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AGENDA STAFF REPORT r
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DATE: June 27, 2016
TO: Honorable Mayor and City Council
THRU: Jill R. Ingram, City Manager
FROM: Victoria L. Beatley, Director of Finance/City Treasurer
SUBJECT: AWARD OF AN AGREEMENT FOR CASH
MANAGEMENT SERVICES
SUMMARY OF REQUEST:
That the City Council:
1. Award an Agreement for Cash Management Services to Bank of the West;
2. Adopt Resolution Number 6653, A Resolution of the Seal Beach City
Council Approving the Authorization and Agreement for Cash
Management Services Between the City and Bank of the West and
Authorizing the City Manager to Execute the Agreement and Related
Documents; and
3. Authorize the City Manager or his designee to execute all bank documents
and agreements consistent with and necessary to implement the contract.
BACKGROUND AND ANALYSIS:
The City has maintained a commercial banking relationship with Bank of America
since the 1960's. During this time, Bank of America has been the City's primary
provider of core banking services. These services include accepting deposits,
paying City warrants and payroll, and facilitating a cash management program.
In September 2015, Bank of America has been notifying smaller cities that it would
be terminating its banking relationship. Several of the cities around Seal Beach
have received this letter. An investigation revealed Bank of America is eliminating
smaller government accounts from its portfolio, including several other local
governments in the area. Although Seal Beach was not included in the initial
closures, a termination letter is forthcoming.
The current annual cost for banking services with Bank of America is approximately
$18,000. Because banking services are considered professional services, a
Agenda Item H
Request for Proposal was not distributed. The City issued a Request for Quote
(RFQ) for Banking Services on April 25, 2016. The RFQ was sent directly to three
highly respected providers of government banking services. Responses were
received by all three banks. The Director of Finance/City Treasurer evaluated the
submittals for the ability to meet the City's service requirements, financial strength
of the bank, experience and qualifications of key bank personnel, pricing,
organization and completeness of responses, and references.
All three of the responding banks appear to be financially sound and able to provide
both the services the City currently utilizes, as well as additional services likely to
be implemented in the near future. In evaluating the responses, the categories
which most differentiated the banks were pricing, branch location, and experience
with similar clients. Pricing, in particular, was the most distinguishing factor
separating the responses.
The following table summarizes key information for each of the responding banks.
Table 1 —Summary of Bank Responses
RFQ Response Bank of the West Comerica Bank US Bank
Category
Conversion Credit $5,000 $1,000 $4,500
Earnings Credit
Rate 45 basis points 25 basis points 39 basis points
Annual Cost $13,000 $16,000 $18,000
Nearest branch 7.0 miles 1.5 miles .5 miles (Von's)
CA Local Gov't
Clients 416 30+ Unavailable
Long-term debt
ratings:
S&P A BBB+ A+
Moody's Aa3 A3 Al
Fitch A+ A AA
All of the banks have a branch office within seven miles of city hall, have a strong
government presence, and are comparably rated by the three largest credit rating
agencies.
Bank of the West is able to provide all of the necessary services (and service
enhancements) while offering the lowest cost. The estimated annual fees of
$13,000 is the lowest of the three quotes. For that reason, and others, staff
recommends awarding the banking services to Bank of the West.
Due to the administrative complexities associated with changing banking
institutions, long-term commitments are preferable for banking services. Therefore,
it is staff's intention to maintain the relationship with Bank of the West for at least
five years. Upon execution of the attached banking services documents, staff will,
Page 2
in conjunction with bank personnel, develop and execute an implementation plan to
complete the conversion by the end of September.
The implementation will require the City to sign or acknowledge additional standard
banking documents. To facilitate the implementation and management of the
documents, it is recommended the City Manager, or her designee, be authorized to
execute any required bank documents. Three documents required at this time are
the Authorization and Agreement for Cash Management Services, Public Agency
Deposit Account Signature Card, Waiver of Security, and Cash Management
Terms and Conditions (information only, no signature required).
ENVIRONMENTAL IMPACT:
There is no environmental impact related to this item.
LEGAL ANALYSIS:
There is no legal analysis required for this item.
FINANCIAL IMPACT:
The expense for banking services are netted against the Interest Revenue.
Because of the reduction in bank fees, it is expected that there will be a positive
impact on Interest Revenue of approximately $5,000.
Page 3
RECOMMENDATION:
That the City Council:
1. Award an Agreement for Cash Management Services to Bank of the West;
2. Adopt Resolution Number 6653, A Resolution of the Seal Beach City
Council Approving the Authorization and Agreement for Cash
Management Services Between the City and Bank of the West and
Authorizing the City Manager to Execute the Agreement and Related
Documents; and
3. Authorize the City Manager or his designee to execute all bank documents
and agreements consistent with and necessary to implement the contract.
SUBMITTED = • NOTED AND APPROVED:
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Victoria L. Beatley Jig'ngram, City Ma ;er
Director of Finance/City Treasurer
Attachments:
A. Authorization and Agreement for Cash Management Services
B. Public Agency Deposit Account Signature Card
C. Waiver of Security
D. Cash Management Terms and Conditions
E. Resolution 6653
Page 4
Attachment "A"
BAN Kr tEWEST ..
AUTHORIZATION AND AGREEMENT FOR CASH MANAGEMENT SERVICES
This Authorization and Agreement for Cash Management Services (this "Agreement") is executed by each of
the business organizations named below (collectively, the "Business Entities"). Each Business Entity
acknowledges that it has received from Bank of the West ("Bank") the Cash Management Terms and
Conditions(`Terms and Conditions'), Deposit Account Disclosure for Business Accounts("Disclosure Booklet'),
applicable Schedules of Fees and Charges, applicable User Materials, related documents and disclosures
(collectively, the "Disclosure Agreement") pertaining to the provision of one or more Cash Management
Services (collectively "Services") by Bank to the Business Entities. Each Business Entity agrees that the
Services obtained from Bank are subject to this Agreement, the Terms and Conditions, and the Disclosure
Agreement, as those documents currently exist and may be added to, deleted from or otherwise changed from
time to time in the future. Each Business Entity expressly acknowledges and agrees that if it has any electronic
services, amendments to the Terms and Conditions and the Disclosure Agreement may be delivered or posted
electronically, as is further disclosed in the Terms and Conditions. Capitalized terms used in this Agreement,
not otherwise defined, have the meanings given to them in the Terms and Conditions.
Multiple Entity Cash Management Services Linking - Check if applicable [[��
Each of the undersigned Business Entities hereby authorizes the linking of its accounts with all of the below-
named Business Entities for the selected Services. Each of the undersigned Business Entities hereby
appoints the Business Entity first listed below ("Principal Business Entity") to act as the attorney in fact for
such Business Entity with respect to all matters concerning Services with Bank, such authority specifically,
but without limitation, including the right to: (1) establish, continue, modify, and terminate an account,
Service or other banking arrangement made by or on behalf of Business Entity; (2) contract to procure other
such Services available from Bank as Principal Business Entity considers desirable; (3) receive bank
statements, vouchers, notices, and similar documents from a financial institution and act with respect to
them; and (4) designate a person(s) ("Designee(s)") to act with respect to the Services. This power of
attorney is coupled with an interest.
The undersigned intend that Bank treat all Business Entities as one entity for purposes of the Services
provided pursuant to this Agreement. Specifically and without any limitation intended, each Business Entity
specifically authorizes all deposit [and other] accounts of each Business Entity to be linked together for
Account Analysis purposes, linked in the Deposit Concentration Service, linked in the Zero Balance
Accounting Service, linked in access via our Online Banking Service through any website owned, operated,
controlled, or maintained by Bank or any of its affiliates, without restriction. The accounts so linked may
include, without limitation, deposit accounts (for example and without limitation, savings, checking, money
market, certificates of deposit), credit accounts (for example and without limitation, lines of credit, credit
cards, loans, leases), investment and brokerage accounts (for example and without limitation, mutual funds,
stocks, securities, annuities) and any and all other accounts that we may now or in the future hold for or on
behalf of any named Business Entity.
Each Business Entity represents with respect to the individual who executes this Agreement on its behalf
("Designee")that the Designee is an authorized signer for the Business Entity. Each Business Entity agrees
that:
• Any Designee is authorized to access any account of any Business Entity named in this Agreement
when such access is accomplished electronically via any Service provided in accordance with this
Agreement.
• Each Designee shall further be entitled to access and control all such accounts singly via the
Service without regard to any multiple signer designations, requirements, or restrictions that might
otherwise be applicable to a specific account but for this Agreement. Such access includes, without
limitation, the ability to: (1) control such accounts electronically; (2) view or initiate transactions
including, without limitation, withdrawals; (3) deposit and transfer money; (4) generally perform all
types of electronic transactions to and from each account of each Business Entity; and (5) further
authorize other users to access the accounts to perform similar functions (under the control of such
persons authorized hereunder).
Each Business Entity acknowledges and agrees that the linking of its business account(s) through the
designated Services as contemplated in this Agreement could subject each of the Business Entities
BANKIRIFWEST
Page 1 of 3 Revision Date 05/01/13
(individually or collectively) to claims involving or arising out of the commingling of funds, and each
Business Entity hereby assumes all of the risks involved. Each Business Entity further acknowledges
and agrees that, for purposes of Online Banking, the granting of access to the deposit accounts of each
Business Entity by way of a single identification number and password is provided by Bank only at the
request and for the convenience of each Business Entity. Each Business Entity, individually and
collectively, agrees to indemnify, protect, hold harmless and defend Bank from and against any and all
claims, demands, damages, expenses, liabilities or costs (including attorneys' fees, professional fees
and court costs), of whatever kind or nature whatsoever, in connection with or arising from allowing any
of the accounts belonging to each Business Entity to be linked to one another for access via the Services
or from the provision of the Services.
There are no additional pages attached to this Agreement, which contain additional Business Entities
whose accounts and services may also be linked to the accounts of the Business Entities reflected on
this page.
Cash Management Service(s) Requested
® Account Analysis Service ® ImageExpress Services
® Account Reconcilement Services ® Online Banking Services
® ACH Blocked Service ® Payment Orders ACH
❑ Assured Access Card TM Services ® Payment Orders Wires
® Cash Vault Services ® Positive Pay Services
❑ Controlled Disbursement Z RemittanceBanking Services(LockBox)
Z Deposit Concentration Service ® Remote Cashier's Check Service
❑ Direct Delivery of Checks Service ® SecureDirect Banking Integration
❑ DirectPay Manager ® Sweep Services
❑ Electronic Commerce Service ❑Tax Direct Services
Z Electronic Deposit Service Z Third Party Depository Services
❑ Image Clearing Service Z Zero Balance Accounting Services
Each Business Entity understands that use of any Service is subject to: (1) Bank's receipt of any required
information and documentation; (2) Bank's approval; and (3) each Business Entity's completion of any
testing or training requirements.
The undersigned Designee, and each of them, is an officer, owner, principal or other authorized individual of
the Business Entity on whose behalf the Designee is acting. The undersigned Business Entity and Designee
represent and warrant that the Business Entity on whose behalf the Designee is acting has taken all action
required by its organizational or constituent documents to authorize the undersigned Designee to execute
and deliver this Agreement and any other documents Bank may require with respect to a Service, and to
provide to Bank instructions, and to designate employees and agents to act in the name of and on behalf of
the Business Entity regarding the Services and any and all accounts affected by any Service obtained on
behalf of the Business Entity.
BUSINESS ENTITIES IES JOININ(: IN CASII NIANA(:I?Il1P;NT SERVICES
PRINCIPAL BUSINESS ENTITY
Tax Identification Number
95-6000794
Business Entity Name Printed Signer's Name
City of Seal Beach Jill R. Ingram
Authorized Signature Title
City Manager
Tax Identification Number:
Business Entity Name Printed Signer's Name
Authorized Signature Title
BANK IFWEST
Page 2 of 3 Revision Date 05/01/13
CORPORATE/ASSOCIATION RESOLUTION
RESOLVED: The City Manager Jlll R. Ingram.,
Assistant City Manager Patrick Gallego, or
Director of Finance/City Treasurer Victoria L. Beatley
(Title) (Name) (Title) (Name) (Title) (Name)
of this Corporation is authorized to enter into any cash management services agreements with Bank of the
West, to designate from time to time persons, in such number as may be directed, to manage any cash
management service and otherwise give instructions regarding this organization's cash management
service(s).
RESOLVED further that the authority conferred is in addition to any other authorizations in effect and shall
remain in force until Bank receives written notice of its revocation at the office where the account is maintained
or at such other location as Bank may direct.
CERTIFICATION
I certify that this resolution was adopted by this organization in accordance with law and its charter documents
at a meeting duly held by this organization's governing body, and is now in effect. I certify that all of the
signatures on the reverse are genuine and are those of person(s)who are authorized to execute the form who
has such title as is listed above. I further certify that I have full authority to execute this certification. Bank of the
West is entitled to rely upon this certification until written notice of its revocation is delivered to Bank of the
West.
DATED SIGNATURE
PRINT NAME/TITLE(Must be Secretary or Assistant Secretary)
For Bank Use Only
Bank of the West(Office/Unit) Bank of the West(Cash Management Sales)
Name: Name:
Title: Title:
Office/Unit:
Date: Date:
Signature Signature
BANKAVE'SI"
Page 3 of 3 Revision Date 05/01/13
Attachment "B"
* s ,
BANK
COMMERCIAL BANKING I PUBLIC AGENCY1 DEPOSIT ACCOUNT SIGNATURE CARD
Date Card Received: Previous Card Date:
Select One: n New Signature Card(New Account) ❑ Superseding Signature Card
Agency Information
Legal Name: City of Seal Beach Physical Address: 211 8th Street
Name Line 2: City,State,Zip: Seal Beach,Ca 90740
Phone Number: 562-431-2527 ext 1311 Fax:
Website: http://www.sealbeachca.gov
Account Information Mailing Address.if different
Account Number: Address:
Account Title: City,State,Zip:
Designated Signers
ISSUED BY
SIGNATURE NAME TITLE ID NUMBER (Agency& A EAT, D.O.B.
Place) DAT TE DATE
Jill R. Ingram City Manager
Patrick Gallegos Assistant City Manager
Victoria L. Beatley Finance Director/City Treasurer
TAX CERTIFICATION: By signing below, I authorize the following Taxpayer Identification Number (TIN) to be used for tax reporting
purposes.
Public Agency Name Tax Identification Number
City of Seal Beach 95-6000794
Under penalties of perjury,I certify that(1) The number shown on this form is the correct Taxpayer Identification Number for the Public
Agency, and (2) The Public Agency is not subject to backup withholding either because: (a) The Public Agency is exempt from backup
withholding,or(b)The Public Agency has not been notified by the Internal Revenue Service(IRS)that it is subject to backup withholding as
a result of a failure to report all interest or dividends; or(c) the IRS has notified the Public Agency that it is no longer subject to backup
withholding;and(3)The Public Agency is a U.S.person(including a U.S.resident alien).
Certification Instructions: You must cross out item two(2)above if the Public Agency has been notified by the IRS that it is currently subject
to backup withholding because it has failed to report all interest and dividends on its tax return.
Name Title Signature Date
Victoria L. Beatley Director of Finance/City Treasurer
Public Agency Signature Card
Revised 03/04/2015
1Public Agency includes Public Agency Associations Page 1
COMMERCIAL BANKING
. I PUBLIC AGENCY1 DEPOSIT ACCOUNT SIGNATURE CARD
t , COMMERCIAL BANKING
USA Patriot Act Disclosure
To help the government fight the funding of terrorism and money laundering activities, Section 326 of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 requires
that all financial institutions obtain,verify and record information that identifies the identity of any person seeking to open an
account with the institution. The undersigned acknowledges that Bank of the West's ("Bank's") identity verification
procedures require the Bank to request certain information from Public Agency or third parties regarding the Public Agency
and, in some situations, on any Designated Signer to the account; and Public Agency agrees to provide Bank with any
requested information and consents to Bank making such inquiries of third parties as Bank deems necessary or appropriate as
a condition of opening an account with or using any service provided by Bank.
AGREEMENT
By signing this Signature Card on behalf of the Public Agency, the undersigned Authorized Representative(s): (a) agrees to
open one or more deposit accounts with; (b) agrees that all deposit accounts opened pursuant to this Signature Card and any
addendum to this Signature Card shall be governed by the Signature Card, as amended by addenda from time to time, any
agreement regarding the deposit of public funds(if required by State regulation),Bank's Deposit Account Disclosure,Schedule
of Fees and Charges for Business Accounts, any addenda thereto; and any other applicable agreements pertaining to this
Public Agency's deposit accounts all of which together shall be called the Terms and Conditions; (c)agrees that Bank may add
to, delete from and otherwise amend the Terms and Conditions from time to time, and Public Agency agrees to be bound by
any and all such future additions,deletions and amendments to the Terms and conditions; (d)authorizes Bank to verify any of
the information given in connection with opening and maintaining the deposit accounts, to obtain credit reports or to make
any other inquiries of third parties about the Public Agency.; (e) represents and warrants as to each Designated Signer(i) the
signatures appearing above are genuine or facsimile signatures of the Designated Signers; (ii) each Designated Signer is
authorized to conduct transactions on all current and future accounts opened under this Signature Card; (iii) the authority
granted to each Designated Signer includes authority to sign checks and other items; to give Bank other instructions to
withdraw or transfer funds; to endorse and deposit checks and other items that are payable to or that belong to the Public
Agency;and to transact any other business relating to each of this Public Agency's accounts;and (f) agrees that Bank may rely
on this authorization for each account opened pursuant to this Signature Card until Bank receives written notice revoking the
authorization in a form and at an agreed upon location,and Bank has a reasonable time to act upon it; and (g) represents and
warrants that all necessary and appropriate actions or formalities,have been taken to authorize the undersigned Authorized
Representatives and the Designated Signers to so act.
As a designated depository of this Public Agency,Bank is hereby requested,authorized and directed to honor checks,drafts or
other orders for the payment of money drawn in the Public Agency's name,including those payable to the individual order of
any Designated Signer,or when bearing or purporting to bear the facsimile signature(s) of any Designated Signer pursuant to
the Public Agency's banking resolutions on file with the Bank,and the Bank shall be entitled to honor and to charge the Public
Agency for such checks, drafts or other orders, regardless of by whom or by what means the actual or purported facsimile
signatures thereon may have been affixed thereto, if such signature or signatures resemble the facsimile specimens duly
certified to or filed with the Bank by the Secretary or other official of the Public Agency.
This Public Agency adopts the authorization above and certifies that all information on this document is true and
correct. The undersigned certifies:
• That the persons who signed below are Authorized Representatives and are authorized to enter into this agreement on
behalf of the Public Agency.
• That any of the undersigned Authorized Representatives, acting alone, may (a) agree to establish additional accounts for
the Public Agency under the same signature requirements;and(b) provide changes to this Signature Card.
I certify as an Authorized Representative of Public Agency that the foregoing information is complete and accurate.
Name Title Signature Date
Public Agency Signature Card
Revised 03/04/2015
'Public Agency includes Public Agency Associations Page 2
Attachment "C"
BANKAEWEST:
7f COMMERCIAL BANKING
BNP PARIBAS GROUP
WAIVER OF SECURITY
TO WHOM IT MAY CONCERN,
SECURITY FOR DEPOSITS.
Depository shall at all times maintain the required amount of eligible securities including Letters
of Credit with the Agent of Depository to secure the deposits of the Agency, in accordance with the
Code. The Agent of Depository, BANK OF THE WEST, is authorized to place such securities for
safekeeping with Wells Fargo bank N.A., MN or with any Federal Reserve Bank or branch thereof or with
any other Approved Agents of Depository, in accordance with Section 53659. Pursuant to Section
53653, Treasurer waives security for the portion of any deposits that are insured pursuant to federal
law.
I am authorized to waive security for the portion of any deposits that are insured pursuant to
federal law for deposits held by BANK OF THE WEST.
Dated: Local Agency: City of Seal Beach
By:
Name: Victoria L. Beatley
Title: Director of Finance/City Treasurer
Attachment "D"
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BANKPI1EWEST ..R
Cash Management
Terms and Conditions
Effective December 15, 2015
Cash Management Terms and Conditions
GENERAL TERMS AND CONDITIONS 4
1. Amendments to Terms and Conditions 4
2. Binding Effect; Successors and Assigns 4
3. Compliance with Applicable Laws 5
4. Consent To Audit and to Verification of Identifying and Credit Information 5
5. Cutoff Hours 5
6. Duty to Review Statement and Items 5
7. Electronic Banking Services 5
8. Electronic Communications 5
9. Entire Agreement 5
10. Equipment; Software 5
11. Erroneous Reports 6
12. Funding Limits;Available Funds 6
13.General Representations and Warranties 6
14.General Security Procedure Requirements 6
15.Governing Law; Submission to Jurisdiction 9
16. Indemnity 9
17.Joint and Several Authority to Combine Funds 10
18. Lawful Use 10
19. Liability; Duty to Correct; Limitations of Liability; Statute of Limitations 10
20. No Advertising 11
21. No Implied Waivers; Remedies Not Exclusive 11
22. Non-Encrypted Transmissions via Computer 11
23. Notice of Claim 12
24. Notices 12
25. No Warranty 13
26.Our Agents 13
27. Payment for Services 13
28. Privacy 13
29. Proper Instructions 14
30. Proprietary Information 14
31. Recording and Use of Communications 15
32. Responding to Legal Process or Investigations 15
33. Severability 15
34.Termination 15
35.Training 15
36.Your Agents 15
TERMS AND CONDITIONS FOR SPECIFIC SERVICES 16
37.Account Analysis Services 16
Effective December 15,2015 BA Page Page 2 of 53
Cash Management Terms and Conditions
38.Account Reconcilement Services 16
39.ACH Blocked Service 17
40.Assured Access Card TM Services 17
41. Cash Vault Services 20
42. Controlled Disbursement Subscriber Service 22
43. Deposit Concentration Service 24
44. Direct Delivery of Checks 25
45. DirectPay Manager 25
46. Electronic Commerce Service(ECS) 26
47. Electronic Deposit Services 26
48. Image Clearing Service 29
49. ImageExpress Services 32
50.Online Banking Services 33
51.Other Electronic Banking Service 36
52. Payment Orders(Wire Transfers and ACH) 36
53. Positive Pay Services 42
54. Remittance Banking Services(Lockbox) 43
55. Integrated Solutions Services 44
56.Sweep Services 46
57.TaxDirect Services 49
58.Third Party Depository Services 50
59.Zero Balance Accounting Services 50
GLOSSARY 51
Effective December 15,2015 . Page 3 of 53
BANK,9&WEST
Cash Management Terms and Conditions
Welcome to Bank of the West!
Thank you for selecting Bank of the West as your business bank. It is a pleasure to serve you.
Your agreement for cash management services (the "Services") is governed by your Authorization and Agreement for
Cash Management Services, this Cash Management Terms and Conditions booklet ("Booklet"), the Deposit Account
Disclosure for Business Accounts("Disclosure Booklet"),any current Schedule of Fees and Charges,Analyzed Business
Checking Schedule of Fees and Charges,any User Materials,and any confirmations or other documents and disclosures
that pertain to the provision of one or more Services by us(collectively,"Terms and Conditions").This Booklet and any of
the documents and agreements that are included within the Terms and Conditions may be amended, restated
supplemented,or otherwise modified from time to time or altogether deleted from the Terms and Conditions.
This Booklet contains general provisions that apply to any and all Services that we may provide to you and it also
contains provisions that apply to specific Services that you may not wish to use. The general provisions are in all cases
subject to more specific information in the specific provisions or in the User Materials or other referenced documents.
