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Grasshopper Bank Online Banking Master Services Agreement

This Grasshopper Bank Online Banking Master Services Agreement (“Agreement”) is made by and between you and Grasshopper Bank, National Association (“Bank”, “we” “us” “our”). This Agreement governs your use of our Business Online Banking, Mobile Banking, ACH, Wire, Remote Deposit Capture (“RDC Service”), and certain other online banking services, each as approved by Bank for your use, that we make available to you via the Mobile Application (“Mobile Services”) or otherwise via the Internet, and as further described in the Schedules hereto (collectively, the “Services”). The term “Client”, “you” or “your” refers to the corporation(s), partnership(s), association(s), sole proprietorship(s) or other non-consumer entity(s) having their principal place of business in the continental United States that has applied for, has been accepted to use any of the Services, and is identified in the Acceptance of Master Service Agreement (“Acceptance”), if this Agreement is accepted in writing using the Acceptance. “Account(s)” means your eligible Grasshopper Bank business checking, savings, loan, or certificate of deposit account and related information and other Bank products that can be accessed through the Service. The Grasshopper Bank Mobile Application (“App” or “Mobile Application”) and certain other aspects of the Service may be powered by software offered by a third party (“Licensor”). You may be required to enter into additional terms and conditions with a Licensor or other third party to use certain features of the Service (“Third-Party Terms”). This Agreement includes and incorporates by reference all Schedules and exhibits hereto, all Third-Party Terms, our Privacy Policy, our Mobile Terms and Conditions, and all other procedures, user guides, forms, exhibits, schedules, documents and agreements referenced herein or provided to you by the Bank (“Supporting Documents”), each as amended from time to time. To the extent any of the Services involve the Bank having granted the Client software license usage rights, such grant shall be a non-exclusive, non- transferable right to access and use the Service in connection with the Client’s own business operations in accordance with this Agreement.

Without limiting the generality of the foregoing, the Client agrees not to: (i) make the Service available, or allow use of the Service, in a computer bureau service business, or on a time sharing basis; or (ii) otherwise disclose or allow use of the Service by or for the benefit of any third party.

 

Please read this entire Agreement prior to using the Service. By enrolling in or using the Service, you acknowledge your receipt and understanding of, and agree to all terms and conditions of, this Agreement. The terms and conditions contained in this Agreement supplement the terms and conditions governing any Account, as amended from time to time (each, an “Account Agreement”). In the event of a conflict between any of your Account Agreement(s) and this Agreement, the Account Agreement controls. Please keep a copy of this Agreement for your records.

I.                 The Service.

 

  1. Description. Subject to the Bank’s prior approval, the Service may include the following: View balances and Account history on the Client’s linked Accounts; transfer funds between linked Accounts (limited to accounts with like vesting); request check stop payments; initiate funds transfer requests, originate automated clearing house (ACH) entries and wire transfers (collectively, “Origination Service”); initiate bill payments (“Bill Payment Service”); and remotely scan and deposit eligible checks to your Accounts (“RDC Service”), change Address on Account; and view Statements and Notices. Additional Business Online Banking Services may be added to or removed by the Bank from time to time. The Bank may allow loans and lines of credit to be linked, in which case, the Client agrees that the relevant loan agreement, note or other document is modified to the extent necessary to allow the transfers or other Services that may be utilized. The Bank may process transactions from loan Accounts without regard to access limitations in any loan documentation or agreements. Some Services may not be available without special application to and approval by the Bank, may be limited to specific types of accounts, and may require the Client to agree to additional terms and conditions.

 

II.               Enrollment and Accessing the Service

 

  1. Enrollment. To enroll for the Service, you must agree to this Agreement, complete the enrollment process and provide us with any other related forms, schedules or documents that we may require from time to time. You must also complete all instructions we provide to complete your enrollment in the Services. Our approval of any such forms that we require you to submit may be required in order to access and use the Service or certain features thereof, and we may reject your request to use the Services for any reason in our sole discretion. We may also require you to complete and sign an Acceptance in writing. You may be required to separately enroll in the Mobile Services or certain other features of the Service following the enrollment process we may require from time to time.

 

  1. Your Certification. By applying for, accessing or using the Services, you certify that this Agreement has been duly adopted by you in conformity with applicable laws and your organizational and governing instruments, and that no action contemplated by this Agreement will contravene any such law or instrument. You further certify that no further approval by you or any third party is required to authorize this Agreement or any action taken under this Agreement, and that this Agreement is your valid and legally binding obligation, enforceable against you in accordance with its terms. You certify that the Primary Administrator (defined below) and any other persons given access to the Services are authorized to act on your behalf until we have been provided with actual notice of a change and we have had adequate time to act on such notice. You agree to access and use the Services for business or commercial purposes only, and you acknowledge that each access or use of the Services constitutes acceptance, and is subject to the terms and conditions, of this Agreement.

 

  1. Accessing the Service. In order to use the Service, you are required to have one or more Accounts with us, and you must complete our enrollment process described in this Agreement. You must also download, access, and utilize the App and any other downloadable software to be used for access to the Services provided by us or a To use the Mobile Services, you must have an eligible mobile device with access to the Internet and the ability to download the App (“Wireless Access Device”). You must also provide us with the means of access to your Wireless Access Device, such as a telephone number. During the enrollment process, we may require you to verify your telephone number to associate your Wireless Access Device with the Service.

 

  1. Accessing Account Data. You can obtain balance and other Account information through the Services. Since certain information and transactions may not be processed by the Bank until after the close of the Bank’s Business Day, or otherwise in real time, some transactions may not be reflected in the online banking system in real Posted items may be reversed due to insufficient funds, stop payment orders, legal process, and other reasons. Certain balances also may not be available for immediate withdrawal. While the Bank endeavors to provide complete and accurate information, the Bank assumes no responsibility for any loss arising from incomplete or inaccurate information provided via the Service.

 

  1. Authorized Users. Client shall designate one or more individuals who are permitted to use the Service on behalf of the Client (“Authorized User”). We may also require you to designate one Authorized User as the Primary Administrator who may act as an Authorized User with the power to make and sign all agreements and deliver all documents in connection with the Services on behalf of the Client, determine which features of the Service will be available to the Client and Authorized Users, impose limitations on the Client’s and Authorized User’s use of the Service, designate and remove other Authorized Users, define the roles and permissions of other Authorized Users, and delegate his or her authority to another Authorized User. Unless you otherwise specify, we may deem the Client’s authorized representative who initially requested to use the Service or a feature thereof as a Primary Administrator. Except as otherwise agreed by the Bank or as set forth in the settings applicable to your use of the Account or Service, your Primary Administrator and the Authorized User(s), will have access to any Account designated for use with the Services, even if the Account Agreement does not name such a person as an authorized signer or user of the Account. We do not control access by any of your Authorized User(s) or Primary Administrators to any Service except as expressly set forth in this Agreement. You agree to require your Primary Administrator and any Authorized User(s) to comply with all provisions of this Agreement and all other applicable agreements, and you guarantee that they will do so. You acknowledge and agree that you are fully and solely responsible for the failure of your Primary Administrator or any Authorized User(s) to so comply. You are responsible for any payment, transfer and other Services and charges initiated or incurred by your Primary Administrator and any Authorized User(s), whether or not actually authorized by the Client. The Bank reserves the right to require the Primary Administrator to be an authorized signer on the Account(s). Notwithstanding the foregoing, you understand that the Primary Administrator and each Authorized User may utilize the Services without regard to any restrictions otherwise applicable to an Account, or whether such Authorized User is an authorized signer on an Account.

 

  1. User IDs. Upon enrollment, each Authorized User may be permitted to create a user name, password, and/or other secure token for use to access the Service (“User ID”). We own the User IDs and any other access code or security device used in connection with the Services from time to time, and you may not transfer them to any other person or entity. Whenever you have reason to believe a User ID has been compromised, lost or stolen, you must notify us immediately. If any Authorized User leaves your employ or you otherwise revoke or change the authority of any Authorized User to access or use the Services, you must notify us and revoke their User You remain fully responsible for all use of any User ID and the Services occurring before you notify us of the revocation or compromise of any User ID and we have had a reasonable opportunity to act upon your notice. You must discontinue use of the User IDs and any other applicable security device upon our request and upon termination of this Agreement. You will continue to be responsible for any authorized or unauthorized use of the Services before and after termination of this Agreement notwithstanding such termination.

You acknowledge that the User IDs are a commercially reasonable security procedure and commercially reasonable method for the purpose of verifying whether any payment, transfer or other Service was initiated by you. You further acknowledge and agree that the User IDs are not intended, and that it is commercially reasonable that the User IDs are not intended to detect any errors relating to or arising out of payment, transfer or any other Service.

 

You accept as your sole responsibility the selection, use, protection and maintenance of, confidentiality of, and access to, the User IDs. You agree to take reasonable precautions to safeguard the User IDs and keep them confidential. You agree not to reveal the User IDs to any unauthorized person. You acknowledge that we will never ask you for a password and that our employees do not need the passwords for any reason. You acknowledge that: you should not store your password in a conspicuous place, you should log off the Services when you are finished using them, you should not walk away from your computer while logged on to the Services, you should use antivirus software to keep your computer clean and free of viruses, you should register your frequently used computer if this function is available, you should safeguard your secure token if you are using this security feature, you should review and reconcile account activity on a regular, timely basis, and you should access our website directly and never click on a link in an email that may be disguised as being from the Bank.

 

  1. Devices, Operating System, and Connection Requirements. To use the Service, you will need to provide, at your own expense, a computer, a Wireless Access Device, and other equipment necessary to access the Services as well as all software and necessary telephone lines, Internet or other connections necessary to access the Services, and an e-mail address (each, a “Device”). Your Device must be able to operate and support a minimum 128-bit SSL You are responsible for the installation, maintenance and operation of the Device and all related charges. We are not responsible for any errors or failures caused by any malfunction of the Device. We are also not responsible for any losses or delays in transmission of information you provide to us or otherwise arising out of or incurred in connection with the user of any Internet, network carrier or other service provider providing your connection to the Internet or any browser software. The Service may not be accessible or may have limited utility over some network carriers. In addition, the Service may not be supportable for all computing Devices. We cannot guarantee and are not responsible for the availability of data services provided by your mobile carrier, including data outages or “out of range” issues. We are not responsible for any loss, damage or injury resulting from the disconnection, defect, or malfunction of your cellular service or Device. Further, we are not responsible for the cost of upgrading your equipment to stay current with the Service. You are responsible for understanding the operation and maintenance of your Device. You are responsible for managing the installation and removal of the App, and any other software through which the Service is accessed on any Device. You agree to use Devices that are compatible with the Bank’s programs, systems and equipment, which the Bank may change from time to time. The Bank assumes no responsibility for the defects or incompatibility of any Device the Client uses in connection with the Services, even if the Bank has previously approved their use. THE BANK MAKES NO WARRANTY, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY, WITH RESPECT TO THE SERVICES, OR ANY COMPUTER PROGRAMS, EQUIPMENT OR SOFTWARE MADE AVAILABLE BY THE BANK TO CLIENT. The Client agrees to notify the Bank promptly if any Device or software the Bank provides to the Client becomes defective. The Bank’s sole responsibility (if any) in such instances will be to use best efforts to repair or replace the defective Device or software that the Bank provided.

 

  1. Account Designation. We may permit or require you to link certain Client Accounts to the Service for use and access in connection with the Service. You must designate a business deposit Account you maintain with us (the “Primary Account”) for use with the Services. In the event that we enable you to link multiple Accounts to the Service, we may require you to designate a Primary Account for a particular feature of the Service. If your Primary Account is closed for any reason, or if it is no longer designated for use with the Services, your access to and use of the Services and this Agreement will be terminated unless another Primary Account satisfactory to the Bank is You may also designate any of your other business checking, savings, money market deposit, certificate of deposit or business loan Accounts you maintain with us for use with the Services with our approval. We reserve the right to deny any Primary Account designation in our sole discretion.

 

  1. Commercial Account Representations. Client represents and warrants to the Bank that: (i) its Primary Account, any Settlement Account, Reserve Account or other Account designated for use in connection with the Service is a commercial account (not primarily established for personal, family or household purposes); and (ii) the Bank may rely upon the authority of each Authorized User for all purposes in connection with the Services, even if such Authorized User is not a signatory on any such Account, until the Bank has received written notice acceptable to it of any change from an Authorized Representative and the Bank has had a reasonable time to act thereon (after which time it shall rely upon the changed version).

 

  1. Sufficient Funds. The Client agrees to maintain sufficient available funds (as determined under the Bank’s funds availability policy) in the Client’s Accounts accessible via the Services to cover all transactions requested through the Service and applicable fees, or such higher amounts as the Bank may specify from time to time. The Client acknowledges that the Bank does not control intermediary banks or other third parties, including intermediary banks chosen by the Bank, and that the Bank does not control whether intermediary banks deduct fees as part of the processing of transfer requests. The Client agrees that the Client’s funds may be held by the Bank for a period of time during the term of a Service and following termination of the Services, to protect the Bank against any possible losses relating to the use by the Client of the Services. If the Bank does hold funds, the Bank may treat the held funds as not available for other purposes, and reject other transactions (for example, checks or other transfer instructions) in accordance with the applicable deposit account terms and conditions. The Bank may, in its sole discretion, allow overdrafts, over limits or negative balances, and the Bank also may determine the overdraft by the Client’s available balance or account balance. The Bank may also discontinue the practice at any time with or without prior notice to the Client. If the Client does not have sufficient or available funds or credit in the Client’s account for which a particular transaction was requested, the Bank may charge any account of the Client’s held at the Bank to cover the cost of the transaction, as well as any corresponding Alternatively, and in the Bank’s sole discretion, the Bank may overdraw the Client’s Accounts held at the Bank and the Client may be charged an overdraft or other fee (such as fees for returned checks or other electronic items), and the Client agrees to immediately pay the Bank such overdraft and fee(s). The Client’s obligation to pay the Bank remains immediately due and payable whether or not the rejected, returned or adjustment entry was processed in accordance with any requirement of any applicable laws or rules applicable to any party other than the Bank and notwithstanding the Bank or the Client may have a claim against another third party for breach of the applicable laws or rules. Nothing in the Agreement shall be construed as the Bank’s commitment or obligation to lend the Client money.

 

III.             Security Procedures and Communications

 

  1. CONTACT US IMMEDIATELY IN CASE OF BREACH. You agree to contact us immediately you believe your Device, User ID, other user name, password, or other approved access device or credentials used to access the Service or an Account has been lost or stolen, or if you believe that a transaction has been made without your permission. We will not be liable for any damages resulting from your failure to follow the aforementioned You further agree to notify us in writing immediately if you believe that the confidentiality of any User ID has been compromised in any manner or if you believe there has been any other breach in the security of your Accounts or the Services. You must also immediately deactivate the User ID, Device, or other means of accessing the Service that you believe to have been compromised.

 

  1. Security Procedures. We have established security procedures for your access to the systems we use to provide the Service (“Security Procedure”). The Security Procedure includes, but is not limited to, the use of User IDs codes, encryption, passwords, and other security devices, systems and other means for us to identify you and any device you use to access the Service, your training of your authorized employees on the use of the Service, your supervision and monitoring of the use of the Service by your employees and representatives, your commercially sound and accepted practices for ensuring the safekeeping of your Account(s), the system, and your access credentials, and any additional procedure we may offer or require from time to time. The Security Procedure may also include other communications and means of communicating relating to a Service, including, without limitation, any payment instruction or authorization, transaction request, information request, Entry, notification and authorization (each a “Communication”). If the Bank takes any action not provided in the Security Procedures in connection with any Communication, such additional action shall not be deemed to become a mandatory part of the continuing Security Procedures. The Security Procedure is intended to provide security against unauthorized access to our systems and your Account(s). We reserve the right to revise or amend the Security Procedure from time to time. You may be denied access to the Services if you fail to comply with any of the Security Procedures.

 

You acknowledge and agree that the Security Procedure identifies and authenticates you (including your Administrator and Authorized Users) when you access or use the Services. You authorize us to rely on this Security Procedure to identify you when you access or use any of the Services, and as signature authorization for any communications or instructions received, provided that we have substantially complied with the applicable Security Procedure, regardless of whether the communications or instructions are authorized by you. Client understands and agrees that the Bank will use the Security Procedures to verify the authenticity of Communications and that the Security Procedures are not designed to, and are not used for the purpose of, detecting errors in transmission or content of Communications, including discrepancies between account names and numbers

 

The Bank may offer the Client use of additional authentication tools or methods from time to time (for example, challenge questions and phrases for employees). If the Client chooses not to implement supplemental authentication tools, the Client’s access to some or all of the Services may be limited, and such election is at Client’s own risk.

 

Additional Security Procedures and features are set forth in Schedule A (Security Features & Procedures) and may be set forth in other materials the Bank provides from time to time.

 

  1. Dual Control. Bank recommends that the Client utilize dual control for security control as set forth in Schedule A. Use of dual control will require two separate Authorized Users to initiate and approve certain transactions and actions made using the Service. Client’s use of the Service may require dual control by default, unless the Client’s Primary Administrator opts out of this feature. Client understands that if it opts out of dual control, it must use other Security Procedures, and the Client may have less protection against unauthorized transactions and activity. The other Security Procedures selected by the Client will be deemed commercially reasonable by the Client, to the same extent as if the Client had used dual control and any other Security Procedures offered by the Bank, and the Client will indemnify and hold Bank harmless from and against all losses and liabilities arising from the Client’s use of alternative Security Procedures other than those recommended by Bank.

 

  1. Account and Services Security. You agree to take every precaution to ensure the safety, security and integrity of your Account and transactions when using the Service. The use of the Service on a public network is strongly discouraged. You also agree that the Device you are using to access the Service is protected from and free of viruses, worms, Trojan horses, or other similar components (collectively referred to as “Viruses”), which could result in damage to programs, files, and/or Device or could result in information being intercepted by a third party. You agree not to leave your Device unattended while logged into the Service and to log off immediately after the completion of each access. We encourage utilizing a device software locking feature if it is available on your You agree not to provide your User ID, any other user name used to access the Service or any Account, password, or other access credentials to any unauthorized person. If you permit other persons to use your Device, User ID, user name, password, or other access credentials or means to access the Service, you are responsible for any transactions they authorize. You agree not to use any personally identifiable information when creating shortcuts to your Account. We make no representation that any content or use of the Service is available for use outside of the United States or that such access is secure. Access to the Service from locations outside of the United States is at your own risk.

 

In no event will be we liable for any unauthorized transactions if we have followed the applicable Security Procedure. You will be liable for any transactions and other actions made using a Client or Authorized User’s User ID or other means of accessing the Service, even if a User ID has been lost, stolen or obtained or retained by a person not authorized by you and even if the use occurs after you have asked us to deactivate a User ID or terminate the Service, whether or not we have acted upon that request.

