item for which a Decision may be made.  “Notification” means the email notification that the Customer will receive if there is an Exception Item to be reviewed on any Authorized Account. Notifications will be sent to the email addresses identified in the Positive Pay Services worksheet. The Service will send Notification to a maximum of two (2) email addresses per Customer.  Two notifications per file will be sent.  One notification will be sent at approximately 7:00 a.m. each day and a second notification 120 minutes later, if no such Decision action has been made.  “Positive Pay Service” means the positive pay Service available to Company through Bank’s Business Online Banking system and encompasses only checks processed through Bank’s check clearing system.  “Presented Check” means a check drawn on an Authorized Account and presented to Bank for payment through the check collection system.

Check Issue File. Company shall import a Check Issue File to Bank through the Positive Pay Service by 6:00 p.m. Central each Business Day that checks are issued by Company. This import will be provided in an agreed upon format in addition to importing an entire file, Company may choose to manually add individual issued checks using the Add Item option within the Positive Pay Service. Checks manually added are also deemed to be a Check Issue File for purposes of the Positive Pay Service.

Payment of Presented Checks and Reporting of Exception Items. Company agrees to provide the Check Issue Data to Bank on the same day that the checks are issued, in the format and medium specified by Bank. Bank will utilize the Check Issue Data to electronically compare to checks presented against the Authorized Account. In performing the Service, Bank will use only the Check Issue Data that Company has provided to Bank in the format and medium specified by Bank. Bank shall compare through the use of technology each Presented Check by Check Issue Data against each Check Issue File received by Bank. On each Business Day, Bank: (1) may pay and charge to the Authorized Account each Presented Check that matches by check number and dollar amount a check that is shown in any Check Issue File received by Bank; and (2) shall, by 7:00 a.m. each Business Day, (i) make available to Company via the Positive Pay Service any Exception Items requiring a Decision and (ii) provide Notification of any Exception Items.

Payment and Dishonor of Exception Items. Bank shall pay any Exception Items drawn on any Authorized Account unless Company instructs Bank to return to the depositary bank such Exception Items using a timely Decision via the Positive Pay Service. When the Bank sends Notification of any Exception Items to Company before 7:00 a.m. Central of any Business Day, then any Decision relating to such Exception Items shall be considered timely only if it is completed via the Service by 11:00 a.m. Central of the same Business Day. All Exceptions Items that are not processed in a timely manner by Company will be processed and paid by Bank in accordance with the default Company action as documented in the Positive Pay Services worksheet. Any Exception Items processed by Bank on behalf of Company will be charged a fee.

Company and Bank Communications.  Company may from time to time grant authorization to Bank to assist with and potentially amend, any Check Issue File or Exception File submitted to the other party under these Terms. The amended file must be sent in its entirety and not in the form of a partial amendment of the original file. The amended file must also be sent (i) in the format, (ii) in the manner, and (iii) by the deadline(s) established for the original file. Any amendments which comply with this provision shall serve to replace the original file in its entirety. Individual amendments to items within a Check Issue File may also be made on a per item basis within the Service.  When preparing Exception Items, the Bank shall use the Check Issue Files that comply with this section and that have not been replaced in accordance with this section. When making a Decision, Company shall consider the Exception Items that comply with this section and that have not been replaced.  Bank is not responsible for detecting any Company error contained within any Check Issue File or Decision action taken by Company.  Deadlines, report or file formats, and information reported may be changed from time to time by Bank, in the Bank’s sole discretion. Bank will use its best efforts to assist Company with any changes made by Bank.

Internet Service. In the event that either the internet or the Business Online Banking service is not capable of being used by one or both parties for the Positive Pay Service, the party not capable of using them should contact the other party as soon as possible after the problem is identified. Until such a time as internet service or the Business Online Banking system is restored, all checks submitted for payment on an Authorized Account will be paid or returned by Bank as if the Positive Pay Service did not exist. Bank shall have no liability for checks paid during any period when the internet service or the Business Online Banking system was not available to Bank and/or Company.

Check Clearing System. Company hereby acknowledges that the Positive Pay Service provided by Bank only relate to and affect checks that are processed through Bank’s check clearing system. Any checks that are presented directly to Bank over-the-counter will be paid or returned by the Bank as if the Positive Pay Service did not exist.  Company assumes any liability or expenses for losses related to checks cleared over the counter. Bank shall further have no liability for over-the-counter checks that are paid by Bank. Company agrees and understands that it is necessary to submit a “stop payment” order directly to Bank in order to prevent the cashing of any check over-the-counter.

Authorizations. Before Company may access the Positive Pay Service it, with the assistance of Bank, shall have completed the Positive Pay Services worksheet so as to provide Bank (i) a list of Authorized Accounts, and (ii) the e-mail addresses to which Notification should be sent. Any changes to the Authorization Form, including the addition or removal of an Authorized Account must be made by providing written notice of any such change to allow the Bank up to five Business Days to effect the requested change.  Furthermore, if issues arise in connection with the check collection process that cannot be addressed by otherwise observing the provisions of this section, Bank may contact any Authorized Representative for the purpose of addressing such issues.