For example,specific provisions about cutoff times for ACH transactions control for those Services in place of the general
provisions about cutoff times. In some cases, we will need to obtain additional information from you regarding your
eligibility for and continued use of specific Services. Depending on the Service,we may ask you to sign a certification or
other form confirming such information and agreeing to additional terms and conditions that will apply to a specific
Service. If we offer you special terms and conditions for a Service that differ from the terms and conditions set forth in
this Booklet, we will give those terms and conditions to you in a written form that clearly specifies that those terms and
conditions apply in place of contrary or conflicting terms and conditions contained in this Booklet or in our standard forms
and other documents.
As part of our commitment to offering you a choice of Services that meet our high standards of excellence, we are
constantly reevaluating, updating and upgrading our Services, including adding new Services, and those reviews and
changes result in regular updates to the Terms and Conditions. You therefore understand and agree that the Terms and
Conditions will evolve and change over time(including modifications,additions and deletions). You may view our current
Terms and Conditions at any time by going to our website at bankofthewest.com and clicking on the tabs/links for Cash
Management Services and Terms and Conditions. By accepting or using any Services, you agree to all the Terms and
Conditions, as in effect at the time you use the Services. Any changes in our Terms and Conditions will apply only to
transactions effected after the date the changed Terms and Conditions are posted to our website. You acknowledge
your acceptance of those changes by continuing to use the affected Service(s)after the time of posting of those changes.
In this Booklet, "BOW,""we,""us,""our,""Bank of the West"and"Bank"refer to Bank of the West. The words"you"and
"your"refer to the person or entity identified on our records as the accountholder of the account. Any other defined terms
In this Booklet will be capitalized. You may find the definitions within the terms and conditions of this Booklet and/or in
the Glossary at the end of this Booklet.
GENERAL TERMS AND CONDITIONS,
1. Amendments to Terms and Conditions
We may amend, add, or delete any term and condition detailed in this Booklet and in the Terms and Conditions at any
time. Generally, any additions, deletions or other amendments will be posted on the Bank's Website,
www.bankofthewest.com. To the extent and in the manner and timeframes required by law, the Bank will notify you in
advance of any changes that affect your rights and obligations.You indicate your acceptance of any change we make by
continuing to use the Service after the change becomes effective.
2. Binding Effect; Successors and Assigns
The Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their respective
successors,administrators, liquidators, receivers, trustees,assignees,custodians, conservators or other similar officials.
You may not assign your rights or delegate your duties under the Terms and Conditions without our consent, and any
purported assignment in violation of this provision shall be null and void. With prior notice to you, we may assign or
transfer any or all of our rights and obligations under the Terms and Conditions or your accounts to any parent entity,any
affiliate, any direct or indirect wholly owned subsidiary of us or any other person which acquires all or substantially all of
the custodial business of us. You hereby consent to any such assignment or transfer and agree to enter into any
agreement which we may reasonably request to effect such assignment or transfer.
Effective December 15,2015 BANKST Page 4 of 53
Cash Management Terms and Conditions
3. Compliance with Applicable Laws
You agree to conduct your business and operations in accordance with all applicable laws, rules and regulations, and
you agree to be bound by, and to comply with, the ACH Requirements and Wire Transfer Requirements, as defined in
the Glossary and Section 52 of this Booklet.
4. Consent To Audit and to Verification of Identifying and Credit Information
Consent to Audit—At least annually, upon our request, you agree to make yourself, your premises,your documentation
and due diligence processes and procedures available for audit by us for compliance with applicable laws, rules and
regulations,and with the Terms and Conditions. We will provide you with not less than ten (10)days prior notice of any
audit and agree to work with you to set a reasonable time for any audit.
Verification of Identity and Credit — In accordance with federal law, we must make a reasonable determination and
verification of the profile information of our clients. Until verification is completed, we may not be able to service and
maintain your account. By requesting any Services, you acknowledge and consent to us obtaining background and/or
credit reports necessary to comply with any federal or state statutes or industry regulations.
5. Cutoff Hours
Each Service may have cutoff hours as set forth in various User Materials or other documentation. In general,
transactions initiated or instructions received after the established cutoff hour shall be considered as having been made
on our next Banking Day.
6. Duty to Review Statement and Items
See your Disclosure Booklet for additional information and details.
7. Electronic Banking Services
We offer various electronic banking services,some of which are accessible via the World Wide Web and others of which
are software based. You hereby authorize us to offer our various electronic banking Services via licenses and/or third
party servicers.
8. Electronic Communications
If you use any electronic banking Service or Internet banking Service, you agree that any and all disclosures and
communications regarding those Services or the Terms and Conditions may be made electronically, including via email,
or by posting to our Website in accordance with applicable law. Any electronic disclosure or communication we make
will be considered made when transmitted by us and any disclosure or communication we make by posting to our
Website will be considered made when posted by us.
9. Entire Agreement
The Terms and Conditions constitute the entire and complete understanding between and among the parties with respect
to the Services, and no representations or agreements, expressed or implied, of any kind or character whatsoever have
been made except as are expressly set forth in the Terms and Conditions.
10, Equipment; Software
You must provide and properly install all required Equipment and maintain the Equipment in good working order. You
accept full responsibility for the security and confidentiality of all matters related to the Equipment. Any Equipment
requirements are described in the User Materials or other referenced documents, as amended from time to time. Unless
otherwise agreed between you and us,we are not responsible for the installation or setup of any Equipment. We do not
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guarantee access to any Services from all computers, modems or communication software packages. Should you
choose to use equipment not listed in the User Materials or other referenced documents or not previously authorized by
us in writing,we may not support such equipment and you may not be able to access the Services with such equipment.
11. Erroneous Reports
If you receive an Erroneous Report, you will immediately notify us by telephone and will return the original Erroneous
Report to us by U.S. Mail or, if instructed by us, destroy the Erroneous Report in a commercially reasonable manner.
You agree you will not disclose,use,review,copy,sell,disseminate, publish or distribute any Erroneous Report.
12. Funding Limits; Available Funds
In our sole discretion, we may establish a funding limit ("Funding Limit")from time to time with respect to any Service,
including, without limitation, for the Controlled Disbursement Subscriber Service or for any Payment Orders originated
through the ACH Service. We will have no obligation to you to fund any Service for amounts in excess of funds available
in designated deposit accounts.
13. General Representations and Warranties
You represent and warrant that: (i) you have taken all necessary action to authorize the execution, delivery and
performance of the Terms and Conditions; (ii)the person signing the documents establishing your account relationship is
duly authorized to do so; (iii)you have obtained all consents, authorizations or instructions required in connection with
your agreement to the Terms and Conditions, including those required by any government body, and such consent,
authorizations and instructions are in full force and effect; (iv)your acceptance of the Terms and Conditions and your
performance of your obligations under the Terms and Conditions will not violate any law, regulations, order, ordinance,
rule,charter, bylaw, or other organizational document applicable to you or any agreement by which you are bound or by
which any of your assets are affected; (v) the Terms and Conditions constitute a legal, valid and binding obligation,
enforceable against you in accordance with their terms; and (vi)all information, documents, statements(written or oral),
agreements and work papers furnished or to be furnished in writing to us by you relating to you ("Information"), including
without limitation any Information containing any representation, warranty, covenant or agreement made in respect of
you, your affiliates or your and their businesses and operations, is or will be at the time of delivery to us accurate and
complete in all material respects. You understand that we may rely on such Information in connection with transactions
effected for credit to your accounts.
14. General Security Procedure Requirements
(a) General Security Procedures
(a)(i) Introduction — The following general security procedure requirements apply to any Services provided.
Certain Services require special security procedure requirements. The User Materials outline in detail the
security safeguards that allow you to determine the holder of the security system for your company,Authorized
Users, authorized transaction types and dollar limits on all transactions. For certain Services, you will be
responsible for the administration, including the deletion of Authorized Users.
(a)(ii)Access—Most Services can be accessed and instructions and communications can be given by you to us
by electronic means,such as a computer terminal. If we give you access to a secure system of communicating
with us,such as our online banking services,you will be given or will select a user id and password,which shall
become component of a Security Device. Each Authorized User must have a unique user id and password.
You will be responsible for the confidentiality and use of each Security Device. You will be responsible for all
instructions received by us through and under any authorized Security Device as more fully described herein.
We reserve the right to require you to change any or all of the security procedures or codes at any time. We
may require that you designate an individual (and,where applicable,we recommend that you have at least two
individuals)who are authorized to take control of the security procedures inherent in the Service. Unless we are
otherwise advised, the employee(s) (up to two), who execute the enrollment agreement are conclusively
presumed to be the Designated Company Contact("DCC"). The DCC is,or can assign to another(s),the role of
System Administrator(s). The System Administrator(s) is responsible for assigning the levels of security
necessary for you. The System Administrator(s)shall also be responsible for distributing the Security Device to
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Authorized Users and retrieving the Security Device from the Authorized User or disabling the Security Device
upon revocation of an Authorized User's access rights.
(a)(iii) Default Password—Any initial default passwords are sent to the DCC under separate cover.
(a)(iv)Password Change—Any System Administrator(s)will be required to change the initial passwords the first
time they login into the System. It is the System Administrator's responsibility to understand the security
capabilities built into the Service and to assign and, as appropriate to your business and security needs, to
restrict access to the various applications only to those employees who have a need to know, keeping in mind
the importance of separation of duties as an important way of protecting your organization. You agree to
change user id and passwords frequently in order to ensure the security of the user id and passwords. The
System Administrator also maintains the responsibility of setting certain limits related to dollar or volume
thresholds for Authorized Users.
(a)(v) Agreement to Comply — You agree to follow the security procedures we have established for your
communications with us.
(a)(vi) Confidentiality—We do not publish these security procedures or make them generally available to the
public because doing so would compromise the integrity of the security procedures. You are responsible for
maintaining the confidentiality of any security procedures established. You agree to keep all security
procedures and Security Devices protected, secure, and strictly confidential and to provide or make available
the same only to Authorized Users. You agree to instruct each Authorized User not to disclose or provide any
security procedures or Security Devices to any unauthorized person. If you or your agents have reason to
believe that any security procedures or any Security Device (including any identification codes) have or may
have become known by unauthorized persons(whether or not your employees), you shall immediately notify us
by telephone. In the event of any actual or threatened breach of security, we may issue you a new Security
Device or establish new security procedures as soon as reasonably practicable,but we shall not be liable to you
or any third party for any delay in taking such actions.
(a)(vii) Our Reliance—Until you notify us and we have a reasonable opportunity to act on the notice, you shall
remain responsible for any transactions and/or instructions given by use in accordance with the security
procedure. You are solely liable for any transactions and/or communications initiated by us before we have
received notice from you of the breach or potential breach of any security procedure and have had a reasonable
opportunity to act on such notice.
(a)(viii) Breach of Security Procedures—You agree to notify us immediately if you become aware of: (i) any
loss or theft of any Security Device; or (ii) unauthorized use of any Security Device, or of the Service or any
information. You further agree to notify us immediately if we are required to take any action to terminate access
to any Services by any Authorized User(s). You agree to confirm any oral notification in writing to us within 24
hours. You agree to cooperate with us to replace the security procedures(including any identification codes)in
accordance with our security requirements. In the event of the breach of any applicable security procedure,
you agree to assist us in determining the manner and source of the breach. Such assistance shall include, but
shall not be limited to, providing us or our agent access to your systems, computer hardware and software,
storage media and devices,and any other equipment or device that was used or may have been used in breach
of the security procedure. You further agree to provide to us with any analysis of such systems, computer
hardware and software, storage media and devices, and other equipment or devices, or any report of such
analysis, performed by you, your agents, law enforcement agencies, or any other third party. Your failure to
assist us shall be deemed an admission by you that the breach of the security procedure was caused by a
person who obtained access to your transmitting facilities or who obtained information facilitating the breach of
the security procedure from you and not from a source controlled by us.
(a)(ix) Change of security procedures—We reserve the right to modify, amend, supplement, or cancel any or
all security procedures,and/or to cancel or replace any Security Device,at any time and from time to time in our
discretion. We will endeavor to give you reasonable notice of any change in security procedures; provided that
we may make any change in security procedures without advance notice to you if we, in our judgment and
discretion, believe such change to be necessary or desirable to protect the security of our systems and assets.
Your implementation and use of any changed security procedures and/or continued use of the Service after any
change in security procedures shall constitute your agreement to the change and your agreement that the
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applicable security procedures, as changed, are commercially reasonable and adequate for the purposes
intended.
(a)(x) Your Security Responsibilities—You are solely responsible for providing for and maintaining the physical,
electronic, procedural, administrative, and technical security of your data and systems. You acknowledge that
we do not control the Internet or other information systems operated by third parties and you will not hold us or
our agents liable for any failures,acts,or omissions of any third party information system operator, including but
not limited to, unauthorized access to, alteration, theft, or destruction of information and data. You agree that
we are not responsible if your computer system, your internal controls or other operating software that causes
interaction between us to operate poorly or slowly. You agree to audit your security practices and otherwise
comply with our rules pertaining to Internet security as provided to you in writing. You acknowledge and agree
that such rules may be modified by us,such modifications to be effective upon the giving of notice thereof by us
to you. You agree that your email system will not block emails from our domain and that you are fully
responsible if your email system blocks emails from our domain. You must take preventative action to scan all
files for viruses.
We are not responsible for any computer viruses (including, without limitation, programs commonly referred to
as "malware," "keystroke loggers," and/or "spyware), problems or malfunctions resulting from any computer
viruses, or any related problems that may be associated with the use of an online system. Any material
downloaded or otherwise obtained through the use of any electronic Service is obtained at your own discretion
and risk, and we are not responsible for any damage to your 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. You are
solely responsible for maintaining and applying anti-virus software,security patches,firewalls,and other security
measures with respect to your operating systems, and for protecting, securing, and backing up any data and
information stored in or on your operating systems. We are not responsible for any errors or failures resulting
from defects in or malfunctions of any software installed on your operating systems.
You acknowledge and agree that it is your responsibility to protect yourself and to be vigilant against e-mail
fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as
"phishing"). You agree to educate your Authorized Users, agents, and employees as to the risks of such fraud
and to train such persons to avoid such risks. You acknowledge that we will never contact you by e-mail in
order to ask for or to verify account numbers, Security Devices, or any sensitive or confidential information. In
the event you receive an e-mail or other electronic communication that you believe, or have reason to believe,is
fraudulent,you agree that neither you nor your Authorized Users,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. You should forward any suspected fraudulent or suspicious e-mail to us. You
acknowledge and agree that you are aware of are and are familiar with the concept of a"man-in-the-middle"or
"man-in-the-browser" attacks and that you will be vigilant in detecting such attacks on your computer, access
devices, and systems. Contact us immediately if you suspect that you may be the victim of such an attack.
Contact us immediately if you experience any delays or receive any unusual messages, such as "system
unavailable" or"try again later" after using a Security Device. You agree that we are not responsible for any
losses, injuries,or harm incurred by you as a result of any electronic,e-mail,or intemet fraud.
You acknowledge and agree that as an integral part of these security procedures, you will review transactions
on your account daily and notify us immediately if you suspect an unauthorized transaction. You acknowledge
and agree,to the extent allowed by law,that you will be liable for any unauthorized transactions that could have
been prevented were it not for your failure to review transactions daily on your account.
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Cash Management Terms and Conditions
(b) Special Security Requirements for Payment Orders
You agree to comply with the following security procedure requirements with respect to all Payment Orders you
originate and transmit to us. You understand and acknowledge that the purpose of these security procedures is to
verify the authenticity of Payment Orders delivered to us in your name and not to detect errors in transmission or in
the content of Payment Orders submitted to us. You agree to implement appropriate procedures to ensure the
accuracy of all Payment Orders submitted to us and the integrity of the transmission of such Payment Orders. You
represent that you have carefully considered the circumstances or your initiation of a Payment Order and the
transactions and activity that you will effect through the Service,and you acknowledge and agree that the security
procedure,including(without limitation)any Security Devices used in connection therewith,constitute commercially
reasonable security procedures under applicable law for the transactions and activity you intend to effect through
the Service. You authorize us to follow any and all instructions entered and transactions initiated using applicable
security procedures unless and until you have notified us, according to notification procedures we prescribe, that
the security procedures or any Security Device has been stolen, compromised, or otherwise become known to
persons other than Authorized Users and until we have had a reasonable opportunity to act upon such notice.You
agree that the initiation of a transaction using applicable security procedures constitutes sufficient authorization for
us to execute such transaction notwithstanding any particular signature requirements identified on any signature
card or other documents relating to your account, and you agree and intend that the submission of Payment
Orders and instructions using the security procedures shall be considered the same as your written signature in
authorizing us to execute such transaction. You acknowledge and agree that you shall be bound by any and all
transactions and activity effected through the Service through the use of such security procedures, whether
authorized or unauthorized, and by any and all transactions and activity otherwise initiated by Authorized Users,to
the fullest extent allowed by law.
You further agree that we may act on any Payment Order that we have verified in accordance with the security
procedures. If a Payment Order(or a request for cancellation or amendment of a Payment Order) received by us
purports to have been transmitted or authorized by you, it will be deemed effective as your Payment Order and you
will be obligated to pay us the amount of such Payment Order even though the Payment Order was not in fact
authorized by you so long as we act in compliance with the following security procedures. If a Payment Order
received by us was in fact transmitted or authorized by you,you will be obligated to pay the amount of the Payment
Order regardless of whether we followed these security procedures. Regardless of the method you use to transmit
files to us, you are strictly responsible for establishing and maintaining procedures to safeguard against
unauthorized transmissions. You warrant that no individual will be allowed to initiate transfers in the absence of
proper supervision and safeguards and that you will take reasonable steps to maintain the confidentiality of the
security procedures and any passwords, codes, security devices and related instructions. You agree to notify us
as soon as possible if you believe or suspect that any unauthorized person has received access to any security
information, but doing so will not affect your liability for any transactions processed by us in good faith prior to
receiving such notification and acting within a reasonable time to prevent unauthorized transactions.
15. Governing Law; Submission to Jurisdiction
EXCEPT AS OTHERWISE PROVIDED IN THE TERMS AND CONDITIONS, THE TERMS AND CONDITIONS AND
THEIR ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA(without regard to
any principles of conflicts of law). In the event of any action by us to enforce the Terms and Conditions, you agree to
pay the costs thereto, including, but not limited to, reasonable attorneys'fees and court costs. You hereby submit to the
nonexclusive jurisdiction of the United States District Court for either the Central District of California or the Northem
District of California and of the California Superior Court sitting in either the County of Los Angeles or the County of San
Francisco for purposes of all legal proceedings arising out of or relating to the Terms and Conditions or the transactions
contemplated thereby. You irrevocably waive,to the fullest extent permitted by law,any objection which you may now or
hereafter have to the laying of the venue of any such proceeding brought in such court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum, and you agree that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner permitted by law.
16. Indemnity
We shall not incur any liability with respect to any act or omission in reliance upon any document, including any written
notice or instruction provided for in the Terms and Conditions.You agree to indemnify and hold us harmless for any and
all actions we take in accordance with your instructions, even if we vary from our standard procedures in honoring such
BANK4MkWEST
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instructions. In the event that we or our respective officers, directors, shareholders, agents, representatives or affiliates,
or any heirs, legal representatives, successors or assigns of the foregoing (each an"Indemnified Party"and collectively
the "Indemnified Parties") become involved in any capacity in any action, proceeding or investigation brought by or
against any person (including you)arising out of or based upon any false representation or warranty or breach or failure
by you to comply with any covenant or agreement made by you herein or in any other document furnished by you to any
Indemnified Party in connection with the Terms and Conditions or any transaction effected pursuant to the Terms and
Conditions, or any claim arising directly or indirectly from your use of the Services, any Software, technical computer
service, including Software installation or de-installation, or system, or any claim is otherwise made against any of the
Indemnified Parties arising out of the performance by us of our duties and obligations under the Terms and Conditions,
you will indemnify and hold harmless each of the Indemnified Parties from and against any and all liabilities,obligations,
losses, damages, penalties, claims, demands, actions,judgments, suits, costs, expenses and disbursements (including,
but not limited to,reasonable legal costs and expenses)of any kind or nature whatsoever(collectively,"Losses")incurred
in connection therewith, other than such Losses that are ultimately determined by a court of competent jurisdiction by
final and non-appealable judgment to have resulted from such Indemnified Party's gross negligence or willful misconduct.
17. Joint and Several Authority to Combine Funds
If more than one party joins or participates in one or more Services, the contractual obligations shall be the independent
obligations of each party, the obligations hereunder being joint and several. Each of such party agrees that there is no
expectation of privacy between the entities that have joined and/or participated in the Services. Each party that
participates in one of more Services hereby represents and warrants to us that any and all transfers and commingling of
funds required or permitted by any Services, and all other aspects of the performance hereof by the parties, have been
duly authorized by law and by all necessary parties, including,without limitation,the account holder of each account,and
that each party has obtained and shall maintain in its regular business records and make available to us upon
reasonable demand adequate documentary evidence of such authorization from the account holder of each account,
executed by the duly authorized officer(s) of each such account holder in accordance with such account holder's
organizational documents and board resolutions or other written consents. Each representation and warranty contained
herein shall be continuing and shall be deemed to be repeated upon each use of the Services and our effecting each
transfer and commingling of funds.
18. Lawful Use
You agree that you shall not (and you shall have appropriate procedures and monitoring in place to assure that your
employees and agents do not) use our Services for any purpose that is unlawful, abusive, harassing, libelous,
defamatory,obscene,threatening or damaging in any way.
19. Liability; Duty to Correct; Limitations of Liability; Statute of Limitations
We are not responsible for any loss, delay,cost or liability which arises, directly or indirectly, in whole or in part,from: (i)
your actions or omissions, or those of third parties which are not within our immediate and reasonable control; (ii)your
negligence, willful misconduct, bad faith or breach of any agreement with us; (iii)any ambiguity, inaccuracy or omission
in any instruction or information provided to us; (iv) any error, failure, loss of information, disruption or delay in the
transmission or delivery of data, records or items due to a breakdown in any computer, utility or communications facility;
(v)any error or omission, willful or negligent by any third party, that which results in any equipment malfunction or any
loss, cost, expense or damage to you in connection with any Software, system, technical computer service, including
Software installation or de-installation, or the Bank's or you use thereof; (vi) circumstances beyond our reasonable
control, including delays by third parties, unusually severe weather conditions, accidents, strikes or labor disputes, riots,
acts of government, insurrection, war, civil unrest, sabotage, fire, explosion, flood, water damage (e.g., from fire
suppression systems), acts of terrorism or acts of God; or (vii) the application of any government or funds-transfer
system rule,guideline,policy or regulation. Our performance of our obligations shall be extended to include the period of
time that we (or our third party processor, if any)were delayed or prevented from performing our obligations under the
Terms and Conditions by reason of any of the above causes.
BANKANVEST
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Cash Management Terms and Conditions
(a) Duty To Correct
If we make an error, upon written notice of the error, we will, to the extent reasonably possible, correct the error
promptly.
(b) Limitations of Liability
(b)(i) Except for direct losses caused by our gross negligence or willful misconduct, our liability for every loss,
cost, or liability arising from our errors, whether caused by acts or omissions, is limited to the average monthly
charge for the Services in question for the six-month period preceding the date of loss. We shall not be
responsible, under any circumstances for any loss of goodwill or for any punitive, special, consequential or
indirect damages or loss profits that you incur in connection with the Terms and Conditions or the Services, any
Equipment, Software or system, even if the Bank has been advised of the possibility of such damages. We
shall not be liable for any failure to perform any of our obligations under the Terms and Conditions if such
performance would result in us being in breach of any law, regulation, requirement or provision of any
government, governmental agency, banking or taxation authority in accordance with which we are required to
act,as we shall determine in our sole discretion.