 

  1. Communications. Regardless of whether or not the Bank complied with the Security Procedures, any Communication received by the Bank will be treated as the Client’s and will bind the Client if the Communication is delivered to the Bank directly or indirectly by any Authorized User, using any User ID or Security Procedure, or if the Client would otherwise be legally bound by the Communication, regardless of whether the Communication was erroneous in any respect or that any loss would have been prevented if the Bank had complied with the Security Procedures.

 

The Bank may act on an incomplete Communication at its sole discretion, including but not limited to, if in the Bank’s reasonable opinion, it contains sufficient information. The Bank has no duty to discover, and shall not be liable for, errors or omissions made by the Client or the duplication of any Communication by the Client. The Bank may delay or refuse to execute any Communication or process any requested Service. The Bank may do so for any reason or for no reason. The Bank may provide notice to the Client of such delay or refusal but is not obligated to do so. The Bank may delay or refuse processing of a Communication, for example, if: (A) processing would or may exceed the available funds in the Client’s affected account or violate a lending covenant regarding available funds in the account; (B) the Communication is not authenticated to the Bank’s satisfaction or the Bank believes the Communication may not have been authorized by the Client; (C) the Communication contains incorrect, inconsistent, ambiguous, or missing information; (D) processing would or may involve funds which are subject to lien, security interest, claim, hold, dispute, or legal process prohibiting withdrawal; (E) processing would or may cause a violation of any laws or rules applicable to the Client or to the Bank; (F) for any reason determined by the Bank in its sole discretion; or (G) for any other reason under the Agreement. In addition, the Bank shall be excused from failing to transmit or delay a transmittal of a transaction or Communication if such transmittal would result in the Bank’s having exceeded any limitation upon the Bank’s intra-day net funds position established pursuant to present or future Federal Reserve Board (“FRB”) guidelines or in the Bank’s reasonable judgment otherwise violating any provision of any present or future risk control program of the FRB or any rule or regulation of any other U.S. governmental regulatory authority. The Client agrees that the Bank will have no liability to the Client or to any other person for any loss, damage or other harm caused by or arising out of any such delay or refusal. If the Client informs the Bank that it wishes to recall, cancel or amend a Communication after it has been received by the Bank, the Bank may, but will not be required to, use its reasonable efforts to assist the Client to do so; however, the Bank shall not be liable for any loss, cost or expense incurred by the Client if the Bank does not, or is unable to, amend, cancel or recall a Communication. The Client hereby agrees to indemnify the Bank against any loss, liability, claim or expenses (including legal fees) it may incur in connection with assisting the Client to recall, cancel or amend a Communication, and the Client agrees to immediately reimburse the Bank for any monies paid by the Bank associated with such losses, liability, claims or expenses incurred by the Bank. The Client assumes the sole responsibility for providing the Bank with accurate Communications in the form and format that the Bank requires. The Bank is not responsible for confirming Communications or for failing to detect and reject duplicate Communications. If the Client provides the Bank with a Communication that is incorrect in any way, the Client agrees that the Bank may charge the Client’s accounts for any transactions related to the Communication whether or not the error could have been detected by the Bank. The Bank is not obligated to detect errors in the Client’s transfer or payment instructions or other Communications.

 

Before using a Service and before sending a Communication to the Bank, the Client will review the Security Procedures and determine whether the Security Procedures will provide a commercially reasonable method for verifying whether a Communication is that of the Client. As part of the review, the Client will consider the size, type and frequency of Communications the Client normally makes or anticipates making, along with such other factors as the Client may deem relevant or appropriate. You agree to notify us if you know or suspect that the Security Procedures have been breached. We may add additional procedures and features to the Security Procedure from time to time and your use of such additional Security Procedure shall demonstrate your agreement that such Security Procedure is a commercially reasonable method of authenticating your identity.

 

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

 

  1. Electronic Recordings. The Client authorizes the Bank (but the Bank is not obligated) to record electronically and retain telephone conversations between the Client (including its purported Authorized Users and representatives) and the Bank. Accordingly, the Client agrees on behalf of itself, its employees and agents that the Bank may monitor and record the Client’s telephone and electronic communications in connection with the Services at any time, without further notice. The Bank and the Client hereby agree that the Bank may produce the telephonic or electronic recordings or computer records as evidence in any proceedings brought in connection with the Agreement, and the Client hereby acknowledges the validity and enforceability of such telephonic or electronic recordings.

 

IV.             Fees; Penalties

 

  1. Fees. The Client agrees to pay the Bank the fees prescribed in the Bank’s current fee schedules for each of the Services, a copy of which is available upon request (each a “Fee Schedule”). Unless other arrangements are made for payment of such fees, the Bank will automatically debit any Account maintained by the Client with the Bank in the amount of such fees. The Bank does not in any way extend credit to the Client under this Agreement. The Bank may amend the Service pricing from time to time. Certain prices are subject to change without prior Special or additional Services performed at the Client’s request will be subject to additional terms and fees. In addition to the fees for the Services, the Client agrees to pay for all taxes, tariffs and assessments levied or imposed by any government agency in connection with the Services, the Agreement, and any software, Device, or equipment made available to the Client (excluding any income tax payable by the Bank).

 

The Client is also responsible for the costs of any communication lines and any data processing charges payable to third parties. If the Client is required by the laws of any relevant jurisdiction to make any deduction or withholding from any fees, interest, or other amounts, on account of tax or other charges, the Client shall withhold the same and pay it to the relevant authority and shall pay the Bank such additional amount as may be necessary to ensure the Bank receives an amount equal to the amount it would have received had no such deduction been made.

 

  1. Fines and Penalties. The Client will reimburse the Bank for any fines or penalties (and any associated costs, including reasonable attorneys’ fees and costs) imposed on or assessed against the Bank by any Federal Reserve Bank, any network operator, any state or federal regulatory agency or other US or foreign governmental body, or any clearinghouse or other third party having oversight or rulemaking authority over transactions facilitated using the Services, when the fine, penalty or other expense is caused by or related to the Client’s data or use of the Such amounts shall be immediately due and payable by the Client. The Client’s obligation to pay the Bank remains immediately due and payable whether or not the fine or penalty was imposed or assessed in accordance with any requirements of the Rules or Laws or any laws applicable to any party other than the Bank and notwithstanding the Bank or the Client may have a claim against another for breach of the same.

 

V.               Representations and Warranties; Limitation on Liability; Indemnification

 

  1. Representations and Warranties. Client represents and warrants to the Bank that: It is duly organized and validly existing, and is in good standing in every jurisdiction where required; the Client’s execution, delivery and performance of this Agreement and the transactions contemplated herein have been duly authorized by all necessary action and do not: (A) violate any provision of any applicable law, rule or regulation (including but not limited to any licensing requirement(s) or of the Client’s charter or bylaws or other governing documents, as applicable), or (B) result in the breach of, constitute a default under, or require any consent under any agreement or instrument to which the Client is a party or by which the Client is bound; the representatives executing and delivering the Agreement and the Acceptance for and on behalf of the Client, are duly authorized to do so; any Communication or authorization required in connection with the Agreement and each Service description has been provided by an Authorized User or Primary Administrator, as required. The Bank may rely upon the authority of each Authorized User for purposes of the Agreement until the Bank has received written notice acceptable to the Bank of any change of persons designated by the Client as an Authorized User, and the Bank has had a reasonable time to act thereon (after which time the Bank shall rely upon the change); any act required by any relevant governmental or other authority in connection with the Agreement has been or will be done (and will be renewed if necessary); the Client’s performance under the Agreement and use of the Services will not violate any Applicable Law, regulation or other requirement; the Agreement is a legal, valid and binding obligation; unless otherwise agreed to in writing by the Bank, the accounts established by the Client with the Bank and the Services the Client establishes or uses in connection with the accounts will only be used for business purposes and not for personal, family or household purposes; and the Client agrees that it shall be deemed to make and renew each representation and warranty made in this Section on and as of each day on which it uses the Services. The Client will inform the Bank in writing immediately upon the Client’s becoming aware of facts or circumstances that cause (or with the passage of time would result in) any representation or warranty given by the Client to cease to be true and correct. the Client will provide such information or documentation as the Bank may request from time to time to demonstrate compliance by the Client with the Client’s representations and warranties, or other obligations of the Client under this Agreement. The Bank, in accepting the Agreement, is acting and relying upon the Client’s foregoing representations and warranties.

 

  1. Limitation of Liability. The Bank’s duties and responsibilities shall be limited to those set forth in this Except to the extent otherwise required by law, in no event shall the Bank be liable for: (i) any punitive, indirect, consequential or special damages or lost profits, even if the Bank has been advised of the possibility of such damages; (ii) the acts or omissions of a contractor, vendor, processor, third-party servicer or vendor used by the Client or the Bank, or any loss, cost, damage or expense incurred by any person or entity in connection therewith;(iii) the Client negligence or breach of any agreement with the Bank; (iv) any loss, cost, expense, or damage to the Client in connection with any Communication Link, software, or any technical computer service, including software installation or de-installation performed by the Bank or the Client or any third party designated by the Bank or the Client, or the Client’s or the Bank’s use thereof; (v) any ambiguity, inaccuracy or omission in any instruction or information provided to the Bank; (vi) the application of any government or funds-transfer system rule, guideline, policy or regulation; (vii) the lack of available funds in the Client’s Account to complete a transaction; (viii) the Bank’s inability to confirm to its satisfaction the authority of any person to act on the Client’s behalf; (ix) the Client’s failure to follow any applicable software manufacturer’s recommendations or the Bank’s Service instructions; (x) any Internet sites related to the Services or maintained or operated by the Bank or the use thereof or the inability to use such sites by any party, or in connection with any failure or performance, error, omission, interruption, defect, delaying in operation or transmission, computer virus, Trojan horse, worms, online or system failure, or (xi) any claims of wrongful dishonor resulting from the Bank’s acts or omissions under this Agreement, even if the Bank, or representatives thereof, are advised or the possibility of such damages, losses or expenses. There may be other exceptions to the Bank’s liability, as stated in the Client’s account or other service agreements with the Bank. The Bank will not be responsible for determining the compatibility of any Device or installed software with other system components or for any failure of any technical servicing or software installation to provide access to the particular Service which the technical servicing or software installation was intended to make available. The Bank’s liability and the Client’s remedy for actual costs and losses resulting directly from the Bank’s gross negligence, willful misconduct or bad faith actions and/or omissions, whether the claim is in contract or tort, will not exceed the Service fees accrued by the Client during the three months immediately preceding the cost or loss. Any claim, action or proceeding by the Client to enforce the terms of the Agreement or to recover for any Service-related loss must be commenced within one year from the date that the event giving rise to the claim, action or proceeding first occurs. The Client agrees to cooperate with the Bank in any loss recovery efforts the Bank undertakes to reduce any loss or liability that arises in connection with the Services. The Client acknowledges that Service fees have been established in contemplation of: (A) these limitations on the Bank’s liability, (B) the Client’s agreement to review statements, confirmations, and notices promptly and to notify the Bank immediately of any discrepancies or problems; and (C) the Client’s agreement to assist the Bank in any loss recovery effort. The Client agrees that it will not assert any claims against the Bank based on theories of negligence, gross negligence, strict liability, misrepresentation, or fraud based on or relating to any Communication or Communication medium, Device, software or the Client’s possession or use thereof or any technical computer service including, but not limited to, software installation or de-installation performed by the Bank.

 

  1. Indemnification. You are solely responsible for the amount of each Payment, transfer or other Service, including fees or other amounts incurred with the Services, even if you did not authorize the Payment, transfer or other You agree to indemnify us and hold us harmless from and against any and all losses, liabilities, claims, damages or expenses (including attorneys’ fees and court costs and expenses) arising from or related to the access or use of the Services, including (i) the alteration of any item deposited through the Service, (ii) your transmission of any data, information, or instructions, or any inaccuracy or inadequacy in such data, information or instructions, (iii) your breach of this Agreement or any warranty made by you in this Agreement by you or failure to comply with its terms or any Applicable Law or Rules, (iv) any act or omission by you or any of your Administrators, Authorized Users, employees or agents that results, directly or indirectly, in the payment or distribution of funds to any person, real or fictitious, not entitled to all or any part of such funds, or that results in an inaccurate, incorrect, untimely, improper or failed transaction in connection with such funds, or the redeposit of any item processed for deposit through the Service, (v) any fine, penalty or sanction imposed on the Bank by, any clearing house, or any governmental entity, arising out of or connected with the Services; (vi) any act or omission of the Bank that is in accordance with the Agreement or instructions from the Customer. In addition, unless limited by applicable law or caused by our intentional misconduct or gross negligence, you agree to indemnify, defend and hold harmless the Bank, our officers, directors, employees, consultants, agents, service providers, and licensors from any and all third-party claims, liability, damages, expenses, and costs arising from (x) a third-party claim, dispute, action, or allegation of infringement, misuse, or misappropriation based on information, data, files or otherwise in connection with your use of the Service; (y) your violation of any law or rights of a third party; or (z) your use, or use by a third party, of the Service. The warranties and indemnifications described in this Agreement shall survive termination of this Agreement.

 

  1. Disclaimer of Warranty. UNLESS THE DISCLAIMER OF SUCH WARRANTIES IS PROHIBITED BY APPLICABLE LAW, YOU EXPRESSLY AGREE THAT USE OF THE SERVICES BY ANY MEANS IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED “AS IS,” AND “AS AVAILABLE” AND THAT WE DO NOT MAKE ANY WARRANTIES WHATSOEVER THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE BANK IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS IN OR TO ANY INFORMATION RESULTING FROM THE CLIENT’S USE OF THE SERVICES. THE BANK MAKES NO, AND EXPRESSLY DISCLAIMS ALL, WARRANTIES (EXPRESS OR IMPLIED) REGARDING THE YOUR USE OF THE SERVICES AND THE EQUIPMENT, INCLUDING THE WARRANTY OF TITLE AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BANK DISCLAIMS ANY WARRANTIES REGARDING ANY SOFTWARE, ANY COMMUNICATION OR COMMUNICATION MEDIUM, THE OPERATION, PERFORMANCE OR FUNCTIONALITY OF THE SERVICES AND THE EQUIPMENT, INCLUDING ANY WARRANTY THAT THE SERVICES AND THE EQUIPMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. THE CLIENT ACKNOWLEDGES THAT THERE ARE CERTAIN SECURITY, TRANSMISSION ERROR, AND ACCESS AVAILABILITY RISKS ASSOCIATED WITH USING THE SERVICES AND ASSUMES ALL RISKS RELATING TO THE FOREGOING.

 

  1. Force Majeure. Notwithstanding any other provisions of the Agreement, the Bank shall not have any responsibility or liability for any failure, error, malfunction or any delay in carrying out any of its obligations under the Agreement if such failure, error, malfunction or delay results from events due to any cause beyond its reasonable control, including, without limitation, unavailability of any communications system, sabotage, fire, flood, explosion, acts of God, civil commotion, strikes, stoppages of labor or industrial action of any kind, riots, insurrection, war or acts of government, power or equipment failure (including that of any common carrier, transmission line or software), emergency conditions, adverse weather conditions or any other factor, medium, instrumentality, condition or cause not in the Bank’s control. The Bank will not be liable or responsible for the acts or omissions of any other financial institution or any third party or for any inaccuracy or omission in a notice or communication received by the Bank from you, another financial institution, or any other third party. In addition, the Bank shall be excused from failing to transmit, or delaying the transmission of, any transaction, if such transmittal would result in the Bank’s having exceeded any limitation upon its intra-day net funds position established pursuant to present or future FRB guidelines or in the Bank’s otherwise violating any provision of any present or future risk control program of the FRB or any rule or regulation of any other U.S. governmental regulatory authority. The Bank shall not be liable for any failure to perform any of its obligations under this Agreement if such performance would result in it being in breach of any law, regulation, requirement or provision of any government, government agency, banking or taxation authority in accordance with which the Bank is required to act, as shall be determined in the Bank’s sole discretion.

 

VI.             Confidentiality.

 

  1. Unless otherwise provided in the Agreement, all Supporting Documents and software provided pursuant to the Agreement constitute the Bank’s, its contractors or vendors, or the Bank’s agent’s confidential information (“Confidential Information”). The Bank, its contractors or vendors, or the Bank’s agent (as applicable) will remain the sole owner of all such Confidential Information, and the Client will not acquire any interest in or rights to the Confidential Information as a result of the Client’s use of any Service except as set forth in this Agreement. The Client will maintain the confidentiality of the Confidential Information, and will not permit its employees or agents to, disclose, copy, transfer, sublicense or otherwise make any of it available to any person or entity, other than the Client’s employees who have a need to use the Confidential Information in connection with the applicable Service. The Client shall notify the Bank immediately if the Client knows or suspects that there has been any unauthorized disclosure, possession, use or knowledge (each, an “Unauthorized Use”) of any Confidential Information, and if the Client is responsible for the Unauthorized Use, it will, at its expense, promptly take all actions, including without limitation initiating court proceedings to recover possession or prevent further Unauthorized Use of the Confidential Information and obtain redress for any injury caused to the Bank as a result of such Unauthorized Use. In addition, the Client shall not decompile, reverse engineer, disassemble, modify, or create derivative works of any computer program provided pursuant to the Agreement. The Client authorizes the transfer of any information relating to the Client to and between the branches, subsidiaries, representative offices, affiliates, contractors, vendors and agents of the Bank and third parties selected by any of them, wherever situated, for confidential use in connection with the provision of products or Services to the Client (including for data processing purposes), and further acknowledges that any such branch, subsidiary, representative office, affiliate, contractor, vendor or agent or shall be entitled to transfer any such information as required by any law, court, regulator or legal process.

 

VII.           Compliance.

 

  1. Compliance with Applicable Law and Rules. The Client agrees to comply with all state and federal laws, rules and regulations, as may be amended from time to time, applicable to the Client and to its use of the Services including the operating rules of all systems and networks, as may be amended from time to time, used to provide Services to the Customer (“Rules,” and collectively, “Applicable Law”), and to promptly provide evidence reasonably satisfactory to the Bank of the same if requested by the Bank. Without limitation, the Client agrees and acknowledges that the Services may not be used by the Client in violation of, and must comply with, the Applicable Law and Rules, including sanctions laws administered by the Office of Foreign Asset Controls. The Client agrees that the Services will not be used to facilitate any illegal activity, including but not limited to illegal Internet The Client acknowledges and agrees that the software used to access the Services may be subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations, as may be amended from time to time (collectively, “Acts”). The Client agrees and hereby certifies that neither the Software nor any product thereof or any Service is being or will be used by or on behalf of the Client for any purpose prohibited by these Acts. Nothing in the Agreement relieves the Client of any obligation the Client may have under the Laws, Rules or Acts. If the Agreement is in conflict with the Applicable Laws, Rules or Acts, as may be amended from time to time, then the Agreement is deemed modified only to the extent necessary to allow or require the Client to comply with the Laws, Rules and Acts. The Client will implement and maintain procedures, including retention of legal or compliance services, to ensure that the Client is able to comply with all current and future Laws, Rules, and Acts, including any changes to them. The Bank is not obligated to provide information, updates or notice of or regarding the Laws, Rules, or Acts even if the Bank is aware of the same and of the potential for material impact on Client’s use of the Services, and the Client’s indemnification and other obligations to the Bank are not relieved or reduced by the Bank’s not providing the same to the Client. If the Bank does provide information, updates or notices of or regarding the Laws, Rules or Acts to the Client, the Bank is not responsible for the accuracy of the same and may discontinue doing so at any time. In addition to any allowances provided to the Bank in any other agreement the Bank has with the Customer, the Customer agrees that the Bank may delay posting of an inbound credit to any of the Customer’s account(s) held at the Bank or delay the processing of an outbound transaction from the Customer’s account(s) held at the Bank, when the delay is due to a suspicion that the transaction may be in violation of applicable Law, Rule or Act, or the transaction is otherwise under review by the Bank.