Remedies

UCC Liability. Except as specifically modified below, the provision of UCC Articles 3 and 4 shall continue to govern all matters relating to the payment and return of checks issued by Company on the Authorized Accounts.

Wrongful Honor. It shall constitute wrongful honor by Bank if Bank pays an Exception Item that Company ordered Bank to return by submitting a timely Decision. In the event that there is a wrongful honor: (i) Bank shall be liable to Company for the lesser of the amount of the wrongfully paid Exception Item or Company’s actual damages resulting from Bank’s payment of the Exception Item; (ii) Bank retains the right to assert any other defenses or offsets that would otherwise be available to Bank under UCC Articles 3 and 4, including, but not limited to, the right to assert Company’s failure to exercise ordinary care under Minnesota Statutes Section 336.3-406(a) and Minnesota Statutes Section 336.4-406(c). Bank’s wrongful honor shall, however, constitute a failure of Bank to have exercised ordinary care under the loss allocation provisions of Minnesota Statutes Section 336.3-406(b) and Minnesota Statutes Section 336.4-406(e); and (iii) Bank also retains the right to assert the defense that Company has sustained no actual damages because Bank’s honor of the Exception Item discharged for value an indebtedness of Company.

Wrongful Dishonor. It shall constitute wrongful dishonor by Bank if Bank dishonors an Exception Item that Bank has been ordered to pay pursuant to a timely Decision by Company provided, however, (i) Bank’s liability for wrongful dishonor of an Exception Item shall be limited to the damages for wrongful dishonor recoverable under UCC Articles 3 and 4, and (ii) notwithstanding anything else in this section, Bank shall have no liability to Company for wrongful dishonor the Bank, acting in good faith, returns an Exception Item: (a) it reasonably believed was not properly payable; or (b) if there are insufficient Available Funds on deposit in the Authorized Account; or (c) if required to do so by the service of legal process on Bank or the instructions of regulatory or government authorities or courts.

Rightful Payment and Dishonor.  Except as provided above, (i) if Bank honors an Exception Item in accordance with a timely Decision, or if Bank honors an Exception Item for which no timely Decision was received ordering the Bank to return the Exception Item, such honor shall be rightful, and Company waives any right it may have to assert that the Exception Item was not properly payable under Minnesota Statutes Section 336.4-401; (ii) Company agrees that Bank exercises ordinary care and is in full compliance with all requirements of UCC Articles 3 and 4 whenever it pays or returns an Exception Item in accordance with the provisions of this Section; and (iii) Bank shall have no liability if the incorrect action is taken as a result of an encoding error on a Presented Check. Bank agrees to provide reasonable assistance to Company in addressing the situation and recovering the loss from any party responsible provided Company shall reimburse Bank for any out-of-pocket costs incurred by Bank for the purpose of providing such assistance.

Failure to List Exception Item. If Bank fails to properly list a Presented Check as an Exception Item within the Service as required by the terms of these Terms, Bank shall not be liable to Company for any loss suffered thereby if Bank discovered the mistake and provided Company with notice of such error in time for Company to reasonably avoid such loss.

Customer Assistance. In the event Bank is ever held liable to Company for damages resulting from the wrongful honor or wrongful dishonor of a Presented Check, Company agrees to assist Bank in any way possible in recovering any financial loss. Such assistance shall include, but not limited to, participating in the filing of criminal complaints against any party perpetrating fraud against Company or Bank and assigning to Bank Company’s rights in any transaction underlying such Presented Check.

Assignment. If Bank rightfully pays a Presented Check in accordance with the terms of this section, then, to the extent that Company believes it has suffered a loss there from, Bank agrees to assign to Company any claim that Bank would have against a depositary or collecting bank to recover the loss, including any claim of breach of warranty under Minnesota Statutes Sections 336.4-207, 336.4-208, and 336.4-209.

Stop Payment and Return Decisions. The Positive Pay Service shall not be used as a substitute for Bank’s stop payment service. Company agrees to follow Bank’s standard stop payment procedures if it desires to return a matching item that was validly issued. Nothing in this section will limit (i) Company’s right to stop payment on any matching item; (ii) Bank’s right to return any matching item that Company has authorized Bank to pay if Bank determines, in its sole discretion, that the item is not properly payable for any reason; or (iii) the right of Bank to return any check when there are insufficient collected and available funds in the Account. Nothing in this section will be construed as obligating Bank to perform any verification procedures on any Check that Company has authorized Bank to pay, although Bank may choose to perform certain verification procedures if it so chooses in its sole discretion.