(b)(ii)You acknowledge that our fees for Services have been established in contemplation of: (a)the limitations
on our liability set forth in the Terms and Conditions; (b) your agreement to review statements, confirmations,
reports, and notices promptly, and to notify us immediately of any discrepancies or problems; and (c) the
application of the alternative dispute resolution provisions set forth in the Terms and Conditions.
(c) Statute of Limitations
Any claim, action or proceeding to enforce the Terms and Conditions or to recover for any Services related loss
must be commenced within one year from the date that the event giving rise to the claim,action or proceeding first
occurs.
This Section shall survive termination of the Terms and Conditions and all Services.
20. No Advertising
No party hereto shall use the name of any other party hereto in any marketing or advertisement without the prior written
consent of any such other party. You shall not advertise or promise any Service without the Bank's prior written consent.
21. No Implied Waivers; Remedies Not Exclusive
No failure by us to exercise, and no delay in exercising and no course of dealing with respect to, any right or remedy
under the Terms and Conditions shall operate as a waiver thereof; nor shall any single or partial exercise by us of any
right or remedy under the Terms and Conditions preclude further exercise thereof or the exercise of any other right or
remedy. The rights and remedies specified in the Terms and Conditions are cumulative and are not exclusive of any
other rights or remedies provided by law. No course of dealing and no delay or failure of ours, our parent company,
affiliates, subsidiaries, agents, successors in interest or assigns in exercising any right, power or privilege under the
Terms and Conditions or any other agreement in connection with these Services shall affect future exercise thereof or
the exercise of any other right, power of privilege; nor shall any single or partial exercise of any such right, power or
privilege preclude any further exercise thereof or any other right, power or privilege. Our rights and remedies, and those
of our parent company,affiliates, subsidiaries, agents,successors in interest or assigns under the Terms and Conditions
or any other documents or instruments pursuant to or in connection with the Services are cumulative and not exclusive of
any rights or remedies which any such party would otherwise have.
22. Non-Encrypted Transmissions via Computer
You acknowledge that certain computer data transmissions or other communications between you and any other party
may not be encrypted. You assume the risk of interception of unencrypted data transmitted between you and us or
between us and any third party that represents you.
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Cash Management Terms and Conditions
23. Notice of Claim
(a) Reporting Period
(a)(i)Thirty-Day Reporting Period —You agree to review, regularly and promptly, all reports, bank statements,
Payment Order instructions, adjustments, charges, entries and other transactions. You shall immediately or, in
any event, not later than thirty (30) calendar days following the date that we first mail or otherwise make
available to you notification of the transaction ("Notice Period"), notify us of any error or discrepancy between
your records and any notice or statement from us,or any transaction or transfer you believe was not authorized.
You agree to notify us immediately of any claim you have or any claim that is made to you by a third party,that
any of our acts or omissions in connection with any Service has caused you or the third party damage.
(a)(ii) Reporting Periods of Less than Thirty Days — In some cases, you are obligated to notify us of
unauthorized activity or discrepancies within a shorter time frame. You shall notify us of errors in ACH or wire
transactions as soon as possible, and not later than 24 hours after first discovering the unauthorized transaction
or error. See ACH Services at Section 52.
(b) Failure to notify
(b)(i) If you fail to notify us of discovery within the Notice Period, in the event of an erroneous Payment Order,
you will be liable for all losses (including any loss of interest) up to the amount of the Payment Order which
result from your failure to give us notice or which might have been prevented by giving us notice and, in the
event of an unauthorized Payment Order, we will not be liable for any loss of interest which results from your
failure to give us notice or which might have been prevented by giving such notice.
(b)(ii) Unless otherwise provided in the Terms and Conditions, if you fail to notify us of any error or discrepancy
within 30 calendar days following the day we first mail or otherwise make available to you a notice, including
notice via electronic format which may be available via the Internet,you are precluded from asserting and waive
any such error or the discrepancy against us.
24. Notices
We are entitled to rely on any written notice or other written communication, including facsimile, electronic mail (i.e.,
email) or other messages delivered in electronic medium if we believe in good faith that the communication is genuine
and has been signed or otherwise authenticated by a person designated by you as an authorized representative. Any
person designated by an authorized representative in the corporate or organizational resolutions or consents, signature
cards or statement of designated authorized signatories on any of your deposit accounts with us is deemed by us to be
an authorized representative for all purposes of your deposit accounts. You may add or delete your designated
authorized representatives in accordance with our established procedures for changing authorized representatives. We
are entitled to act on any incomplete communication, where in our reasonable opinion, it contains sufficient information.
We have no duty to discover, and shall not be liable for, errors or omissions made by you or the duplication of any
communication made by you. We may refuse to execute any communication where we reasonably doubt its contents,
authorization, origination or its compliance with our policies or procedures. You agree that we may require notices
regarding specific Services to be give to us at a location and in a manner we so provide to you. For example,any notice
to us with respect to ACH transactions must be given to the contact person we designate to you from time to time for
your ACH transactions. You cannot give effective notice to any other personnel of the Bank or to any contact person
designated to you for any other account purpose or in the manner provided below for general notices.
(a) Notice Address
Except as otherwise provided to you, all notices to BOW regarding any Services shall be sent to Bank (C/O
Customer Service Support Unit)at:
Bank of the West
SC-XRD-3E-D
13300 Crossroads Parkway North
City of Industry,CA 91746.
BANK RWEST
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Cash Management Terms and Conditions
(b) Proof of Delivery
Notices to you will be deemed made when delivered orally,electronically, in person, or by mail at the address you
designate for your bank statements unless you specify in writing another address for notices.
25. No Warranty
YOU ACKNOWLEDGE THAT THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO (I) THE VALUE,
CONDITION, DESIGN OR FUNCTIONING OF ANY SERVICE; AND (II) THE USE, MERCHANTABILITY, FITNESS
FOR ANY PURPOSE, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OF
ANY SYSTEM, SOFTWARE, SOFTWARE OR OTHER RIGHTS TRANSFERRED HEREIN, FREEDOM FROM
INFRINGEMENT OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE
SYSTEM, SOFTWARE OR OTHER RIGHTS TRANSFERRED HEREIN. IN THIS REGARD, YOU ACKNOWLEDGE
THAT BANK WILL NOT BE LIABLE TO YOU FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, OR
CONSEQUENTIAL DAMAGES, LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY
THE USE OF OR INABILITY TO USE THE SYSTEM,SOFTWARE OR OTHER RIGHTS TRANSFERRED HEREIN.
26. Our Agents
In the event that any Service(s) are dependent on our ability to obtain or provide access to third party networks and
distribution systems,you agree that if the network or system is unavailable,or in the event that we determine,in our sole
discretion,that we are unable to continue providing third party network or system access,we may discontinue the related
Service(s)or may provide the Service(s)through an alternate third party network or system. In any event, the Bank shall
not be liable for the unavailability of any third party network or system.
27. Payment for Services
You will pay us for the Services at the current price we quote or cite plus, if applicable,additional fees and expenses for
any taxes or extraordinary Services. With some exceptions, the amounts due for the Service(s) may be charged to
Account Analysis. See Section 37 and the Deposit Account Disclosure for Business Accounts for a description of our
Account Analysis terms and conditions. If your monthly analysis credits are insufficient to pay the amounts due, absent
other written arrangements with us,you agree that we may debit any of your accounts for any and all fees and expenses.
If you close your account or terminate any Service,you will owe us fees and charges for any unpaid Services and for the
month in which your account was closed or in which any Service was terminated. You agree that we may debit any fees
and charges from any funds of yours that we hold. We also may collect both actual and estimated fees and charges
from you at the time you close your account or after your account is closed.
28. Privacy
You agree to comply with all privacy and data-security laws applicable to your activities in connection with the handling of
personal financial information belonging to your employees or other consumers with respect to whom any Services may
be offered. Without limiting the foregoing, you acknowledge that the Gramm-Leach Bliley Act ("GLBA") governs
disclosures of"nonpublic personal information," as such term is defined in Title V of the GLBA and any state statutes
adopted in compliance therewith, the FTC Regulations promulgated pursuant thereto (including 16 CFR Part 313, 16
CFR Part 314, 12 CFR Part 332 and 12 CFR Part 364),and any state regulations promulgated under such state statutes
or in compliance with the GLBA(collectively,the"Privacy Act and Regulations"),about consumers. You agree to comply
with the Privacy Act and Regulations to the extent applicable and with all applicable law relating to consumer information.
To the extent necessary, required or advisable to maintain any personal financial information of any consumer, you
agree to adopt and maintain a comprehensive privacy policy and information security policy with respect to the handling
of personal information of individuals.You agree to comply with such privacy policy and information security policy.
(a) Your Privacy Obligations
You agree that with respect to nonpublic personal information,you will:
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(a)(i) Comply with the terms and provisions of the Privacy Act and Regulations, including the provisions
regarding the sharing of nonpublic personal information;
(a)(ii)Not use or disclose to any third party without our prior written consent any nonpublic personal information
that you obtain from us except to carry out the purposes for which we provided such nonpublic personal
Information;
(a)(iii) Comply with all applicable information security standards established by requirements of applicable law;
and
(a)(iv) In the event of a security breach or any other violation relating to any personal information under your
control or the control of a third party service provider with which you have contracted, you will pay any out-of-
pocket expenses incurred by us if we are involved in responding to such security breach, including paying the
cost of notifying individuals that information about them was subject to a security breach.
29. Proper Instructions
(a) Duty to Act
Except as expressly provided in the Terms and Conditions, we will act for your account only pursuant to Proper
Instructions provided to us and we will have no duty to act in the absence thereof. As used herein, "Proper
Instructions"means your instructions or those of your authorized agent or attorney-in-fact designated by you on a
form reasonably acceptable to us and in accordance with the security procedures or other operational procedures
established by you and us in accordance with the Terms and Conditions, given orally either in person or by
telephone, or by facsimile transmission or by electronic mail or any electronic service that provides access to our
Services, setting forth in reasonable detail the specific transaction(s) involved and subject to such authentication
procedures, if any, as we may determine. Any Proper Instructions given by you to us shall not be effective until
they are actually received by us and we have had a reasonable opportunity to act upon such instructions. You
agree that we may act upon and shall incur no liability in acting upon any such instructions as reasonably
understood by us, provided that such instructions reasonably appear to be genuine to us. You agree that you are
responsible for and we may rely upon the accuracy and authenticity of all data and other information furnished to
you by your employees and agents. You acknowledge that we reserve the right to decline to accept any Proper
Instructions or to execute any transaction(s)for your account in our sole discretion. We shall in no event have any
responsibility to accept Proper Instructions or to otherwise act with respect to your account unless indemnified to
our satisfaction. Nothing in this provision, however, obligates us to honor, either in whole or in part, any
transaction or instruction that(i) is not in accordance with any condition agreed upon between you and us in the
Terms and Conditions or in any other agreement between you and us; (ii)we have reason to believe may not be
authorized by you; (iii) exceeds any transaction limit, Funding Limit, or daily limits imposed by us on your
transactions; (iv)exceeds your collected and available funds on deposit with us; (v)involves funds that are subject
to a hold, dispute or legal process which prevents their withdrawal; (vi)violates any provision of any applicable risk
control program of the Federal Reserve Bank or any rule or regulation of any federal or state regulatory authority;
or(vii)for the protection of you or any other party,we have reasonable cause not to honor.
(b) Unauthorized instructions
You agree that we are not obligated to follow any instructions purported to be from you or any person representing
you or any other person unless such instructions are provided to us in accordance with the Terms and Conditions
and any security procedures or other operational procedures we may put in place from time to time. You also
agree that we are not obligated to provide any notices regarding transactions for you to any person other that the
authorized representative designated by you to receive such notices in accordance with the Terms and Conditions
and our procedures in place from time to time.
30. Proprietary Information
You acknowledge that all User Materials, any Software or systems (collectively, "Proprietary Information") used in
providing the Services and all information relating thereto are our proprietary properties or properties which we are
authorized to sub-license and have great commercial value. You acknowledge that you acquire no property or
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proprietary rights in the Proprietary Information as a result of your use of the Services. You agree to protect the
confidentiality of these materials. You agree that you will not distribute, alter, recompile, disassemble, reverse engineer
or make, publish or distribute any derivative work from the Proprietary Information, nor shall you obscure,alter or remove
any copyright, trademark, service mark, patent notice or other proprietary notice that is placed on the Proprietary
Information. You agree to destroy, delete or return to us such Proprietary Information upon our request or upon
termination of the Services. You agree to promptly notify the Bank (with confirmation in writing)of any compromise or
disclosure, or reasonable suspicion of compromise or disclosure of, or security breach involving any Proprietary
Information
31. Recording and Use of Communications
You agree that all communications or data transmissions between you (or your authorized representatives)and us may
be monitored and/or electronically recorded and retained by us. You agree that we may produce such communications
or data transmissions as evidence in any proceedings brought in connection with the Terms and Conditions or any
Service.
32. Responding to Legal Process or Investigations
If we receive a request for information regarding account activity or transactions from a third party with a legal right to
request such information (such as a Federal Reserve Bank or ACH Operator, a state or federal banking regulator with
jurisdiction over our operations, law enforcement officials with apparent legal authority to request or require such
information or private parties with apparent authority to require disclosure of such information under legal process), you
agree to reimburse us for any costs associated with responding to such request, including, but not limited to,the costs of
production of such information(including research,copying and shipping,costs of appearing at depositions or interviews,
costs of correspondence, and costs of court filings or appearances in the event we believe it is prudent to make such
filings or appearances to protect your rights (or, in the case of Third-Party Senders of ACH Entries, the rights of your
Originators). We may request your assistance with or participation in such response,and if we do so,you agree to assist
us and cooperate with us as reasonably requested.
33. Severability
Should any term,condition or provision of the Terms and Conditions be found to be invalid,illegal or unenforceable,such
finding shall in no way affect the validity or enforceability of the other terms and provisions of the Terms and Conditions
which shall be construed as valid and enforceable as if the invalid or unenforceable term, condition or provision was
never a part of the Terms and Conditions.
34. Termination
We may terminate any or all Services immediately upon providing notice of such termination to you and you may
terminate any or all Services upon giving us not less than ten (10)days prior written notice of such termination. From
and after the effective date of such termination, neither you nor we shall have any further rights or obligations to the other
under the terms of this Booklet; provided, however, that any obligations or liabilities of either party to the other party
which have accrued prior to the effective date of the termination shall continue to be enforceable against the party so
bound until such obligations or liabilities have been fully paid or satisfied.The provisions in Sections 2, 9, 15, 16, 19,20,
21,23, 24,25,27,30,31,32,and 33 shall survive the termination of the Service.
35. Training
We will provide you with our standard User Materials and other documents for the Services you request. These User
Materials and other documents contain instructions for using the Services. We will not provide to you or your employees
any specialized, customized or individualized training for the Services (except in accordance with special arrangements
and subject to such fees and charges as we may mutually agree).
36. Your Agents
You assume sole responsibility for any actions performed on your behalf by your agents or contractors. You agree that
we have no duty to monitor,detect or report any errors,omissions,or unlawful activities by your agents or contractors.
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TERMS AND CONDITIONS FOR SPECIFIC SERVICES
37. Account Analysis Services.
(a) Checking Account
If you use Cash Management services, we reserve the right to require that you have an Analyzed Business
Checking Account. The statement is generated based on a calendar month, although your account may settle
other than monthly. The average monthly Available Balance in an Analyzed Business Checking account may earn
an"Earnings Credit"which may be applied against that month's service fees for the account. An Earnings Credit in
excess of the total monthly service fees cannot be credited to the account as interest. The Earnings Credit is
calculated on a 365/366-day year basis using an"Earnings Credit Rate"which is a variable rate established by us.
As the factors used to determine the rate change,the Earnings Credit Rate will vary.
(b) Thirty-Day Reporting Period
You agree to promptly examine each Analyzed Business Checking Account statement received from us to
promptly report any erroneous debit or credit. You further agree that within thirty (30) days after we mail or
otherwise make your statement available, you will report to us any claim for credit or refund due. Within 30 days
after we mail or otherwise make your statement available, you will report to us any claim for credit or refund
resulting from a forged, unauthorized or missing endorsement. Without regard to care or lack of care on our part,
if we do not receive notice within the time frames specified above, we are released from all liability for the item(s)
charged to your account and for all other transactions or matters covered by your statement.
38. Account Reconcilement Services
If your business writes a significant number of checks each month, our Account Reconcilement Services may help
simplify your bookkeeping procedures. Our Account Reconcilement Services also help you to increase audit control of
your checking account(s)and,depending on the Account Reconcilement Services you request, provide you with tools to
help authenticate that a check was issued by you prior to it being paid. Your enrollment in Account Reconcilement
Services does not alter your obligations to keep your check stock safe and to adopt other security measures, or to
promptly review account activity and report to us checks paid with missing signatures or with altered information, or to
check the endorsement on paid checks.
(a) Traditional Service
This is our full Account Reconcilement Service for each account. You agree to provide us Issue Information on
checks you have issued within the timeframes and in the manner described in the User Materials. At the end of
each accounting period, such as we agree,we provide you with the status of all checks you have issued,including
paid, outstanding, exception, stopped, voided, and cancelled checks. The previous month's outstanding checks
are carried forward and the dollar amounts balanced for each period. You agree to add to your Issue Information
all the items identified by us as not matching Issue Information.
(b) Partial Reconcilement Service
Under the Partial Reconcilement Service, each accounting period, we send you a report of all checks paid within
that period.
(c) Deposit Reconcilement Service.
Under the Deposit Reconcilement Service, if you have multiple business locations depositing to a single deposit
account,we will segregate deposits by location.
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You may customize your Account Reconcilement Services by the manner in which you receive your paid check
information. We offer images of paid checks on CD-ROM through our ImageExpress product or you may receive
transmission or paper report.
39. ACH Blocked Service
The ACH Blocked Service is designed to permit you to protect your designated account(s) from ACH Credit Entries
and/or ACH Debit Entries. For the security of your account(s) you may wish to block all ACH Entries or block ACH
Entries originating from specifically designated Originators. You must identify, in a form satisfactory to us, the specific
originators whose ACH Entries you wish to block and provide the information required by us. You may opt to restrict
Entries to a maximum dollar amount. You may further opt to set an expiration date for permissible Entries and, if you do
so, Entries received after that designated expiration date will be rejected and returned to the Originator as unauthorized.
Blocked Entries are limited to those received by us from external sources not directly related to us.We may opt not to
restrict Entries that are: internal Entries originated for payment of fees owed to us, charges for services provided by our
vendors in connection with any Service provided to you, payments or transfers originated by us or by one of our vendors
in connection with Services provided to you. You acknowledge that unless tax payments are specifically authorized
through the Service prior to receipt by us, the Service will cause those payments to be rejected. The following Services
are also available to you if you enroll in the ACH Blocked Service.
(a) ACH Filters
ACH Filters allows certain pre-authorized ACH Debit Entries by designate Originators to post against your
deposit account. Pre-authorized ACH Debit Entries will flow through the normal ACH processing system and
post to your deposit account(s). ACH Debit Entries that do not match the criteria of the ACH Filter will be
prevented from posting to your deposit account(s) and will be returned to the Originator. ACH Filters do not
expire as long as you are enrolled in the Service.
(b) ACH Positive Pay
This Service permits you to preauthorize ACH Entries by designated Originators and to view and decision
(honor or reject)non-preauthorized ACH Entries each Banking Day through the Internet using a login available
through the ACH Positive Pay URL. ACH Entries that you choose to pay will flow through the normal ACH
processing system and post to your deposit account(s). ACH Entries that you choose to reject will not post to
your deposit account(s) and will be returned to the Originator. Any ACH Entry for which you do not make a
decision to pay or reject by 2:00 p.m. Pacific Time will be rejected automatically. Your System Administrator(s)
has the authority to grant additional users access to the ACH Positive Pay system.
ACH Debit Entries received prior to the setup of the ACH Blocked Service (including ACH Filters and/or ACH Positive
Pay) may be posted to your deposit account(s) in accordance with the NACHA Rules (as defined in this Booklet).
Enrollment in the ACH Blocked Service is required to use ACH Filters and ACH Positive Pay.
You acknowledge that your failure to use the ACH Blocked Service (including ACH Filters and/or ACH Positive
Pay)could substantially increase the likelihood of undetected fraudulent activity on your deposit account(s)and
that it is neither unreasonable nor unreasonable under the circumstances for us to require you to use our ACH
Blocked Service (Including ACH Filters and/or ACH Positive Pay) upon request. You agree that if you fail to
implement the ACH Blocked Service(including ACH Filters and/or ACH Positive Pay)following our request that
you do so, you will be precluded from asserting any claim against us for paying an unauthorized, altered,
counterfeit or other fraudulent Item that the ACH Blocked Service (including ACH Filters and/or ACH Positive
Pay)was designed to detect or deter,and we will not be required to re-credit your deposit account or otherwise
be liable to you for paying such Item.
40. Assured Access Card TM Services
The Assured Access Card Services are offered to qualifying employers and other persons that desire to offer individuals,
such as employees or independent contractors("Individuals"),the ability to have payments made through a debit card as
an alternative to receiving pay or other disbursements by check or cash. We make the program ("Assured Access Card
Program")available through a Website hosted by a vendor("Vendor")as a service provider to us. This Service enables
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you to make disbursements into a Bank of the West deposit account held with us,such deposit account being eligible for
FDIC insurance. The debit card (an "Assured Access Card" or "Card") can be used at automated teller machines
("ATMs") and at point of sale ("POS") terminals wherever the MasterCard® or Star Acceptance Mark is displayed or
wherever the Debit MasterCard is accepted,to withdraw the funds as designated by you for allocation to the Individuals.
Our provision of the Assured Access Card Program is subject to the following terms and conditions.
(a) Solicitation for and Issuance of Cards
(a)(i)You must offer to each of the eligible Individuals, on a non-discriminatory basis, the opportunity to receive
payment of their disbursement payments by having such amount electronically loaded on a Card which an
Individual may use to withdraw cash at electronic terminals, pay for goods and services at merchants that
accept the Card,and to transfer funds to other Cards authorized by the Individual.
(a)(ii)You must not require any Individual to receive his or her disbursement payments through the Card and
must offer to each Individual the option of receiving such payments by traditional paper check.
(b) Advertising
(b)(i) You must display, in an appropriate and effective manner, any advertising or promotional materials
provided or required by us to inform Individuals that Cards may be used, on a voluntary basis, to receive their
regular disbursement amounts.
(b)(ii)You have the right to use or display the proprietary names and symbols associated with Cards only while
we are providing the Assured Access Card Program to you or until you are notified by us to cease such usage.
(b)(iii)You must comply with all applicable rules and regulations concerning use of service marks and copyrights
of others that may be associated with the Assured Access Card Program.