 

  1. Reconciliation. The Client will inspect all information made available by the Bank in connection with the The Client agrees to promptly, by telephone and in writing, notify the Bank of any errors in such information or any discrepancies between its records and the information, statements or confirmations of transactions made available by the Bank. If the Client fails to promptly notify the Bank of any such error or discrepancy, in any case no more than 30 days of the date on which such information is made available to the Client, then the Client agrees that the Bank will not be liable for any losses resulting from the Client’s failure to give such notice or any resulting loss of interest relating to any funds transfers. Without limiting the foregoing: (i) if the Client fails to notify the Bank of any such error or discrepancy within one year of the date on which such information is made available to the Client, then the Client shall be precluded from asserting such error or discrepancy against the Bank; and (ii) the Bank reserves the right to, in its sole discretion, adjust transaction records for good cause after the expiration of said one year period.

 

VIII.         Client’s Other Responsibilities

 

  1. Notices. Except as otherwise provided in the Agreement, all notices, and other communications by the Customer to the Bank shall be in writing and, addressed to:

Grasshopper Bank, N.A.

915 Broadway 7th Floor

New York, N.Y. 10010

or at such other addresses as the Bank may specify in writing. Notices and communications to the Client by the Bank, including but not limited to amendments, statements, notices and other account information, may be mailed or sent to the Client electronically at the statement, email or mailing address shown for the Client in the Bank’s records or made available through the online system. The Client agrees to provide the Bank with the Client’s current email address, and to notify the Bank immediately when the Client changes its email address. Any notice or communication sent by the Bank to the Client will be effective when sent by the Bank, or as otherwise stated in the notice or communication. The Client agrees that the Bank may consider any such notice or communication as being given to all persons entitled to such notice when such notice is given to any one Account Representative. The Client further acknowledges and agrees that certain notices and communications may be provided to the Client by telephone (including mobile phone), facsimile or electronic transmission at the telephone number, mobile phone number, facsimile number or other location or number as shown in the Bank’s records. Any notice, instruction, Communication or other communication sent by the Client to the Bank will be effective when the Bank has actually received and has had a reasonable time to act on the notice, instruction, Communication or other communication. The Bank may rely on all notices, instructions, Communications and other communications sent to the Bank via facsimile or electronic transmission as though they are originals. Without limiting the foregoing, the Bank is entitled to rely on any notice, instruction, Communication or other communication believed by the Bank in good faith to be genuine or to have been signed or authorized by a Primary Administrator or other authorized representative of the Client. The Client agrees to access the Services from time to time and, in no event less than monthly, to access notices, communications and information made available by the Bank.

 

 

  1. Audits and Inspection. The Bank (or its appointed representative) reserves the right, with prior notice to the Client, to enter upon the Client’s premises from time to time during regular business hours to verify that the Client’s operations and procedures are in compliance with the terms of this Agreement. In connection with any such audit, the Client agrees to furnish the Bank with any documentation or information as is reasonably necessary to establish the Client’s compliance with the terms of the Agreement. If it is determined by the Bank that additional procedures or controls need to be implemented by the Client, the Client agrees to implement such procedures or controls within a reasonable period of time to be agreed upon by the parties. In connection with the Bank’s entry on the premises of the Client for the purpose of conducting an on-site audit or inspection, or in connection with providing support to the Client, the Bank shall not be liable or responsible to the Client or any third party for any loss, bodily harm, property damage, claims of the introduction of a virus or other malicious code into the Client’s system, including any which allegedly delay, alter or corrupt the data of the Client, whether related to the transmission of check images or other data to the Bank or whether caused by the equipment, software, the Bank Internet service providers, Internet browsers, or other parties providing communication services to or from the Bank to the Client.

 

  1. Reserve Account. The Client agrees that it will, if requested by the Bank at any time, establish one or more reserve accounts (“Reserve Account”) to be maintained with the Bank in type (including time deposits) and amount satisfactory to the Bank, to serve as collateral for and to secure the Client’s obligations to the Bank under the Agreement. The Bank may restrict or prohibit the Client’s access to any Reserve Account(s) and the funds on deposit in them and may hold such accounts following termination of the Agreement for a period sufficient to protect the Bank against loss. The Bank may increase or decrease the required Reserve Account balance from time to time, upon notice to the Client and the Client agrees to provide immediately available funds to cover a reserve amount requested by the Bank. In addition, the Bank may transfer funds from another account of the Client’s, or use funds payable to the Client or owed by the Bank to the Client under the Agreement or due to a Service and credit such funds to a Reserve Account if a deficiency exists between the available funds in the Client’s Reserve Account(s) and the amounts specified by the Bank as the required reserve amount.

 

  1. Security Interest. The Client grants the Bank a security interest in the Client’s Reserve Account, Primary Account, and all other Accounts to secure the repayment of any obligation that the Client incurs under the The security interest provided under this Agreement is in addition to any other security interest the Bank may have in the Client’s accounts or other assets. This security interest will survive termination of the Agreement.

 

  1. Client Records. The Agreement and the Services are not intended to relieve the Client of any obligation imposed by law or contract regarding the maintenance of records or from employing adequate audit, accounting and review practices as are customarily followed by similar businesses. Except as otherwise stated in the Agreement, the Client agrees to retain and provide to the Bank, upon request, all information necessary to remake or reconstruct any deposit, transmission, file or entry until one year following receipt by the Bank of the deposit, file, entry, transmission, or other order affecting an account.

 

  1. Term and Termination. The term of the Agreement will commence upon full execution of the Agreement and will continue in full force and effect thereafter until terminated as follows: the Client may terminate some or all of the Services under the Agreement, with or without cause, upon 30 days prior written notice to the Bank; and the Bank may terminate, suspend or restrict some or all of the Client’s access to the Services under the Agreement, with or without cause, at any time immediately upon notice to the Client. Without limiting the foregoing, the Bank reserves the right to automatically terminate the Client’s access to all or any part of the Services in the event the Client’s use of a Service is inactive for a period of 180 days. Any termination will not affect any obligations arising prior to termination. Upon termination, the Bank may terminate the Client’s access to the Services, and the Client will terminate its access to and use of the Services, except to the extent necessary to process transactions that were in process prior to the termination date. Within 30 days after termination of the Agreement, the Client will, at its expense, promptly uninstall and remove all software provided for the Services from its computers and return to the Bank any Software, hardware and equipment provided by the Bank for the Services, including the Supporting Documents, procedures, documentation and any materials relating to the Services in its possession or under its control, destroy all copies of the Supporting Documents and materials relating to the Supporting Documents that cannot be returned, and upon request from the Bank certify in writing to the Bank that all such copies have been returned or The Client will be responsible and liable to the Bank for the replacement cost of all lost, stolen or damaged equipment that was provided by the Bank to the Client in connection with the Services. Upon termination of the Agreement, all Services and any licenses shall automatically terminate.

 

X.               Miscellaneous.

 

  1. Business Days. For the purpose of this Agreement, the Bank’s business days are Monday through Friday, excluding Saturdays, Sundays, bank holidays, and any other day that the Bank chooses to be closed.

 

  1. Availability. The Bank may cause a Service to be temporarily unavailable to the Client, either with or without prior notice, for site maintenance, security or other reasons, and the Client acknowledges that factors beyond the Bank’s reasonable control, such as telecommunications failure or equipment failure, may also cause the Service to be unavailable to the Client. In such an event, the Client must make alternative arrangements for scheduled and other anticipated transactions and the Client will be responsible for maintaining procedures and facilities to enable the Client to do so if any of the Services are unavailable to the Client. Upon notice from the Bank of a failure of any software, hardware or other equipment necessary for the Bank to perform in accordance with this Agreement, the Client will as soon as reasonably possible deliver to the Bank all data in the Client’s possession or under its control which the Bank reasonably requests in order for the Bank to continue to provide the Service.

 

  1. Assignment. The Bank may assign its rights and delegate its duties under this Agreement to a Client affiliated with it or to a third party. The Client may not assign any right or delegate any obligation under the Agreement without the Bank’s prior written consent.

 

  1. Relationship of Parties. Nothing in the Agreement creates a joint venture, partnership, principal agent or mutual agency relationship between the parties. No party has any right or power under the Agreement to create any obligation, expressed or implied, on behalf of the other party.

 

  1. Third Parties. The Client acknowledges and agrees that the Bank may arrange to provide software, if required, and/or may arrange for the Services covered by the Agreement to be performed or provided by third parties, including its affiliates. The Client further agrees that any such party is a third-party beneficiary of the Agreement and as such is entitled to rely on, and avail itself of, the provisions of the Agreement as if it was the Bank, including, without limitation, the limitations on liability and the indemnities described in the Agreement. The Bank’s ability to provide certain Services may be dependent upon the Bank’s ability to obtain or provide access to third-party networks. In the event any third-party network is unavailable, or the Bank determines in its sole discretion that the Bank cannot continue providing any third-party network access, the Bank may discontinue the related Service or may provide the Service through an alternate third-party network. In such situations, the Bank will have no liability for the unavailability or delay of access. Notwithstanding the limitations described above pertaining to third parties, if the Client authorizes a third party to access the Services on the Client’s behalf, the Client will be solely responsible and liable for all actions and inactions of said third party. The Client expressly assumes the risks associated with providing Service access rights to its agents or third-party vendors, including but not limited to the risk of unauthorized or erroneous transactions. The Bank will not be responsible, nor have any liability whatsoever for any services the Client receives from the Client’s agents or third-party vendors. The Bank reserves the right to require the Client to agree to additional terms and conditions as a condition precedent to the Client’s use of any agent or third-party vendor in connection with the Client’s access to the Services.

 

  1. Credit Criteria. The Bank, in its sole discretion, may, and the Client hereby authorizes the Bank to, perform credit reviews of the Client in accordance with the Bank’s credit criteria. The Client shall, upon the Bank’s request, provide the Bank with any credit-related information and assistance as the Bank may require in performing any such The Client agrees to provide the Bank with financial statements or other information regarding the Client’s financial condition upon the Bank’s request.

 

  1. Waiver. No party’s failure or delay in exercising any right or remedy under the Agreement will operate as a waiver of such right or remedy, and no single or partial exercise of any right or remedy under the Agreement will preclude any additional or further exercise of such right or remedy or the exercise of any other right. No waiver by either party of any breach of the Agreement will operate as a waiver of any prior, current or subsequent breach. No waiver, breach, right or remedy will be effective unless made in writing.

 

  1. Headings. Headings are for reference only and are not part of the Agreement.

 

  1. Successors & Assigns. The Agreement is binding upon and shall inure to the benefit of the Bank and the Client and their respective successors and assigns. However, in all cases the applicability of the Agreement to any of the Client’s successors and assigns must be approved in an advance writing by the Bank.

 

  1. Applicable Law; Severability. The Agreement shall be construed and interpreted in accordance with federal law and regulations, and to the extent such law and regulations do not apply, with the laws of the state of New York, without regard to its conflict of law provisions. Even if a provision of the Agreement is held to be invalid, illegal or unenforceable, the validity, legality, or enforceability of the other provisions of the Agreement will not be affected or impaired by such holding.

 

  1. Final Agreement; Amendments. The Agreement constitutes the final and complete agreement between the Bank and the Client with respect to the Services and any required software, and supersedes all other oral or written agreements, understandings and representations. The Bank may amend, add, delete, or change the terms of the Agreement, including but not limited to the terms of any Service, or to the applicable fees. The Bank may make such amendments, additions, changes or deletions, at any time and at the Bank’s sole discretion. If the Bank deems it reasonably practicable to do so and if the change adversely affects the Client’s usage of the Service, the Bank may notify the Client of the change in advance. Otherwise, the Bank will notify the Client of the change as soon as reasonably practicable after it is implemented, which notice may be given electronically. The Client’s continued use of the Services will evidence the Client’s consent to any amendments, including additions, changes or deletions.

SCHEDULE A: SECURITY FEATURES & PROCEDURES

 

The Client and Grasshopper Bank, N.A. (“Bank”) agree to the following Security Procedures:

 

The Security Procedure for Requests delivered in the Client’s name to the Bank via an electronic delivery channel, in person outside the Bank’s electronic banking platform or offline (manually) will be to verify the details with an Authorized Signer, which may include the originating Authorized Signer of the Request, by secure chat or at the phone number on file AND verify the Authorized Signer’s identifying information. The Bank will:

 

  • In-Person Requests: For in-person Requests, the Bank will verify the Authorized Signer’s photo identification. The Bank will not be required to engage a call back procedure from the Authorized Signer.

 

  • Business Online Banking Service Requests: Requests submitted using the Business Online or Mobile Banking Service will be subject to the Security Procedures applicable to that Service (as described in the Business Online Banking Service Description), in addition all Business Online or Mobile Banking Service Requests will be subject to the Client’s use of multi factor authentication. Contact [email protected] for the current Security Procedures, as amended from time to time.

 

  • Offline (Manual) Requests: For offline requests where the Client submits a signed form for manual processing, the Bank will have contact with an Authorized Signer, by secure chat or at the phone number on file, and verify the Authorized Signer’s identifying information in addition to the details of the request.

 

Pursuant to Schedule C (Origination Services) entered between the Client and the Bank; the Bank has granted the Client access to the Origination Services. Defined terms shall have the meaning provided in that Agreement, unless otherwise defined herein. The Client agrees to the Bank’s Security Procedures for purposes of authenticating Requests transmitted pursuant to the Origination Service in the name of the Client and delivered to the Bank via the Agreement and the Bank has agreed to authenticate Requests using the Security Procedures selected by the Client in this Schedule A. The Client agrees that the choice of Security Procedure is commercially reasonable for the Client and that the Client will be bound by Requests in the Client’s name as set forth in the Agreement. The Client agrees that personal identification numbers, passwords and any other Security Procedures cannot be shared amongst the employees, including amongst Authorized Users. Any Request conducted as a result of a breach of this requirement will be at the Client’s sole risk and liability.

 

Dual Control Opt-Out. The Bank recommends that the Client utilizes dual control for security control. Business Online Banking Services will default to a requirement for all transactions to be initiated and approved by separate Authorized Users (“dual control”).

 

These Authorized Users will be given authority as outlined in the Agreement and will not be given authority to send any transactions individually.

 

Single Authorized User Accounts. If you do not have additional Authorized Users with the requisite permissions to complete the dual control requirement must opt out of the feature to allow transactional capability in a single control environment. If you add Authorized Users in the future, you must contact the Bank to opt back into this feature. IF THE CLIENT SELECTS THE OPTION TO OPT OUT OF THIS REQUIREMENT (NOT RECOMMENDED) AND ELECTS TO USE SECURITY PROCEDURE(S) OTHER THAN DUAL CONTROL AND THOSE SECURITY PROCEDURES PROVIDE LESS PROTECTION AGAINST UNAUTHORIZED TRANSACTIONS OR ACTIVITY THAN THE SECURITY PROCEDURES OFFERED BY THE BANK: (I) THE SECURITY PROCEDURES CHOSEN BY SUPER ADMIN WILL BE CONSIDERED “COMMERCIALLY REASONABLE” TO THE SAME EXTENT THAT THE SECURITY PROCEDURES OFFERED BY THE BANK THAT PROVIDE GREATER PROTECTION, AND (II) SUPER ADMIN SHALL INDEMNIFY AND HOLD THE BANK HARMLESS FROM AND AGAINST ALL LOSSES AND LIABILITIES RELATING DIRECTLY OR INDIRECTLY TO SUPER ADMIN’S USE OF ITS OWN SECURITY PROCEDURES TO PREVENT UNAUTHORIZED TRANSACTIONS RATHER THAN THOSE RECOMMENDED BY THE BANK.

□ I choose to utilize Dual Control (recommended).

□I choose to opt-out of Dual Control and understand the risk and liability above (if you have a single Authorized User account, you must opt-out to allow transactional capability).

 

SCHEDULE B: MOBILE BANKING SERVICES AGREEMENT

This Mobile Banking Services Agreement (“MBA”) supplements the Agreement and provides additional terms and conditions to govern your use of the Grasshopper Bank, N.A. mobile banking services (“Mobile Banking Service(s)”). The Mobile Banking Service can be used to access certain features of the Service, which are made available to you through a mobile website, Short Message Service (“SMS” or “Text Message”), or the Grasshopper Bank Mobile Application (“App” or “Mobile Application”) that you download to or access using an eligible Wireless Access Device that you have registered with us. The Mobile Banking Service is offered as a convenience and supplemental to the Service and your Accounts, and other products and services we offer to you.

  1. Agreements. When you enroll in the Mobile Banking Service and each time you use the Mobile Banking Services, you agree to be bound by the terms and conditions of this MBA. This MBA supplements the Online Banking Master Service Agreement (the “Agreement,” as applicable in this document). By accepting this MBA, or by downloading or accessing the Mobile Application, you also accept the Mobile Banking Enrollment Terms and Conditions, which are incorporated herein by reference.

Except to the extent otherwise defined herein, defined terms in this MBA will have the meaning provided in the Agreement. The term “Online Banking” and “Services” will refer to the online banking system and services provided by Grasshopper Bank, N.A. pursuant to the terms of the Agreement. The term “Entries” shall have the meaning provided in the Rules and shall also mean the data received from the Customer hereunder from which the Bank prepares entries.

Notice to Consumer Account Holders: The Electronic Funds Transfer Agreement applicable to your Account includes important consumer account holder protection disclosures under the Electronic Fund Transfer Act which continue to apply with respect to the electronic fund transfers facilitated through the Mobile Banking Services, as applicable.

  1. Description of Mobile Banking Services. Mobile Banking Services may provide wireless access to your linked Accounts to do the following, subject to system limitations:
    • View your Grasshopper Bank, A. Account information;
    • View transactions
    • View statements
    • View advices
    • Send domestic, USD International, and Foreign Currency wires (subject to Schedule C)
    • Send Automated Clearing House (ACH) payments (subject to Schedule C)
    • Transfer available funds between your linked Accounts (transfer restrictions may apply, refer to your Agreement and Account Agreement for details);
    • Open a new Grasshopper Bank, A. deposit account
    • Contact Grasshopper Bank, A. via in application support (through chat)
    • Add Authorized Users
    • Deposit checks to your linked checking and savings accounts (“Mobile Deposit”), subject to the additional terms set forth in Schedule E – Remote Deposit Capture Services.
    • Pay Bills through the Bank’s current Bill Payment Service, subject to the additional terms set forth in Schedule D – Bill Payment Service.

