HomeMy WebLinkAbout2016-204 A TRUE COPY
CERTIFICATION ON LAST PAGE
J.R. SMITH, CLERK
Bank
CASH MANAGEMENT MASTER AGREEMENT
Customer: INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS
Date:
TD Bank,N.A. (`Bank")provides a broad range of non-consumer cash management products and services to its customers.The
customer identified above("Customer")wishes to use,and Bank is willing to provide to Customer,those services that have been
checked below:
1. TD eTreasury Services(Appendix I)...........................................................................JE
2. TD ACH Origination Services(Appendix II)...............................................................®
3. TD Wire Transfer Services(Appendix III)...................................................................®
4. TD Sweep Services(Appendix IV)..............................................................................n
5. TD Positive Pay Services(Appendix V)......................................................................®
6. TD Controlled Disbursement Services(Appendix VI).................................................�
7. TD Lockbox Services(Appendix VII).........................................................................�
8. TD Digital Express Services(Appendix VIII).............................................................®
9. TD Account Reconcilement Services-Full(Appendix IX).........................................®
10. TD Account Reconcilement Services—Partial(Appendix X)......................................n
11. TD Deposit Reconcilement Services(Appendix XI)....................................................EJ
12. TD Check Imaging Services(Appendix)UI)...............................................................[]
13. TD Zero Balance Account Services(Appendix XIII)..................................................®
14. TD Currency Services(Appendix XIV).......................................................................n
15. TD EscrowDirect Services(Appendix XV).................................................................n
16. TD Information Reporting File Transmission Services(Appendix XVI).....................n
17. TD Data Exchange Services(Appendix XVII)............................................................n
18. TD ACH Third Party Sender Services(Appendix XVIII)............................................171
19. TD Image Cash Letter Services(Appendix XIX).........................................................E]
20. TD Healthcare Remittance Management Services(Appendix XX).............................[:]
21. TD Data Transmission Services(Appendix XXI)........................................................®
22. TD ACH Positive Pay Services(Appendix XXII).......................................................®
23. TD Currency Services for Smartsafe(Appendix XXIII)..............................................n
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24. TD Electronic Bill Payment Presentment&Payment Services(Appendix XX V).....❑
25. TD Integrated Payables Processing Services (Appendix XXV)..................................❑
25. TD Electronic Lockbox(Bill Payment Aggregation)Services (Appendix XXVI)......❑
The "Cash Management Service(s)"or "Service(s)"shall hereafter mean the cash management service(s)identified above and
provided by Bank (and/or Bank's third-party service providers) to Customer pursuant to this Agreement, the Appendices,
including Amended Appendices,as defined below,exhibits,Setup Form(s),and any service guides or manuals made available to
Customer by Bank.
Agreement
This Cash Management Master Agreement shall be and is hereby incorporated by reference into and forms part of the"Contract"
between the parties, the terms of which include: (1) the Indian River County Request for Proposal for Banking and Lockbox
Services dated September 7,2016(the"RFP"),(2)TD Bank's Response to Request for Proposals(RFP)for Banking and Lockbox
Services dated September 7, 2016 (the "Proposal"), and (3)this Agreement. The parties agree that any ambiguity, conflict or
inconsistency in the foregoing documents that together constitute the Contract shall be resolved in the following order: (1)the
Agreement;(2)the RFP;and(3)the Proposal.
The following terms and conditions are applicable to all Cash Management Services provided to Customer hereunder.
1. Definitions. Capitalized terms used in this `Appendix"means a description of the rules and
Agreement and in any Appendix,unless otherwise defined procedures applicable to a particular Service to be provided
herein or therein,shall have the meanings set forth below. by Bank to Customer. Each such Appendix,including any
Amended Appendix, is incorporated herein by reference
"Access Devices"means collectively all security, and made a part hereof; and all references herein to
identification and authentication mechanisms, including, Agreement shall be deemed to include all Appendices
without limitation, security codes or tokens, PINS, unless otherwise expressly provided. If there is any
electronic identities or signatures, encryption keys and/or conflict between the provisions of this Agreement and any
individual passwords associated with or necessary for Appendix or Amended Appendix, the Appendix or
Customer's access to and use of any Cash Management Amended Appendix shall govern, but only to the extent
Services. reasonably necessary to resolve such conflict.