(c) Cardholder Enrollment and Issuance of Assured Access Cards
(c)(i) If an Individual wishes to enroll in the Assured Access Card Program, you must use the Vendor-hosted
website to input all enrollment information into the system. By inputting an Individual's information in the system
and enrolling that Individual, you represent, warrant and certify to us that you have verified that the name,
address and other identifying information inputted are the true and correct name, address and other identifying
information of that Individual. You understand and acknowledge that Individuals are prohibited under United
States law from receiving Assured Access Cards or participating in the Assured Access Card Program if such
persons are designated on certain United States Treasury lists of known or suspected terrorists, criminals or
other prohibited persons (the"Treasury Lists"),and that we will check the names provided by you against those
lists and bar any person whose name appears on any such list from participating in the Assured Access Card
Program. You therefore acknowledge that accurate and complete identification of Individuals is a matter of vital
national security, and you represent,warrant and covenant that you will use all necessary means to ensure that
such identifying information provided to us is accurate and complete.
(c)(ii) After checking names of Individuals against the Treasury Lists and confirming that an Individual is not
named on such Treasury Lists, we shall issue a BOW Assured Access Card to such Individual and send the
Card to the Individual with a Cardholder Agreement. The Cardholder Agreement shall provide that use of the
Card is subject to all the terms and conditions contained in the Cardholder Agreement. The Individual will also
be informed that a personal identification number("PIN")has been set for the Card,which PIN shall be the last
four digits of the Individual's telephone number,as provided by you. The Individual shall be required to activate
the Card by calling an 800 telephone number and changing the PIN to a number designated by the Individual.
Once the Individual's Card is activated, the Individual shall be a "Cardholder." We may deliver the Card,
Cardholder Agreement and any ancillary documents(the"Document Package")directly to the Individual or may
deliver the Document Package to you to deliver to the Individual. You agree to provide the entire Document
Package as provided by us to any Individuals if requested by us.
(c)(iii) The Assured Access Card will give the Cardholder electronic access to his or her Card funds, as
described in our current schedule of fees and charges for the Assured Access Card Program.
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(c)(iv)You must send funds to the Account via a deposit transaction and send information ("Allocations")to us
with respect to the allocation of funds to each Cardholder. You must coordinate between us and the
Cardholders all matters related to participation in the Assured Access Card Program.
(c)(v)We will issue all necessary new and replacement Assured Access Cards to the Cardholders, in such form
as we determine, and with such ATM, POS and other marks or logos on them as we determine. We may
change its affiliation with any ATM or POS networks at any time. In the event that it does so, however, we shall
not be obligated to issue replacement Assured Access Cards to those existing Cardholders.
(c)(vi) In the event that any Cardholder terminates his or her participation in the Assured Access Card Program
or such Cardholder's participation is terminated for any reason,you must cease funding the Account with funds
for that Cardholder. The Cardholder will continue to have access to his or her funds on the Card or such funds
will be disbursed to the Cardholder in accordance with the Cardholder Agreement.
(c)(vii) If a Card has a negative balance or overdraft, we will apply the next available deposit to the Card to
recover such overdrawn funds, if such deposit occurs. You will not be responsible for the amount of any
overdraft on any Card,or for losses that result from fraud or from lost or stolen Assured Access Cards,except to
the extent that such losses are caused by any negligent or intentional act or omission by you or any agent of
yours.
(c)(viii) You will be bound by and comply with the Terms and Conditions and applicable state and federal laws
and regulations, our policies related to Assured Access Cards and rules and regulations of any network or
clearinghouse through which funds are transmitted in connection with the Assured Access Card Program.
(c)(ix) You must notify us of all Individuals that you have authorized to access the Assured Access Card
Program website hosted by Vendor("Authorized Users"). If an Authorized User's employment is terminated by
you, or the Individual is otherwise no longer eligible to participate, you must immediately notify us and we will
promptly terminate such Authorized Users access to the Assured Access Card Program website.
(d) Credit of Allocations to Cards
(d)(i) You must fund the Account via a deposit transaction and must transmit the Allocations to us for each
deposit.
(d)(ii) In the event that you fail to deliver in a timely manner or otherwise,funds or Allocations to us, you will be
solely responsible for notifying your Cardholders that funds may not be credited to their Cards until the funds
and Allocations are received and fully reconciled.
(d)(iii) Subject to the terms and conditions of the Terms and Conditions, applicable laws, rules and regulations,
and the respective Cardholder Agreement, we will credit the designated Card in the amount of each
corresponding Allocation received by us. We will have no liability for failure to effect credit to the Account or the
Cards due any failure of funds or Allocations to be delivered to BOW in a timely manner.
(d)(iv) We may reject any Allocations received on behalf of you. You shall have no right to reverse an
Allocation after we have received such Allocation, except in accordance with applicable laws, rules and
regulations.
(d)(v) You will use the format as provided to you by us for transmission of Allocations.
(d)(vi)You will have the ability to access information regarding the Cards and deposits to the Account through
the Vendor-hosted website.
(d)(vii) Individuals will have the ability to access information regarding debit and credit transactions on their
Cards via voice response unit ("VRU") hosted by Vendor, through live telephone customer service hosted by
Vendor, and by access through the Vendor-hosted website. Vendor will provide a written record of Card
transactions to a Cardholder covering the most recent 60-day period upon the Cardholder's oral or written
request.
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(d)(viii) You will provide to each Cardholder, on each applicable disbursement date, a written, itemized
disbursement statement showing the Cardholder's gross payment for the payment period in question, all
required and authorized deductions,and the Cardholder's net payment for such payment period.
(d)(ix) You must at all times comply with all applicable laws regarding payment of each Cardholder's
disbursement and related matters.
(d)(x)You must set up and maintain a system in accordance with all applicable legal requirements, to store and
maintain Cardholder payroll records in such a manner so as to allow you to forward, within twenty four (24)
hours, copies of any backup material requested by us regarding amounts authorized by you to be loaded on a
Card.
(e) Correction of Errors
We will make reasonable efforts to act upon your request to cancel or amend an Allocation but shall have no
liability for failure to do so in any specific timeframe or before funds are withdrawn from a Card. You will remain
liable to us,which may seek immediate payment from you,for any Allocations already credited to a Card.
(f) Your Warranties
You warrant that each Allocation shall be for an amount(i)due to the Cardholder and not subject to any claims
by you or (ii) duly authorized to be disbursed to the Cardholder. If the BOW Payroll Card is used for the
payment of wages, you further warrant that it is in compliance with all applicable Rules governing the payment
of wages.
(g) Individual Validation
You certify that Individuals have completed and complied with all appropriate Enrollments and associated
procedures, and that you have verified each Individual's identification. We have the right to audit Cardholder
files for purposes of verifying how you conducted the identity verification at a mutually agreeable time and
location.
41. Cash Vault Services
Under our Cash Vault Services,we offer both Traditional and Remote Cash Capture Cash Vault Services.
(a) Traditional Cash Vault Service
The Traditional Cash Vault Services allow you to make withdrawals of cash and deposits of cash and items to one
or more designated cash vault locations approved by us.You agree to make any such deposits in accordance with
any User Materials we may provide to you, and that any failure to follow our instructions may result in delay in
posting of your deposit.
(a)(i) Armored Courier Service—You must arrange with an armored courier for the delivery of deposits to us
and/or for the pick-up and delivery of currency and/or coin from a designated cash vault location for each of your
location(s). Each of your locations must be established with the Bank and have a profile in the system before
deposits will be accepted at any of our designated cash vault location(s). The armored courier acts as your
legal agent. You agree that all currency, coin, checks and other property that is in the possession of the
armored courier legally remains in your possession until it is physically released to and accepted by one of our
designated cash vault location(s). You agree to work with your courier should there be any discrepancy
between what you believe you delivered to the courier and the amount accepted by us.
(a)(ii) Credit To Your Account—Any credit to your accounts prior to our verification of a deposit is provisional
credit only and may be corrected. Our verification of deposits is conclusive and binding on you. You waive any
discrepancy between your records and our records if your claim is not made within thirty(30)days of the original
assumed deposit date.
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(a)(iii) Tampered Bags — We do not knowingly accept bags that display evidence of tampering. Should we
accept a deposit bag and notice any evidence of tampering,we will open the bag using our established security
procedures (including opening the bag in dual custody), but you agree that we are not liable for any shortage
within any shipment that is not distinctly and securely sealed in accordance with our instructions.
(a)(iv) Traditional Cash Vault Cash Order Service — In connection with any coin and currency you order from
our cash vaults, you authorize us to debit your account(i)on the day that such coin and currency are available
for release from such cash vault to your armored courier, or (ii) on the day that we deliver such coin and
currency to another location for pickup by your armored courier, as applicable. Each time you use our
Traditional Cash Vault Cash Order Service, you represent and warrant that you have sufficient collected and
available funds in your account for each change order requested by you. We have no obligation to release any
coin and currency ordered by you unless there are sufficient collected and available funds in the designated
account or sufficient funds under a line of credit to pay for such order at the time scheduled for release of the
coin and currency to the armored courier.
(b) Remote Cash Capture Service
Remote Cash Capture Service (the "RCC Service") allows you to receive provisional credit for currency deposits
only deposited to an armored courier safe ("Safe"). The Safe will connect electronically to your Bank of the West
deposit account. You agree that the Safe to be utilized in connection with the RCC Service must be installed at a
location designated and approved by the armored courier providing the Safe ("Safe Location"). Subject to cutoff
times and other provisions contained in the Remote Cash Capture Processing Guidelines, we may provide you
with credit, which may be provisional, for Safe deposits; such credit will be submitted to later verification and/or
adjustment by us and/or the armored courier designated to transport the Safe deposits from the Safe to a
designated cash vault location. You agree that deposits contained in the Safe legally remain in your possession
until it is physically released to and accepted by one of our designated cash vault location(s). Your Safe deposits
shall be governed by this Booklet,except as otherwise provided herein.
(b)(i) Your Responsibilities Concerning RCC Safe and Armored Courier Provider— Your responsibilities with
regard to the RCC Service include the following. You shall be solely responsible for the procurement of the
Safe and it's servicing from one of the Bank's approved armored couriers, whether by lease, sale or otherwise,
and for the installation and removal of the Safe in accordance with any agreements that you may have with the
armored courier. Each of your Safe locations must be established with the Bank and have a profile in the
system before electronic deposit information will be accepted for processing by the Bank or before Safe cash
will be accepted at any of our designated cash vault location(s). You shall not be required to prepare deposit
and/or duplicate deposit slips with respect to Safe deposits, as deposit information regarding such deposits will
be securely transmitted in a file from the safe.You will be responsible for preparing deposits for items placed in
the Safe's manual drop. Manual drop items will be picked up when your Safe is serviced and delivered with
your Safe deposits to a cash vault location for processing as a traditional cash vault deposit.You will not receive
provisional credit for any items placed in the Safe's manual drop. You shall be responsible for engaging an
armored courier to remove the Safe deposits from the Safe and to transport the Safe deposits to the designated
cash vault location. You agree that the armored courier you engage will meet the requirements set by the cash
vault. Such armored courier shall be your agent, not ours,except as otherwise provided herein.
(b)(ii) Settlement—Upon receipt of the Safe deposits at the designated cash vault location,the armored courier
shall verify such Safe deposits, for which credit, provisional or otherwise, has been given by us. In such
instances, when conducting a Safe deposit verification, the armored courier shall be acting solely as agent for
us. In the event of a discrepancy between Safe deposit amounts reported by a file transmitted by the Safe Feed
and Safe deposit amounts verified at the designated cash vault location, an adjustment shall be made in
accordance with the Remote Cash Capture Processing Guidelines. Information concerning such adjustments
will be reflected in your account statements and, in some cases, in written or electronic advices and reports
produced through our Internet Banking Service.
b(iii) Armored Car Scheduled Pickups; Maximum Amount— Each Safe Location requires a minimum of one
armored courier pick-up per a rolling seven (7) calendar day period. In addition to the required minimum
armored courier pick-up requirement in the preceding sentence, we will establish a maximum amount of
currency that can be kept across all Safes at any given time ("Maximum Amount"), and if at any time the
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aggregate amount of currency kept in the Safe(s)exceeds the Maximum Amount,the Bank may place a hold on
Safe deposits until the aggregate amount of currency kept across all Safes is brought below the Maximum
Amount. The Maximum Amount will be set forth in the Remote Cash Capture Processing Guidelines and may
be revised by us upon notice to you.
(b)(iv) Limitations of Liability
YOU ACKNOWLEDGE THAT WE DO NOT PROVIDE, NOR DO WE MAKE ANY RECOMMENDATIONS
REGARDING THE SAFE. WE HAVE NOT MADE AND DO NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OF NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO
ANY MATTER WHATSOEVER, INCLUDING THE SUITABILITY OF THE SAFE, ITS' DURABILITY, ITS'
CONDITION, ITS' QUALITY, AND/OR ITS' RELIABILITY. ACCORDINGLY, WE ALSO DISCLAIM ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR PARTICULAR PURPOSE WHETHER
ARISING BY OPERATION OF LAW OR OTHERWISE. WE SHALL NOT BE LIABLE TO YOU OR OTHERS
FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY
BY THE SAFE OR ANY FILE TRANSMITTED FROM THE SAFE, HOWEVER ARISING OR THE USES
THEREOF OR THE FAILURE OF ANY OPERATION THEREOF, NO REPRESENTATION OR WARRANTY AS
TO THE SAFE OR ANY OTHER MATTERS BY OTHERS SHALL BE BINDING UPON US OR IMPOSE ANY
LIABILITY UPON US NOR SHALL THE BREACH OF SUCH RELIEVE YOU OR IN ANY WAY AFFECT ANY
OF YOUR OBLIGATIONS TO US HEREIN.
IF THE SAFE IS NOT SATISFACTORY FOR ANY REASON, YOU SHALL NOT MAKE ANY CLAIM ON
ACCOUNT THEREOF AGAINST US. REGARDLESS OF CAUSE, YOU WILL NOT ASSERT ANY CLAIM
WHATSOEVER AGAINST US FOR LOSS OR ANTICIPATORY PROFITS OR ANY OTHER INDIRECT
SPECIAL OR CONSEQUENTIAL DAMAGES.
(b)(v) Supplemental Representations and Warranties— In addition to the representations and warranties set
forth in this Booklet,you represent and warrant to us that(i)you have given or procured,as the case may be,all
necessary consents and approvals for our accessing of your information and/or information of the armored
courier , as we deem appropriate, for purposes of this Agreement; and (ii) you and/or the armored courier as
your agent shall safeguard all Safe deposits until delivery of such Safe deposits at the designated cash vault
location and commencement of verification. In the event that the security of Safe Deposits is breached prior to
such delivery and commencement of verification, and/or if the delivery of the Safe Deposits to the designated
cash vault location is delayed, we may reverse any credit, provisional or otherwise, provided with respect to
such Safe Deposits as set forth in the user materials. You agree to notify us promptly in the event of any such
security breach or delay.
(b)(vi) Supplemental Termination Provisions— In addition to our termination rights in Section 34 of this Booklet,
we may immediately terminate your use of the RCC Service in the event: (i)you breach, or permit the breach
of,the security of the Safe, (ii)we determine that you have failed to maintain a financial condition that we deem
to be reasonably satisfactory to minimize any credit or other risks to us in providing the RCC Service or we
deem immediate termination to be necessary or appropriate to prevent a financial loss to us,(iii)you breach any
provision of this Section 41, and (iv) we, in our sole discretion, determine that the RCC Service is no longer
feasible or desirous for us to continue to offer.
(c) General Terms and Conditions Applicable to All Cash Vault Services
The use of the Cash Vault Service to make bulk shipments of currency is strictly prohibited. This includes bulk
shipments of currency from both foreign and domestic locations. Bulk shipments of currency means the use of
common, independent, or Postal Service air/land/sea carriers to transport large volumes of bank notes (U.S. or
foreign)from sources,which often take the form of containerized cargo, either inside or outside the United States
to a bank in the United States.
42. Controlled Disbursement Subscriber Service
Under the Controlled Disbursement Subscriber Service, we act as your agent to open and maintain a deposit account
with our servicer ("Servicer") ("Controlled Disbursement Account"). Writing checks on the Controlled Disbursement
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Account is the only activity permitted on the Controlled Disbursement Account. You must also maintain a funding
account("Funding Account")with us and must maintain sufficient funds in the Funding Account to fund all activity in the
Controlled Disbursement Account. So long as there are sufficient funds in the Funding Account,we will make deposits to
the Controlled Disbursement Account in an amount adequate to meet each day's presentments.
(a) Required Documentation
You must complete and return to us account application documents to open an account with Servicer. You agree
to provide whatever information and authorizations are necessary to allow us to act as your agent in opening and
controlling the Controlled Disbursement Account, including obtaining all account records on the Controlled
Disbursement Account. As your agent, we have the exclusive right to make deposits to and to manage the
Controlled Disbursement Account. This includes, without limitation, the right to issue return or stop payment
instructions with respect to checks written on or presented against the Controlled Disbursement Account.
(b) Information Reporting
The Servicer requires that you must agree to subscribe to and maintain a subscription to one of our electronic
information reporting Services. On each Servicer's Banking Day which is also a Banking Day, we will receive
information from Servicer regarding the funding requirements on your Controlled Disbursement Account. We will
make this information available to you by 7:45 a.m. Pacific Time on each of our Banking Days. We will determine
the collected balance in your Funding Account as of 11:00 a.m. Pacific Time. If there is a sufficient positive
collected balance to cover the day's presentments or if other acceptable arrangements have been made with us to
cover presentments against the Controlled Disbursement Account, we will instruct Servicer to allow the checks to
be paid. We will then debit the Funding Account for that day's presentments. If, however, the collected balance in
your Funding Account is insufficient, we may instruct Servicer to dishonor one or more of the checks presented
against the Controlled Disbursement Account that day. You understand and agree that Servicer will follow our
instructions regarding payment or dishonor of checks presented against the Controlled Disbursement Account. If
we instruct Servicer to honor any check for payment against insufficient funds or if Servicer honors any check
against insufficient funds, you will hold us harmless from any losses sustained. If Servicer dishonors any checks
presented based on either instructions from us or if there are insufficient funds to honor the checks or if the check
does not pass the Servicer's check verification procedures,you agree to hold us harmless from any and all losses,
claims or damages you may have or assert as a result of the dishonor of the check(s).
(C) Pre-Fund
In the event that we are closed on one of Servicer's Banking Days, you agree to pre-fund the amount which we
reasonably determine to be your average daily disbursement activity amount. We will notify you of the pre-funding
amount prior to our closed Banking Day. The pre-funding amount and actual amount needed to fund the Servicer
(shortages owed by you to us and overages owed by us to you), shall be settled on our next Banking Day. You
agree you are not entitled to and will make no claims for compensation from either Servicer or us for excess
prefunding amounts.
(d) Returned Checks
We reserve the right to instruct Servicer to return unpaid any check presented for payment against the Controlled
Disbursement Account in the event that(i)there are insufficient positive collected funds in the Funding Account to
cover the checks presented on the Controlled Disbursement Account, (ii) debits cannot be posted because the
Controlled Disbursement Account is closed or because of any other condition or(iii)any communications failure or
other condition prevents us from monitoring the checks presented for payment at Servicer. If we should instruct
Servicer to pay those checks,you must pay us in immediately available funds.
(e) Stop Payments
You shall notify us no later than 1:45 p.m. Pacific Time each Banking Day of any checks drawn on the Controlled
Disbursement Account upon which you request a stop payment. We will notify Servicer of any stop payment
orders in the manner and within the time limits as have been established between us and Servicer. Stop payment
orders received by us after 1:45 p.m. Pacific Time will be effective beginning on our next Banking Day or, if
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applicable, on Servicer's next Banking Day. You agree to give us written confirmation of all verbal or telephonic
stop payment orders within 14 Banking Days after the day upon which the order is made,and you understand and
agree that failure to give timely written confirmation may cause the stop payment order to expire. Should you fail to
furnish timely written confirmation of a verbal or telephone stop payment order, we may in our absolute discretion
either cancel the stop-payment order or leave it in place.
(f) MICR Encoding
All checks to be used in connection with the Controlled Disbursement Account shall be magnetically encoded to
include serial number, transit routing number (043301601 for Servicer Pittsburgh accounts) and account number.
We shall provide you with Servicer's encoding specifications for checks prior to the initial order. You must supply
us with a group of fifty (50) voided checks from the initial order and from each reorder. These checks are for
testing purposes and will be returned to us with Servicer's findings. Servicer has the right to approve the form of all
checks utilized in connection with the Service.
(g) Liability
You and we both acknowledge and agree that Servicer is not obligated to and will not verify or confirm the propriety
or correctness of any action or omission by either you or us.
(h) Special Rules Governing Controlled Disbursement Account with Servicer
The terms and conditions outlined in our current Deposit Account Disclosure for Business Accounts shall be
deemed to apply to all Controlled Disbursement Accounts. The following provisions shall also apply. In the event
of a conflict between this Booklet and the Deposit Account Disclosure for Business Accounts the terms in this
Booklet and the User Materials shall control.
(h)(i) If you authorize action by any form of communication, such as telephone, online or in person, or if an
applicable security procedure calls for authorization by any form of communication,Servicer can rely on persons
identifying themselves by the designated form of communication as authorized individuals.
(h)(ii) Servicer reserves the right to charge any of your accounts with it if an item deposited is dishonored,
returned or not paid even if Servicer has not sent to you notice of the dishonor.
(h)(iii)Stop Payment requests on items issued from a Controlled Disbursement Account may be placed through
us or via the Web and must be received prior to the cutoff hour established from time to time. Both Servicer and
we require a reasonable time to act on stop payment requests. Reasonable time shall mean at least until the
next Banking Day following receipt of the stop payment request.
(h)(iv)The terms and conditions regarding the Controlled Disbursement accounts shall be governed by the laws
of the Commonwealth of Pennsylvania.
(I) Alternative Check Storage Service
With this Service, you may receive a CD-ROM of checks presented against your Controlled Disbursement
Account(s).
43. Deposit Concentration Service
With this Service, you may initiate Payment Orders to transfer funds from your deposit accounts at other U.S. financial
institutions to your deposit accounts with us. You must meet any conditions on these transfers imposed by the other
financial institutions.
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44. Direct Delivery of Checks
We make available the ability to make deposits to a processing center rather than to one of our branches. All deposits
made pursuant to this Service must meet the standards set in the User Materials. Deposits not prepared in accordance
with the User Materials may be rejected or delayed and we may impose additional fees for handling non-conforming
deposits.
(a) Courier
You must arrange with a courier for the pick up and delivery of your non-cash deposits to a designated location.
The courier acts as your legal agent. All items in the possession of the courier legally are considered to be in your
possession until physically released to one of our authorized locations.
(b) Deposit Recreation
You should be prepared to recreate your deposits in the unlikely event that your items are lost in transit. We will
not be responsible for items lost in transit.
45. DirectPay Manager
(a) Service
Our DlrectPay Manager Service is an application which allows you to perform multiple functions as a merchant to
initiate both ACH debit Entries and credit Entries to consumer or business accounts using an automated system.
You may initiate one-time or recurring entries. The service also enables you to initiate transactions to Debit or
Credit Cards. Entries may be made using an online tool called Virtual Terminal, add a 'Pay Now' button to a
website,scan checks for ACH Conversion and swipe Debit/Credit Cards for various Card transactions.
(b) Compliance
When using this service and initiating ACH or Card Entries, you must remain in compliance with the operational
rules of the National Automated Clearing House Association ("NACHA"), any card issuer rules, such as VISA®
International and MasterCard® International rules; all Federal, State and Local laws, rules and regulations that
govern ACH Entries, including but not limited to the NACHA Rules, Federal Reserve Regulation E, all applicable
Federal Reserve Operating Circulars, Title 31 of the Code of Federal Regulations Part 210 and regulations and
requirements of the Office of Foreign Assets Control ("OFAC").