 

Some Online Banking Services may not be accessible while using your Wireless Access Device. Additional Mobile Banking Services may be added to or removed by us from time to time. Some Mobile Banking Services may not be available without special application to and approval by us, may be limited to specific types of accounts, and may require you to agree to additional terms and conditions which may be presented online at the time the feature is activated.

 

  1. Access and Use of Mobile Banking Services. Your access to the Mobile Banking Service is subject to our prior and ongoing We may deny your access to all or any part of the Mobile Banking Service, at our sole discretion.

 

To utilize the Mobile Banking Services, you must enroll through our Online Banking system. Once you have enrolled for the Mobile Banking Services, designated accounts linked to your Online Banking security codes will be accessible through your Wireless Access Device. Additionally, to access and utilize the Mobile Banking Services you will need a compatible Wireless Access Device. To access Mobile Banking service and functions, your Wireless Access Device must be Internet enabled and connected to the Internet through your mobile communications service provider. In order to properly use the Mobile Banking Services, you should review and follow the instructions provided in our Online Banking system. You agree to accept responsibility for learning how to use the Mobile Banking Services in accordance with the online and mobile application instructions and agree that you will contact us directly if you have any problems with Mobile Banking Services. You also accept responsibility for making sure that you, and anyone acting on your behalf, know how to properly use the Wireless Access Device. If you obtain a different Wireless Access Device, you will be required to download and install software to that different Wireless Access Device, under the same terms set forth in this MBA, as amended. You agree to delete all such software from your Wireless Access Device promptly if the licenses or this MBA terminate for any reason. We reserve the right to change, add to, or terminate services with any third-party software providers, to substitute different software providers, and to enter into or arrange for the provision of Mobile Banking Services by other licensors and third parties. You agree to exercise due care in preserving the confidentiality of any user identification, password, test key, or other code or authentication method provided by us or otherwise required for use of the Mobile Banking Service and shall further prevent the use of the Mobile Banking Service by unauthorized persons. You assume full responsibility for the consequences of any missing or unauthorized use of or access to the Mobile Banking Service or disclosure of any confidential information or instructions by you, or anyone acting on your behalf.

 

  1. Primary Administrator and Authorized Users. For purposes of this MBA, all requirements as set out in the Agreement pertaining to designations of Primary Administrators and Authorized Users in the Online Banking system applies also to the Mobile Banking systems: In the Supporting Requests or Documents (including mobile requests), the Client will be required to designate an individual to act as a Primary Administrator with the authority to designate additional Authorized Users and remove existing Authorized Users or assign those authorities to another Authorized User to act on the Client’s behalf. The Primary Administrator will also determine what Business Online Banking Services will be available to users, when to change passwords or pins (when applicable), and any limitations on the use of the Services by individual Authorized Users or assign those authorities to another to act on the Client’s behalf. The Bank reserves the right to require the Client’s designated Primary Administrator to be an Authorized Signer on the Account(s).

 

  1. Supported Systems. You must use an eligible Wireless Access Device and supported operating system that is compatible with the Mobile Banking Service. The requirements for eligible Wireless Access Devices and supported systems may be changed by the Bank from time to time in its sole discretion. Supported systems currently include the most recent version of IOS and Android operating systems (some older versions may not be supported). The Mobile Banking Services may be used only with a Wireless Access Device that is serviced by a S. wireless carrier or Internet service provider, and the account established with such carrier or provider that is used to connect the Wireless Access Device to the Internet or wireless communications services is established in the U.S.

 

  1. Carrier Fees. You acknowledge that your mobile service provider may charge you for the use of data, telephone calls, sending and receiving Text Messages, and other wireless connectivity provided in connection with the use of the Mobile Banking Service on your Wireless Access Device. You acknowledge that you should check with your service provider for details on specific fees and charges that may apply.

 

  1. Accounts and Accountholders. The term “consumer account holder” will refer to account holders using the Mobile Banking Service to access their accounts that are maintained primarily for personal, family or household purposes. The term “commercial account holder” will refer to an account holder that is not a consumer account holder. The Accounts that you access using the Mobile Banking Services are subject to the terms and conditions of the deposit account agreements and loan agreements governing those Accounts, as well as the terms and conditions of the Agreement, as supplemented and modified by this MBA. The underlying deposit and loan agreements applicable to the Accounts accessed using the Mobile Banking Services shall collectively be referred to as the “Account Agreement.” To the extent there are conflicts between the terms of this MBA and the Agreement, or the Account Agreement, this MBA will control.

 

  1. SMS Text and E-Mail Messaging. By accepting these terms, you expressly authorize us to send SMS text messages and emails to you regarding your accounts and financial transactions, in connection with the Mobile Banking We may send these messages to any mobile phone or email address we have in our records for you or your Account. The following additional terms and conditions apply to your use of SMS and Text Messages in connection with the Service:
    • Your wireless carrier’s standard messaging rates apply to SMS correspondence. Bank does not charge for any content; however, downloadable content may incur additional charges from your wireless carrier. Please contact your wireless carrier for information about your messaging plan. Your carrier may impose message or charge limitations on your account that are outside of our All charges are billed by and payable to your wireless carrier.
    • You represent that you are the owner, or authorized user of the Wireless Access Device you use to receive the SMS and Text Messages, and that you are authorized to approve the applicable charges.
    • We will send you a SMS message only once, and only with your explicit agreement as indicated by your continuation of the process flow.
    • We will not be liable for any delays or failures in your receipt of any SMS messages as delivery is subject to effective transmission from your network operator and processing by your Wireless Access Device. SMS message services are provided on an AS IS, AS AVAILABLE basis.
    • Data obtained from you in connection with this SMS service may include your mobile phone number, your carrier’s name, and the date, time, and content of your messages and other information that you may provide. We may use this information to contact you and to provide the services you request from us, and to otherwise operate, develop, and improve the service. Your wireless carrier and other service providers may also collect data from your SMS usage, and their practices are governed by their own policies. We will only use the information you provide to the service to transmit your SMS messages or as otherwise described in this Nonetheless, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, or governmental request, to avoid liability, or to protect our rights or property. When you complete forms online or otherwise provide us information in connection with the service, you agree to provide accurate, complete, and true information.
    • The SMS service as well as the content and materials received through the service are proprietary to us and our Licensors, and is for your personal, non-commercial use only. You shall not damage, impair, interfere with, or disrupt the service or its functionality.
    • If you have any questions, e-mail us at [email protected] You can also text the word HELP to 63018 to get additional information about the If you receive a message from us unexpectedly, you can text the word STOP to 63018. We do not charge for help or info messages; however, your normal carrier rates apply.

 

  1. Account Alerts. Grasshopper Bank, N.A. may offer the availability of various “Account Alerts”. The account Alerts feature is a convenience tool that permits you to request automated notification of specific situations. You are responsible to input accurate information to set up the account notifications. Alerts do not replace standard communications you receive from us concerning your accounts. If you elect to receive Alerts by Text Message from us, you acknowledge that such messages will be automatically sent to your Wireless Access Device. You assume all responsibility for the secure receipt of the Text Messages and acknowledge that these Alerts are not sent through a secure channel and may be intercepted or read by others. Receipt of Alerts may be delayed or prevented by factor(s) affecting your Internet service provider(s), phone operator(s), and other relevant entities. We neither guarantee the delivery or the accuracy of the contents of any Alert. We will not be liable for losses or damages arising from: (i) non-delivery, delayed delivery, or wrong delivery of any Alert: (ii) inaccurate content in an Alert; or (iii) your use or reliance on the contents of any Alert for any purposes. We reserve the right to terminate any request from you, for any Alert, at any time. The information in any Alert may be subject to certain time lags and/or delays. You will manage the types and timing of your Alerts, and the Alerts may be stopped or suspended by you at any time.
  2. Hardware and Software. You are responsible for obtaining and maintaining the compatible Wireless Access Device required to use the Mobile Banking To the extent we, in our sole discretion, provide any hardware in conjunction with the Mobile Banking Service, the hardware will at all times remain the sole property of Grasshopper Bank. Upon termination of the Mobile Banking Service, you must promptly return any hardware that we provided to you. To the extent the Mobile Banking Service involves our having granted you software license (“software”) usage rights, such grant shall be a personal, non-exclusive, non-transferable right to access and use the Mobile Banking Service in connection with your use in accordance with this MBA. The Mobile Banking Services do not involve the sale of software. Nothing in this agreement entitles you to receive technical support, telephone assistance regarding the software, or updates to software. Upon termination, you agree to immediately destroy all copies of any software which has been downloaded to your Wireless Access Device or otherwise in your possession and control as part of your access and use of the Mobile Banking Service. Without limiting the generality of the foregoing, you agree not to: (a) make the Mobile Banking Service available or allow use of the Mobile Banking Service in a computer bureau service business, or on a time sharing basis, or (b) otherwise disclose or allow use of the Mobile Banking Service by or for the benefit of any third party. You acknowledge that your license to use any software that may be required for the Mobile Banking Service is directly from the software provider, pursuant to the license agreement that appears when any such software is electronically accessed by you or otherwise provided to you. By enrolling in portions of the Mobile Banking Service relating to those software systems and programs, and by downloading and installing Mobile Banking software, you will be evidencing your acceptance of the terms and conditions of those licenses. We may also condition your use of the Mobile Banking Service upon you affirming such licenses by the use of “I Accept” or similar dialogue box acknowledgements, or by other affirmative or use-based acknowledgement and agreement systems.

 

  1. Mobile Banking Service Limitations. The availability, timeliness and proper functioning of the Mobile Banking Services depends on many factors, including your Wireless Access Device location, wireless network availability and signal strength, and the proper functioning and configuration of hardware, software, and your Wireless Access Neither we nor any of our service providers warrants that the Mobile Banking Service will operate without interruption, and neither we nor our service providers shall be liable for any loss or damage caused by any unavailability of the Mobile Banking Services, including service interruptions, delays, or loss of personalized settings. Neither we nor any of our service providers assumes responsibility for the operation, security, functionality or availability of any Wireless Access Device or mobile network which you utilize to access the Mobile Banking Services. THE MOBILE BANKING SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY OTHER WARRANTY AS TO PERFORMANCE, ACCURACY OR COMPLETENESS. You agree to exercise caution when utilizing the Mobile Banking Services on your Wireless Access Device and use good judgment and discretion when obtaining or transmitting information.

 

  1. Your Indemnification Obligation. In addition to any indemnification obligations you have under the Master Services Agreement, and except to the extent expressly prohibited by applicable law, you agree that you will indemnify and hold us harmless, including any of our licensors and providers of the Mobile Banking Services, and our respective directors, officers, shareholders, employees and agents, against any and all third party suits, proceedings, claims, demands, causes of action, damages, expenses (including reasonable attorneys’ fees and other legal expenses), liabilities and other losses that result from or arise out of: (i) your wrongful acts or omissions, or any person acting on your behalf, in connection with your use of the Mobile Banking Service, including without limitation (a) the breach by you of any provision, representation or warranty of this MBA, (b) your negligence or willful misconduct (whether by act or omission) or any third party acting on your behalf, (c) any misuse of the Mobile Banking Service by you, or any third party within your control or on behalf of you, (d) your failure to comply with applicable state and federal laws and regulations, or (e) any fine, penalty or sanction imposed on us by any clearing house, or any governmental entity, arising out of or connected with any Imaged Item processed by us for you or at your instruction; (ii) any act or omission of ours that is in accordance with this MBA or instructions from you; (iii) actions by third parties, such as the introduction of a virus that delay, alter or corrupt the transmission of an Imaged Item to us; (iv) any loss or corruption of data in transit from you to us; (v) any claim by any recipient of a Substitute Check corresponding to a Check processed by you under this MBA, that such recipient incurred loss due to the receipt of the Substitute Check instead of the Original Check; or (vi) any claims, loss or damage resulting from your breach of, or failure to perform in accordance with, the terms of this MBA.
  1. Our Liability. This Section is not intended to replace or supersede, and is hereby added to, any other exceptions to our liability that may be stated elsewhere in the Agreement and the Account Agreement. Except to the extent prohibited by applicable law or regulation, we will not be liable to you for any of the following: (i) any damages, costs or other consequences caused by or related to our actions that are based on information or instructions that you provide to us; (ii) any unauthorized actions initiated or caused by you or your agents; (iii) the failure of third persons or vendors to perform satisfactorily, other than persons to whom we have delegated the performance of specific obligations provided in this MBA; (iv) any refusal of a Payor Financial Institution to pay an Image Exchange Item or Substitute Check for any reason (other than our breach of contract, gross negligence or willful misconduct), including without limitation, that the Original Check, Image Exchange Item or Substitute Check was allegedly unauthorized, was a counterfeit, had been altered, or had a forged signature; (v) you or any other party’s lack of access to the Internet or inability to transmit or receive data; (vi) failures or errors on the part of Internet service providers, telecommunications providers or any other party’s own internal systems, or (vii) if you do not follow or comply with the representations or warranties set forth in this MBA. To the fullest extent allowed by law, and subject to our limitations on liability provided otherwise in this MBA, we will only be liable for damages that are solely and proximately caused by our gross negligence or willful misconduct. Our liability for errors or omissions with respect to the data transmitted or printed by us in connection with this MBA will be limited to correcting the errors or With respect to the Mobile Deposit Service, correction will be limited to reprocessing, reprinting and/or representing the Image Exchange Items or Substitute Checks to the Payor Financial Institution. Notwithstanding anything to the contrary in this MBA, and except to the extent expressly prohibited by applicable law or regulation, our aggregate liability for claims related to this MBA, whether for breach, negligence, infringement, in tort or otherwise, arising during any 6-month period shall be limited to an amount equal to the amount of fees paid by you to us under this MBA for such 6-month period. Except as otherwise specifically provided in this MBA, in no event will either party be liable to the other for any consequential, indirect, incidental, special, exemplary or punitive damages, including without limitation any loss of use or loss of business, revenue, profits, opportunity or good will, under any theory of tort, contract, indemnity, warranty, strict liability or negligence, even if such party has been advised or should have known of the possibility of such damages. Without limiting the foregoing, we shall be excused from failing to act or delay in acting if such failure or delay is caused by legal constraint, interruption of transmission, or communication facilities, equipment failure, war, emergency conditions or other circumstances beyond our control. In the event of any of the foregoing failure or delays, you acknowledge that you may instead deposit directly with us any Original Items for processing and presentment, provided such Original Items have not been previously imaged and processed in connection with the Mobile Deposit Services. In addition, we shall be excused from failing to transmit or delay in transmitting an Item for presentment if such transmittal would result in our having exceeded any limitation upon its intraday net funds position established pursuant to Federal Reserve guidelines or our otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. You and we acknowledge and agree that the limitations of liability in this Section are a bargain for allocation of risk and liability and agree to respect such allocation of risk and liability. Each party agrees and acknowledges that the other party would not enter into this MBA without the limitations of liability set forth in this Section.

 

  1. Relationship to Third Party Agreements. You agree that, when you use Mobile Banking Services, you remain subject to the terms and conditions of your existing agreements with any unaffiliated service providers, including, but not limited to your mobile service provider. You understand that those agreements may provide for fees, limitations and restrictions which might impact your use of the Mobile Banking Services (such as data usage or text messaging charges imposed on you by your mobile service provider), and you agree to be solely responsible for all such fees, limitations, and restrictions. You also agree that only your mobile service provider is responsible for its products and Accordingly, you agree to resolve any problems pertaining to your Wireless Access Device or mobile services with your provider directly.

 

  1. Proprietary Rights. You acknowledge and agree that the software and content used by us in the operation of our website and provision of the Mobile Banking Services, and the copyright patent, trademark, trade secret and all other rights in and to the technology, software, content, designs, graphics, and trademarks included by us on our website and as part of the Mobile Banking Services and our name and product names and the website’s URL (collectively, by the “Intellectual Property”), are owned by us and our Licensors. As such, you will not gain any ownership or other right, title or interest in or to such Intellectual Property by reason of this MBA or otherwise. You may not use, reproduce, duplicate, copy or distribute the content found at our website or provided by the Mobile Banking Services. You may not distribute, reuse, reproduce, duplicate, copy, publish, sell, or otherwise transfer (i) any portion or element of the Mobile Banking Services or the Intellectual Property or (ii) access to our Mobile Banking Services or Intellectual Property. Further, you may not (a) create derivative works of any portion or element of the Mobile Banking Services or Intellectual Property; (b) reverse engineer, modify, decompile or disassemble any of the Intellectual Property; (c) deactivate or disable any password protection or other protection, security or reliability technology we incorporate in the Mobile Banking Services; (d) modify or erase any copyright or trademark notice we place in connection with the Mobile Banking Services; (e) engage in the practice known as “screen-scraping” or otherwise attempt to, or actually, obtain copies of content provided through the Mobile Banking Services (sometimes known as “scrapers,” “spiders,” “robots” or “bots”) to systematically access and download data; (f) access the Mobile Banking Services by any means other than via your Wireless Access Device; (g) frame any content provided through the Mobile Banking Services or any Intellectual Property; or (h) use any circumvention tools, meta tags or any other “hidden text” utilizing our name, trademark, URL, product name or other Intellectual Property. You agree to comply with the terms of any license agreement made available to you through the Mobile Banking Services.

 

  1. Security of Data Transmission and Storage. You expressly acknowledge that any wireless access to your accounts may not be secure and, as such, you assume the risk associated with unauthorized access to the Mobile Banking Services and any information contained therein, resulting from such wireless connectivity. You assume all risk that any information you download or otherwise stored on your Wireless Access Device may be accessed by unauthorized third parties. Without limiting the foregoing, you acknowledge that your Wireless Access Device may become subject to unauthorized tracking, “hacking” or other manipulation by spyware, viruses or other malicious code (“malware”). We are not responsible for advising you of the existence or potential effect of any malware. Your use of your hardware and software is at your own risk. We are not responsible for the security and confidentiality of information when you: (i) use wireless connections to download your account information, in which case you acknowledge such connection may permit other persons to access the information being downloaded, or (ii) allow other persons access to your Wireless Access Device. You agree that any account information that you download is done at your own risk, and you are solely responsible for any damage that might occur to the electronic device to which you download any information, or any loss or corruption of data that might occur as a result of the downloading or its storage on an electronic device. YOU AGREE TO TERMINATE THE MOBILE BANKING SERVICE OR DISABLE YOUR REGISTERED WIRELESS ACCESS DEVICE FROM THE MOBILE BANKING SERVICE IMMEDIATELY IN THE EVENT YOUR REGISTERED DEVICE BECOMES LOST, STOLEN OR IS NO LONGER IN USE BY

 

  1. Fees. You agree to pay for the Mobile Banking Services (if applicable) in accordance with our fee schedule, as amended by us from time to time. You authorize us to automatically charge any one of your Accounts for all such fees incurred in connection with the Mobile Banking Services.