ADDITIONAL TERMS AND CONDITIONS FOR ACH DEBIT BLOCK AND FILTER

Like Check Positive Pay, the ACH Debit Block and Filter service provides Company with the tools necessary to prevent unauthorized ACH transactions from posting to its Accounts. This process involves maintaining a list of pre-authorized ACH transactions in which Bank can then automatically compare against any transactions initiated against Company’s Account.  ACH debits that match Company’s instructions will post to Company’s Account daily. ACH debits that are not pre-authorized will be presented to Company for review. After reviewing these debits Company can instruct Bank to return them or to have them added to Company’s list of authorized transactions. If Company’s instructions do not reach Bank within the times specified, these items will automatically be returned to the originator as unauthorized.

Definitions.  For the purposes of these ACH Debit Block and Filter Terms, “Rules” means the rules of the National Automated Clearing House Association and Appendices to the rules of the National Automated Clearing House, as amended from time to time.

Instructions.  Company may provide standing instructions through the ACH Block/Filter Services worksheet to Bank to manage ACH activity using the Service. No instructions shall be binding on Bank unless they are in writing, on such forms as Bank may require from time to time, and are received in such time as to provide Bank a reasonable opportunity to act thereon.  Company must provide Bank with all information required by Bank in order to permit Bank to deliver the block and/or filter services for ACH entries. Unless Company has provided Bank with sufficient information to block or filter ACH entries, Bank may pay and debit or credit to the Account each ACH entry that is not blocked or filtered.  Bank shall be entitled to rely exclusively on the originator identification number provided in Company’s written instructions in implementing any ACH block, and Company understands that any error made by Company in furnishing the identification number will make the block instructions ineffective.

Not Covered.  Notwithstanding any instructions received by Bank in connection with the ACH block or filter services, Bank may charge Company’s account via ACH for any fees, charges, or payments in connection with transactions or services provided to Company or for any ACH transactions that Bank is required to accept under applicable rules, operating circulars, guidelines, or regulations.

Handling of ACH Transactions.  Company will provide Bank with complete instructions to block or filter ACH debit transactions (“Debit Transactions”) based on Originator ID, Debit/Credit, Standard Entry Code (SEC), and/or dollar amount (“Block/Filter Criteria”).  Payment instructions received by Bank from Company must be submitted electronically in the mutually agreed upon format no later than 5:00 p.m. (Central Time) for next business day processing.  If a Debit Transaction passes the Block/Filter Criteria, Bank will make final payment and charge the matched transaction to the Account.

Limitation of Liability and Indemnification.  Bank is not responsible for detecting any Company error contained in any Block/Filter Criteria or Pay/Return Decision sent by the Company to the Bank.  Any Debit Transaction that Bank returns in accordance with the terms of this ACH Debit Block and Filter Section will be deemed to not be properly payable. Any Debit Entry drawn on the Account that Company authorizes Bank to pay in accordance with these Terms will be paid without Bank performing any other verification procedures.  Company hereby agrees that, once Company has authorized the payment of an ACH transaction against the Account utilizing the Service, Bank will have no liability whatsoever for paying the item, regardless of whether or not the item was validly issued by Company and whether or not Bank has performed any additional verification procedures for the item. Company (i) agrees to indemnify and hold Bank harmless from any losses or liabilities it may suffer or incur as a result of Bank returning or paying an ACH transaction against the Account based upon Company’s Pay/Return Decision, and (ii) releases and forever discharges Bank, its officers, directors, employees and agents, from any and all manner of action or actions, suits, claims, damages, judgments, levies, executions, expenses, costs, interest, attorney’s fees and legal expenses, whether known or unknown, liquidated or unliquidated, fixed, contingent, direct or indirect, which Company has, or ever can, may or shall have or claim to have against Bank regarding or relating to the payment or return of any ACH transaction pursuant to the provisions of this Section.

ADDITIONAL TERMS AND CONDITIONS FOR WIRE TRANSFER SERVICES

Wire Transfer Services

Security Procedures.  Bank requires authenticating information (“Security Information”) (which may be passwords, PINs, challenge questions, or other means of establishing the identity of an Authorized Representative.  Company shall maintain the highest level of security with respect to all Security Information and all Security Procedures established by Bank (which may be dual control or call back). An Authorized Representative may initiate, approve, amend or cancel a wire transfer request (also referred to as a “payment order”) using their Security Information.  Bank may execute any payment order where Bank is provided an Authorized Representative’s Security Information, thereby reasonably proving that such payment order is authorized. Company is responsible and assumes all liabilities in connection with an order where valid Security Information is provided. Company agrees to notify Bank immediately if the Security Procedure is breached. Regardless of Company’s wire transfer request procedures, Company shall implement and maintain at all times adequate safeguards to prevent unauthorized payment orders from being made on its behalf.  Bank reserves the right to modify Security Information requirements, and change Security Procedures as Bank deems necessary in its sole discretion.