(c) Authorization
You shall obtain authorization from each Receiver prior to requesting an Entry to that Receiver's account.You shall
retain proof of each Receiver's authorization for a period of two (2) years after receipt or termination of the
authorization,whichever comes later,or for the appropriate period designated by the Rules and Regulations.
(d) Submitting Entries
You shall submit, by facsimile,email or regular mail,fully executed Receiver's authorization forms in a accordance
with the specifications and forms provided by us from time to time; (ii)Check Conversion-Merchants shall, through
the use of a check reader and POS terminal, create a Debit Entry that will be transmitted to us(iii)All others shall
create a file or electronic message containing any Entry(ies) in accordance with the specifications and forms
provided by us from time to time, depending upon the specific format, and deliver the file or message to us via a
pre-approved method, which could include, electronic transmission. You will be responsible for the correctness,
both as to content and form, of all Entries submitted to us. If any Entry is not readable, out of balance, or
unprocessable,it is your responsibility to correct and resubmit the Entry to us.You must deliver each ACH Entry or
file of Entries to us no later than [5:00 PM PT] of the second business day before the Effective Entry Date or in
accordance with the schedule we provide.With respect to On Us Entries, the relationship between you and us will
be governed by the Rules and, to the extent applicable,we agree to assume all the rights and obligations of both
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an ODFI and a RDFI, and you agree to assume the obligations of an Originator and to make the same warranties
to us as the RDFI as we would be required to make pursuant to the Rules where we are the ODFI.
(e) Initiate Transmission of Reports and Entry Files
You are solely responsible for communicating with us to receive daily reports and/or Entry files. We are under no
obligation to initiate a transmission of data to you.
(f) Processing Limits
We may impose a limit on the dollar amount of Entries we will process for you. This limit may be changed by us
from time to time, upon notice to you. The notice is effective when given or at such later time as is provided in the
notice. If you exceed the established limit,we may suspend Entry processing.
(f)(i) In some cases, our DirectPay Manager Services allow you to act as a Service Bureau Merchant, which
means you are originating ACH Entries on behalf of another merchant as Originator, as a Check Conversion
Merchant, which means you are a merchant originating ACH Debit Entries by means of a check as a source
document,or as a processor of credit card and ATM/debit card transactions. These Services are subject to the
terms and conditions for Third-Party Senders under a separate agreement. If you are processor of credit card
and ATM/debit card transactions, you will also need to sign an agreement with a credit card processing third-
party service provider.
46. Electronic Commerce Service (ECS)
Using electronic information processing Services,the Electronic Commerce Service automates the exchange of business
and financial information. You must provide us the accounts and information about which you wish information
transmitted, the receiving vendor, and such other information as we may reasonable request. Information through ECS
may be provided to you via fax, secure data transmission or on our Online Cash Management platform. You
acknowledge that the data provided to you by us contains the information sent by the Originator. We are not responsible
for data omitted by the Originator.
47. Electronic Deposit Services
Our Electronic Deposit Services ("EDS")allow you to use software provided by us to create electronic images of paper
checks and drafts ("Items")as described in the Terms and Conditions and in the User Materials and other guidelines as
we may communicate from time to time(each, an"Electronic Image")and to transmit an electronic file of such Electronic
Images and other information(collectively, the"Electronic File")to us for deposit to your checking account with us("EDS
Account"). After we receive your Electronic File, we, at our sole option, use the Electronic File either: (a) to create
substitute check(s),that we present to the bank on which the Paper Item is either: (i)drawn or(ii)payable at or through
(each, "Paying Bank"); or(b)to generate one or more electronic files (from the original Electronic File)for presentment
directly or indirectly to Paying Bank.
(a) Conditions to Provision of the Service
As conditions to our providing the Electronic Deposit Services, you agree that you will: (a) maintain your EDS
Account and any other deposit accounts with us in good standing;(b)meet credit standards established by us from
time to time and provide financial information as requested by us from time to time; and (c)comply with the User
Materials and other guidelines and restrictions regarding the Electronic File as we may communicate to you from
time to time. You also agree that, absent our express written consent, you (i) will not deposit to any personal
account any item that is made payable to any business, (ii)will only deposit items in your EDS Account that are
made payable in the name in which your EDS Account is titled, and (iii)will not deposit items in your EDS Account
that are payable jointly to two or more persons or to any business in which two or more persons hold an interest
unless the same persons hold the same interests in the account in which the items are deposited.
Jam
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(b) License Grant
As part of the Service, Bank will provide guides, and other information about the Service ("Documentation"), the
hardware and Licensed Software. Customer is granted a non-exclusive, royalty-free (except for any Bank fee for
the Service), non-transferable, limited and revocable right to use the Documentation and Licensed Software solely
as a component in the Service.The Documentation and Licensed Software be used solely as contemplated by this
Terms and Conditions and shall at all times remain the sole and exclusive property of Bank and Customer shall
have no right, title or interest therein except as expressly provided in this Terms and Conditions. Bank and any
third party claiming through Bank reserve the right to protect its rights, title and interest in and to the
Documentation and Licensed Software by enforcing its rights against Customer directly. This license shall
terminate when the Terms and Conditions is terminated.
(c) No Grant
Nothing in this Terms and Conditions shall be construed as a grant of any rights under any patent,mask work right,
copyright, trademark,service mark or license.
(d) Creating Electronic images and Transmitting Your Electronic File to Us.
You will use hardware meeting our specifications and our Electronic Deposit Service software to scan Items that
you wish to deposit to your EDS Account by means of EDS and to transmit your Electronic File to us. The format
of your Electronic File must meet our Electronic Check File specifications as established by us from time to time.
(e) Disposition of imaged Checks
You agree that all Items belong to you and not to us and that those items shall be handled in accordance with the
Terms and Conditions and any User Materials. After receipt by us of any transmission by you to us of imaged
Items for deposit to your EDS Account, we will acknowledge by electronic means receipt of your transmission.
Your electronic transmission is subject to proof and verification. If you do not receive an electronic notice of receipt
within one (1)hour of your transmission, you agree to contact your Bank representative. You agree to retain the
originals of all imaged items after validation in accordance with commercially reasonable standards and with your
internal procedures for not less than fourteen (14) calendar days or for such time as is required by and in
accordance with applicable law, statute, or regulation. Thereafter, in a commercially reasonable manner, you will
destroy the originals of all such imaged Items. You agree to take commercially reasonable steps to safeguard the
originals of such imaged Items until such time as they have been destroyed.
(f) Responsibility for Multiple Deposits of the Same Item
You agree to implement commercially reasonable procedures to ensure that no Item is deposited more than once
via electronic or other means, either with us or with any other financial institution, whether intentionally or
unintentionally, whether as a result of fraud for any other reason whatsoever. You agree that the aggregate
amount of any Items which are deposited more than once will be debited from your EDS Account,and to the extent
funds in your EDS Account are insufficient to cover such amount; any balance shall be debited by us from any of
your other deposit accounts as determined by us in our sole discretion. You further acknowledge that you,and not
we, are responsible for the processing and handling of any original items which are imaged and deposited utilizing
EDS and you assume all liability to the drawer of any item imaged using EDS or liability arising from our printing of
any substitute check from those images.
(g) Adjustments
You agree that in the event that an electronically captured Item is captured for an incorrect amount,we may make
a credit or debit adjustment to your account in order to correct the error. In the event that the adjustment amount is
$50 or less, the correction cannot be made through the electronic system, and you agree to reconcile the correct
amount directly with the maker of the item.
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(h) Processing Your Electronic File
If you transmit your Electronic File to us before the cut-off time we separately disclose to you on any day which is a
Banking Day,we will review and, if appropriate, process your Electronic File on that Banking Day. If you transmit
your Electronic File to us after the cut-off time on any Banking Day,we will review and, if appropriate, may process
your Electronic File on the next Banking Day.
(i) Exception Items
When we review and process your Electronic File, we may reject any Electronic Image that we, in our sole
discretion, determine to be ineligible for EDS (each, an "Exception Item") including, without limitation, Electronic
images of any item not payable to you or as identified in above, Electronic Images of Items drawn on banks located
outside the United States, items drawn on U.S. banks in foreign currency, Electronic Images that are illegible (due
to poor image quality or otherwise), Electronic Images of Items previously processed, Electronic Images previously
converted to substitute checks, and Electronic Images with unreadable MICR information. Each Banking Day on
which we review and process your Electronic File, we will notify you of all Exception Items. You agree that if you
wish to attempt to deposit any Exception Item to any of your deposit accounts with us, you will only do so by
depositing the original Paper Item on which the Exception Item is based. You acknowledge and agree that even if
we do not initially identify an Electronic Image as an Exception Item,the substitute check created by us therefrom
may nevertheless be returned to us because, among other reasons, the Electronic Image is deemed illegible by
Paying Bank. Our failure to identify an Exception Item shall not preclude or limit the obligation of you to us. In the
event an Electronic Image is an Exception Item because it is illegible or otherwise unusable by us, you must either
provide a usable original or copy or, if the original or copy is unusable, obtain a usable document from the maker
and submit that usable document to us. Failure to provide a usable version will result in the Exception Item being
debited from your EDS Account.
(j) Your Special Representations and Warranties for Each EDS Deposit
You represent and warrant to us for each EDS deposit:
(j)(i) You will use EDS only for Items that are payable to or endorsed or deposited by you and that are not
ineligible for any of the reasons described above as Exception Items.
(j)(ii) You will maintain control over and responsibility for retention and destruction of original Items. In that
regard, you are responsible for the safekeeping of all original Items and other sensitive information in
accordance with applicable law and commercially reasonable industry standards.
(j)(iii)You will destroy original Items from which you have previously created and submitted to us an Electronic
Image in accordance with the rules stated in the Disposition of Imaged Checks section.
(j)(iv) You will maintain control over and responsibility for any and all sensitive electronic data relating to
consumer information. Said data includes but is not limited to consumer names, addresses, and account
numbers. Pursuant to the previous paragraph, You are responsible for the safekeeping of all electronic data
and notification of any compromise of such data.
(j)(v) You will not submit any duplicate Electronic Images to us.
(j)(vi)You will not deposit to your EDS Account or otherwise negotiate any original Item from which you have
previously created and submitted to us in an Electronic File or which was previously presented at another bank,
and shall not deposit to any account or otherwise negotiate at another bank any original Item which you have
previously submitted to us an Electronic File, unless we have notified you that the Electronic Image is an
Exception Item.
(j)(vii) You will transmit to us only Electronic Images that are suitable for processing, including,but not limited
to, Electronic Images that are legible and contain readable MICR data.
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(j)(viii) You agree to notify us immediately if duplicate items are transmitted to us using EDS or if a duplicate
deposit is made either to us or to any other financial institution. You agree to cooperate with us in identifying
duplicate items.
(j)(ix) You agree to not reverse,decompile or reverse engineer the Licensed Software.
(j)(x) You agree to use commercially reasonable efforts to protect and secure the Documentation and
Licensed Software against,and prevent any improper use and/or theft thereof,
(j)(xi)You shall not,without our consent,combine into any system,the hardware or Licensed Software,and that
the hardware and Licensed Software shall be used exclusively in accordance with the Documentation.
(j)(xii) You agree to, upon our request following termination of the Service, return to us the Licensed Software
and Documentation at a time and in the manner agreed upon by us.
(k) Availability of Items; Rules Governing Items
(k)(i) You agree that Items deposited to your EDS Account will be made available to you on the schedule
provided to you in your User Materials.
(k)(ii)You agree that Items deposited to your EDS account are governed by the Uniform Commercial Code just
as if the Items had been deposited to your account in paper form.
48. Image Clearing Service.
(a) Description of Service.
Our Image Clearing Service ("ICS")allows you to use your own hardware and software to create electronic images
of paper checks and drafts (paper checks and drafts shall be called "Paper Items") as described in these Terms
and Conditions and in the User Materials and other guidelines as we may communicate from time to time(each,an
"Electronic Image")and to transmit an electronic file of such Electronic Images and other information (collectively,
the "Electronic File") to us for deposit to your checking account with us ("ICS Account"). After we receive your
Electronic File, we, at our sole option, use the Electronic File either: (a) to create substitute check(s), that we
present to the bank on which the Paper Item is either: (i)drawn or(ii)payable at or through (each, "Paying Bank");
or(b)to generate one or more electronic files(from the original Electronic File)for presentment directly or indirectly
to Paying Bank.
(b) Conditions to Provision of the Service.
As conditions to our providing the Image Clearing Services,you agree that you will:
(b)(i) maintain your ICS Account and any other deposit accounts with us in good standing;
(b)(ii) meet credit standards established by us from time to time and provide financial information as requested
by us from time to time;
(b)(iii) use the Service for you alone and not for any third party,absent our express written consent,and
(b)(iv) comply with the User Materials and other guidelines and restrictions regarding the Electronic File as we
may communicate to you from time to time.
You also agree that you
(b)(v) will not deposit to any personal account any item that is made payable to any business (without pre
approval by your Relationship Manager,
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(b)(vi) will only deposit items in your ICS Account that are made payable in the name in which your ICS
Account is titled,and
(b)(vii) will not deposit items in your ICS Account that are payable jointly to two or more persons or to any
business in which two or more persons hold an interest unless the same persons hold the same interests in the
account in which the items are deposited.
(c) Creating Electronic Images and Transmitting Your Electronic File to Us.
(c)(i)You will use your hardware and software to scan Items that you wish to deposit to your ICS Account by
means of the ICS Services and to transmit your Electronic File to us. The format of your Electronic File must
meet our Electronic Check File specifications as established by us from time to time.
(c)(ii)You are responsible for ensuring the Electronic Image is a legible,accurate representation of the front and
back of the eligible check. Electronic Images must meet the image standards,as outlined in our Image Clearing
Services File Specifications document. You also are responsible for ensuring the MICR line information from
the original check is accurately scanned,entered or repaired for each Electronic Image.
(c)(iii) You recognize that a Electronic Image may not capture or include all security features contained in the
original check,such as watermarks. You are responsible for any loss or failure to collect a Electronic Image that
results from an inaccurate or illegible Electronic Image or your failure to provide full and correct MICR data or
dollar amount for a Electronic Image.
(c)(iv)You will transmit Electronic Images to us according to the transmission deadlines provided to you by us
from time to time. A Electronic Image file shall not be deemed received by us until we receive the Electronic
Image file.
(d) Disposition of imaged Checks.
You agree that all Paper Items belong to you and not to us and that those Paper Items shall be handled in
accordance with these Terms and Conditions and any User Materials. After receipt by us of any transmission by
you to us of imaged Items for deposit to your ICS Account, we will acknowledge by electronic means receipt of
your transmission. Your electronic transmission is subject to proof and verification. If you do not receive an
electronic notice of receipt within one(1)hour of your transmission,you agree to contact your Bank representative.
Generally, the rejection of any Item will be posted within one business day but, we reserve the right to post a
rejection of any Item at any time. You will retain the original of all original checks which you image through the
Service for a reasonable period of time as determined by you and in accordance with all applicable state and
federal laws and regulations, but in no event less than fourteen (14) calendar days. This 14-day retention
requirement is a minimum requirement and may not offer you the legal protection you need. You should consult
with your own legal counsel in establishing a minimum retention procedure. You agree to safeguard the originals
of such imaged checks until such time as they have been destroyed.
(e) Responsibility for Multiple Deposits of the Same Item.
You agree to implement commercially reasonable procedures to ensure that no Item is deposited more than once
via electronic or other means, either with us or with any other financial institution, whether intentionally or
unintentionally, whether as a result of fraud for any other reason whatsoever. You agree that the aggregate
amount of any Items which are deposited more than once will be debited from your ICS Account,and to the extent
funds in your ICS Account are insufficient to cover such amount, any balance shall be debited by us from any of
your other deposit accounts as determined by us in our sole discretion. You further acknowledge that you,and not
we, are responsible for the processing and handling of any original items which are imaged and deposited utilizing
the ICS Services and you assume all liability to the drawer of any item imaged using the ICS Services or liability
arising from our printing of any substitute check from those images.
int
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(f) Adjustments.
You agree that in the event that an electronically captured Item is captured for an incorrect amount, we may make
a credit or debit adjustment to your ICS Account in order to correct the error. In the event that the adjustment
amount is $50 or less, the correction cannot be made through us, and you agree to reconcile the correct amount
directly with the maker of the item.
(g) Processing Your Electronic File.
If you transmit your Electronic File to us before the cut-off time, as set forth in the User Materials, on any day
which is a Banking Day,we will review and,if appropriate,process your Electronic File on that Banking Day. If you
transmit your Electronic File to us after the cut-off time on any Banking Day,we will review and,if appropriate, may
process your Electronic File on the next Banking Day.
(h) Exception Items.
When we review and process your Electronic File, we may reject any Electronic Image that we, in our sole
discretion, determine to be ineligible for the ICS Services (each, an "Exception Item") including, without limitation,
Electronic Images of Items drawn on banks located outside the United States, items drawn on U.S. banks in
foreign currency, Electronic Images that are illegible (due to poor image quality or otherwise), Electronic Images of
Items previously processed, Electronic Images previously converted to substitute checks, and Electronic Images
with unreadable MICR information. Each Banking Day on which we review and process your Electronic File, we
will notify you of all Exception Items. You agree that if you wish to attempt to deposit any Exception Item to any of
your deposit accounts with us, you will only do so by depositing the original Paper Item on which the Exception
Item is based. You acknowledge and agree that even if we do not initially identify an Electronic Image as an
Exception Item,the substitute check created by us therefrom may nevertheless be returned to us because,among
other reasons, the Electronic Image is deemed illegible by Paying Bank. Our failure to identify an Exception Item
shall not preclude or limit the obligation of you to us. In the event an Electronic Image is an Exception Item
because it is illegible or otherwise unusable by us, you must either provide a usable original or copy or, if the
original or copy is unusable, obtain a usable document from the maker and submit that usable document to us.
Failure to provide a usable version will result in the Exception Item being debited from your ICS Account.
(i) Funds Availability.
We shall make funds from accepted Electronic Files available according to our funds availability schedule and the
Deposit Account Disclosure Agreement for Personal or Business Accounts, as appropriate. Our funds availability
schedule will be provided to you upon request and may be amended by us from time to time.
(j) File Suspension
(j)(i)The Bank may request to suspend the submission of files with at least twenty-four(24)hours written notice
to you if continued submission of files is or will be commercially unviable. Such notice shall provide in
reasonable detail the reasons that the submission of files has been suspended. Upon receipt of such notice
and request, you shall consent or object to the suspension in writing as promptly as possible; provided that the
Bank shall consent if based on the request it can reasonably be expected that continued submission of files
would have material adverse impact on check processing.
(j)(ii)The foregoing notwithstanding, you shall have until the end of the 24-hour period to propose a remedy to
the stated problem, and the Bank will give due consideration to the solution and consent or object to
implementation of such solution,consent not to be unreasonably withheld. The parties agree to use commercial
best efforts to resolve any problem and end any suspension of the submission of image files as promptly as
possible. The Bank shall process paper items until image submission is resumed.The Bank shall give 24 hours
notice of the intention to resume image submission processes, which period shall exclude weekends and
holidays
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(k) Your Special Representations and Warranties for Each ICS Deposit.
You represent and warrant to us for each ICS deposit:
(k)(i) You will ensure the image is an accurate representation of all information on the front and back of the
original check at the time the original check was converted to an image, and the image contains all
endorsements from the original check;
(k)(ii)You will maintain each image(or related electronic data file)contains a record of all MICR line information
required for a substitute check and otherwise satisfies all of the requirements of Check 21 and Regulation CC
for the creation and/or transferring of a substitute check created from that Electronic Image;
(k)(iii)You will use an image format that adheres to industry standards, as those standards are changed from
time to time. The current standards will be outlined in the Bank of the West's Image Clearing Service File
Specifications document.
(k)(iv)You will use the ICS Services only for Items that are payable to or endorsed or deposited by you and that
are not ineligible for any of the reasons described above as Exception Items.
(k)(v) You will maintain control over and responsibility for retention and destruction of original Items. In that
regard, you are responsible for the safekeeping of all original Items and other sensitive information in
accordance with applicable law and commercially reasonable industry standards.
(k)(vi)You will destroy original Items from which you have previously created and submitted to us an Electronic
Image in accordance with the rules stated in the Disposition of Imaged Checks section.
(k)(vii) You will maintain control over and responsibility for any and all sensitive electronic data relating to
consumer information. Said data includes but is not limited to consumer names, addresses, and account
numbers. Pursuant to the previous paragraph, You are responsible for the safekeeping of all electronic data
and notification of any compromise of such data.
(k)(viii)You will not submit any duplicate Electronic Images to us.
(k)(ix)You will not deposit to your ICS Account or otherwise negotiate any original Item from which you have
previously created and submitted to us in an Electronic File or which was previously presented at another bank,
and shall not deposit to any account or otherwise negotiate at another bank any original Item which you have
previously submitted to us an Electronic File, unless we have notified you that the Electronic Image is an
Exception Item.
(k)(x) You will transmit to us only Electronic Images that are suitable for processing, including, but not limited
to, Electronic Images that are legible and contain readable MICR data.
(k)(xi)You agree to notify us immediately if duplicate items are transmitted to us using the ICS Services or if a
duplicate deposit is made either to us or to any other financial institution. You agree to cooperate with us in
identifying duplicate items.
(I) Testing
The parties will agree upon testing to be performed whenever software or hardware modifications or
enhancements, initiated by either party, may affect the creation and processing of ICS files. Both parties will make
their best effort not to impact the accuracy of the ICS file formats.
49. ImageExpress Services
Our ImageExpress product provides you with copies of paid checks, either online or by CD-ROM. ImageExpress
CDROM offers the convenience of check storage of your paid check images on CD-ROM. ImageExpress Remote
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Inquiry offers on-line viewing of paid and deposited check images from our image archive within 24 hours of the pay date
of an item.
50. Online Banking Services
Our Internet Banking Services enable customers to use the World Wide Web to access account balances and
transaction information and to store this information on their personal computers. We also have available a Service that
permits you to initiate certain electronic transfers. Your deposit account information that is accessible via the Web is
updated each Banking Day and is current as of the end of the previous Banking Day and will include any current Banking
Day activity that has been memo posted to the account. You agree that application for and use of our Internet Banking
Services is subject to all terms and conditions applicable to your deposit agreement(s)with us to the extent they are not
inconsistent with the Terms and Conditions. You agree that your request for and acceptance of the Service(s)shall be
for bona fide and lawful purposes permitted under the Terms and Conditions (including the Service procedures)and to
update your software and hardware if necessary to use the Service.
(a) Balance Reporting
The Balance Reporting Service provides you with online access to linked account balances, transaction, and
investments. The Service may be customized to the Services you receive and the information you need.
(b) Online Bill Payment Services
(b)(i) Our online Bill Payment Services allow you to make payments from any Bank of the West checking
account(called the"Bill Payment Account"), as follows: (a)A bill payment may be made or scheduled from the
Bill Payment Account you designate at a time up to 365 days in advance of the date the payment is to be made
(called a"Single Payment"). Alternatively, a bill payment may be set up as automatic recurring payments to be
made at substantially regular intervals (that is, monthly, quarterly, etc.) in the same amount and to the same
payee(called a"Recurring Payment").The Bill Payment Account must be a checking account against which you
are permitted to write an unlimited number of checks during each statement cycle. (b)The maximum amount of
any one bill payment is the lesser of the current available deposit balance in the Bill Payment Account(plus any
available credit in an associated line of credit)or$25,000.00. We reserve the right, at our sole discretion,either
to complete or reject any attempted bill payment that exceeds the applicable limit or available balance.