 

  1. Your Obligations
    • a. Account Ownership and Accurate Information. You represent that you are the legal owner or an authorized user of the Accounts and other financial information which may be accessed via the Mobile Banking Services. You represent and agree that all information you provide to us in connection with the Mobile Banking Services is accurate, current and complete, and that you have the right to provide such information to us for the purpose of using the Mobile Banking Services. You agree not to misrepresent your identity or your Account information. You agree to keep your Account information up to date and accurate. You represent that you are the only authorized user of the Wireless Access Device that you will be using to access the Mobile Banking Services.
    • b. User Security. You agree not to give or make available the Mobile Banking Services log-in, password or other security codes (collectively “Security Codes”) to any unauthorized You are responsible for all transfers or other transactions you authorize using the Mobile Banking Services. If you permit other persons to use your Security Codes, you are responsible for any transactions they conduct.
    • c. Contact in Event of Unauthorized Transfer. If you believe that any part of your Security Code, Wireless Access Device or other means to access your Account has been lost or stolen or that someone may attempt to use the Mobile Banking Services without your consent, or has transferred money without your permission, notify us either through the Online Banking system, by calling 1-888-895-9685, or writing us at 915 Broadway, 7th Floor, New York, N.Y. 10010. Refer to your Agreement and Account Agreement for additional details regarding error resolution procedures.
    • d. User Conduct. You agree not to use the Mobile Banking Services or the content or information delivered through the Mobile Banking Services in any way that would: (i) infringe any third-party copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) be fraudulent or involve the sale of counterfeit or stolen items, including, but not limited to, use of the Mobile Banking Services to impersonate another person or entity; (iii) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, false advertising or illegal Internet gambling); (iv) be false, misleading or inaccurate; (v) create liability for us or our affiliates or service providers, or cause us to lose (in whole or in part) the services of any of our service providers; (vi) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (vii) potentially be perceived as illegal, offensive or objectionable; (viii) interfere with or disrupt computer networks connected to the Mobile Banking Services; or (ix) use the Mobile Banking Services in such a manner as to gain unauthorized entry or access to the computer systems of others.
    • e. No Commercial Use or Re-Sale. You agree that the Mobile Banking Services are only for your use to access your Account information and otherwise facilitate services offered through the Mobile Banking Services. You agree not to make any commercial reuse of Mobile Banking Services, including to resell, lease, rent or distribute access to the Mobile Banking Services.
    • f. Changes, Termination, & Refusals. You may cancel your participation in the Mobile Banking Services at any time either through the Online Banking system, or by calling 1-888-895-9685. Unless otherwise restricted by applicable law, we reserve the right to: (i) change or cancel the Mobile Banking Services at any time without notice; and (ii) suspend your access to the Mobile Banking Services at any time without notice and for any reason, including, but not limited to your non-use of the Mobile Banking Services. Advance notice of termination or modification will be provided if required by To the extent permitted by law, such notice may be provided to you electronically. If you initiate any transaction, including accessing your account information, through the Mobile Banking Services after the effective date of a modification, you will be deemed to have effectively consented to the modification. We reserve the right to refuse to make any transaction you request through the Mobile Banking Services.
    • g. Third Party Beneficiary. You agree that our service providers (including any provider of software) may rely upon your agreements and representations in this MBA, and such service providers are intended third party beneficiaries to this MBA, with the power to enforce these provisions against you, as applicable.
    • h. Links to Other Services. While using the Mobile Banking Services, you may be able to access uploaded content provided or operated by third parties. Unless we tell you otherwise in writing, we do not operate or control any such content or any of the information, products or services on such linked websites. You acknowledge and agree that: (i) you access such content and linked sites at your own risk; (ii) we make no representation or warranty, and assume no responsibility for, content on our website and any linked site or the actions or omissions of its/their owners, operators or providers; (iii) we make no indorsement of, and assume no responsibility for, content uploaded to our website or goods or services offered on or advertising on or by any other website; (iv) by using other websites and services, you may be exposed to content that is offensive, indecent or objectionable; and (v) although we may have a contractual or other relationship with the operators of a linked website or the providers of content, we will not be responsible for the content, accuracy, integrity, availability, timeliness or operation of their website or content. You agree to hold us harmless in connection with all of the foregoing.
    • i. Right to Audit. You agree that we may periodically audit and verify your compliance with the MBA. You agree to cooperate and provide information or documentation, at your expense, as may be reasonably requested by us during such an audit

 

 

 

SCHEDULE C: FUND TRANSFER ORIGINATION SERVICES

 

Subject to the approval of Bank, Bank will provide ACH, wire, and electronic transfer origination services (“Origination Services”) in accordance with the terms set forth in this Schedule C, and Client shall comply with the terms set forth herein and as set forth in the Agreement. Pursuant to this Schedule C, the Client may submit funds transfer requests, Entries (as that term is defined in the NACHA Rules or the Rules of any other payment network used to process the entry or request, as applicable), and Payment Orders (as defined in Article 4A of the Uniform Commercial Code) (“Requests”) to the Bank for processing in accordance with this Schedule C and the Agreement. The term Request shall also include any information provided by Client which Bank uses to create any Entry, payment order, File, or similar item as applicable. Client shall only originate or submit Requests and Entries to Bank transactions of the type or SEC (as defined in the NACHA Rules) code that have been approved by Bank. The Bank may choose the funds transfer mechanism (for example, ACH, Fedwire, correspondent bank transfer) to be used when acting upon the Client’s request.

 

L. Provision of Origination Services. Bank shall process and settle, in accordance with the provisions of this Agreement, Entries and other Requests authorized and provided to Bank by Client. Requests must be submitted to Bank by Client for processing and Settlement in accordance with this Agreement and procedures governing Originators (as defined by the Rules applicable to a transfer), as well as any Settlement and cut-off times. In conveying Entries and other Requests and Communications to Bank, Client is acting as an Originator. Requests may be submitted by Client pursuant to this Agreement only by an Authorized User; provided, however, Bank is under no obligation to process a Request if it believes such Request is not authorized pursuant to Applicable Law, Rules or otherwise creates a reputational, operational, safety and soundness, or compliance risk to Bank. Client may only submit Entries that are within the Standard Entry Class Codes (as defined by the NACHA Rules) that are approved in writing by Bank.

 

M. Transmittal of Requests by Client. All Requests must be provided to the Bank using the Bank’s Services, as that term is defined in the Agreement. Client shall (i) submit Requests to Bank in compliance with Bank’s instructions, policies and procedures, the Rules, and Applicable Law; (ii) not submit to Bank on any day Requests in a total dollar amount that exceeds the Exposure Settlement Limits (if any); (iii) prior to such Request submission, ensure that each such Request is properly authorized as required by the Rules and Applicable Law and are otherwise formatted and comply with any other requirements set out in the Rules; and (iv) Client agrees to promptly and regularly (throughout the day) review and reconcile all Requests, transactions or other communications submitted and received by Bank and confirm the accuracy of such review and reconciliation for each Request, transaction or communication submitted and received by Bank. Subject to Bank’s prior approval, Client may contract with third parties for services, but shall nevertheless retain all liabilities of an Originator or Receiver (as defined in the Rules) as set forth in the Rules. With respect to each and every Request submitted to Bank by Client, Client agrees that it will perform its obligations under the Agreement and this Schedule C in accordance with all Applicable Laws, including the sanctions laws administered by OFAC. (It is Client’s responsibility to obtain information regarding the sanctions laws administered by OFAC. This information may be obtained directly from the OFAC Compliance Hotline at 800-540-OFAC). Client agrees to retain data on file adequate to permit remaking of Requests for not fewer than thirty (30) business days following the date of transmission of the Request to Bank, and to provide such data to Bank upon request. Client agrees that the dollar amount of any Request submitted to Client will not exceed, by itself or in the aggregate, any transaction or exposure limits applicable to an Account to be debited or credited in connection with a Request, or other limits set by the Bank from time to time.

N. Security Procedures. The Client will follow all Security Procedures, as that term is defined in the Agreement, in connection with its use of the Origination Service. In addition to the foregoing, for the purpose of this Schedule C, the Security Procedures used to access accounts and to use the Origination Services may include additional authentication tools or methods offered or required by the Bank from time to time (for example, challenge questions and phrases for employees, callback procedures). If the Client chooses not to implement supplemental authentication tools, the Client’s access to some or all Origination Services may be limited or revoked.

 

O. Transaction Limits . Client will not submit individual or total monthly Requests in excess of the maximum limits established by the Bank and reflected in any Supporting Documents, as amended from time to time. The parameters and variations of the limits shall be set at the Bank’s discretion, including but not limited to limits based on dollar amounts and/or Entry Standard Entry Class Code types. The Client will not divide a transaction into more than one Request in order to avoid these limitations. The Bank may adjust these limitations from time to time by providing notice to the Client. The Bank processing of Requests in an amount greater than the established limit(s) shall not be deemed a waiver of this provision; the Bank may cease processing Requests in a greater amount at any time without prior notice. In addition, all transfers to and from an Account will be subject to the terms, conditions, and limits applicable to the Account as set forth in the deposit agreement governing the Account. If the Client exceeds these limits, the Bank may impose a fee, close or convert the Client’s Account to a different type of account, limit the Client’s use of the Origination Services, or any combination of the foregoing. In addition, there may be other transfer limits addressed in the Supporting Documents.

 

P. Commercial Transfers. The Client may use the Origination Services to initiate funds transfers from the Client’s designated and eligible Account at the Bank to third parties. To the extent Requests are processed as ACH Entries, the Bank will be using CCD, CTX or PPD Standard Entry Class Codes.

 

Q. Recurring Requests. Client may use the Origination Service to submit recurring Requests for commercial transfers from your designated Account, at your selected frequency, on an ongoing However, if the processing date of any such Request is not on a Business Day, then the Request will be processed or initiated on the next Business Day or the prior Business Day.

 

R. Cut-Off Times. The cutoff hour for same-day Requests must be received by the cut-off time that may be imposed by the Bank from time to time. You may contact us for the most current information about the Bank’s cut-off times for Requests under this Agreement and Schedule C. A Request is considered executed when the Bank executes it. If a Request is received after the cut-off time or on a day that is not a business day, the Bank may process the Request the following Business Day.

S. Processing, Transmittal and Settlement by Bank. Except as provided in (d) (On-Us Entries) and (g) (Rejection of Requests), Bank shall (i) process Requests received from Client to conform with the file specifications set forth in the Rules, (ii) transmit such Requests as an ODFI to the operator of the relevant payment network, and (iii) settle for such Requests as provided in the Rules. For purposes of this Agreement, Requests shall be deemed received by Bank, in the case of transmittal by tape, when received by Bank, and in the case of electronic transmission, when the transmission (and compliance with any related Security Procedures provided for herein) is completed. If such requirements are not met, Bank shall use reasonable efforts to transmit such Requests for processing by the next deadline of the payment network operator.

 

T. On-Us Entries. Except as provided in Section (g) (Rejection of Requests), in the case of a Request received for credit to an Account maintained with Bank (“On-Us Entry”), Bank shall credit the Receiver’s account in the amount of such Request on the Effective Entry Date contained in such Request, provided the requirements set forth in Section (b)(i) and (b)(ii) (Transmittal of Requests by Client) are met. If either of those requirements is not met, Bank shall use reasonable efforts to credit the Receiver’s account in the amount of such Request no later than the next Business Day following such Effective Entry Date. With respect to On-Us Entries, the term “Rules” refers to the NACHA Rules unless the context otherwise so provides or requires.

 

U. Web Entries. If Bank authorizes Client to use the Origination Services to originate WEB Entries, then:

 

  1. Client will take all actions and obtain all consents and authorizations required under the NACHA Rules to allow Bank to meet its obligations as ODFI of WEB Entries, and you agree to retain the originals of such consents and authorizations for at least two (2) years after expiration, revocation, or termination thereof, or such other timeframe required by the NACHA Rules or Applicable Law;
  2. Client agrees it has performed or will perform an annual audit that satisfies the NACHA Rules before initiating a WEB Entry; and
  3. Pursuant to the NACHA Rules, Client will establish and implement commercially reasonable: (A) fraudulent transaction detection systems to screen debit WEB Entries; (B) methods of authentication to verify the identity of Receivers of debit WEB Entries; (C) procedures to verify that the routing number used in the debit WEB Entry is valid; and (D) security technology for communications between Client and Receivers over the internet or wireless networks.
  4. Each time Client initiates a WEB Entry, in addition to its other representations and warranties under this Agreement, Client warrants that the WEB Entry was screened by its fraudulent transaction detection system and that Client has used commercially reasonable methods to authenticate and verify the Receiver’s identity and to verify that the account number used in the WEB Entry is valid.

 

(5) Provisional Credit. Client acknowledges credit given to the recipient of a payment is provisional until the recipient’s bank has received final Settlement through a Federal Reserve Bank or otherwise received payment as provided under Article 4A of UCC. If final settlement is not received, the recipient will not be deemed to have been paid the amount of the Request. Furthermore, the Client agrees that any payment by the Bank for any returned credit or credit reversal is provisional until receipt by the Bank of final settlement for such return or reversal. If final settlement is not received, the Bank is entitled to a refund from the Customer of the amount credited, and the Bank may charge the Client’s Account for the amount credited. The Bank may refuse to permit the use of any amount credited for a credit reversal if the Bank believes that there may not be sufficient funds in the Client’s account to cover chargeback or return of such reversal.

 

W. Rejection of Requests. Bank may reject any Request that (i) does not comply with the terms of the Agreement, Applicable Law, Rules, requirements of Section (b) (Transmittal of Requests by Client) or (ii) that contains an effective Entry Date more than two (2) Business Days after the Business Day such Request is received by Bank. Bank may reject an On-Us Entry for any reason for which a Request may be returned under the Rules. Bank may reject any Request if Client does not adhere to its Security Procedures. Bank reserves the right to refuse to pay any third party to whom the Customer may direct a transfer Request. The Bank will notify the Client if the Bank decides to refuse to pay a third party designated by the Client. Bank shall notify Client by (email or electronic transmission) of such rejection no later than the Business Day such Request would otherwise have been transmitted by Bank to the network operator or, in the case of an On-Us Entry, its Effective Entry Date. Notices of rejection shall be effective when given. Bank shall have no liability to Client by reason of the rejection of any such Request or the fact that such notices are not given at an earlier time than that provided for herein. In the event that any Requests are rejected by any payment network or network operator for any reason, it shall be the responsibility of Client to remake such Should a File be rejected due to an error caused by Bank, Bank shall be responsible for remaking the File. In such a case, Client will supply sufficient information to allow Bank to recreate the Entries for up to five (5) Business Days after midnight of the Settlement Date. Bank shall be excused from failing to transmit or delay in transmitting a Request if such transmittal would result in Bank exceeding any limitation upon its intra-day net funds position established pursuant to Federal Reserve guidelines or otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority.

 

X. Stop Payment Requests. You can use the Origination Services to ask us to stop payment on any paper check drawn against any of your Accounts. You may ask us to stop payment on other Requests you made using the Origination Services, solely as otherwise permitted by the Agreement and this Schedule C. You acknowledge and agree that any stop payment Request you make must be requested in a manner provided by the Account agreement or such other procedures we provide from time to We may charge you a separate fee for each stop payment request you make, as set forth in any Fee Schedule or Account agreement.

 

Y. Cancellation or Amendment by Client. Client shall have no right to cancel or amend any Request after its receipt by However, Client can request the Bank to make amendments or cancel an ACH batch Request if the Request is still “pending” in Bank’s internet banking service. If a Client request for cancellation or amendment complies with the procedures for canceling or amending Request data, Bank shall use reasonable efforts to act upon such a request by Client prior to transmitting the Request to the network operator, or in the case of an On-Us Entry, prior to crediting or debiting a Receiver’s account, but shall have no liability if such cancellation or amendment is not affected. Client shall reimburse Bank for any expenses, losses or damages Bank may incur in effecting or attempting to affect Client’s request for the cancellation or amendment of a Request.

 

Z. Error Detection. Bank has no obligation to discover and shall not be liable to Client for errors made by Client, including errors made in identifying the Receiver, or an Intermediary or RDFI, or for errors in the amount of a Request or for errors in Settlement Dates. Bank shall likewise have no duty to discover and shall not be liable for duplicate Requests issued by Notwithstanding the foregoing, if Client discovers that any Request it has initiated was in error, it shall notify Bank of such error. In the event that Client makes an error or issues a duplicate Request, Client shall reimburse Bank for any loss, damages, or expenses, incurred by Bank as result of the error or issuance of duplicate Entries. Bank will use reasonable efforts, subject to and consistent with the Rules, to effect a reversal of an erroneous Request. Client will notify the Receiver by an appropriate method of communication that a reversing Request has been transmitted to the Receiver’s account, no later than the Settlement Date of the reversal Request. Client agrees to hold Bank harmless from any and all claims, demands, liabilities, costs, and expenses incurred by Bank as a direct or indirect result of any action Bank takes to correct or reverse a Request that Client or Bank identifies as erroneous.

 

AA. Notice of Returned Requests. Bank shall notify Client by email or online notification of the receipt of a returned or changed Request from the ACH Operator no later than one (1) Business Day after the Business Day of such receipt. Except for a Request retransmitted by Client in accordance with the requirements of Section (b) (Transmittal of Entries by Client), Bank shall have no obligation to retransmit a returned Request to the network operator if Bank complied with the terms of this Agreement with respect to the original Request. Upon receipt of a return of a Request to debit an account, with a return reason code related to unauthorized, disputed or revoked transaction (or any other similar terms), Client will cease transmission of said transactions until a new authorization has been signed by the relevant consumer or Receiver or until corrections have been made or an authorization has been obtained.

 

BB. Notifications of Change. Bank shall notify Client of all Notification of Change (“NOC”) Entries and similar requests to change a Request received by Bank relating to Requests transmitted by Client by electronic transmission no later than one Business Day after receipt thereof. It is the responsibility of Client to make the requested changes within six (6) Business Days or prior to the initiation of the next live entry, whichever is later with the following exceptions: (a) the Originator may choose, at its discretion, to make the changes specified in any NOC or corrected NOC relating to ARC, BOC, POP, RCK, XCK and single entry TEL or WEB, (b) in the case of CIE and credit WEB entries, the ODFI or Third-Party Service Provider is responsible for making the changes and (c) for an NOC in response to a Prenotification Entry, the Originator must make the changes prior to originating a subsequent entry if the ODFI receives the NOC by opening of business on the second Business Day following the Settlement date of the Prenotification Entry.