Execution of Payment Orders. Outgoing wires will be accepted for same day processing, provided that the Wire Transfer Request(s) is received by Bank’s Wire Transfer Department from 9:30 a.m. to 3:30 p.m. Central, Monday through Friday. Incoming wires received after 4:30 P.M. will be credited to Company’s account on the next Business Day.  Bank may execute each payment order received by it in the name of Company as sender, provided that Company has sufficient Available Funds on deposit in an Authorized Account and provided that the payment order (a) is received by Bank in the manner and at the place(s) established by Bank; (b) complies with any written instructions and restrictions established by Company and communicated to Bank through the Wire Transfer Services worksheet; and (c) is authorized by Company or is verified by Bank by means of Security Information.  Bank is not required to execute a payment order on the day it is received if it is received after such business hours or if Bank cannot reasonably execute the payment order within such business hours. If Bank is delayed beyond the time limits provided in the schedule or by law in executing a payment order, then the time for acting shall be extended to the time necessary to execute the payment order, provided Bank exercises such diligence as the circumstances require. Bank shall not be liable in any event for any delay in executing or refusal to execute any payment order if Bank in good faith is unable to satisfy itself that the payment order has been given by an Authorized Representative or is in compliance with any applicable Security Procedure.

Outgoing Wires.  Outgoing wires initiated through Online Banking will be accepted and processed same day, provided that the payment order(s) is received by Bank’s Wire Transfer Department from 9:30 a.m. to 3:30 p.m. Central, Monday through Friday. Bank may execute each payment order received by it in the name of the Customer as sender, provided that Company has sufficient Available Funds on deposit in an Authorized Account and provided that the payment order (a) is received by Bank in the manner and at the place(s) specified on any Schedule; (b) complies with any written instructions and dual control restrictions of Company set forth on using a general destination template; and (c) is authorized by an Authorized Representative and authenticated by such Authorized Representative’s Security Information.

Rejection and Confirmation of Payment Orders.  If Bank rejects or fails to execute a payment order of Company, then no later than 4:00 p.m. Central on the execution date of the payment order, Bank shall notify Company of its rejection of the payment order.  If Company has paid for a payment order which Bank has rejected or failed to execute, Bank will reimburse Company for those funds and pay compensation (subject to Bank’s limitation of liability) for the use of those funds as described within these additional terms. Outgoing transfers are immediate and will be charged to Company’s account on the day they are executed. Company agrees to promptly review all such written notifications and report to Bank in writing any problem, error, discrepancy or objection concerning any wire transfer within ten (10) days of the transfer date. Company shall also promptly review and reconcile its statements of account received from Bank and notify Bank in writing within 30 days after the statement date of any problem, error discrepancy or objection concerning such statement.  Company’s failure to comply with any part of this shall constitute a waiver of such problem, error, discrepancy or objection which such compliance would have disclosed.

Identifying Number.  Company is notified that: 1) If a payment order identifies the beneficiary by both a name and an identifying number and the name and number identify different persons, execution of the payment order, payment to the beneficiary or cancellation of the payment order may be made solely on the basis of the identifying number and Bank has no obligation to determine that the name and number identify the same person; 2) If a payment order identifies any bank by both a name and an identifying number and the name and number identify different banks, any bank may rely solely on the identifying number or the identifying name to identify the bank with respect to the payment order and Bank has no obligation to determine that the name and number identify the same bank.

Cancellation of Payment Orders.  Prior to Bank’s execution of a payment order, a payment order may be canceled by Company provided that the cancellation instruction is received by Bank at a time and in a manner affording Bank a reasonable opportunity to act and is in compliance with any applicable Security Procedures. Company agrees to hold Bank harmless against any claims of third parties when Company cancels a payment order. In the case of any erroneous or otherwise irregular transfer, Bank, at its sole discretion, may, but shall not be obligated to, request the transferee to return the wire transferred.

Debits and Overdrafts. Bank may refuse to execute any payment order if any of Company’s accounts are subject to any garnishment, court order, set-off or other restriction which Bank determines limits Company’s ability to withdraw funds from its accounts maintained at Bank.  In the event that an overdraft is created or increased, Company shall cause sufficient Available Funds to pay the amount of the overdraft caused by the payment order to be deposited into or credited to that Authorized Account by the close of that banking day.  Any overdraft existing at the close of a banking day is immediately due and payable without notice or demand.

Fedwire and Applicable Rules.  Each payment order or cancellation thereof may be furthered by any bank by use of the wire transfer system of the Federal Reserve Banks (“Fedwire“).  The rights and obligations of Bank and Company with respect to any payment order, any part of which is carried out through use of Fedwire, will be governed by applicable laws, the regulations of the Board of Governors of the Federal Reserve System, and the operating circulars of the Federal Reserve Banks.  Each payment order, or cancellation thereof, carried out through a wire transfer system or a clearing house will be governed by all applicable wire transfer system rules and clearing house rules and clearing arrangements, whether or not Bank is a member of the system, clearing house or arrangement.  Company acknowledges that Bank’s right to reverse, adjust, stop payment or delay posting of an executed payment order is subject to the laws, regulations, rules, circulars and arrangements described herein.