Regardless of our decision in that regard, your Bill Payment Account may be subject to an overdraft/returned
item fee, as stated in the Terms and Conditions. In addition, we reserve the right to further limit the dollar
amount or the frequency of transactions from any of your deposit accounts for security reasons,without liability
to you. (c) Each bill payment must be made in United States Dollars and directed to an Eligible Payee as
directed below.
(b)(ii)Eligible Payees-All payees you properly select are Eligible Payees except for the following: (a)a federal,
state or local government agency, taxing authority or court, (b) a securities broker, (c) a payee located at an
address that is not within the United States; and (d) a payee on the Specialty Designated Nationals List as
published from time to time by the Office of Foreign Assets Control. We reserve the right to add to the list of
payee categories that are not Eligible Payees without prior notice when required by law or regulation. If,despite
this Agreement, you direct us to make a bill payment payable to a payee that is not an Eligible Payee, you
authorize us, at our absolute discretion, either to (a)decline to make the bill payment, (b) make or attempt to
make the bill payment and charge the Bill Payment Account against which your bill payment is drawn for the full
amount of the payment; or(c)charge the Bill Payment Account against which your payment is drawn for the full
amount of the bill payment and freeze the bill payment subject to legal requirements.
(b)(iii)Payment Instructions-You must enter your bill payment instructions no later than four(4) Banking Days
before the payment due date. Do not include any grace period. If there is not enough time to process your bill
payment to reasonably expect the payment to be received by the Payee on or before that date, as determined
by the Online Bill Payment Service,you will be so advised and the system will not confirm the payment. In such
instances,you must either select another due date or make arrangements to make your payment outside of the
bill payment system. Any due date you designate that falls on a weekend or holiday will be considered to have
been designated to be the previous Banking Day. Neither we nor our Service Provider or any of our other
agents are or will be responsible for any late charges, extra interest or other charges imposed on you by a
payee because of a late payment. When you have entered and transmitted a bill payment instruction, you
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authorize us to deduct the amount of the bill payment from the Bill Payment Account on the process date. We
reserve the right to refuse to honor bill payment requests that we believe or suspect (rightly or wrongly) are
fraudulent or erroneous. You understand, however, that our exercise of this right will be at our sole discretion,
and you should not rely upon us to discover or prevent loss as a result of a fraud or erroneous bill payment.
(b)(iv)Bill Payments-Your bill payment will be made, at our sole discretion, either by electronic funds transfers
to the payee through the automated clearing house ("ACH"), or by preparing and sending a check to the payee,
at the address you specify. Regardless of the method we use to forward the bill payment to the payee, will
determine when the amount of the bill payment will be deducted from the Bill Payment Account. Payments
issued by direct check will clear your Bill Payment Account just as a check you wrote yourself. The check will
post to your Bill Payment Account and an image will be available via the Information Reporting module of our
online Cash Management platform. For payments delivered via electronic funds transfer, the Bill Payment
Account will be debited on the scheduled due date. Your periodic statement will reflect the deduction and will
show the date, amount and the name or abbreviated name of the payee. It is important that you include with
each bill payment instruction the account number assigned to you by the payee.This number will be included on
the check or with the ACH payment we send to the payee.Without this number,the payee may not know or may
have difficulty determining which account is to be credited properly, as the payee will not be receiving a
traditional payment coupon along with your payment. If the account number at the payee is either omitted or
incorrect in any way, we will not be liable for any fees or charges incurred if the payment is not processed in a
timely manner. Payees may require return of a payment stub or coupon with your payment and may delay or
refuse to process online bill payments because they will not conform to their internal or contractual payment
requirements. We are not responsible for any delay in or refusal with regard to the processing of your bill
payment by any payee. Our only responsibility is to assure that we process your payments in accordance with
the Terms and Conditions. If a payee, for any reason, refuses to accept your bill payment or if, for any other
reason, a bill payment cannot be completed, we will reverse the bill payment by re-crediting the amount of the
bill payment to the Bill Payment Account unless we notify you otherwise.We are not responsible or liable for any
late charges or extra interest or other charges or costs or expenses that may result from the payee's delay in
accepting and processing,or the payee's non-acceptance or return of any payment.
(b)(v)Canceling Bill Payments-You can cancel any Single Payment or Recurring Payment by using the Online
Bill Payment Service to cancel the payment. In the case of a Recurring Payment, you can skip any next
scheduled payments or cancel all Recurring Payments to the same payee. You must transmit your request to
skip or cancel payments before the Cutoff Time on the process date for the bill payment. If you do not meet that
deadline,the Online Bill Payment Service will not process your cancellation instructions and the bill payment will
be sent as previously instructed. This is because, even though the bill payment may not have reached the
payee, it will be too late to stop the process of debiting funds for the payment from the Bill Payment Account and
issuing our ACH instructions or check in favor of the payee.
(c) Check Printing Services
(c)(i)Our Check Printing Services allow you to issue checks ("CPS Checks")from any Bank checking account
(called the "Check Payment Account") using the facsimile signature of an authorized signer. The Check
Payment Account must be a checking account which permits the issuance of an unlimited number of checks
during each statement cycle. CPS Checks will bear your Check Payment Account number,the Check Payment
Account's owner name and the facsimile of the signature of any authorized signer on the Check Payment
Account as selected by us at our sole discretion or as you and we may agree.We reserve the right, at our sole
discretion, either to complete or reject any your request to issue a CPS Check if that CPS Check exceeds any
applicable limit or the available balance in the Check Payment Account. Without regard to our decision in that
regard,your Check Payment Account may be subject to an overdraft/returned item fee,as stated in the Account
Agreement. In addition, we reserve the right to further limit the dollar amount or the frequency of transactions
from any of your deposit accounts for security reasons,without liability to you.
(c)(ii) You may not issue a CPS Check payable to a payee on the Specialty Designated Nationals List as
published from time to time by the Office of Foreign Assets Control. If, despite this agreement,you issue a CPS
Check payable to a payee that is on the Specialty Designated Nationals List, you authorize us, at our absolute
discretion, either to(a)decline to make the payment, (b)make or attempt to make the payment and charge the
Check Payment Account against which your payment is drawn for the full amount of the payment; or(c)charge
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the Check Payment Account against which your payment is drawn for the full amount of the payment and freeze
the payment subject to legal requirements.
(c)(iii)CPS Checks issued pursuant to this Check Printing Service will be mailed by us or our Service Provider
using United States Postal Service (the "USPS")first class postage or by other mail courier services. Neither
we nor our Service Provider will be responsible or liable for delays in the delivery of any CPS Check by the
USPS or a mail courier service. Neither we nor our Service Provider or any of our other agents are or will be
responsible for any late charges, extra interest or other charges imposed on you by a payee because of a late
payment. When you have entered and transmitted a CPS Check request, you authorize us to pay the amount
of the CPS Check from the Check Payment Account upon presentment. We reserve the right to refuse to honor
any CPS Check requests that we believe or suspect (rightly or wrongly) are fraudulent or erroneous. You
understand, however, that our exercise of this right will be at our sole discretion, and you should not rely on us
to discover or prevent loss as a result of a fraud or erroneous CPS Check. CPS Checks issued pursuant to this
Service will clear your account just as any check you wrote yourself. The CPS Check will post to your Check
Payment Account and an image will be available via the Information Reporting module of our online Cash
Management platform.Your periodic statement will reflect the deduction and will show the date,amount and the
name or abbreviated name of the payee. Payees may require return of a payment stub or coupon with a
payment, including a CPS Check, and may delay or refuse to process the CPS Check because the CPS Check
does not conform to their intemal or contractual payment requirements.We are not responsible for any delay in
or refusal with regard to the processing of your CPS Check by any payee. Our only responsibility is to assure
that we process your payments in accordance with the Terms and Conditions. We are not responsible or liable
for any late charges or extra interest or other charges or costs or expenses that may result from the payee's
delay in accepting and processing,or the payee's non-acceptance or return of any CPS Check.
(c)(iv)CPS Check requests received by us prior to the established cut-off time will be issued and mailed on the
same Business Day. CPS Check requests received by us after the established cut-off time will be issued and
mailed on the next Business Day. For more specific information on cut-off times, required CPS Check
information and reporting features,please refer to the User Materials.
(c)(v) By using the Check Printing Services, you authorize us to pay from funds on deposit with us in the Check
Payment Account all CPS Checks and other orders for payment of money signed with a facsimile or mechanical
signature of an authorized signer which reasonably resembles the form provided to us or as you and we may
agree from time to time.We may do so regardless of under what circumstances, by whom or by what means the
purported facsimile signature may have been affixed. You shall be responsible for the amount of each CPS
Check or any check signed with your authorized signer's facsimile signature. You agree to indemnify and hold
us (including ours correspondent banks), our parent company, affiliates, and our or their respective directors,
officers, employees, or agents thereof, harmless from and against any and all losses, claims, liability, demands
and expenses, including attorney's fees, incurred or arising in connection of payment of CPS Checks by us in
accordance with this Section.This facsimile agreement shall remain in effect for so long as you use the Check
Printing Services.
(d) Stop Payment Service
(d)(i)You agree to place any stop payment within the time frames and subject to the terms described in the User
Materials. We will validate the clearance of paid checks up to one statement cycle in arrears. Any item that
clears prior to the current statement cycle requires you to review your records. A stop payment may be placed
for an item paid prior to the current statement cycle.
(d)(ii)A stop payment request will not be effective until we conduct a review for the time period specified in the
applicable User Material and we determine that the check has not been paid during that period and if so,we will
respond to you with an online status of your request as accepted.A stop payment request terminates at the end
of the period designated in the applicable User Materials, unless the Stop Payment Request is renewed or
canceled earlier. A stop payment Request is canceled automatically when the account on which the check is
drawn is closed even if you maintain other deposit accounts with us.
(e) Commercial Loan Reporting
The commercial loan reporting function allows you to access commercial loan information via the Internet
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Banking Services. Accessible information includes,without limitation, commercial loan balances for the current
Banking Day as well as loan invoice history information;however,the accessible information is for informational
purposes only and is not designed or intended to provide authoritative financial,accounting, investment,or
other professional advice which may be relied upon by you for lending transactions nor does it replace your
official bank statement. Certain restrictions apply and some commercial loans may not be eligible to be
accessed via the Internet Banking Service. For more information on non-eligible commercial loans and
accessible information available through the commercial loan reporting function, please refer to the User
Materials.
51. Other Electronic Banking Service
We offer a line of other online cash management Services that are accessible with software via computer/modem.
52 Payment Orders jWire Transfers and ACH)
This Service permits you to request and send domestic and international funds transfers. As used in this Booklet, the
term funds transfer is equivalent to the term "funds transfer" as defined in Uniform Commercial Code, Article 4A. As
used in this Booklet, "Payment Orders" include,without limitation, requests for, and amendments and cancellations to a
funds transfer. A Payment Order may be requested for either the same business day or may be dated for a future day
(called a value-dated Payment Order).
(a) Payment Order
You may request Payment Orders from those of your accounts as we agree, in the format,times,and following the
restrictions as we may impose from time to time. We may require you to designate whether you wish to conduct
repetitive Payment Orders, non-repetitive Payment Orders, or both repetitive and non-repetitive Payment Orders.
Our online Cash Management platform allows you to initiate domestic ACH transactions and ACH transactions to
certain foreign countries and wires and international wires in U.S. dollars or take advantage of the exchange rates
for foreign currency money transfers.
(b) Rejection of Payment Orders
You acknowledge that we may reject any Payment Order that does not comply with the Terms and Conditions or
with the parameters as are set by us from time to time for Payment Orders. We may reject, without liability, any
Payment Order, including a "Value-Dated" Payment Order, if you fail to maintain sufficient collected funds in a
designated account or sufficient available funds in a credit line we have made available to you for the amount of
each Payment Order you request.
(c) Cancellation or Amendment of Payment Order
A Payment Order may be canceled or amended only if we have not transmitted the Payment Order or credited the
Beneficiary's account. To be effective, the communication canceling or amending the Payment Order must (i)
comply with the agreed upon security procedures and with such other terms and conditions as we set; and (ii) be
received by us at a time and in a manner that gives us a reasonable opportunity to act on the communication. We
will have no liability if cancellation or amendment is not effected.
(d) Foreign Currency Transactions
You acknowledge that foreign currency Payment Orders must be based on a currency that we trade and that all
rates of exchange will be the rate in effect at the time the Payment Order is received by us or at any other rate as
is agreed to by the parties. Outgoing foreign currency wires are given a Value Date, typically two days ahead of
the send date.We require the setting of a Value Date earlier than the settlement date to ensure that the funds can
be obtained in the designated currency prior to settlement. If the Payment Order is returned for any reason, you
agree to accept any foreign money credit refund in United States Dollars, based on our then-current buying rate
converting the currency to United States Dollars on the date of refund, less any charges and expenses incurred by
us.
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(e) Cross Border Entries
You acknowledge that Cross-Border payments must be based on a currency traded by us and that all rates of
exchange will be the rate in effect at the time the Payment Order is received by the Bank or at any other rate as is
agreed to by the parties. If the Payment Order is returned for any reason, Company agrees to accept any foreign
money credit refund in United States Dollars, based on Bank's then-current buying rate converting the currency to
United States Dollars on the date of refund, less any charges and expenses incurred by the Bank.
(f) Inconsistency of Name and Number
You acknowledge and agree that if a Payment Order identifies a Beneficiary or Receiver with a name and account
number that do not match, payment of the Payment Order may be made on the basis of the account number even
if the name of the account holder for that account does not match the name specified in the Payment Order, and
you will be obligated to pay the amount of the Payment Order in such event.
(g) Customer Only Transactions
You shall not submit a Payment Order on behalf of a third party without our prior written consent.
(h) Special Security Procedures
Special security procedures apply to Payment Orders. Please see Section 14(b)
(i) Terms and Conditions Applicable to Payment Orders through ACH Services
These Services permit qualifying customers to initiate credit entries or payments to a third party ("Credit Entries")
and/or debit entries or collections from a third party ("Debit Entries")all in accordance with this Booklet, the ACH
Rules,and the ACH Requirements. All ACH Services are provided subject to the ACH Requirements,and in the
event of any conflict between anything contained in the Terms and Conditions or any Bank policy, procedure,
statement or representation, on the one hand, and the ACH Requirements, on the other hand, the ACH
Requirements shall prevail and govern. You agree to comply with the ACH Requirements whether or not the Entry
is sent through the ACH system(for example,where we are the Receiver's bank in addition to being your bank and
the transfer is made solely within our own institution and not through the external ACH system, the requirements
for authorization under the ACH Requirements must still be followed). You agree to comply with the ACH
Requirements as are in effect from time to time, including any requirements governing the proper formatting of
Entries Defined terms used herein are to be defined in accordance with their definitions in the ACH Requirements.
Definitions of such terms are provided herein for convenience only, and the definitions in the ACH Requirements
shall control. We may suspend or terminate any ACH Services, including Third-Party Sender Services,at any time
upon notice to you in the event we make a determination, in our sole discretion, that continuation of the Services
subjects us to unacceptable risks. Suspension or termination of Services does not affect either your or our rights
or obligations with respect to Entries initiated prior to such suspension or termination.
(i)(i) Originator-When you initiate a Credit Entry or a Debit Entry, you are acting as an Originator of an Entry
under the ACH Rules,and we are the Originating Depository Financial Institution("ODFI")under the ACH Rules.
When you originate a Credit Entry to or a Debit Entry from a third party, the third party is a Receiver under the
ACH Rules, and the bank that holds the deposit account from which the Entry is debited or to which the Entry is
credited is the Receiving Depository Financial Institution("RDFI")under the ACH Rules.
(i)(ii)Transmittal of ACH Entries- If approved for the ACH Service,you shall transmit Credit Entries and/or Debit
Entries, as appropriate, to us to the location(s) and in compliance with the formatting and other requirements
provided to you by us.You agree that your ability to originate Entries under this Booklet is subject to exposure
limits in accordance with any Funding Limits set by us.
M(iii)ACH Transaction Exposure Limits - Our internal risk control procedures include a determination of ACH
credit exposure limits for all ACH customers. ACH debit exposure limits are also established for customers
approved by us for originating Debit Entries. These ACH exposure limits can include, but are not necessarily
limited to: (i)total dollar value of individual ACH files transmitted to us; (ii)dollar value or number of individual
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ACH Entries within each file; (iii)frequency of origination of ACH files; and (iv)consideration of total exposure to
us over multiple settlement dates related to all unsettled files originated by you. You agree to comply with the
exposure limits we establish for you from time to time. You understand and agree that any file or file Entry
received by us that would exceed any of the exposure limits established for you may, in our sole discretion, be
delayed or rejected, and we will have no liability to you for any damages or losses you may incur arising from
our election to delay or reject such files or Entries.
(i)(iv) Processing,Transmittal and Settlement of ACH Entries-We will process Debit Entries and Credit Entries
received from you that conform to our established file specifications, transmit such Entries as ODFI to the ACH
Operator and settle such Entries, all in accordance with the ACH Rules. We will use reasonable efforts to
transmit such Entries to the ACH Operator in accordance with the file receipt cutoff times and transmission
timeframes set forth in our ACH Processing Schedule, as amended from time to time. Ask us for a copy of our
current ACH Processing Schedule. In the event Entries are not transmitted on the date of receipt,we generally
will transmit such Entries on the next Banking Day on which we and the ACH Operator are open for business.
We cannot guarantee the day of settlement of any Entries,including On-Us Entries.
(i)(v) On-Us Entries - If an Entry is received for debit from or credit to an account maintained with us, it is
considered an "On-Us Entry." On-Us Entries often settle sooner than other Entries. Please see our ACH
Processing Schedule. Settlement of all Entries is in accordance with and subject to the ACH Rules.
) Payment for Services; Settlement Options
(j)(i) Payment for ACH Services - You agree to pay us the charges for ACH Services we provide to you in
accordance with our current Fee Schedule, as that schedule is added to, deleted from or otherwise amended
from time to time. In addition, you agree to pay us the amount of any sales, use,excise, value added, utility or
other similar taxes imposed on such Services(other than taxes imposed on us based upon our income),as well
as any fees for related Services at our standard rates for such Services to the extent such Services are incurred
in connection with providing ACH Services.
(j)(ii) Settlement Options -You must pay us the amount of each Credit Entry and each reversal of a Debit
Entry on or before the settlement date(the"Settlement Date"as specified in the ACH Rules)for the transaction.
(j)(iii) Payment Account - We may, without prior notice or demand, obtain payment of any amount due and
payable to us for ACH transactions by debiting the accounts designated by you for such transactions (the
"Designated ACH Accounts"). Unless we make alternative arrangements with you, the Designated ACH
Accounts will also be the accounts to which Credit Entries are credited. You are required to maintain a sufficient
balance in the Designated ACH Accounts at all times to cover expected transaction dollars originated by you. In
the event there are not sufficient funds in the Designated ACH Accounts to cover your obligations for submitted
transactions, including amounts owed to us for reversals and for fees and other amounts owed to us, we may
set off or debit such amounts from any other accounts you have with us (including any accounts in which you
hold an interest with any other person or entity or in another capacity), whether established at the time the
Designated ACH Accounts are established or established at some later time. You further agree that we may, at
any time, require you to establish a reserve account(the "Reserve Account") into which we may deposit funds
withdrawn by us from those other accounts to ensure that you will have sufficient funds to cover your payment
obligations for ACH transactions. We will notify you if we require a Reserve Account and if we require any
increase in the Reserve Account from time to time. You agree that we are not liable for nonpayment of any
checks drawn against accounts from which we withdraw funds in order to fund the Reserve Account.
Transactions submitted to us may be delayed until we are able to satisfy ourselves that the funds in the
Designated ACH Accounts will be sufficient to satisfy any funding needs. In the event you terminate your
relationship with us or otherwise close Designated ACH Accounts, in our sole discretion, we may continue to
hold funds in the Designated ACH Accounts or Reserve Account up to three (3) years or until all outstanding
transactions or returns have cleared and the timeframe for rejection or return has expired.
(j)(iv) Funding Limits -We offer both Credit Guidance and Pre-Funding as two methods to providing you with
Funding Limits.
(j)(v) Credit Guidance - - If you are approved for a Credit Guidance, we will settle to your account on the
effective date (an "Effective Entry Date" as defined in the ACH Rules)of the items originated. In the case of
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Credit Entries, we will debit your account on the Effective Entry Date. In the case of Debit Entries, we will fund
your account on the Effective Entry Date.
(j)(vi) Pre-Fund. - In the event you are not approved for a Credit Guidance, you may be approved to initiate
entries on a pre-funded ("Pre-Funded") basis. Under this option, before we will transmit Credit Entries to
Receivers, your designated deposit account must have sufficient available funds to cover the amount of those
Credit Entries. We will utilize the Presentment Date for settlement and will debit funds directly from your
designated account on the day Entries are received. You must present Credit Entries to us not less than one
banking day prior to the Effective Settlement Date of such Credit Entries. As to Debit Entries,we will fund your
designated account for the offsetting amount of those Debit Entries on the Effective Settlement Date. We may
place all or a portion of the funds represented by the Debit Entries on hold for a pre-determined number of
Banking Days following the Effective Settlement Date. We will provide you with hold terms for Pre-Funded Debit
Entries in writing. The pre-determined number of hold days and portion(s) of hold(s) may be adjusted
periodically based on your originations and returns. We will advise you if the hold portions and number of days
are adjusted. .
(j)(vii)Debit Entries on the Effective Settlement Date.-We may place all or a portion of the funds represented by
the Debit Entries on hold for a pre-determined number of Banking Days following the Effective Settlement Date.
We will provide you with hold terms for Pre-Funded Debit Entries in writing. The pre-determined number of hold
days and portion(s) of hold(s) may be adjusted periodically based on your originations and returns. We will
advise you if the hold portions and number of days are adjusted. .
(j)(viii) Credit Guidance Conversion-We reserve the right to convert you from a Credit Guidance status to a
PreFund status at any time,with or without cause and with or without prior notice.
(j)(ix) Your Representations and Warranties Regarding ACH Entries - Each time you originate an Entry, you
represent and warrant to us that: (i) each person showing as the Receiver on an Entry has authorized the
transaction and the debiting or crediting of the designated account in the amount shown and on the Effective
Entry Date designated on the Entry; (ii)such authorization is in writing and signed by or similarly authenticated
for all Debit Entries; (iii) you have taken commercially reasonable measures to authenticate the Receiver; (iv)
such authorization is operative at the time of transmittal to us; (v) Entries transmitted to us by you are in
accordance with all requirements of this Booklet and the ACH Requirements; (vi) you will perform all your
obligations hereunder in accordance with all the ACH Requirements and all other applicable laws and
regulations, including the sanctions and laws administered by the federal Office of Foreign Assets Control; (vii)
for all Credit Entries, you are bound by and will comply with the ACH Requirements in effect from time to time,
including without limitation the provision of the ACH Rules that makes payment of an Entry provisional until final
settlement, and you specifically agree that if settlement is not received, we will be entitled to reverse such
transaction. You further agree to indemnify us from and against any losses or expenses we may incur as a
result of any breach of these representations and warranties. In the event you violate any applicable Rules or
regulations and a fine is imposed on us due to your negligence, whether caused willfully, by negligence or
otherwise,we may charge, and you agree to pay,such fine, including fees for research,attorney's charges and
other related costs to the violation.