 

CC. Reversing Entries or Files. Except for the reasons explicitly permitted under the NACHA Rules, the initiation of reversing Entries or files because an Originator or Third Party Sender failed to provide funding for the original Entry or file and/or the initiation of reversing an Entry or file is beyond the time period permitted by the NACHA Rules are explicitly prohibited by NACHA Rules.

 

DD.Electronic Debits. Provisions may be made for holding accounts to be maintained for posting of any returned debit Requests received, as stated elsewhere within this Agreement and the Rules. Client will promptly provide immediately available funds to reimburse Bank if any such Requests are rejected after Bank has permitted Client to withdraw immediately available funds, should funds not be available in the Client’s Account or the Reserve Account to cover the amount of the rejected or returned Requests.

 

EE. Payment for Credit Requests and Returned Debit Requests. Notwithstanding anything to the contrary, Client agrees to pay Bank for all credit Requests submitted to Bank by Client, and credit Requests otherwise made effective against Client or a Client Account. Client shall make payment no later than the date of transmittal by Bank of such Requests or any other date Bank, in its discretion, may determine (“Payment Date”), and the amount of each On-Us Entry at such time on the Effective Entry Date of such credit Request as Bank, in its discretion, may determine. Client shall pay Bank for the amount of each debit Request returned by an RDFI or any dishonored Request. Payment shall be made by Client to Bank in any manner specified by Bank.

Notwithstanding the foregoing, Bank is hereby authorized to charge the account(s) held by Bank for Client or any other Client designated account as payment for credit Entries issued by Client or returned or dishonored debit Entries. In the event that such accounts does not have sufficient available funds on the Payment Date, Bank is hereby authorized to charge any account maintained by Client with Bank as payment for credit Requests issued by Client or returned or dishonored debit Requests. Client shall maintain sufficient collected funds in Client’s Account(s) to settle for the credit Requests on the Payment Date. In the event that no Client account has collected funds sufficient on the Payment Date to cover the total amount of all Requests to be paid on such Payment Date, Bank may take any of the following actions: (i) refuse to process all Requests, in which event Bank shall inform Client that Bank suspended processing of the Requests, whereupon Bank shall have no liability to Client or any third- party as a result thereof, or (ii) process all credit Requests. In the event Bank elects to process credit Requests initiated by Client, the total amount of the insufficiency advanced by Bank on behalf of Client shall be immediately due and payable by Client to Bank without any further demand from Bank. If Bank elects to pay Client’s account in the overdraft on any one or more occasions, it shall not be considered a waiver of Bank’s rights to refuse to do so at any other time nor shall it be an agreement by Bank to pay other items in the overdraft.

 

FF. Prefunding. Bank may require Client to establish one or more Accounts that will be used to settle Requests (each a “Settlement Account”). Client must maintain in the Settlement Account, as of the applicable effective date of the Request (the “Entry Effective Date”) and Settlement Date for each transaction, collected funds sufficient to cover all credit Requests originated by Client or otherwise submitted by or on behalf of Client to Bank for processing. Bank may place a hold on funds in a Settlement Account in the amount of any credit Request, pending settlement thereof, and in that event, such funds will be otherwise unavailable for use or for transfer to any other account. Client further authorizes Bank, without prior notice or demand, to debit the Settlement Accounts at the opening of business on the applicable Settlement Date in the amount of each credit Request. Client agrees to immediately provide sufficient available funds to reimburse and indemnify Bank if any debit Request is rejected after any funds have been withdrawn, which were made available as a result of a debit Request or if any adjustment relating to any debit Request is received by us. Bank reserves the right to require Client to pre-fund a Settlement account maintained at Bank prior to the Settlement Date of the ACH file. Bank shall determine whether pre-funding is required based on criteria established from time to time by Bank. Bank will communicate directly to Client if pre-funding is required and, if requested by Client, will provide Client with an explanation of its pre-funding criteria. If it is determined that pre-funding is required, Client will provide immediately available and collected funds sufficient to pay all Requests initiated by Client (a) not later than 8:00 a.m. EST three (3) Business Days before each Settlement Date, and (b) prior to initiating any Requests for which pre-funding is required.

 

GG. Inconsistency of Name and Account Number. The Client acknowledges and agrees that, if a Request describes a Receiver, beneficiary, or other party to a transaction inconsistently by name and account number, payment of the Request transmitted by Bank to the RDFI may be made by the RDFI (or by Bank in the case of an On-Us Entry) on the basis of the account number supplied by the Client, even if it identifies a person different from the named Receiver, beneficiary or party, and that the Client’s obligation to pay the amount of the Request to Bank is not excused in such circumstances. Client is liable for and must settle with Bank for any Request initiated by Client that identifies the Receiver, beneficiary or party by account or identifying number or by name and account or identifying number.

 

HH. Data Retention. Client shall retain data on file adequate to permit remaking of Requests for ten (10) days following the date of their transmittal by Bank as provided herein and shall provide such data to Bank upon its request. Without limiting th generality of the foregoing provisions, Client specifically agrees to be bound by and comply with all applicable provisions of Rules and Applicable Law regarding the retention of documents or any record, including, without limitation, Client’s responsibilities to retain all items, source documents, and records of authorization.

II. Audits. At least once per year, Client shall provide Bank with an ACH audit performed by a qualified third party approved by Bank in accordance with NACHA Rules. Bank shall treat such audit reports as Client’s Confidential Information under this Agreement. Any exceptions noted on the ACH audit reports will be promptly addressed with the development and implementation of a corrective action plan by Client’s management. Client’s failure to appropriately address any deficiencies shall be considered a material breach of this Agreement. The Client shall retain data on file adequate to permit remaking of Entries for three hundred and sixty-five (365) days following the date of their transmittal by Bank as provided here and shall provide such data to Bank upon its request.

 

In addition, Bank may from time to time request information from Client in order to evaluate a continuation of the Origination Services to be provided by Bank under this Schedule C and the Agreement, and/or adjustment of any limits set forth in this Agreement. Client agrees to provide the requested financial information immediately upon request by Bank, in the form required by Bank. Client authorizes Bank to investigate or reinvestigate at any time any information provided by Client in connection with the Agreement, this Schedule C or the Services. Upon request by Bank, Client hereby authorizes Bank to enter Client’s business premises for the purpose of ensuring that Client is in compliance with this Schedule C, and Client specifically authorizes Bank to perform an audit of Client’s operational controls, risk management practices, staffing and the need for training and ongoing support, and information technology infrastructure. Client hereby acknowledges and agrees that Bank shall have the right (but not the obligation) to mandate specific internal controls at Client’s location(s), and Client shall comply with any such mandate. In addition, Client hereby agrees to allow Bank to review available reports of independent audits performed at the Client location related to information technology, the Origination Services and any associated or related operational processes. If Client refuses to provide the requested financial information, if Bank concludes, in its sole discretion, that the risk of Client is unacceptable, if Client violates this Agreement, the Rules or any other Applicable Law or if Client refuses to give Bank access to Client’s premises, Bank may terminate the Origination Services and other Services in the sole discretion of Bank.

 

JJ. Reserves and Exposure Settlement Limits. In the event Exposure Settlement Limit may be exceeded on a Business Day, Client and Bank will work diligently to resolve such deficiency and update the Exposure Settlement Limit and/or Reserve Amount prior to the batch time of the Business Day that the Exposure Settlement Limit would have otherwise had met or exceeded.

 

KK. Notice of Improper Requests. Bank may provide Client with a periodic statement reflecting the total of each File transmitted by Bank or credited to a Receiver’s account maintained with Bank. Client agrees to promptly and regularly review all Requests and other communication received from Bank and to immediately notify Bank if there are any discrepancies between its records and those provided by Bank. If the Client fails to deliver such notice within seven (7) days, any claim of erroneous Requests is waived.

 

LL. Rules. You agree to comply with and be bound by the and the rules of any other payment network used to provide the Origination Services, as in effect from time to time (the “Rules”). To the extent transfer Requests are facilitated through the Automated Clearing House Network (“ACH”) they will be subject to the Operating Rules and Guidelines of the National Automated Clearing House Association (“NACHA Rules”), and the Client agrees to be bound by the NACHA Rules. All undefined capitalized terms used in parts of this Schedule C shall have the meanings given them in the Rules governing the transfer mechanism used by the Bank. The Client agrees that information or advice received by the Client from the Bank as to the Rules or the operation of the Rules is not legal advice and is not a substitute for the Client’s obligation independently to understand and comply with the Rules.

Client acknowledges that the Origination Services and any Request executed by the Bank will be subject Rules applicable to Entries, payment orders, and other Requests, including recordkeeping and information transmittal requirement under federal Bank Secrecy Act and its implementing regulations, and other Applicable Laws and Rules. The Client acknowledges and agrees that the Bank may capture and transmit information regarding a Request (for example, beneficiary’s name, address other beneficiary identifies and beneficiary’s account number) as part of the processing of a payment order. The Client agrees to assist the Bank in connection with any requirements imposed on the Bank fulfilling the Bank’s obligations in this regard. For non- consumer credit Requests, UCC 4A, as adopted by New York, applies.

Client acknowledges receipt of a copy or has access to a copy of the NACHA Rules. A copy of the NACHA Rules is available at www.achrulesonline.org. Client agrees to comply with and be bound by the NACHA Rules and all other Rules and Applicable Law governing any Request submitted to the Bank under this Agreement. In the event Client violates any Applicable Law or Rule and a fine is imposed on Bank because of Client’s violation, Bank shall pass on the fine and any associated penalties to Client. The Bank reserves the right to suspend Client, Originators and Third Party Service Providers for breach of Applicable Law or Rules, or to terminate this Agreement or this Schedule C of the Agreement. In the event that the Client uses any other Originator or Third Party Service Provider to transmit Requests, the Bank reserves the right to audit the Originator and/or Third Party Service Provider compliance with this Agreement and with the Rules. Bank will provide reporting information to NACHA regarding Client if Client’s return rate for unauthorized Entries exceeds the Unauthorized Entry Return Rate Threshold, the Administrative Return Rate Level or Overall Return Rate Level as required by the NACHA Rules. NACHA, in its role of ensuring the safety, security, and viability of the ACH network has determined that certain single-use or limited-use consumer authorizations have the potential to increase risk in the ACH system and compromise system effectiveness by increasing the incidence of returned Entries. Therefore, Client hereby warrants to Bank that for each such ACH Entry submitted for processing, Client have obtained all authorizations from the Receiver as required by the NACHA Rules, by Regulation E or other applicable law, and this Agreement. Client also makes the additional warranties to Bank that Bank makes to each RDFI and ACH Operator under the NACHA Rules for the respective SEC codes for Entries originated by Client. CLIENT INDEMNIFIES AND HOLDS BANK HARMLESS FROM ANY LIABILITY ARISING OUT OF THIRD-PARTY’S BREACH OF THESE WARRANTIES.

 

MM. Representations and Warranties. With respect to each and every Request originated or deemed originated by Client, Client represents and warrants that all requirements of the payment network have been or will be met; including the generation of pre- notification Entries before the first Request is sent, if required by the Rules. Client represents and warrants to Bank the accuracy of all warranties that, under the Rules, Bank is deemed to make with respect to Requests originated by Client, any Client administrator, or any other authorized user of these Origination Services. Without limiting the foregoing, Client represents and warrant that (a) each Request is accurate, timely, and all required payments are included; (b) Client has complied with the terms of the Uniform Commercial Code Article 4A if applicable, and otherwise performed is obligations under the Agreement and this Schedule C in accordance with all Applicable Laws, and (c) each person shown as the Receiver on a Request received by Bank from Client has authorized the initiation of such Request and the debiting or crediting of such person’s account in the amount and on the Effective Entry Date shown on such Request, and such authorization is in full force and effect at all relevant times. Client agrees to indemnify Bank against any loss, cost, liability, or expense (including attorneys’ fees and expenses and IRS penalties) resulting from or arising out of any breach of any of the foregoing representations, warranties, or agreements, including any fines assessed against Bank for any violation of Applicable Law or Rules caused by Client. Client further agrees to indemnify Bank, each participating bank, NACHA, ACH Operator and any other payment network operator from all claims, demands, losses, costs, liabilities or expenses (including attorneys’ fees and expenses) resulting from any failure on Client’s part to exercise reasonable care in the creation of or presentment of Entries, or to comply with Applicable Law or Rules.

 

NN. Standard Entry Class Code Warranties and Liabilities Without limiting anything herein, Client makes to Bank each of the warranties set forth in the NACHA Rules, Subsections 2.4.1 (General ODFI Warranties), 2.15.2 (Warranty of and Indemnification by Third Party Senders), 2.15.3 (Performance and Warranty of ODFI Obligations by Third Party Senders) and 2.5.17.4 (Additional ODFI Warranties for WEB Entries), and Section 5.2 (Warranties of Gateway) of the NACHA Rules. Such warranties are made by Client with each submission of Entries to Bank. If Client, as a Third Party Senders, performs any of the obligations of an ODFI under the NACHA Rules, Client will comply with the ODFI requirements of the NACHA Rules, and warrants that it is legally able to do so. Without limiting the foregoing, Client makes all representations and warranties set forth in the NACHA Rules related to each Entry type it submits.

 

OO. No Other Origination Agreement Permitted. Client is prohibited from entering into an ACH origination agreement with any other Originator or Third Party Sender under this Agreement. Notwithstanding the foregoing, If any third-party service provider sends Entries or other Requests to us on your behalf, you acknowledge that the third- party service provider is your agent and you agree that you shall require any third-party service provider to fully comply with all of the terms and conditions set forth in this Schedule C as well as all applicable terms and conditions of the Agreement.

 

PP. Limitation of Liability. The Bank’s liability under this Schedule C shall be limited as set forth in the Agreement. Any claim, action or proceeding by the Client to enforce the terms of this Schedule C or to recover for any service-related loss must be commenced within one year from the date that the event giving rise to the claim, action or proceeding first occurs. The Client agrees to cooperate with the Bank in any loss recovery efforts the Bank undertakes to reduce any loss or liability that arises in connection with Origination Services. The Client acknowledges that service fees have been established in contemplation of: (i) these limitations on the Bank’s liability, (ii) the Client’s agreement to review statements, confirmations, and notices promptly and to notify the Bank immediately of any discrepancies or problems; and (iii) the Client’s agreement to assist the Bank in any loss recovery effort. The Bank will not be liable or responsible for the acts or omissions of any other financial institution or any third party or for any inaccuracy or omission in a notice or Request received by the Bank from the Client, another financial institution, or any other third party.

 

SCHEDULE D: BILL PAYMENT SERVICE

 

This Schedule D (Bill Payment Services) governs your use of the Bill Payment Service. Upon your approval to use the Business Online Banking Services, Bank will automatically provide Client with access to the Bill Payment Services. If Client does not wish to use the Bill Payment Service, Client must deactivate this feature by sending a request to the Bank. Such deactivation will be effective after the Bank has had a reasonable opportunity to effectuate the request. The Primary Administrator designated in connection with the Business Online Banking Service shall be the Primary Administrator for the Bill Payment Service. This Primary Administrator is responsible for commencing the Client’s use of the Bill Payment Service and for designating other Authorized Users who may use this Bill Payment Service on behalf of the Client.

 

  1. Bill Payment Account Designation; Payment Details. When using the Bill Payment Service, the Client must designate the Account (“Bill Payment Account”) from which the bill payments (“Bill Payments”) are to be made. For each Bill Payment, the Client will also be required to provide the complete name of the payee, the account number and the payee’s remittance address (as exactly as shown on the billing statement or invoice), the amount of the payment and the date the Client wants the payment to be processed by the Bank (“Pay Date”). If the Pay Date is not a business day, then the Bill Payment will be processed by the Bank the next business day. To have a Pay Date that is the same date the Client accesses the System and initiates the Bill Payment instruction, the Bill Payment instruction must be received by the Bank on a business day, prior to the Bill Payment Service cut-off hour.

 

  1. Setting-Up Payees. When the Client signs onto the Bill Payment Service, the Client must establish the Client’s list of payees. A payee is anyone, including the Bank, that the Client designates to receive a Bill Payment, provided that the Bank accepts the payee for the Bill Payment Service. If the Bank accepts the payee, then the payee will be placed on the Client’s authorized list of payees. Each time the Client wants to initiate a Bill Payment, the payee must be on the Client’s authorized list of payees. The Bank reserves the right to reject any payee at any time, at its The Bank is not responsible if a Bill Payment is not made to a payee because the Client provided the Bank with incomplete, incorrect or outdated information regarding the payee or the Client attempted to make a payment to a payee that is not on the Client’s authorized list of payees. Also, the Bank reserves the right to refuse to approve a payee for the Client’s authorized list of payees and to otherwise prohibit payment to a payee via the Bill Payment Service.

 

  1. Available Funds. For current one-time Bill Payment instructions, the Client will need to have sufficient available funds in the Client’s designated Bill Payment Account to cover the amount of the Bill Payment on the same business day the Client logged and submitted the Bill Payment instruction prior to the Bill Payment cutoff hour for the business day and the Client has selected a Pay Date that is the same business day as the day the Client logged onto the If the Client submits the Client’s current one-time Bill Payment instruction after the Bill Payment cutoff hour, then the Pay Date will not be the same day that the Client logged onto the Service, even if the Client designated such day to be the Pay Date, and the one-time current Bill Payment instruction will be processed the next business day. The Client’s Bill Payment Account will also be debited the next business day. For future one-time or recurring Bill Payment instructions, the Client will need to have sufficient funds in the designated Bill Payment Account on the business day before the Pay Date, since the Bank will debit the Client’s designated Bill Payment Account on the business day before the Pay Date. In the event a Bill Payment is affected using a draft check drawn against Client’s Bill Payment Account, the debit to Client’s Bill Payment Account may be delayed until the payee receives and deposits the draft, and the check is processed against Client’s Bill Payment Account. If the Client does not have sufficient funds in the Bill Payment Account, then the Bank may prevent (or reverse) Bill Payments in any order and in any amount that the Bank chooses, even if the result is to reduce the Client’s transactions to a level below the amounts needed to pay the Client’s bills.

 

  1. Non-Recommended The Bank does not recommend that the Client use the Bill Payment Service to pay the Client’s federal, state or local taxes, courts or other governmental entities. The Bank will not be liable for penalties, interest or other damages of any kind if the Client tries to use the Bill Payment Service to remit or pay money for taxes, or to courts or governmental agencies.

 

  1. Scheduling Bill Payment. Client must designate a Pay Date so that it is scheduled sufficiently in advance of the due date of the Client’s bill (“Due Date”) to allow the payee to receive it on the Due Date set by the Client’s payee and without taking into account any grace period that may be offered by the Client’s payee. The Client is responsible for ensuring that the Client initiates a Bill Payment instruction in time for the payment to reach the payee before its Due Date (without taking into account any grace period). The Client must designate a Pay Date sufficiently in advance to allow at least five (5) business days, prior to the Due Date, for each Bill Payment instruction to reach the applicable payee. The Bank is not responsible for any damages the Client may suffer if the Client does not allow at least five (5) business days between the Pay Date and the Due Date of the Client’s bill or obligation, without counting any grace period offered by the payee.