Compensation and Costs

Rate of Compensation to the Customer.  Whenever compensation in the form of interest is payable by Bank to Company pursuant to the Wire Transfer Service, such compensation will be payable at the average of the federal funds rate published by the Wall Street Journal for each of the days for which interest is payable computed on the basis of a year of 360 days or at such other rate as Bank and Company may, from time to time, agree.

Rejected Order.  In the event that Bank rejects or fails to execute a payment order without giving notice thereof as provided herein, Bank shall compensate Company for the use of funds at the rate specified above, if, on the execution date of the payment order, there was a sufficient withdrawal credit balance in an Authorized Account to pay for the payment. Compensation shall be computed based on the number of days elapsing after the execution date to the earlier of 30 days or the day Company receives notice or learns that the payment order was not executed, counting the final day of the period as an elapsed day. If the withdrawal credit balance during that period falls below the amount of the order, the amount of interest will be reduced accordingly. Notwithstanding the foregoing, no compensation will be due under this section if the Authorized Account is an interest-bearing account. No compensation will be due hereunder for any funds withdrawn from the Authorized Account.

Compensation to Bank.  In the event Company fails to pay any overdraft as required under these Terms, Company shall pay a processing fee and, if necessary, the costs of collection of such amounts, including attorney fees.

Costs.  Each party shall bear its own costs and expenses in connection with the use or provision of the wire transfer services contemplated by these Terms.

Limitation of Liability

Responsibility for the Detection of Errors. In addition to Bank’s limitations of liability elsewhere in these Terms, Bank shall be excused from delaying or failing to execute a payment order if it would result in Bank’s exceeding any limitation on its intra-day net funds position established through Federal Reserve guidelines or would result in violating any present or future risk control program of the Federal Reserve or a rule or regulation of other governmental regulatory authorities.  In no event shall Bank be liable for any consequential, special, punitive, or indirect losses or damages incurred relating to any payment order or wire transfer including, without limitation, subsequent wrongful dishonor resulting from Bank’s acts or omissions.  Any liability of Bank for loss of interest resulting from its error or delay shall be calculated using a rate equal to the federal funds rate for the relevant period.

Unauthorized Payment Orders.  If a payment order in the name of Company accepted by Bank was not authorized by Company, the liability of the parties will be governed by the applicable provisions of UCC 4A.

Compensable Damages.  Company acknowledges that Bank’s fees for wire transfer services are very small in relation to the amount of payment orders, and consequently Bank’s willingness to provide such services is contingent on limitation of its liability in accordance with these Terms.  Bank will be liable only for Company’s actual damages and only to the extent that such damages are recoverable under UCC 4A. BANK SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES WITH RESPECT TO CONSEQUENTIAL OR SPECIAL DAMAGES UNDER THESE TERMS, WHETHER OR NOT SUCH DAMAGES RELATE TO SERVICES COVERED BY UCC 4A, EVEN IF BANK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

Standard of Care.  With respect to the performance of services under this section which are not covered by UCC 4A, the parties will be governed by a standard of ordinary care.  Bank will be deemed to have exercised ordinary care if its action or failure to act has been in conformity with Bank’s prescribed procedures and such procedures do not vary unreasonably from general banking uses and practices not disapproved by any provision of the Uniform Commercial Code.

Required Notice.  Unless Company notifies Bank in writing, within 30 calendar days following the Customer’s receipt of notification either of the acceptance of a payment order or of the debiting of a payment order to an Authorized Account, that such payment order was not authorized or was not properly executed, Bank will not be liable for any interest thereon.

Force Majeure.  Except as otherwise provided by UCC 4A, Bank will not be liable for its inability to perform its obligations hereunder when such inability arises out of causes beyond its control, including, without limitation, any act of God, accident, equipment failure, system failure, labor dispute or the failure of any third party to provide any electronic or telecommunication service used in connection with the execution or cancellation of payment orders, provided that Bank shall have exercised such diligence as the circumstances require.  In the event of any emergency or other condition affecting the ability of Bank to discharge its obligations under the terms of this Agreement, Company is required to keep a full set of wire instructions in the event that Bank cannot access repeat wire information electronically and needs to initiate a wire verbally rather than using templates created at Bank.

ADDITIONAL TERMS AND CONDITIONS FOR LOCKBOX SERVICES

This Agreement, together with the” Lockbox Services worksheet, create a lockbox arrangement between Bank and Company.  Bank and Company agrees to the terms of this Agreement governing the administration of the lockbox account and the rights and responsibilities of each parties.  Lockbox “contents” includes anything deposited into the lockbox account.