(j)(x) Rejection of Entries -We may reject any Entries that do not conform to the requirements set forth herein
and in the ACH Requirements and any other standards,guidelines or procedures we may establish from time to
time. We may also reject any Entry that specifies an Effective Entry Date that is more than 30 calendar days
after the date of receipt of the Entry by us. You agree that if we elect in our discretion to process a file or file
Entry that would be subject to rejection for any reason, such action does not result in a waiver of our right to
reject future files or file Entries that are otherwise subject to rejection. We have the right to reject On-Us Entries
that would be subject to rejection or return under the ACH Rules if processed through an ACH Operator. We
also have the right to reject any Entry or file that we believe in our reasonable judgment might be contrary to
applicable law or that might subject us to unacceptable risk. We will notify you by telephone or by another
method of such rejection no later than the close of business on the Banking Day on which we would otherwise
transmit such file or Entry. We will notify you of such rejections no later than the Banking Day such Entry would
otherwise have been transmitted by us to the ACH Operator or, in the case of an On-Us entry, the Effective
Entry Date. Notices of rejection will be effective when given. We will have no liability to you for any rejection of
an Entry or file as provided herein or for failure to provide timely notice of rejection to you.
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(j)(xi) Disputes with Receivers - In the event that we become involved in any dispute between you and any
Receiver(s) relating to any Entry, you agree to hold us harmless and to indemnify us, our officers, directors,
employees,and agents against claims, liabilities,and expenses arising out of the dispute.
(j)(xii) Cancellation or Amendment of Entries -You have no legal right to cancel or amend any Entry after we
receive it, but we will generally use reasonable efforts to act on a request by you for cancellation or amendment
of an Entry if we can do so prior to its transmission to the ACH Operator or, in the case of an On-Us Entry,prior
to debiting or crediting the Receiver's account. We are not able to cancel or amend any Entry after it has been
transmitted to the ACH Operator.
(j)(xiii) Permissible SEC Codes - Once approved as an ACH Originator, upon review of your business needs,
you will be approved to transmit Entries using specific Standard Entry Class(SEC)Codes. Should you transmit
Entries to us using SEC Codes other than those previously approved, at our sole discretion, your file may be
rejected and may not be transmitted by us to the ACH Operator or may be transmitted. In either case,you are
obligated to comply with all applicable ACH Requirements and applicable laws.
(j)(xiv) Returned ACH Entries - We will notify you either by phone, electronic transmission or by mail of the
receipt of a returned Entry from an ACH Operator no later than one Banking Day after the Banking Day of such
receipt. Except for an Entry retransmitted by you in accordance with the ACH Rules,we shall have no obligation
to retransmit a returned Entry to the ACH Operator if we complied with the terms of this Booklet with respect to
the original Entry.
(j)(xv) Notices - We will provide you with all information, as required by the ACH Rules, with respect to each
Notification of Change (NOC) Entry or Corrected Notification of Change (Corrected NOC) Entry received by us
relating to Entries transmitted by you. We will provide such information to you within two Banking Days of the
Settlement Date of each NOC or Corrected NOC Entry. You are obligated to ensure that changes requested by
the NOC or Corrected NOC are made within six(6) Banking Days of your receipt of the NOC information from
us or prior to initiating another Entry to the Receiver's account,whichever is later.Should you receive notice that
any ACH pre-notification has been rejected, you agree not to initiate any Entry until the cause for rejection has
been corrected and another pre-notification has been submitted and accepted by the RDFI. You shall cease
initiating Entries immediately upon receipt of any actual or constructive notice of Receiver's termination or
revocation of authority.
(j)(xvi)Returns will be monitored for excess activity. You agree to work with us should you have returns that are
deemed excessive or if we receive notice from any regulatory or governing body of excessive returns. ,
(j)(xvii) Reconciliation of the Designated ACH Account - Entries transmitted by us or credited to a Receiver's
account maintained with us will be reflected on your periodic statement for the Designated ACH Account. You
agree to notify us within thirty(30)calendar days of any discrepancy between your records and the information
shown on your periodic statement. If you do not notify us within thirty(30)calendar days after the first periodic
statement on which a discrepancy appears, you agree that we are not liable for any and all losses and/or other
discrepancies that result from your failure to give notice within such timeframe. You agree that you waive any
right to dispute a transaction in the event you fail to notify us of the discrepancy within thirty(30)days after your
receipt of the first periodic statement on which the discrepancy appears.
(j)(xviii)ACH File Transmissions- You may transmit ACH files directly to our ACH department from a personal
computer controlled by you or by use of third-party processor engaged by you. You also may transmit ACH files
to us through our online Cash Management platform. If you use our online Cash Management Platform, then
the procedures for that platform will be provided to you separately, and those procedures will apply. If you do
not use our online Cash Management Platform, then the following procedures will apply. In the event you
transmit files through a third-party processor, the third-party processor will be acting as your authorized
representative and you will be responsible for ensuring that the third-party processor complies with all of the
following requirements on your behalf.
(j)(xix)Authorized Computers-We will authorize and license you to use one or more computers for transmitting
your ACH files to us. You are solely responsible for access by your employees or other authorized
representatives to the authorized computers and to the data files maintained on the computer. Your authorized
representative will be able to access the ACH system by utilizing prearranged logon procedures consisting of
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user identification names and passwords. Your authorized representative will provide us with verification of the
totals contained in the transmission by communicating totals via telephone to our automated voice response
system ("VRS"). Procedures and personal identification numbers for use of the VRS will be provided to you
separately. In the event you or your authorized representatives are unable to communicate totals to us in this
manner, your authorized representative may send a facsimile notification to us containing the file totals.
Facsimile notifications should be provided on your company letterhead, reference the exact name contained in
our records as accountholder and contain an authorized signature.
(j)(xx) ACH Scheduling Service - If you use our ACH Scheduling Service, we will anticipate the receipt of an
ACH file transmission from you on each scheduled processing date identified by you in writing on our form of
ACH File Transmission Calendar (subject to our acceptance and approval). You are responsible for ensuring
that we receive a transmission on each scheduled processing date or for notifying us if a transmission will not
take place on a scheduled processing date. You are also solely responsible for ensuring that we receive any
new or updated processing schedules as required. We are not responsible for untimely or erroneous ACH file
transmissions that occur as a result of changes to your established processing schedule if not communicated to
us in a timely manner and accepted and approved by us.
(j)(xxi)ACH Totals-We will verify that the file totals agree with the information given to us by you by telephone
or facsimile transmission or other previously agreed upon media. In the event of a discrepancy in the totals,we
will contact your specified authorized representative. If an authorized representative is not available,we will not
process the file until an authorized representative can be contacted on the following Banking Day.
(j)(xxii) ACH Data Integrity-You are solely responsible for the accurate creation, modification, and deletion of
the account information maintained on your personal computer and used for ACH transactions. You agree to
comply with any written procedures provided to you by us for the creation, maintenance and initiation of ACH
transactions.
(j)(xxiii)Retention of Records-You must retain data on all files adequate to permit us to recreate all Entries for a
period of at least thirty(30)calendar days following the date you transmit the files to us for processing,and you
must provide copies to us upon our request. You must retain all written authorizations for ACH Entries for a
period of at least two years following the date on which such authorizations expire. For recurring Entries, you
must retain authorizations for a period of not less than two years following termination or revocation of the
original authorization. If you originate RCK Entries, authorizations must be maintained for at least seven years
following the settlement date.
(j)(xxiv) Reversing ACH Entries - In the event of duplicate or erroneous files, as defined in the ACH Rules, we
will allow you to send reversing Entries. Reversals must be made within five(5)days of the original settlement
date per the ACH Rules. You must notify the Receiver by the end of the day on the settlement date for any
reversed Entry submitted by you. You may make this notification by any reasonable method you choose.
(j)(xxv) Duty to furnish Documents - From time to time, we may be required to obtain Receiver authorizations.
You agree to furnish us with copies of Receiver authorizations or other documents within five(5) business days
of our initial request. Documents shall be provided by you to us at your own expense.
(k) Money Transfer Service
You can initiate the transfer of funds from your accounts with us using our Online Cash Management platform.
Using this online Money Transfer Service, you can transfer funds and adjust balance levels in your accounts and
shall pay Bank charges for the Services provided herein according to the Bank's current fee schedule. You must
provide information to us regarding the transaction and recipient as requested by us in order to comply with legal
and regulatory requirements and our internal policies and procedures. Note: i) Intermediary and beneficiary
institutions may also assess a fee with the result that the payee/beneficiary may receive an amount that is less
than the face value of a money transfer. ii) Beneficiary's complete International Bank Account Number (IBAN) is
required for wires sent to Europe. An incomplete/missing IBAN may result in a wire reject or return with additional
charges assessed by the receiving bank. iii)wires sent to Mexico require an 18-digit CLABE as the beneficiary's
account number.
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(I) Terms and Conditions Applicable to Wire Transfers
These Services permit qualifying customers to initiate wire transfers in accordance with this Booklet and applicable
state and federal laws and regulations and other applicable legal requirements (collectively, the 'Wire Transfer
Requirements"). All Wire Transfer Services are provided subject to the Wire Transfer Requirements. You agree to
comply with the Wire Transfer Requirements.
The Wire Transfer Services are also subject to the requirements described above under"Money Transfer Service."
53. Positive Pay Services
Under our Positive Pay Service,you have three options.
(a) Traditional Positive Pay Service
With the Traditional Positive Pay Service,you agree to provide to us the following Issue Information for each Item:
(i) Item serial number; (ii)dollar amount of the Item; and (iii) Item issuance date. Using your Issue Information,we
will deliver to you on each Banking Day a Reported Item List that allows you to return unauthorized Items. Items
which do not match the Issue Information will be flagged and made available to you, so that you can make a
pay/no-pay decision on each flagged Item. Under the Traditional Positive Pay Service, you will receive account
reconcilement reporting; however, you must agree to have our Account Reconcilement Service (Traditional
Service) to receive such reporting. For more information on how the Traditional Positive Pay Service works
including, without limitation, delivery and cutoff times, reporting features, and each party's responsibilities and
obligations, please refer to the User Materials.
(b) Stand-Alone Positive Pay Service
With the Stand-Alone Positive Pay Service, you agree to provide to us the following Issue Information for each
Item: (i) Item serial number; (ii) dollar amount of the Item; and (iii) Item issuance date. Using your Issue
Information,we will deliver to you on each Banking Day a Reported Item List that allows you to return unauthorized
Items. Items which do not match the Issue Information will be flagged and made available to you, so that you can
make a pay/no-pay decision on each flagged Item. There will be no account reconcilement related reporting
available with the Stand-Alone Positive Pay Service. For more information on how the Stand-Alone Positive Pay
Service works including, without limitation, delivery and cutoff times, reporting features, and each party's
responsibilities and obligations, please refer to the User Materials.
(C) Payee Positive Pay Service
With the Payee Positive Pay Service, you agree to provide to us the following Issue Information for each Item: (i)
the payee name(s)on the Item; (ii) Item serial number; (iii)dollar amount of the Item; and (iv) Item issuance date.
You will provide us with pay or return instructions for Items that either do not have a payee match or that have a
payee match but that do not match the MICR information provided to us by you. Account reconcilement related
reporting is available for the Payee Positive Pay Service if you agree to have our Account Reconcilement Service
(Traditional Service). For more information on how the Payee Positive Pay Service works including, without
limitation, delivery and cutoff times, reporting features, and each party's responsibilities and obligations, please
refer to the User Materials.
(d) General Terms and Conditions Applicable to All Positive Pay Services
(d)(i) If the Issue Information you provide does not precisely match the information captured from the Item during
the course of processing operations,then we or our Servicer will create a Reported Item List. From time to time in
advance, we or our Servicer may permit you to establish parameters for Items you wish to appear on your
Reported Item List.
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(d)(ii)You agree to tell us whether you want the Items listed on the Reported Items List to be paid or rejected from
payment. You must advise us of your wishes in the manner and in the timeframes established in the User
Materials. You shall provide us with standing instructions that we will implement in the event we do not hear from
you within the required timeframes. Those instructions shall be either to"pay all"or"return all." You agree that in
the event you fail to place standing instructions on file with us, we will adopt the"pay all"approach. We will then
pay all Items subject to the availability of funds on deposit. In our sole discretion, we may overdraw your account.
We are entitled to conclusively rely on your "pay" or "retum" instructions. Further, in the event we receive no
instructions from you and adopt the default"pay all"approach, the default approach shall be conclusively deemed
to be the equivalent of your express instruction to"pay all"Items.
(d)(iii) If an Item on the Reported Items List is paid, either by you or by your standing instruction, the issue
information will be updated by the information from the Item.
(d)(iv) Any Items rejected under a Positive Pay Service will be marked 'Refer to Maker." You agree to respond
promptly to any inquiries regarding those Items. You understand that you may have liability for the payment of any
Item to a party, including us or Servicer, who is a holder or holder in due course under the Uniform Commercial
Code.
(d)(v)You agree that our duty(and the duty of Servicer,as applicable)to you is to provide the Reported Items List.
We shall have no responsibility or liability for payment of any check or draft which precisely matches the issue data
on file for any Item or account; except that if you claim an Item is not property payable due solely to a forged
endorsement or material alteration to the payee information, then the rights and responsibilities with regard to the
forged endorsement or material alteration shall be determined under applicable law. Further, you understand and
agree that we cannot return Items that have been cashed over-the-counter or otherwise paid prior to the time that
you: (i)instruct us to pay or return the Items and(ii)we have a reasonable time to act upon such instruction.
(d)(vi) Other than the duties specifically undertaken, as described above, you relieve us (and our Servicer) of all
liability,including liability related to obligations arising under applicable law,or otherwise concerning examination of
Items presented for payment, and you hold us (and Servicer) harmless from any and all claims made by anyone
(including, but not limited to claims regarding our refusal to honor Items presented for payment at any of our
offices, if we did not have accurate issue information regarding the Item at the time of presentment for payment)for
loss or damage, or for breach of security, or for breach of confidentiality of our data or records which may arise in
connection with the performance of the Positive Pay Services. We reserve the right to require you to place a stop
payment order on any Item to be returned. Any such stop payment orders will be subject to our customary stop
payment fees.
(d)(vii) You acknowledge that our Positive Pay Service is intended to be used to identify and return Items which
you suspect, in good faith, are fraudulent. The Positive Pay Service is not intended to be used as a substitute for
your placing stop payment orders on Items which you do not wish to be paid and which are not suspected as being
fraudulent. If we suspect or conclude,in our sole discretion,that you are using the Positive Pay Service in violation
of the previous sentence, we may require you to provide evidence that Items we return pursuant to your
instructions were in fact fraudulent. We will hold you liable for losses we sustain on Items returned under the
Positive Pay Service which are not established as fraudulent Items.
(d)(viii) You acknowledge that your failure to use the Positive Pay Service could substantially increase the
likelihood of undetected fraudulent activity on your deposit account(s) and that it is neither unreasonable
nor unreasonable under the circumstances for us to require you to use our Positive Pay Service upon
request. You agree that if you fail to Implement the Positive Pay Service following our request that you do
so, you will be precluded from asserting any claim against us for paying an unauthorized, altered,
counterfeit or other fraudulent Item that the Positive Pay Service was designed to detect or deter, and we
will not be required to re-credit your deposit account or otherwise be liable to you for paying such item.
54. Remittance Banking Services (Lockbox)
You may direct your debtors and/or customers to forward their payments by check,or other paper item,to the post office
address we designate ("Designated Address"). We and any servicer we engage, acting on your behalf, shall have
exclusive and unrestricted access to mail directed to the Designated Address. We will endorse,on your behalf or at your
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reasonable request, checks and other deposited items that were sent to the Designated Address and appear to be for
deposit to your credit, even if you are a joint payee on the check. Items received at the Designated Address shall be
processed as agreed to both you and us and credited to the account you designate. Unless otherwise agreed to by both
parties, all collected funds shall be deemed to be your funds for all purposes e.g., adjustments, bankruptcy, levy,
attachment, and other forms of legal process. The crediting and collection of checks and other deposited items will be
handled under the terms and conditions as agreed upon by both parties.
55. Integrated Solutions Services
Our Integrated Solutions suite of Services provides you access to your designated accounts at Bank of the West using a
Bank of the West interface as a single point of entry through which you may directly conduct banking transactions using
your computer and your compatible third-party accounting system provider or software. Integrated Solutions allows you
to provide data and to make payments directly from your accounting systems without manually entering information. The
Integrated Solutions suite of Services includes Integrated Payables, Information Reporting, and Receivables as such
Services are made available by us.
Our provision of the Integrated Solutions Service to you is subject to, and you shall be bound by, all applicable terms,
provisions, or conditions of any service provider agreement between us and any service provider, and in the event of a
conflict between the terms of the Terms and Conditions and the applicable terms of any service provider agreement,the
terms of such the service provider agreement shall govern and control. You acknowledge and agree that you are not a
third party beneficiary of any service provider agreement and shall not have any direct claims or recourse against any
service provider, except to the extent expressly permitted by the terms of the service provider agreement and subject to
all limitations and disclaimers provided in such service provider agreement.
You acknowledge that the Integrated Solutions Service may involve the transmission of confidential consumer
information that may be subject to federal and/or state privacy laws and regulations. You shall comply with all federal
and state privacy laws and regulations including, without limitation, any breach notification requirements. Further, you
agree to notify us if a Integrated Solutions Request or any other information provided by you to us contains protected
health information subject to the federal Health Insurance Portability and Accountability Act of 1996 and regulations
promulgated thereunder by the U. S. Department of Health& Human Services.
You shall comply with all security procedures established by us for the Integrated Solutions Service. The specific
security procedures are set forth in Section 14 of this Booklet and the Integrated Solutions Security Procedures
Addendum attached hereto and included in this Booklet and the Terms and Conditions by this reference. Such security
procedures shall be amended from time to time in accordance with this Booklet. You agree that all Integrated Solutions
Requests contain sensitive banking information and shall only use secure transmission options provided by us. For
some Payment Orders and Services such as ACH, Wire Transfers and Online Banking, other established security
procedures are utilized when accessing such Services through the Integrated Solutions Service. You are solely
responsible for developing and maintaining your own internal security procedures to prevent errors and unauthorized
access to your computer systems and the Integrated Solutions Service by unauthorized employees,agents,vendors and
customers.You understand that while we determine the third-party accounting systems and software compatible with the
Integrated Solutions Service we are not responsible for these systems or software or computer hardware you choose.
We will not be liable or responsible to you for any errors or loss or unauthorized access to your accounts attributable to
the third-party accounting system or software or computer hardware.
You acknowledge that we have no obligation to maintain back-up copies of or your request for us to initiate a Integrated
Solutions transaction or any other information provided by you to us. You shall preserve all records relating to the
Integrated Solutions Service as required by law and as specified for the Integrated Solutions Services you use. You shall
permit us to examine,verify and copy such records upon our reasonable request and notice to you.
You agree that you (i) shall use the Integrated Solutions Service only in the ordinary course of your internal business
operations, (ii)shall not use the Integrated Solutions Service in violation of the terms of the Terms and Conditions , (iii)
shall not use the Integrated Solutions Service to conduct any type of service bureau or time-sharing operation or to
provide remote processing, network processing, network telecommunications or similar services to any person,whether
on a fee basis or otherwise, and (iv) shall ensure that the Integrated Solutions Service is used only by your authorized
users in accordance with any documentation we provide to you. In the event of any error in connection with the
Integrated Solutions Service or any Integrated Solutions transaction, you shall provide to us detailed documentation and
explanation, together with underlying data, to substantiate any error and to assist us in diagnosing, reproducing and
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correcting the error. You shall use any modifications, revisions, and updates in the Integrated Solutions Service,
including changes in programming languages, rules of operation and screen or report format, as and when they are
implemented and/or made available by us or our service provider. You agree to devote all equipment, facilities,
personnel and other resources reasonably necessary to implement the Integrated Solutions Service and to be trained in
the use of the Integrated Solutions Service, and we shall not be responsible for any delays or additional fees and costs
associated with your failure to timely perform such obligations.
(a) Integrated Payables
Integrated Payables is a service within the suite of Integrated Solutions Services. Our Integrated Payables Service offers
customers a solution to automate their accounts payable processing. The Integrated Payables Service creates a secure
gateway to exchange machine-to-machine payment information between the customer and Bank of the West. The
specific banking transactions available through Integrated Payables are more fully described in the Integrated Payables
User Materials which shall be amended from time to time in accordance with this Booklet. The Integrated Payables
Service works in conjunction with third-party accounting systems or software determined compatible by us in our sole
discretion. Not all third-party-accounting systems or software will be compatible with the Integrated Payables Service.
You agree that your requests to initiate payments utilizing the Integrated Payables Service shall be governed by this
Section 55, the sections of the Terms and Conditions governing the applicable payment mechanism, and all applicable
laws, rules and regulations governing the applicable payment mechanism. When the Integrated Payables Service is
used to access other the Bank's services, products, or payment facilities (including, without limitation, the wire transfer
service, check printing, ACH or credit card services when available), the terms, conditions, and agreements governing
such other services, products, and payment facilities remain in full force and effect, except as expressly modified or
amended by this Section 55.You agree to promptly execute and deliver to us any documentation we require to evidence
your agreement to our terms and conditions for services, products, and payment facilities accessed and used by you
through the use of the Integrated Payables Service; provided, that your use of the Integrated Payables Service to use,
access, and/or perform other Bank services, products, or transactions automatically constitutes your acceptance of and
agreement to any and all terms, conditions, and provisions in effect and imposed by us at the time of your use or
performance of such services and transactions without the execution of any related documentation by you. You agree to
be bound by and to comply with any and all documentation, instructional materials or technical information relating to the
use of the Integrated Payables Service that is made available to you by us or our service providers in connection with the
Integrated Payables Service,as amended from time to time.
You authorize us to execute all payment requests and settle to your account all payment requests delivered to us in
compliance with the Terms and Conditions and the applicable security procedures. You may from time to time request
that we initiate electronic payments using electronic payment channels such as the ACH, SWIFT and credit card
networks, wire transfer system, and other available electronic funds transfer systems (Please refer to the Integrated
Payables User Materials for available electronic payment channels as not all electronic payment channels may
be available through the Integrated Payables Service). For certain payment requests, you will have the option of
including an email address of the beneficiary/payee in the payment request to us,and if you provide such email address,
we will generate an email to the beneficiary/payee advising them of the incoming payment.
You must submit Integrated Payables transactions at or prior to the established deadline for processing on the Business
Day of receipt. Integrated Payables transactions received after the established deadline will be processed on the next
Business Day. All established deadlines are set forth in the Integrated Payables User Materials and subject to change.
We will notify you of any rejected Integrated Payables transactions in accordance with our standard procedures. You
represent and warrant to us that all information in each Integrated Payables transaction delivered to us shall be accurate,
timely and authorized and shall be in compliance with all applicable laws, rules and regulations. Accordingly, any
inaccuracy in the Integrated Payables transaction or information provided by you may result in unintended processing by
us. We are not responsible for detecting or reporting any error or inaccuracy in information provided by you and we shall
not be liable to you for any information or Integrated Payables transaction which is incorrect or incomplete.