 

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

 

  1. Payment Changes & Cancellation. The Client may change or cancel a Bill Payment instruction via the Service if the Client logs onto the Service prior to the Pay Date for the Bill Payment instruction and Client follows the Bill Payment instructions provided by the Bill Payment Service for changes and cancellations.

 

  1. Accurate Information on The Bill Payment will be processed using the information the Client supplies, and if the information the Client gives to the Bank is inaccurate or incomplete in any way the Bill Payment may be delayed or misdirected. If the Bill Payment Service provides the Client with a series of options regarding payee address or location, the Client is responsible for correcting that information if such information does not agree with the Client’s records or with the Client’s particular bill. The Bank and the others that handle the Client’s Bill Payment (including the payee’s bank) are entitled to rely on information the Client supplies, such as the payee’s account number or the routing number of the payee’s bank, even if the name the Client gives to the Bank and the number the Client gives to the Bank identify different persons.

 

  1. Automated Clearing House Entries. Electronic payments that are made through the Automated Clearing House (“ACH”) are subject to the rules of the ACH, and the Client agrees to be bound by the Operating Rules of the ACH, including the rule making payment to the payee provisional until receipt by the payee’s bank of final settlement of the credit If final settlement is not received, the Client will not be deemed to have paid the payee the amount of the bill payment.

 

  1. Bill Payment Limits. The Bill Payment Service is subject to limits on the amount and frequency of transactions the Client can make using the Bill Payment Service, including daily, weekly, and monthly limits. In addition, the Bill Payment Service may not be used for any transaction that will cause the Client to exceed any transaction limitation that applies to the Bill Payment Account pursuant to the deposit account agreement governing the Bill Payment Bank may modify these limits and add others at any time at Bank’s option. Client agrees to provide Bank with any and all information needed to establish such limitations and shall not accept or attempt to process Bill Payments in excess of the maximum limitations established by Bank. Client may request a modification of the limits that apply to the Client’s use of the Bill Payment Service, provided, however, that such requests will require an application to the Bank, and the review and approval of the Bank, which may be declined by the Bank for any reason in its sole discretion. The Bank may refuse to process any request for a Bill Payment in connection with this Service for any reason, subject to Applicable Law.

 

  1. Check Stop Payment Service. The Client may stop payment on a check by providing the Bank with timely, complete and accurate information on the number of the Account in question; the date of the item; the item number; the payee informationand the EXACT amount of the item (dollars and cents). If any information is incomplete or incorrect, the Bank will not be responsible for failing to stop payment on the item. Requests become effective when the Bank has had a reasonable opportunity to confirm their receipt and has verified that the item has not been paid. If the Client wishes to cancel or amend any Business Online Banking Service transactions (for example, a Funds Transfer Service requests), the Client should use that Business Online Banking Service and the Client will be subject to any limitations or inability to stop applicable to that Business Online Banking Service. If the Client contacts the Bank, the Bank may at its sole discretion attempt to assist the Client but will not be liable for any failure to successfully stop payment on transactions. The Client may not use this check stop payment service to stop payment on any electronic fund transfer (EFT) transaction, point- of-sale EFT transfer; any cashier’s check, certified check or other official institution check that has been purchased from the Bank or any check which the Bank has guaranteed. The Client understands that its stop payment request is conditional and subject to the Bank’s verification that the check has not already been paid, or any Business Online Banking Service not already performed, or that stopping payment may subject the Bank to risk of loss or damages under any law or regulation (including clearing house or other processor rules). All Stop Payment orders, renewals and revocations of stop orders will be subject to the Bank’s current policy on stop payment orders. From time-to-time, the System may be inoperable. If that occurs, Client’s request can be communicated to the Bank by telephone. Telephone requests will expire unless confirmed in writing within 14 days. A check stop payment order is effective for six (6) months only and will expire automatically, at which time the Client is responsible for any renewal desired by the Client for another six (6) month There will be a fee assessed for each stop payment request processed.

 

  1. Messages. While access to messages through the secure email function of the Service is “on-line,” messages sent to the Bill Payment Service through the function are not reviewed by the Bank personnel immediately after they are If immediate attention is required, the Client must contact the Bank by telephone or in person or through some other procedure not using the Services. Encryption of data transmissions does not guarantee privacy. Data transferred is encrypted in an effort to provide transmission security. Notwithstanding the Bank’s efforts to ensure that the Services are secure, the Client acknowledges that the Internet is inherently insecure and that all data transfers (including transfer requests and electronic mail) occur openly on the Internet. This means that the data transfers potentially can be monitored and read by others. The Bank cannot and does not warrant that all data transfers utilizing the Services will not be monitored or read by others. The Client’s e-mail messages may be acted upon by the Bank if received in a manner and in a time providing the Bank a reasonable opportunity to act. Nevertheless, unless otherwise provided herein, e-mail messages will not serve as a substitute for any requirement imposed on the Client to provide Bank with “written” notice.

 

  1. If a beneficiary of any requested Business Online Banking Service, including but not limited to Bill Payments, payment orders or other money transactions, or any other Communication from the Client (collectively, “payment order”), is identified by both name and account number, payment may be made by the Bank and by any other financial institution based on the account number even if the name and the account number are not consistent or identify different parties. If an intermediary bank or a beneficiary’s bank is identified on a payment order by both name and account number, the Bank and other financial institutions may rely on the account number even if the name and the account number are not consistent or identify different parties.

 

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

 

  1. Cutoff Hours. Several of the Bank’s Business Online Banking Services are subject to processing cutoff hours. Instructions received after an applicable cutoff hour or on a non-business day may be deemed received as of the next business day. Alternatively, some Business Online Banking Services may require the Client to resubmit an instruction when it is receivedafter the cutoff hour or on a non-business Please contact us for the most current information about the cutoff hours applicable to this Bill Payment Service and the applicable Accounts.

 

  1. Uploaded Content; Linked Sites & From the Bank’s website or application, the Client may be able to access uploaded content provided or operated by third parties. Unless the Bank tells the Client otherwise in writing, the Bank does not operate or control any such content or any of the information, products or services on such linked websites or applications. The Client acknowledges and agrees that: (i) the Client accesses such content and linked sites at the Client’s own risk; (ii) the Bank makes no representation or warranty, and assumes no responsibility for, content on the Bank’s website and any linked site or the actions or omissions of its/their owners, operators or providers (iii) the Bank makes no endorsement of and assumes no responsibility for, content uploaded to the Bank’s website or mobile banking application or goods or services offered on or advertising on or by any other website; (iv) by using other websites and services, the Client may be exposed to content that is offensive, indecent or objectionable; and (v) although the Bank may have a contractual or other relationship with the operators of a linked website or the providers of content, the Bank will not be responsible for the content, accuracy, integrity, availability, timeliness or operation of their website or content. The Client agrees to hold the Bank harmless in connection with all of the foregoing. The Bank reserves the right, but shall have no obligation, to reject, move, or delete content that the Bank, in the Bank’s sole discretion, believes violates this Service Description, or contains content, including viruses, that may interfere with the operation of the Bank’s website or mobile banking application. The Bank may, but has no obligation to, monitor, and/or retain copies indefinitely of, uploaded content, message boards, chat rooms or other forums or review content, or messages posted at such locations, to confirm their compliance with these guidelines. The Bank shall have the right, but not the obligation, to disclose content to any third party if required or permitted by law or if the Bank believes reasonably necessary to: (a) comply with legal process; (b) enforce this Service Description; (c) respond to claims that any content violates rights of third parties; or (d) protect the Bank’s rights, properly, or personal safety, or those third parties.

 

  1. Third-Party Content. The Bank may receive, process, and make available to the Client content that the Bank receives from theClient and others. In this regard, the Bank is merely a passive conduit for such content, although the Bank reserves the right to block or remove any content that the Bank believes violates this Service Description. The Bank assumes no responsibility for determining the accuracy, reliability, timeliness, ownership, legality, appropriateness or completeness of any information that the Client or others provides to the Bank, nor for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity on such sites. The Bank will not have a duty to interpret or evaluate any content transmitted to the Bank or through the Bank’s website or the Business Online Banking Services, except to the limited extent, if any, set forth in this Service Description. The Bank will not be required (by means of any security procedure or otherwise) to detect errors or illegality in the transmission or content of any content the Bank receives from the Client or third parties. The Bank will not have a duty to notify the Client about any inaccuracy, unreliability, ownership, incompleteness or other problem that may be associated with third party content on the Bank’s website, even if the Bank has reason to know of its existence. Use of any content the Client obtains from the Bank’s website or mobile banking application is at the Client’s own risk.

 

  1. Use of Personal Information. If the Client opens an account or obtains a product or service from the Bank using the Bank’s online or mobile services, the Bank may record your personal information from a scan or a copy of your driver’s license or other personal identification card, or may receive an image or make a copy of your driver’s license or other personal identification The Bank may store or retain this information to the extent permitted by law.

 

SCHEDULE E: REMOTE DEPOSIT CAPTURE SERVICES

 

If approved by Bank in connection with a Program, Bank will provide Remote Deposit Capture Services (“RDC Services”) in accordance with the terms set forth in this Schedule E (Remote Deposit Capture Services), and Client shall comply with the terms set forth herein and as set forth in this Agreement. The RDC Services are a part of the Mobile Banking Services. By using the RDC Services, you agree to and and are subject to the terms of the Agreement and Schedule B – Mobile Banking Services Agreement, each of which are incorporated by reference herein.

 

  • A. General Description of RDC Services. Subject to the terms, provisions and conditions of this Agreement and this Schedule E (Remote Deposit Capture Services), Bank shall provide RDC Services to Client. Pursuant to the RDC Services Client may make deposits to an Account from a remote location using a compatible mobile device (camera), computer hardware (scanner), software or web-based application (individually and collectively, the “Device”). Bank is not responsible for providing the Device, and Client shall ensure that any computer hardware (scanner), software or web-based application or other Intellectual Property used in connection with the RDC Services do not infringe on the Intellectual Property of any Client may use the RDC Services to prepare an accurate electronic picture or replica of the front and back of an Eligible Item (the “Image”) and deliver the Image and associated deposit information to Bank. “Eligible Items” are Checks or other paper items (not a Prohibited Item under this Schedule E (Remote Deposit Capture Services) or item rejected by Bank), payable on demand and drawn on (or payable through) an office of a United States bank, to be converted to Images and deposited into a Client Account using the RDC Services. The Image must accurately capture the front and back of the Check to be deposited. After capture of the Images and all other required data and information from each Check, Client will transmit one or more files containing the Images and all other required information pertaining to all Checks (the “File”) to Bank. Subject to the terms and conditions herein, Bank will process the File(s) in accordance with this Schedule E (Remote Deposit Capture Services).

 

  • B. Limitations for the RDC Services

 

  1. The RDC Services are subject to limits, including daily, weekly and monthly limits on the dollar amounts of Images that Client may transmit or submit and limits on the value of each Eligible Item, which applies to each separate Bank may modify these limits and add others at any time at Bank’s option. Client agrees to provide Bank with any and all information needed to establish such limitations and shall not accept or attempt to process Checks in excess of the maximum limitations established by Bank.
  2. Bank may prohibit use of the RDC Services if the current balance of the Account is negative, there are restrictions on the Account that prevent the depositing or withdrawing of funds, or there are more than (2) two returned deposited items in the last two (2) statement Client shall further ensure it does not request Bank to process any Check transaction in the event of the foregoing.
  3. Once an Image has been accepted for deposit, Bank is not able to delete or remove the item from the collection process.

 

  • C. Image Requirements

 

  1. Client shall only submit to Bank for processing Files based on the following Eligible Items as source documents, and shall ensure Client uses only Eligible Items as source documents to that comply with the following: (a) all instruments must be drawn on or payable through a federally insured depository financial institution; (b) no instrument may be a starter Check; (c) each instrument must be machine-readable full-field magnetic ink character recognition (“MICR”) encoded with the bank routing number, account number and check serial number printed on the Check; and (d) each instrument must be for an amount less than or equal to the approved Check limit assigned by When Bank receives an Image of a Check transmitted from Client that that has been converted to a digital version of the original Check (a Substitute Check) for subsequent presentment and collection, it shall thereafter be deemed an “item” within the meaning of Articles 3 and 4 of the Uniform Commercial Code.
  2. Each File transmitted by Client to Bank shall contain Images of the front and the back of Checks that are of minimum required size, not too dark, too light, or too bright, and must be legible and scanned and remotely deposited by Client. The Check MICR information must be machine-readable and MICR “on us” field value must contain valid data. Each Image of each Check shall be of such quality so that the following information (which must be included on the Image) can be clearly read and understood from sight review of the Image: (i) the amount of the check; (ii) the payee of the Check; (iii) the signature of the drawer of the Check; (iv) the date of the Check; (v) the Check number; (vi) information identifying the drawer and paying bank that is preprinted on the Check; and (vii) all other information placed on the Check prior to the Image being captured (including, but not limited to, any identification (current phone number and driver’s license number) written on the front of the check or any endorsements on the back of the Check). An Image cannot be missing or incomplete and the Check must be filled out in its entirety for the Check to be processed, and each Check and Image shall contain all proper endorsements. Each Image shall meet all standards of image quality, all requirements necessary to create a Check and must meet all technical requirements of an “electronic item” established by Applicable Law, including Regulation J. Any Check or Image not meeting these minimal requirements or that fails to comply or violates Applicable Law will be ground for immediate suspension or termination of the RDC Services and Client shall indemnify Bank for all losses suffered as a result of or in connection with such failure or violation.
  3. Client shall ensure that each Image or File submitted to Bank is the legal equivalent of the Eligible Item for all purposes, including that Bank qualifies as a holder-in-due-course for the Image under the Uniform Commercial Code.
  4. Notwithstanding anything to the contrary, Bank reserves the right, in its reasonable discretion, to reject or deny, for any reason and without liability, the processing of any Check or Image scanned or deposited using the RDC Services even where Bank has provided Client with a confirmation If an Image does not comply with the requirements set forth in this Section (c) (Image Requirements) and Bank’s processing requirements, Bank may, in its reasonable discretion and without liability, process the Image as received for payment, correct the Image or its accompanying data and process the corrected Image for payment, process the deposit for payment in another format as allowed or chargeback (debit) the Account, or the Client’s Reserve Account established under the Agreement for the amount of the Image. In addition, Bank reserves the right to chargeback (or debit) the Account or Reserve Account for the amount of any item, an Image or any paper item or other electronic representation of an item that is rejected by Bank for any reason, including where Bank, in its reasonable determination, the Eligible Item, Image or any paper item has been previously submitted or deposited with Bank or with anyone else or is returned to Bank. This is true even if there has been made any withdrawals against it. Bank shall not be liable for any losses, costs or fees Client may incur as a result of a chargeback of an ineligible item.
  5. Bank may supplement the requirements of this Section (c) (Image Requirements) at any time by providing written notice to the client.

 

  • D. Restricted Images; Prohibited Items

 

  1. Client shall not submit Files for a Prohibited “Prohibited Item” means checks and other items that are not considered eligible, including the following: (i) items payable to any person other than the Client or person that owns the deposit account into which the Check is being deposited; (2) items containing any alteration or erasures, or which Client knows or suspects, or should know or suspect, are fraudulent or otherwise not authorized by the owner of the deposit account on which the item is drawn; (3) items not payable in U.S. currency; (4) items not drawn on a financial institution located in the U.S.; (5) items authorized over the telephone and created remotely; (6) items payable jointly; (7) items that never existed in paper form; (8) items previously converted to a Substitute Check and pre-existing Substitute Checks; (9) items that are dated, post-dated, or more than six (6) months old when transmitted; (10) items that are not legible (as determined by Bank) or do not conform to Section (c) (Image Requirements) herein or any standard established by the Board of Governors of the Federal Reserve Board or any other regulatory agency, clearinghouse or association; (11) items payable on sight or payable through drafts; (12) items with any endorsement on the back other than that approved by Bank; (13) items that are drawn or otherwise issued by the U.S. Treasury Department; (14) non-cash items; (15) promissory notes and similar obligations, such as savings bonds; (16) items that have previously been submitted through the RDC Services or through remote deposit capture service offered at any other financial institution; (17) third party checks; (18) checks that have been previously returned as unpaid or uncollected; (19) checks drawn on a bank trust account; (20) checks that the written and numerical amounts or customer name on the Image does not match; (21) checks not signed by the payee;(22)items that are missing processing information (examples: missing or illegible routing numbers or account numbers); (23) any other class of checks or drafts as communicated to Client from time to time; or (24) checks not acceptable under the terms of the Agreement, this Schedule E (Remote Deposit Capture) or Applicable Law.
  2. In addition to the restrictions set out above and in any event, the following transactions are unacceptable for remote check deposit processing using the RDC Services, which shall also be considered Prohibited Items, and Client agrees not to submit any of the following transactions to Bank for electronic processing: (a) temporary checks or checks that do not have the customer’s current name, address and phone number pre-printed on its face; (b) any checks drawn on any depository institution that is not federally insured or part of the ACH network; (c) any checks drawn on the personal checking account of Client or any of their respective agents or employees; (d) any third party items for electronic remote check deposit processing or checks made payable to “cash” or “bearer”; (e) traveler’s check, money order, payroll check, counter check or sight draft; (f) any check dishonored as a result of a “stop payment” order issued by the presenter to Bank; (g) any transaction representing the financing of an existing obligation whether previously owed to Client arising from the dishonor of a check or dispute with Client; (h) in an attempt to collect a debt or financed obligation; (i) was one of multiple instruments or payment methods presented that day; (j) a check written for goods or services that are not concurrently provided to the customer, including any check given for a service contract, gift certificate, a layaway (except for the final payment) or for a similar transaction, or for goods or services provided to a third party; (k) that contains erasures, or which is altered, unless the alteration is initialed by the customer at time of presentation; (l) is likely to be dishonored or appears forged, stolen or otherwise fraudulent; and/or (m) knowingly submit a check on an account which Bank previously denied authorization. Client or their respective agents or employees shall not submit or process any item with prior knowledge that the item is likely to be dishonored or that the identification used was forged, stolen, or otherwise did not belong to the check writer, or that the transaction for which the item was tendered is illegal, void or invalid. Client’s submission of any of the above transactions for remote deposit check processing may subject the RDC Services to immediate suspension or termination, and all funds of Client, including those in the relevant Account, may be placed on hold.
  3. In addition to Client’s other indemnification obligations under this Agreement, if Client submits or processes a Prohibited Item, Client agrees to indemnify and reimburse Bank for, and hold Bank harmless from and against, any and all losses, costs and expenses (including reasonable attorney’s fees) Bank may incur as a result of or in connection with the Prohibited Item.