Initial Registration Requirements

Deposit Account    In each case, Company must already have a deposit account with Bank (the “Account”).  Bank will prepare signature cards, and verify Company’s identity with appropriate Bank Secrecy Act (BSA) and USA PATRIOT Act verification.  Company agrees that Bank may debit its Account for standard Bank fees and charges.

Post Office Box.  Company shall direct its customers to mail payments to the lockbox/post office box(es) listed on Lockbox Services worksheet.  Bank may change the name or address of the post office box at its sole discretion.  Bank may designate more than one post office box and designate the receivables that are to be deposited in one or more of the post office boxes.

Pick-up Schedule.  Bank or its agents shall pick up the lockbox contents each Business Day.

Payee Designation.  The payee designation on lockbox account should be a reasonable variation of the Company’s business name.  If the payee designation is not a reasonable variation, the check may not be deposited.  If the payee is blank, Bank will reject the check.

Provision of Service.  Subject to the terms and conditions of this Agreement, Bank shall make available to Company those services expressly set forth in Lockbox Services worksheet (“Services”).  Bank shall have the right to determine, in its sole discretion, the nature and extent of the Services to be provided.  The Services are the sole property of Bank, and Company has no rights in any of them, or any other property of Bank or its suppliers, other than those rights expressly granted under this Agreement.

Access of Service.  Bank will provide Company with an administrative user name and password to access the Services.  Company will designate an Administrator who shall be the sole individual vested with the authority to determine who will be authorized to use the Services; and establish limits on each user’s authority to access information and conduct transactions.  Company is responsible for the actions of its Administrator, the authority the Administrator gives others to act on Company’s behalf, and the actions of the persons designated by the Administrator to use the Services.  Company shall take reasonable security procedures and practices to safeguard the confidentiality of the passwords; limit access to its passwords solely to persons who have a need to know such information; closely and regularly monitor the activities of employees who access the Services; and prohibit its employees and agents from initiating entries in the Services without proper authorization and supervision and adequate security controls.

Company Obligations

Compliance.  If Company selects to receive ACH payments in the Lockbox, Company agrees to abide by all rules of the National Automated Clearinghouse Association as they apply to electronic funds transfers in general.

Remittance Documents.  If applicable, Company agrees that Optical Character Remittance (OCR) documents must comply with the specifications provided by the Bank and must be tested and approved by the Bank prior to use. Company further agrees that any changes to the OCR documents must be pre-approved by the Bank.

Indemnification.  Company agrees to indemnify Bank and to hold Bank harmless from and against any and all claims, damages, losses, liabilities and expenses which the Bank may incur or which may be asserted against Bank in connection with a breach of the Company’s obligations, representations or warranties under this Agreement, or otherwise arising out of Bank providing services to the Company; provided, however, that the foregoing indemnity agreement shall not apply to claims, damages, losses, liabilities and expenses solely attributable to Bank’s gross negligence or willful misconduct.

Returns after Termination.  If a check that Bank has previously processed is returned after Company has terminated this Agreement the Company agrees that Bank may debit Company’s account or, if such account has been closed by Company, Bank will send a request for payment for such returned item(s) to Company and Company agrees to pay Bank within a commercially reasonable time after receipt thereof.

Controls.  Company agrees to maintain physical, procedural and administrative controls and safeguards reasonably designed (taking into account the nature and circumstances of such party’s business) to ensure the security, integrity and confidentiality of Confidential Information, and to protect against any anticipated threats or hazards to the security or integrity of, or unauthorized access to, the Confidential Information.

Duty to Report Errors.  Company shall notify Bank of any errors, discrepancies, security breaches, omissions, or interruptions in, or delay or unavailability of, the Services as promptly as practicable, and in any event within one Business Day after the earliest of discovery thereof, or the date discovery should have occurred through the exercise of reasonable care, and, in the case of any error, within 14 days of the date of the earliest notice to Company which reflects the error.

Bank’s Obligations

Payment of Deposits.  Items are collected from the lockbox once per Business Day.  Items processed by Bank before 5:00 p.m. Central on any Business Day, will be posted to the Company’s account the same Business Day.

Reports.  Bank shall provide Company with daily reports via the system detailing items processed, as well as check images.

Retention of Check Images.  Company will have access to electronic images of items for seven years and may request research on items for a total of [twelve (12) months] from date of making.  Bank will retain all reports pertaining to processed documents and electronic images of all original paper checks for seven years from date of making. 

Compliance.  Bank shall comply with all applicable federal and state laws, rules and regulations applicable to its respective activities hereunder and related hereto.