You are solely responsible for scheduling and initiating any and all Integrated Payables Service transactions sufficiently
in advance of applicable due dates. We disclaim any and all representations or warranties, express or implied,that any
transaction executed through the Integrated Payables Service will be timely and/or properly received, processed, and
applied by any counterparty to such transaction. You assume all risk relating to the timely and proper scheduling,
initiation, processing,transmission, receipt,and application of Integrated Payables Service transactions,and you release
us from any and all claims, liabilities, and/or damages related thereto or arising or resulting therefrom. Except for those
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losses caused directly by our gross negligence or willful wrongful acts, you agree to indemnify, defend, and hold us and
our service provider harmless from and against any and all losses, costs, suits, damages, claims, liabilities, and
expenses (including, without limitation, reasonable attorneys' fees) arising from or related in any way to any
relationships, claims, or disputes between you and any and all counterparties to transactions executed by you through
the Integrated Payables Service (including, without limitation, payees of payment transactions executed through the
Integrated Payables Service).
We shall have no obligation to permit you to amend, modify, cancel, or stop payment on an Integrated Payables
transactions after you have initiated or submitted such transactions for execution through the Integrated Payables
Service. In the event we shall permit you to amend, modify, cancel, or stop payment on an Integrated Payables
transactions, you must act within applicable deadlines established by us for such purposes and otherwise afford us a
reasonable opportunity to respond to instructions to amend, modify, cancel, or stop payment on such Integrated
Payables transaction; provided, that in no event shall we have any liability to you or any counterparty to your Integrated
Payables transaction if we shall fail to execute or timely execute any instruction to amend, modify, cancel, or stop
payment on such Integrated Payables transaction.
Additional terms apply to Payment Orders. Please see Section 52.
56. Sweep Services.
(b) Deposit Sweep Service
Our Sweep Services allow you to transfer unused balances from your demand deposit account into a Eurodollar
deposit or Federal Funds deposit or used to purchase an interest in government securities (subject to an
agreement by us to automatically repurchase such securities on a set maturity date).
(c) Establishment of Investment Accounts
At your request, and with the Bank's approval, we will establish for you a non-FDIC insured account for your
Eurodollar deposit ("Eurodollar Account") your Federal Funds deposit ("Federal Funds Account"), or your
government securities repurchase account("Repo Account")in accordance with the information you provide to us.
(d) Rules Governing Eurodollar Account
The Eurodollar Account will consist of United States dollar-denominated overnight time deposits held at our
Cayman Islands Branch (a "Eurodollar Deposit"). The Eurodollar Deposit is issued by the Cayman Island Branch
and payable only at the Cayman Islands Branch, IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION, and is subject to cross-border risks. The Eurodollar Deposit is nontransferable and
nonnegotiable. By requesting a Eurodollar Account,you consent to the disclosure by our Cayman Islands Branch,
upon the request of any Cayman Islands, French or United States banking or other governmental authorities of all
documents and information concerning your customer relationship and accounts at the Cayman Islands Branch.
(e) Rules Governing Federal Funds Account
The Federal Funds Account will consist of United States dollar-denominated overnight time deposits held in our
account at the Federal Reserve Bank.
(f) Rules Governing Repo Account
The Repo Account will consist of securities that will be purchased by you from us from time to time, subject to our
agreement to repurchase such securities at a stated maturity date at the original purchase price plus interest at a
stated interest rate. You must execute a master securities repurchase agreement("Master Repo Agreement") in
order to have a Repo Account. The terms of the Master Repo Agreement will govern our relationship with respect
to funds in the Repo Account,pursuant to the terms of the Master Repo Agreement.
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(g) Automatic investment
We will monitor the balance of the deposit account(the"Sweep Account")that you designate for funds to be swept
into the Eurodollar Account, Fed Funds Account or Repo Account, as the case may be. At the close of business
on each Banking Day, we will automatically transfer all collected funds from the Sweep Account in excess of the
target balance you designate to us(the"Target Balance")into the Federal Funds Account or Repo Account,as you
have designated. However, in no event will we transfer less than $100,000 into the Eurodollar Account because
that is the minimum balance(unless it is a zero balance)for the Eurodollar Account.On the following Banking Day,
the principal amount in the Federal Funds Account, Eurodollar Account or Repo Account, plus any interest,will be
automatically transferred by us from the Federal Funds Account, Eurodollar Account or Repo Account to the
Sweep Account.
(h) interest Rates
The interest rate on the Federal Funds Account shall be the Federal Funds Target Rate as computed by the
Federal Open Market Committee. This rate is found in the official press statement by the Federal Open Market
Committee that follows their most recent regularly scheduled monetary policy meeting and is available online at the
Federal Reserve Board website. The interest rate on the Eurodollar Account is a variable rate indexed to the
overnight Eurodollar Deposit rate, effective from time to time at our Cayman Islands Branch. Our Eurodollar
Deposit rate is indexed to our Federal Funds rate and will change with the Federal Funds rate, as often as daily.
The interest rate on the Repo Account will be calculated by subtracting the number of basis points quoted by us at
the time the Repo Account is established as the Initial Interest Discount from the overnight Federal Funds rate set
by the Federal Reserve Bank. Interest on the Federal Funds Account, Eurodollar Account or Repo Account will be
calculated on a simple and daily basis using a 360-day year. This means that the per annum rate will be divided
by 360 to arrive at a daily rate, which is then applied to the balance for each calendar day and credited to the
Sweep Account on the following Banking Day. For the Repo Account, interest as described above will be deemed
to include all payments of Pricing Differentials as described in the Master Repo Agreement, and we will pay the
quoted rate regardless of any fluctuation in the market price of underlying securities purchased under the Master
Repo Agreement. By requesting a Repo Account,you acknowledge and agree that the interest rate on your Repo
Account will not be related to the yield on any underlying securities in the Repo Account.
(I) Repo Account Securities Management
Pursuant to the Master Repo Agreement, you will purchase an interest in securities from us to be automatically
repurchased by us from you on a stated maturity date. For each securities purchase transaction, you will receive
an undivided interest in all securities held by a custodian bank for a portion of all of our repurchased transaction
customers. These securities will be investment-grade debt securities and will always have a market value that
equals or exceeds the stated balance of funds in your Repo Account. Your interest in those securities may be
subject to liens of third parties, may be used by us for deliveries on other securities transactions, and shall be
subject to our ability to satisfy any lien or to obtain substitute securities without prior notice to you.
(j) Repo Account Maturity
Your Repo Account will mature at the close of business one Banking Day following the effective day of each
securities transaction. However, on each Banking Day, the maturity date shall be automatically extended one
additional Banking Day(until the close of the immediately succeeding Banking Day) unless we give you notice to
close the Repo Account and to pay all amounts due as of such extended maturity date. You may close the Repo
Account at any time,effective on the tenth day after you give us written notice thereof, so long as you have paid us
all amounts then due. You will then receive any accrued but unpaid interest earned on the Repo Account through
the date of closing, but any fees debited to the Repo Account before the closing date, including monthly fees, will
be nonrefundable. On the date of closing of the Repo Account,we will reacquire all of your rights in the securities
held in the Repo Account.
(k) Security Interest in Securities Held in Repo Account
We will maintain the securities in the Repo Account with the custodian we select pursuant to the terms of the
Master Repo Agreement. We intend to transfer full ownership of your interest in the securities to you. However, in
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Cash Management Terms and Conditions
the event that the transfer of full ownership is invalidated for any reason,we here grant to you a security interest in
such securities to the extent of the ownership interest we intended to transfer, together with any proceeds, and
while we intend this security interest to be perfected by possession,we make no representation or warranty to you
regarding the perfection of your security interest or your ability to recover your funds by selling your interest in the
securities.
(I) Statements/Confirmations
An account statement detailing the activity between the Sweep Account and Eurodollar Account or Federal Funds
Account will be sent to you each month.
(m) Fees and other terms
The monthly fee for our Sweep Services is listed in our pricing schedule and will be automatically deducted each
month from your Sweep Account.
(n) Limitation of liability
In the event that we are unable to sweep funds into your Federal Funds Account or Eurodollar Account on any day
for any reason,we will not charge you fees for the Sweep Services for that day but we will not be liable to you for
any lost interest you may suffer.
(o) FDIC Eligibility
No FDIC Insurance of Federal Funds Account, Eurodollar Account or Repo Account. Your Sweep Account is
insured by the Federal Deposit Insurance Corporation up to the current maximum insurance limit (currently
generally $100,000), but your Eurodollar Account, Federal Funds Account or Repo Account is NOT INSURED BY
THE FDIC. This means that funds that are swept out of your Sweep Account and into your Eurodollar Account,
Federal Funds Account or Repo Account are not federally insured by the FDIC for the period of time they are in the
Eurodollar Account, Federal Funds Account or Repo Account. When the funds are swept back into the Sweep
Account,they are again insured by the FDIC.
(p) Loan Sweep Services
Our Loan Sweep Services allow you to automatically transfer funds between a revolving line of credit identified by
you (the "Loan Account") and a demand deposit account you maintain with us (the "Loan Sweep Deposit
Account").
(q) Transfer Between Loan Sweep Deposit Account and Loan Account
Each Banking Day,after all transactions for the day have been posted to the Loan Sweep Deposit Account and the
Loan Account,we will transfer funds between the Loan Sweep Deposit Account and the Loan Account as follows:
First,we will transfer any positive Available Balance or Ledger Balance(depending upon which you designate to us
in the setup of your Loan Sweep Services)that exceeds the Target Ceiling(also as designated by you in the setup
of your Loan Sweep Services)from the Loan Sweep Deposit Account to pay down the outstanding balance of the
Loan Account and to bring the Loan Sweep Deposit Account back to the Target Balance. If there is no outstanding
balance on the Loan Account, no transfer will be made. If the balance in the Loan Sweep Deposit Account is less
than the Target Floor, we will transfer from the Loan Account to the Loan Sweep Deposit Account an amount
sufficient (up to the maximum available credit limit)to bring the Loan Sweep Deposit Account balance back to the
Target Balance.
(r) Payment
Payment of any item presented against the Loan Sweep Deposit Account which would create an overdraft in the
Loan Sweep Deposit Account will only be made to the extent of the available credit limit in the Loan Account.
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(s) Insufficient funds
You agree that if at any time the Available Balance or Ledger Balance, as applicable, in your Loan Sweep Deposit
Account is insufficient to pay items presented to the Loan Sweep Deposit Account for payment, we may pay or
dishonor items in our sole discretion and in any order as we may determine, and you specifically waive any claims
against us for the same. Items paid or dishonored pursuant to this Section will be subject to any applicable fees
and charges. Other than as provided in this Section, no separate loan advances may be made from the Loan
Account. You will sign a separate Loan Agreement and pay interest on advances according to that Loan
Agreement. You hereby assign and grant to us a security interest in the Loan Sweep Deposit Account and any
future additional deposit accounts you may have with us as security for the performance of your obligations under
the Loan Agreement and the Terms and Conditions. Your rights in the Loan Sweep Deposit Account and any
other deposits you have with us are subordinate and junior to our rights to reimbursement for any withdrawals or
items paid from the Loan Sweep Deposit Account. Our rights and remedies as described herein are in addition to
all other rights and remedies that we may have under the Loan Agreement or any other applicable law.
57. TaxDirect Services
Our TaxDirect Services allow you to use touch-tone telephone or Internet to initiate Federal, State and certain local tax
deposits. Our performance of TaxDirect Services are conditioned upon your furnishing all requested data,
authorizations, and written instructions at the times and in the manner specified by us in the User Materials. We are
entitled to rely on the accuracy of any data furnished by you to us. When initiated via touch-tone telephone or Internet,
you are responsible for electronically inputting relevant data in accordance with the procedures and instructions
established by us from time to time,and such data will subsequently be processed by us.
(a) Deposit Account;Sufficient Funds
You agree to maintain with us a commercial bank account("the TaxDirect Deposit Account")with sufficient funds to
cover all tax deposits and other fees and charges related to the TaxDirect Services. You hereby authorize us to
charge the TaxDirect Deposit Account for the amount of each tax deposit, as related by you to us. In the event you
fail to maintain sufficient funds in the TaxDirect Deposit Account, we shall have no obligation to perform the
TaxDirect Services or make any tax deposit for you even if we have received instructions to do so. In the event we,
in our discretion, overdraft the TaxDirect Deposit Account to make tax deposit disbursements, we shall not be
obligated to do so in the future, regardless of the number of times we have previously allowed such overdrafts.
You are liable for the payment of any disbursement made by us for TaxDirect Services even though there are
insufficient funds in the TaxDirect Deposit Account at the time the disbursements are made.
(b) Duty to Maintain Records
Nothing herein shall relieve you of any duty imposed by law or contract regarding the maintaining of records or
from employing adequate audit, account and review practices customarily followed by similar businesses. You
agree to promptly review for accuracy all records and information delivered from time to time to you by us and
promptly notify us of any errors. You will retain a copy of all of your source documents, including without limitation
your completed TaxDirect Service Application,any User Materials,the Terms and Conditions,completed state and
federal tax agency authorization forms for you, tax payment information needed to make each tax deposit,
acknowledgment numbers generated after you initiate a tax payment request, and audit information or receipts
acknowledging or confirming the payment of your tax deposits. We may retain copies of any of the foregoing
documents, information or receipts, but we are not required to do so under the Terms and Conditions or any other
contract or other obligation to you.
(c) Service Limited to You
Only you may use the TaxDirect Services. You may not provide your access code or personal identification
number to any third party, nor may you initiate a tax deposit on behalf of any other consumer or entity.
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(d) We Are Acting Only as Your Agent
In performing the TaxDirect Services, we are acting only as your agent. Any tax deposit funds received from you
by us will remain a deposit liability of us to you and will not be trust funds until we deposit the same to the credit of
the appropriate governmental agency on the tax due date or otherwise makes such funds available to the
governmental agency. Funds held by us for you will not bear interest and may be invested by us solely for our own
benefit, but any such investment shall be at our risk. You will be entitled to recover any funds held by us prior to
the time such funds are credited or otherwise made available to the governmental agency upon written notice to us
given in time for us to act thereon.
58. Third Party Depository Services
Our Third Party Depository Service provides a delivery channel for you to make cash or check deposits at
branches or processing centers of a third party with whom we have a contractual arrangement. This service
enables your out-of market- or out-of-state locations that are not in close proximity to a BOW branch to make
deposits. You must use specified deposit documents for the Service. The Service does not include check cashing
at the third party locations. Deposits submitted prior to the established cutoff hour will be posted to your BOW
account our next banking day.
(a) Your responsibilities
You agree to make any such deposits under the Service in accordance with the form, format, and instructions
provided to you,and that any failure to follow these instructions may result in a delay in the posting of your deposit.
(b) Deposit Discrepancies
Any deposit discrepancy, such as an adjustment or a returned check, will be reported to us by the third party and
will be debited or credited to your account in the usual manner.
(C) Notifications
You agree to contact us regarding any questions or other issues that may arise under the Service. Any notice to
the third party regarding the Service does not constitute notice to BOW.
59. Zero Balance Accounting Services
If your company disburses funds from multiple accounts or maintains a number of different depository accounts,the Zero
Balance Accounting Service may assist you. Under this Service you designate a primary demand deposit account,
called the"Concentration Account,"and secondary accounts,called"Tier Account(s)". You authorize us to transfer funds
between the Concentration Account and Tier Accounts in order to bring the respective balance of the Tier Account(s)to
(1)the target balance or(2)the balance that you have selected as of the close of each Banking Day. Any debits to the
Tier Accounts that reduce the balance in the Tier Account to a sum less than the target balance will be funded
automatically from the Concentration Account. You may draw checks (or arrange for other debits) against the
Concentration and/or Tier Accounts. We will pay those checks up to the collected and available balance on deposit in
the Tier and/or Concentration Account. You agree that we are not acting as a fiduciary with respect to funds in either the
Concentration Account or in any Tier Account. If any Concentration Account or Tier Account is under different
ownership, all owners must join in the Terms and Conditions and each accepts any financial liability for co-mingling
and/or for the movement of funds between Concentration and Tier Accounts.
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GLOSSARY
Account Agreement means your signature card, the Deposit Account Disclosure for Business Accounts (Disclosure
Statement and Agreement),and the current Schedule of Fees and Charges for Business Deposit Accounts.
Access shall include(i)retrieval and/or storage or processing of you Data on the Bank System, (ii)retrieval or receipt of
you Data by the Bank System,and(iii)physical access to the components of the Bank System.
ACH shall mean the automated clearinghouse.
ACH Operator means either the Federal Reserve ACH Operator or the EPN(Electronic Payments Network)private ACH
Operator.
ACH Requirements means the Uniform Commercial Code, applicable state and federal laws and regulations, including,
without limitation, the Electronic Funds Transfer Act and Federal Reserve Regulation E, all applicable Federal Reserve
Bank operating circulars, including without limitation Operating Circular No. 4, applicable Federal Reserve Bank
procedures, and the Internal Revenue Code and Internal Revenue Service regulations (with respect to federal tax
payments made through the ACH system)and including the ACH Rules.
ACH Rules means the current rules,regulations,operating procedures and guidelines of NACHA.
ANSI X9.37 Standards refers to the Accredited Standards Committee X9 standards and technical guide Specifications
for Electronic Exchange of Check and Image Data.
Authorized User means any person or entity you authorize to use any Service or to access any your accounts, or
reasonably believed by Bank to have been authorized by you to use any Service or to access any of your accounts,
including (without limitation) any person or entity to which you have provided or disclosed a Security Device or made
available or disclosed any Security Procedures, or any person or entity knowing or in possession of a Security Device or
Security Procedure without regard to whether such person or entity gained access to or possession of the Security
Device or Security Procedure from you, and/or any person or entity expressly authorized to use any Service or access
any of your accounts. Any Authorized User shall continue to be an Authorized User unless and until you have notified
us, according to notification procedures prescribed by us, that such person or entity is no longer an Authorized User and
until we have had a reasonable opportunity to act upon such notice.
Banking Day means Monday through Friday, excluding weekends and Federal holidays, even if we are open for
business.
Beneficiary means the person to be paid on a Payment Order by the beneficiary's bank.
Business Day means a day on which a person is open for transaction of general business.
Cashier's Checks means checks drawn by the Bank on itself.
Check Image means an electronic image of an original check (including a substitute check) and the accompanying
MICR data information created by you in connection with the Service.
Check 21 means the Check Clearing for the 21st Century Act(12 U.S.C.5001-5018)as it may be amended from time to
time.
Equipment means equipment, hardware, software, including, without limitation, PCs, modems, phone lines, hardware,
and any attachments necessary to perform the requested Service.
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Erroneous Transmission means a facsimile transmission sent to you that, on its face, is not intended for you or a data
transmission received by you that was corrupted during transmission resulting in incomplete or missing data as
determined by a mismatch between the record count which is available following the end of the transmission.
Expedited Funds Availability Act (EFA Act-12 U.S.C. 4001-4010) requires banks to disclose their funds availability
policies and requires standardization of hold policies. The act is implemented through Regulation CC as it may change
from time to time.
Funding Account means the account you have designated for funding withdrawals from the Controlled Disbursement
Account.
ICL File means an image Cash Letter File, an electronic transmission of check images and MICR line data sent to the
Bank.
Issue information means the information you provide to us regarding Items issued on your deposit account. Depending
on the Service, Issue information may include(i)payee name(s)on the Item; (ii) Item serial number; (iii)dollar amount of
the Item;and (iv)the Item issuance date.
MICR data means Magnetic ink Character Recognition information in compliance with various ANSI X9 standards
covering MICR placement, quality and image replacement documents NACHA means the National Automated
Clearinghouse Association.
Original Check means the paper check that you scan to create a check image.
Payment Orders has the same definition as given in Division 11 of California's Commercial Code, "an instruction of a
sender to a receiving bank,transmitted orally, electronically,or in writing,to pay,or to cause another bank to pay,a fixed
or determinable amount of money to a beneficiary if all of the following apply: (a) The instruction does not state a
condition to payment to the beneficiary other than time of payment; (b) The receiving bank is to be reimbursed by
debiting an account of, or otherwise receiving payment from, the sender: (c)The instruction is transmitted by the sender
directly to the receiving bank or to an agent, funds transfer system, or communication system for transmittal to the
receiving bank."
Regulation CC means Federal Reserve Board Regulation CC: Availability of Funds and Collection of Checks, 12 C.F.R.
Part 229,as it may be amended from time to time.
Reported Item List This term applies with respect to a Positive Pay Service and means a transmission from us which
includes either: (I) all Items which have been presented but which do not "match" your issue information by serial
number, payee name, and/or dollar amount of paper checks or drafts issued; or (ii) a "nil" report if all presented Items
match the serial numbers, payee name,and dollar amount on your issue information or if no paper checks or drafts were
presented for payment.
Security Device means, without limitation, any code, password, personal identification number, user identification
technology, token, certificate, or other element, means, or method of authentication or identification used in connection
with a Security Procedure.
Servicer's Banking Day shall refer to any day a servicer's principal office is open to perform services.
Services means any cash management service which you obtain through us.
Services Account Disclosure means the disclosure provided to those customers that use the Controlled Disbursement
Service through a servicer.
Software means the executable code version of a computer software product that is supplied to or licensed to you by or
through us in connection with any Service (and shall include without limitation, all software supplied as part of any
update,enhancement, patch,bug fix, maintenance release,customization, upgrade,or modification of that software).
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Substitute Check or IRD (Image Replacement Document) means a copy of an original check, created from a check
image, which is similar in size to an original check with a slightly reduced image of the front and back of the original
check. Substitute checks should meet ANSI X9.90 standards. The term substitute check shall have the meaning set
forth in Check 21 and Regulation CC,as it may be amended from time to time.
User Materials means any set up forms, user manuals, reference cards or other product description materials, including
online messages.
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Attachment "E"
RESOLUTION NUMBER 6653
A RESOLUTION OF THE SEAL BEACH CITY COUNCIL
APPROVING THE AUTHORIZATION AND AGREEMENT FOR
CASH MANAGEMENT SERVICES BETWEEN THE CITY AND
BANK OF THE WEST AND AUTHORIZING THE CITY MANAGER
TO EXECUTE THE AGREEMENT AND RELATED DOCUMENTS
THE SEAL BEACH CITY COUNCIL DOES HEREBY RESOLVE:
SECTION 1. On the recommendation of staff, the City Council approves the
establishment of a banking relationship with Bank of the West. The Authorization
and Agreement for Cash Management Services is hereby approved.
SECTION 2. City Manager Jill R. Ingram, Assistant City Manager Patrick
Gallegos, Director of Finance/City Treasurer Victoria L. Beatley and the
incumbent Mayor of the City of Seal Beach are authorized to enter into cash
management services agreements with Bank of the West, to designate from time
to time persons, in such number as may be directed, to manage any cash
management service, and otherwise give instructions as to this organization's
cash management services, consistent with the Seal Beach City Charter, Seal
Municipal Code and applicable law.
SECTION 3. The authority conferred is in addition to any authorizations in effect
and shall remain in force until Bank of the West receives written notice of its
revocation at the office where the account is maintained or at such other location
as the bank may direct.
SECTION 4. The City Council hereby authorizes and directs the City Manager to
execute the Agreement for Cash Management Services and related documents
on behalf of the City, and to terminate any other existing banking relationships.
PASSED, APPROVED and ADOPTED by the Seal Beach City Council at a
regular meeting held on the 27th day of June , 2016 by the following vote:
AYES: Council Members:
NOES: Council Members:
ABSENT: Council Members:
ABSTAIN: Council Members:
ATTEST: Sandra Massa Lavitt, Mayor
Resolution Number 6653
Robin Roberts, City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Robin Roberts, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 6653 on file in
the office of the City Clerk, passed, approved, and adopted by the Seal Beach
City Council at a regular meeting held on the 27th day of June , 2016.
Robin Roberts, City Clerk