 

E. Handling of Original Item and Creating the Image: Client agrees that it shall only submit Images of the original Eligible Item that is still in the possession of Customer. Client shall follow any and all other procedures and instructions set forth in this Schedule E (Remote Deposit Capture Services), the Agreement and this Agreement

 

  1. Restrictive Endorsements. Prior to transmitting an image of an item using the RDC Services, Client shall ensure its endorsement is affixed to the back of the Eligible Item and restrictively endorses any Eligible Item transmitted to Bank as “FOR MOBILE DEPOSIT ONLY – GRASSHOPPER BANK – [CLIENT NAME]” or as otherwise instructed by Bank is not responsible or liable for any losses, claims, damages or expenses that result from placement of any other special instructions on any Checks submitted or transmitted for deposit related to the RDC Services, and Client shall be responsible for such losses, claims, damages or expenses. Client understands that any message text or other information added to the check image transmitted to Bank may cause the depository bank’s endorsement not to be legible which may result in the delayed return of the Check or electronic representation if it is not paid, and, as between Bank and Client, Client shall be responsible for any liability or Losses resulting from such delay. After the Check has been submitted for deposit through the RDC Service, you agree to indicate that the Item has been deposited via the RDC Service by writing “For Mobile Deposit Only – Grasshopper Bank – [Client Name], the word “Processed,” the phrase “mobile deposit XX/XX/XXXX [date] to Account [XXXX]” or similar on the back of the Item.
  2. Creating the Image. Prior to submitting a File, Client shall accurately create an Image and input the correct dollar amount of the check into the Device and shall ensure the MICR data, check number, and name of the maker of the Check are commercially printed on any Check and included in the File. Client also understands that the appearance of the original Check and the use of certain background colors, decorative images, and choices in ink on the original check may affect the ability to produce a readable digital image of the check or the creation of a Substitute Check that meets legal equivalence requirements which may require the original check to be processed for collection, and any such liability or Losses related to the foregoing shall be the responsibility of Client. Client is responsible for the inspection of all Images to ensure the legibility of the Images including without limitation the dollar amount, the signature of the maker of the Eligible Item, and for ensuring that any and all information on the Eligible Item is accurately captured and legible in the resulting Image.

 

F. Processing, Transmission of Files and Returns

    1. Processing.

 

  • a. Bank may attempt to process, collect, present for payment, return or re-present Images in any way in Bank’s discretion, including, as Images under private agreement or clearinghouse rules, as automated ACH entries under NACHA Rules, through a Federal Reserve payment service under Regulation J and Federal Reserve Operating Circulars, as Substitute Checks or as permitted under Applicable Law. Upon Bank’s request, Client shall provide Bank with the Eligible Item from which the Image was created and then collect the original Eligible Item. Without limiting anything herein, Bank may, in its reasonable discretion, reject, repair, alter, amend, re-format or convert the Image or MICR data submitted in a deposit through the RDC Services in accordance with general check collection practices and industry presentment standards, but Bank has no obligation to do so, and Bank shall not be liable to Client for doing so or failing to do If Bank requires that Client comply with certain formatting standards or other guidelines when submitting a File or Image RDC Services and Client declines to implement, or comply with such standards or guidelines, Client acknowledges that it shall be liable for any error or loss that results from its processing of such deposits or any delays caused from Bank’s re-formatting or conversion of the deposit prior to processing the deposit. Bank shall have no liability to Client, or any other person in the event that any deposited Check is processed as, or converted by Bank to, an Image or Substitute Check.
  • b. Bank is authorized to process transactions hereunder and to disseminate information in accordance with the information Bank receives electronically from Bank shall have no responsibility for erroneous data provided by Client or third party designee. Client shall bear all losses and liability related to the erroneous data provided in connection with a Check, Image, File data or information that is transmitted to Bank in connection with the RDC Services.
  • c. All settlements related to RDC Services are provisional and are subject to the rights to dispute the debits and/or credits to the applicable Account, if any, or subject to Bank’s right to revoke the same without prior notice in the event one or more of the transactions are rejected or returned to Bank for any reason. Client acknowledges that if for any reason funds are credited to Client in excess of the amount that the Client is entitled to receive in connection with the Eligible Image, Client shall provide to Bank the excess funds upon demand by Bank. Such excess funds may be collected by Bank by a debit to the applicable Client Account or Reserve Account initiated by the Bank.
  • d. In the event a File or information contained therein cannot, be processed hereunder, Client shall notify Bank in writing (and/or by phone, fax or email). Once notification is received by Bank, Client shall not submit the File for processing without Bank’s written approval.
  • e. Bank reserves the right to permit the Client only scan each Check, Image or File submitted to Bank for processing through a Bank approved Device. Client understands that it is a violation of Applicable Law and this Agreement to process debit requests against a person’s account without the person’s express, written consent and authorization. Client shall be exclusively responsible and liable for any such counterfeit, fictitious, lost, stolen or fraudulently obtained debit instrument. It is also understood by Client that any transaction initiated as an unauthorized entry or deposit is unlawful. In the event of a violation of Applicable Law or the processing of a counterfeit, fictitious, lost, stolen or fraudulently obtained debit instrument or item, Client shall be liable to Bank for any Losses or liability related to or arising out of or in connection with such transaction and shall reimburse Bank for such transaction immediately.

 

2. Batch Out and Receipt and Transmission of a File

 

  • a. Bank may require the Client to “batch out” all deposits by Client using or in connection with the RDC Services on a daily basis. “Batch Out” shall mean the totaling, settling, or reconciling by Client of all check images processed by midnight (12:00 m.) of the day Bank authorizes the transmission of the information contained in the batch submitted to Bank. If so required, Client agrees to upload Files based on Images from the Device daily and acknowledges that Bank cannot process the Files where the Images have not been made available to Bank. In addition, for any Image(s) contained in an untimely Batch Out, Bank may refuse, chargeback or hold the batch until after a sixty (60) day period for consumer or customer disputes. Client acknowledges that failure to Batch Out on a timely basis may be grounds for suspension or termination of the RDC Services by Bank in Bank’s reasonable discretion. Further, Client acknowledges that failure to Batch Out will delay funds being deposited and repeated failure to Batch Out will constitute a breach of this Agreement.
  • b. Client shall be solely liable for any File, Image or other information contained therein that is not received by Bank, that is dropped during transmission of any File, Image or other information contained therein, or that is intercepted or altered by an unauthorized third party. Client agrees that Bank shall have no obligation to accept a File or Image if it violates the terms of this Bank shall have no liability to Client or any Person for the rejection of a File, an Image or other information contained therein or for the failure to notify Client or Person of such rejection.
  • c. Upon receipt of a File or Image submitted by Client, Bank may examine such File and Image and other information contained therein to ensure that it complies with the terms of this Schedule E (Remote Deposit Capture Services), the Agreement, this Agreement and Applicable If Bank determines that the File and/or Image does not comply with the terms herein, the Agreement, this Agreement or Applicable Law or if errors exist in the Images or other information contained in the File, Bank may, in its reasonable discretion, either reject the File or elect to correct the error and accept and process the corrected File. As a form of correction, Bank may or may cause Client to correct the error. If after examination of a File and the Images and other information contained therein, Bank determines that the File, Image or other information contained therein complies with and was processed and transmitted in accordance with this Schedule E (Remote Deposit Capture Services), the Agreement, this Agreement and Applicable Law, the File is balanced and the Images meet the requirements of this Agreement, then Bank shall accept the File for deposit. Upon acceptance of the File, Bank may notify Client of receipt and acceptance of the File for deposit; provided, however such confirmation and acceptance does not mean the transmission or deposit is error free or complete. Notwithstanding the fact that Bank has accepted a File for deposit, Client shall remain liable to Bank for any inaccuracies, breach of warranties and any other loss sustained by, or claim made against, Bank in relation to any credit made to a Client Account.
  • d. At the time Client initiates authorization or processing with Bank of any File, including any Check or Image through the use of the RDC Services, Client represents and warrants that: (i) Client has endorsed all checks and other cash items for collection; (ii) the preparation and presentment of the transaction complies with the terms and conditions set forth in this Schedule E (Remote Deposit Capture Services) and this Agreement; (iii) the Image of the Check transmitted to Bank is a sufficient copy that is a true, correct, and an accurate Image that represents all the information on the front and back of the original Check at the time the original Check was truncated so that a Substitute Check created from the Image will satisfy legal equivalence requirements and the Image has not been altered in any manner by any Person; (iv) Client or any third party acting on behalf of Client has reviewed and confirmed that the transmission of MICR line information is identical in all respects to the original Check and that the encoded Check amount is accurate, (v) the original Check, or a paper or electronic representation, has not previously been deposited for collection with any financial institution, and no depositary bank, drawee, drawer, or endorser will be asked to pay a Check that it already has paid, (vi) Client will to retain the original Check, or in the event that Client utilizes the lockbox services of a third party or other similar services that such third party designee will retain the original check, until final settlement of the transaction and for such additional period as may be required in the event of a disputed truncated or Substitute Check, including claims that the Check or electronic representation does not satisfy legal equivalence requirements, so that the original check can be processed for collection, and that Client or its third party designee will take reasonable efforts to safeguard any original Checks until they are destroyed, (vii) Client has no knowledge or notice of information to indicate that the transaction is fraudulent; (viii) that each Check is for an amount agreed to by the Client; (ix) Client nor any of its respective employees or third party designees have submitted Checks drawn from their personal checking accounts; and (x) no transaction submitted for authorization to Bank is with or through a Person other than Client.
  • e. Bank shall be conclusively entitled to deem the remote deposit capture transaction authorized and binding upon Client:(i) if the electronic transmission of the Check, Image or File is made by, or Bank reasonably believes the transmission of the Check, Image or File was made by, Client, an Authorized User or any of their apparent agents or authorized representatives; (ii) if Client utilizes the services of a third party to facilitate the processing of the Check, Image or File, and Bank reasonably believes that such transaction and transmission by such third party are sent on behalf of Client; (iii) if the Client, or any off its affiliates, principals, employees, representatives or agents benefit from the transaction or transmission of such Check, Image of File, whether directly or indirectly; or (iv) the Check, Image or File is transmitted through the application program interface (API) made available by Bank; such API submission to be deemed a commercially reasonable security procedure by the parties, as contemplated by the Uniform Commercial See Schedule I (Security Procedures) for additional information.

 

3. Returned Items

 

  • a. Client authorizes Bank to represent all items that are returned to Bank and to originate an electronic entry for the amount of any allowable recovery Bank shall present the entry no more than two (2) times. Bank shall be entitled to assess a transaction fee from Client for each representment. If a check is returned unpaid after presentment, Bank shall be entitled to debit any account Client holds with Bank or exercise any other rights it has under this Agreement or under Applicable law.

 

  • b. Bank shall have no liability or obligation regarding any transaction processed at the request of Client for any dishonored or returned check transaction, including, if any Check is: (i) not honored by a customer’s or drawee’s financial institution; (ii) fraudulent, whether Client or its employees or agents are involved, either as a principal or as an accessory, in the issuance; (iii) lost, stolen, altered or counterfeit; (iv) given as a substitute for a previously accepted Check, whether or not the previous Check was authorized by the maker or, any Check upon which Client or its Servicer has accepted full or partial payment; (v) one of multiple Checks presented in a single transaction; (vi) for goods, if the goods are subsequently returned by customer or repossessed; (vii) previously denied authorization; (viii) related to a transaction for which cash is returned back to a customer; (ix) not in compliance with this Agreement, the Agreement or Applicable Law and not processed in accordance with this Schedule E (Remote Deposit Capture Services); or (x) illegible or not permitted for deposit, including Checks with incorrect MICR data scans or reads.

 

  • c. If an Eligible Item deposited using the RDC Services is dishonored or otherwise returned to Bank as unpaid, for non- sufficient funds, or for any other reason, including by a clearing agent for any reason (including but not limited to, issues relating to the quality of the Image) and the original Check was destroyed, the original Check will not be returned, and Bank may charge back an Image of the Check and all fees associated with the returned item to the Client’s Client authorizes Bank to process the Image of any replacement of an original Check in the form of an electronic or paper reproduction of the original Check. Unless otherwise instructed by Bank, Client agrees not to deposit or submit the original Check if an Image or other debit is charged back to the Client Account.

 

  • d. If this Agreement is terminated for any reason, Bank will retain the right to complete the representment process for all returned Check items prior to said termination. Any collection fees received by Bank in collecting returned Checks shall be the sole property of the Bank.

 

G. Maintenance, Retention and Destruction of Original Check

 

  • (i) After the Check is deposited using the RDC Services, Client shall securely store all original Checks for a minimum of ninety (90) days after the Check has been posted to the Account (such period is the “Retention Period”). During the Retention Period, Client shall take appropriate security measures to ensure that: (a) such deposited Checks are stored in a location away from daily processing activity; (b) only authorized individuals or personnel have access to original Checks, (c) the information contained on such Checks shall not be disclosed, (d) such Checks will not be duplicated or scanned more than one time or physically deposited at the Bank after being electronically deposited and (e) such Checks will not be deposited or negotiated in any form.

 

  • (ii) Client shall destroy original Checks upon the expiration of the Retention Period applicable to such Checks. Client will use commercially reasonable methods to destroy original Checks after expiration of the Retention Period. Cross-cut shredding is strongly recommended for Check destruction. Client is responsible and liable for any claims, losses or damages incurred by Bank resulting from or in connection with the destruction of original Checks.

 

  • (iii) Client will promptly (but in all events within forty-eight (48) hours) provide any retained original Check or other information to Bank as requested by Bank to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check or in connection with any deposit using the RDC Services. If the original Check has been destroyed and Bank needs the original Check to process a payment, re-present a Check in order to collect a returned Image or Substitute Check, or resolve a dispute arising from a deposit through the RDC Services, Client shall be responsible for providing Bank with a replacement check. However, if the original Check was not retained and not able to be replaced or lost by Client, Bank will not be able to process or re-present the transaction.

 

H. Hardware and Software

 

  • (i) Client shall scan each Check through a Bank approved Device to initiate the RDC Services under this Schedule E (Remote Deposit Capture Services), this Agreement and Applicable Law; provided, however, Bank shall not be liable for any Losses related to the Device (it being understood that Client is completely liable for all Losses and obligations associated with a Device). Client shall provide its Authorized Users a Device in order to access or otherwise use the RDC Services in compliance with the terms of this Agreement and the Agreement. Client shall ensure it has all Intellectual Property rights to a Device and has otherwise obtained all licenses necessary for Client and each Authorized User and Bank (to the extent applicable) to use a Device in connection with the RDC Services, and Client represents and warrants that the Device and any related software used by Client or an Authorized User to access the RDC Services shall not infringe upon the Intellectual Property rights of any Person. Client shall defend, indemnify and hold Bank harmless for any losses arising out of or in connection with any claim that the Device or any related Intellectual Property (including any technology to capture or create an image of a Check) infringes or misappropriates the Intellectual Property of any third Upon approval of such Device by Bank, Client shall assign an identification number for each Device. As between Bank and Client, Client is responsible for all telecommunication fees and charges, including but not limited to telephone fees, associated with and related to the use of the software or Device. Client shall maintain all equipment related to electronic check processing in good working order and shall monitor such equipment for viruses, defects, malfunctions, Device, system or software failures or interruptions at Client’s sole expense. Client shall advise Bank immediately in the event of a breakdown of a Device, software, or of any other system failure. Client acknowledges that Bank is not responsible for any equipment or software problems. Moreover, Bank’s approval of such equipment does not constitute nor express an implied warranty, representation or endorsement of such equipment. Client agrees to utilize only equipment approved by Bank for the processing of Checks and in a format and medium of transmission acceptable to Bank.

 

  • (ii) Client acknowledges that a Device may not capture all security features (e.g., watermarks) contained in or on the Eligible Item, and that Client shall to manually examine the paper item to determine the authenticity prior to creating an Image. Client assumes all responsibility for any losses resulting or in connection with any claims based on the security features that do not survive the processing of the Image.

 

  • (iii) If Bank determines to provide any software or user materials (the “Bank Software”) for use with the RDC Services, Bank may from time to time, make modifications or updates to the Bank Software and Client agrees to (and agrees to cause Servicer to) adopt such updates or modifications as they become available. Any Bank Software shall be subject to a separate software licensing agreement. The Bank Software may only be used to submit transactions to Bank as contemplated herein. Any license of and permission to use the Bank Software is non-exclusive and nontransferable, and it extends only to Client’s use for the purpose of processing transactions hereunder in accordance with this Schedule E (Remote Deposit Capture Services) and this Agreement. The Bank Software may not be used to process transactions with or through any other party without the express written consent of Bank and may not be exported in contravention of S. or foreign export laws.

 

I. Funds Availability

 

  • (i) Client agrees that items transmitted using the RDC Services are not subject to the funds availability requirements of Federal Reserve Board Regulation CC. Bank, in its reasonable discretion, may make funds available sooner or may extend the hold period based on such factors as credit worthiness, the length and extent of Client’s relationship with Bank, transaction and experience information, risk associated with the item and such other factors as Bank, in its reasonable discretion, deem relevant. Bank may also delay availability if there is an emergency, such as failure of computer or communications equipment.

 

  • (ii) Funds may not be available for use before Bank receives funds for any Check deposited through the RDC Until Client receives confirmation that the funds are made available, Client may not be permitted to withdraw funds. If Bank pays items or honors other withdrawals before funds are available, Bank may charge a fee for this. If Client successfully transmits an Image to Bank before the applicable cut-off time on a Business Day, Bank will consider that day to be the day of the deposit. After that time, Bank will consider the deposit to be made on the next Business Day. Even after the item has “cleared,” Bank has made funds available to Client, and Client has withdrawn the funds, Client is still responsible for items deposited that are returned to Bank unpaid and for any other problems involving the deposit.

 

J. Reserves; Security Interest; Held Funds: You acknowledge that we may from time to time establish minimum amounts to be funded by you as reserve amounts. We will provide notice to you of any reserve requirement, and you shall immediately fund the reserve amount with good funds. We may withhold and use any amounts due to you to maintain any reserve amounts at levels specified by us. To secure all of your obligations to us arising from this Schedule E, you grant to us a security interest in all of your Accounts with us, all funds in those Accounts, any Reserve Accounts or funds therein, all Items, whether now or hereafter established by or for your benefit, and all proceeds of the foregoing. Our security interest will survive after termination of this Schedule E. This security interest is supplemental to and not in lieu of the security interest granted by you to us under any other agreement. In addition to any other rights we may have with regards the accounts of yours, we may hold and use funds in any account following termination of this Schedule E for such time as we reasonably determine that any Item processed by us prior to termination may be returned, charged back or otherwise a cause for any loss, liability, cost, exposure or other action for which we may be responsible. Without limitation, you recognize that under the UCC, Regulation CC, the Electronic Check Clearing House OrganizationTM (“ECCHO”) Rules (as applicable), and the rules of any image exchange network, our representations and warranties with regards to Image Exchange Items and Substitute Checks may expose us to claims for several years following processing of the Image Exchange Item or Substitute Check.

 

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