Additional Provisions

Account Administration. Bank agrees to open and manage a post office box for the payment of funds into the Lockbox.  Bank shall deposit funds into the account according to the process described in these Terms.  Bank and Company agree to the following: (i) Company should mail invoices to its customers in a prompt, businesslike manner; (ii) Bank is entitled to exclusive and unrestricted access to the Lockbox contents and has the sole right to direct transfer of Lockbox amounts; (iii) prior to deposit into Company’s account, the Lockbox content will not be available to the Company except upon request to Bank and only with Bank’s consent.

Application of Payments.  Company is responsible for instructing all of its customers about the requirements specified in this section.  Bank will open, inspect, and date stamp all lockbox items.  Bank or its agents will handle the Lockbox contents in the following manner:

Foreign Instruments.  Bank will not deposit Instruments payable in a currency other than US dollars.  Instruments drawn on accounts of banks that are not banks organized under US federal or state law may be sent to the Bank’s corresponding bank for collections and may take up to two (2) months to be deposited into the lockbox account.

Missing Date.  In absence of a check date, Bank may insert the current date with a date stamp and process the check.

Postdated Checks.  Checks postdated will be deposited on the date the check is received; Bank will not hold a postdated check.  Bank will have no liability for processing and depositing postdated items into Company’s account.

Stale Dated Checks.  Checks dated six months or older may be deposited.  If a check includes language that limits when the check may be deposited (e.g., “This check is void after 90 days”), and the check is received by Bank outside the check’s terms, Bank will not deposit the check, but forward it to Company for resolution.

Signature Missing.  If the drawer’s signature is missing, the check will be rejected.

Amounts Missing.  Checks missing both script and numeral amounts will not be deposited.  Checks missing script amounts will not be deposited.  Checks missing numeral amounts may be deposited.

Payment in Full.  Checks which read, “Payment in Full”, or similar words, will be deposited.  Company must inform its customers to address any disagreements regarding payment to a location other than the lockbox.

Payment Method.   Bank will recognize checks as acceptable methods of payment for deposit and will reject payment in any other form.

Returned Checks.   In the event that a check deposited into the Company’s account is returned unpaid because of insufficient funds or uncollected funds, Bank will return the check to the Company.  Fees charged by bank for insufficient or uncollected funds will be debited from the Company’s account.

Processing Procedures After Inspection.  Unless other arrangements are made, the Company will be able to access images of all items accepted online, all original unprocessed or rejected items, will be forwarded by Bank to Company. Any invoices, envelopes, and correspondence delivered to the Lockbox will be destroyed ninety (90) Business Days after receipt; the Company may elect to have envelopes imaged (invoices and correspondence are automatically imaged unless the Company directs Bank otherwise).

Remittance of Checks to Bank.  If any of the Lockbox contents come into the possession of the Company, any of its affiliates, or persons acting for or in concert with the Company, all funds shall be remitted to Bank or its agents by the Company no later than the first Business Day following receipt.

Account Agreement Applicability.  All Lockbox contents processed and credited are subject to the terms and conditions of Company’s deposit account agreement. Each and every provision of the account agreement between Company and Bank, with respect to Company’s account, will remain in full force and effect.

Termination, Survival.  Notwithstanding other terms in this Agreement, either party may terminate the Lockbox Services at any time for any reason upon 60 days’ prior written notice to the other party. Bank reserves the right to terminate the Lockbox Services immediately upon suspicion of fraud, illegal activity, misrepresentation or non-compliance. Termination of these Terms will not affect Bank’s or Company’s rights and obligations under the Agreement, or for transactions arising before the termination. Company agrees that all financial obligations not previously satisfied shall survive termination of these Lockbox Services. Company further agrees to cooperate in good faith with Bank post-termination to complete processing of any transactions in process on or arising prior to the termination date and also to resolve any disputed items. Company’s Obligations set forth in these Additional Terms, and Bank’s Obligations with respect to maintaining check images, will survive termination of this Agreement.

Limitation of Liability.  In additional to limitations of liability set forth elsewhere in the Agreement, the Company acknowledges that Bank’s systems and procedures established for providing the Services are commercially reasonable. Bank’s liability to Company, or third parties, under these Lockbox Services Terms shall, in every case, be limited to correcting, reversing, or otherwise making accurate any debit or credit initiated by Bank through the ACH Network.  Except as specifically required by law, Company agrees that Bank shall not be responsible for any damages, loss, or property damage incurred as a result of Company using Bank’s services set forth in these Terms.  Moreover, in no event shall Bank be liable for any indirect, consequential, incidental, punitive, exemplary or special losses or damages, or expenses which Company may incur by using the Services described in this Agreement whether or not the possibility or likelihood of such damage was known or contemplated by Bank will also be excused from failing to transmit or delay in transmitting an entry if such transmittal would result in it exceeding any limitation imposed on it by any governmental or regulatory body.

Bank shall have no liability to Company, or any other person or entity for any loss, damage, cost, or expense arising out of these Terms or these Lockbox Services regardless of any form in which asserted, whether in contract, tort (including negligence), warranty, or any other legal or equitable grounds, and regardless of whether the remedies available fail of their essential purpose, except as provided by applicable law for any error of delay in performing the Lockbox Services provided for in these Terms, and shall have no liability for not effecting an entry, if: (i) Bank receives actual notice or has reason to believe that Company has filed or commenced a petition or proceeding for relief under any bankruptcy or similar law; (ii) the ownership of funds involving an entry or the Authorized Representative’s authority to transmit an entry is in question; (iii) Bank suspects a breach of the Security Procedures; or (iv) Bank suspects that Company’s account has been used for illegal or fraudulent purposes; or Bank reasonably believes that an entry is prohibited by federal law or regulation, or otherwise so provided in these Terms.

THE DUTIES AND RESPONSIBILITIES OF BANK UNDER THIS AGREEMENT WILL BE LIMITED TO THOSE EXPRESSLY SET FORTH AND UNDERTAKEN HEREIN.  IN NO EVENT SHALL BANK OR ITS AFFILIATES, SUPPLIERS OR SERVICE PROVIDERS BE LIABLE FOR (I) ANY LOSS OF USE, REVENUE, PROFIT OR BUSINESS OPPORTUNITIES OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF BANK OR ANY SUCH AFFILIATE, SUPPLIER OR SERVICE PROVIDER IS INFORMED OR OTHERWISE IS AWARE OR SHOULD BE AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; (II) LOSSES OR DAMAGES ATTRIBUTABLE TO OR ARISING FROM OVERHEAD ALLOCATIONS OR GENERAL AND ADMINISTRATIVE COSTS AND EXPENSES OF COMPANY; (III) LOSSES OR DAMAGES CAUSED OTHER THAN BY BANK’S OWN GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; AND (IV) LOSSES OR DAMAGES ARISING OUT OF THE FRAUDULENT OR CRIMINAL ACTS OF THIRD PARTIES.  IN NO EVENT SHALL BANK BE LIABLE FOR ANY FRAUD COMMITTED BY COMPANY, IN COMPANY LOCATIONS, BY ONE OF COMPANY’S EMPOLOYEES, AGENTS OR CONTRACTORS OR AS A RESULT OF NEGLIGENCE BY ONE OF COMPANY’S EMPLOYEES, AGENTS, REPRESENTATIVES OR CONTRACTORS.  THE AGGREGATE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY IN CONNECTION WITH ANY LOSS OR DAMAGE FOR ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO THIS COMPANY AGREEMENT WITH RESPECT TO CLAIMS (WHETHER THIRD PARTY CLAIMS, INDEMNITY CLAIMS OR OTHERWISE) RELATING TO EVENTS DURING THE TERM OF THIS AGREEMENT SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED SIX (6) TIMES THE AVERAGE AMOUNT OF MONTHLY FEES ACTUALLY PAID BY COMPANY TO BANK PURSUANT TO THESE LOCKBOX SERVICES.

Audit.  Company agrees to provide Company information and documentation, including but not limited to financial statements, to Bank upon request.  Company further agrees to make its records and processes available for Bank’s inspection at its any and all of its locations upon reasonable notice and during normal business hours.

Standard of Care.  Bank’s responsibility to Company under this Agreement is limited to the exercise of ordinary care.  If Bank substantially complies with the procedures in this Agreement, Bank will be considered to have exercised ordinary care.  If Bank occasionally and unintentionally deviates from the procedures in this Agreement, the deviation will not be considered to be a failure to exercise ordinary care in respect to the transactions in which they occurred.

ADDITIONAL TERMS AND CONDITIONS FOR LOAN SWEEP ACCOUNT SERVICES

If you have applied for a loan with Bank, and a “sweep” account arrangement with Bank, these terms, in connection with your loan agreement, apply.

You have established a threshold balance for your deposit account at Bank. When the balance falls below this established threshold in your deposit account, funds are swept from your loan Account with Bank into your designated deposit Account.  In addition, your agreement may provide that when funds are available in the deposit account (i.e., after a deposit) funds will be swept back to the loan Account.

In the event of a bank failure, the FDIC will allow the sweep to occur. Funds swept from the loan Account to the deposit Account will be FDIC insured (up to the limits for FDIC insurance). Funds swept from the deposit Account to the loan Account will reduce the amount you owe Bank. The funds remaining in the deposit Account after a sweep to the loan will be insured under applicable FDIC insurance limits.

If Bank was acquired (purchased and assumed) the sweep product would normally be transferred to the acquiring institution. Any funds used to pay down the customer’s loan would be available to be swept back to the customer’s deposit Account, business as usual.

In a payoff situation the FDIC would recognize the customer’s reduced loan balance and pay the balance in the deposit Account (as reflected in the institution’s end-of-the-day balance on the day of failure) according to the normal insurance procedures.

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