"Account" means an Account, as such term is `Authorized Representative" means a person
defined in the Account Agreement,used in connection with designated by Customer as an individual authorized to act
any Cash Management Services. on behalf of Customer with respect to certain matters
and/or authorized to access and use the Services, as
"Account Agreement" means the Business evidenced by certified copies of resolutions from
Deposit Account Agreement issued by Bank and governing Customer's board of directors or other governing body,if
Customer's deposit relationship with Bank, as the same any, or other certificate or evidence of authority
may be amended from time to time. satisfactory to Bank, including, without limitation, any
Customer enrollment or Setup Form(s) completed by
Affiliate(s)" means, with respect to any party, Customer.
any company controlled by, under the control of, or under
common control with such party. "Bank Internet System" means Bank's Internet-
based electronic information delivery and transaction
"Amended Appendix"means an amendment to an initiation system, as may be offered by Bank from time to
Appendix that supplements or revises,but does not revoke time, including but not limited to Bank's eTreasury
in its entirety,a prior Appendix for a particular Service. Services.
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"Bank Internet System Appendix" means the Customer can obtain information on Bank's current cut-off
agreement issued by Bank that governs Customer's use of time(s) for Service(s) by reviewing the relevant Service's
the Bank Internet System. Setup Form(s), as applicable, or by calling Treasury
Management Services Support at 1-866-475-7262, or by
"Business Day"has the meaning given to it in contacting Customer's Treasury Management Services
the Account Agreement. Representative.Instructions received after a cut-off time or
on a day other than a Business Day will generally be
"Calendar Day"has the meaning given to it in deemed received as of the next Business Day.
the Account Agreement.
2.9 Except for the Service Fees (as
"Primary Account" means the Account further defined in Section 4.2 of this Agreement)
designated by Customer to which any direct Service fees and scope of included Services applicable to the
due Bank may be charged in accordance with this Term of the Contract as further described in
Agreement. Unless otherwise agreed upon in writing by Section 14 of this Agreement, Bank may make
Bank,the address for Customer associated with the Primary changes to this Agreement and any Appendix at any time
Account shall be the address to which all notices and other by providing notice to Customer in accordance with the
communications concerning the Services may be sent by terms of this Agreement or as may be required by applicable
Bank. law. Notwithstanding anything to the contrary herein, any
Appendix that provides for an alternative form and method
"Substitute Check"has the meaning given to it in for making changes to such Appendix and for providing
Section 3(16) of the Check Clearing for the 21" Century notice of the same shall govern for that Service. Further,
Act("Check 21"),P.L.108-100,12 U.S.C.§5002(16). notwithstanding anything to the contrary in the Contract or
in any Appendix, if Bank believes immediate action is
2. The Services. necessary for the security of Bank or Customer funds,Bank
may immediately initiate changes to any security
2.1 Bank shall provide to Customer, procedures associated with the Services and provide
subject to this Agreement and the applicable Appendix,all prompt subsequent notice thereof to Customer.
Cash Management Services that Customer may request and
that Bank may approve from time to time. Bank shall not 2.10 In connection with this Agreement and
be required to provide any Services specified in an the Services, Customer agrees that it shall present, and
Appendix unless Customer also provides all information Bank shall have a duty to process, only Substitute Checks
reasonably required by Bank to provide to Customer the that are created by financial institutions; provided,
Service(s)specified therein. however, that this limitation shall not apply to Substitute
Checks created with data from Customer pursuant to any
2.2 Customer, through its Authorized Appendix for Services involving the creation of electronic
Representative, may use the Services solely in accordance check images using check conversion technology.
with the terms and conditions of this Agreement and the
related Appendices. 3. Covenants,Representations and Warranties.
2.3 With the exception of scheduled off- 3.1 Customer represents and warrants that
peak downtime periods, Bank shall make all reasonable the individual(s) executing this Agreement and any other
efforts to make the Services available to Customer each agreements or documents associated with the Services
Business Day. has/have been authorized by all necessary Customer action
to do so,to issue such instructions as may be necessary to
2.4 Access to on-line or Internet-based carry out the purposes and intent of this Agreement and to
Services may be denied for various reasons, including if enable Customer to receive each selected Service. Each
invalid Access Devices are used or if the user exceeds the Authorized Representative whom Customer permits to
number of invalid attempts allowed by Bank. access and use the Services is duly authorized by all
necessary action on the part of Customer to (i) access the
2.5 Customer is authorized to use the Account(s) and use the Services; (ii) access any
Services only for the purposes and in the manner information related to any Account(s) to which the
contemplated by this Agreement. Authorized Representative has access; and (iii) engage in
any transaction relating to any Account(s) to which the
2.6 Customer agrees to cooperate with Authorized Representative has access.
Bank,as Bank may reasonably request,in conjunction with
the performance of the Services. 3.2 Bank may unconditionally rely on the
validity and accuracy of any communication or transaction
2.7 Customer agrees to comply with the made, or purported to be made, by an Authorized
Rules,as they may be amended from time to time by Bank. Representative and in accordance with the terms of this
Agreement.
2.8 A number of Bank's Services are
subject to processing cut-off times on a Business Day. 3.3 Customer shall take all reasonable
measures and exercise all reasonable precautions to prevent
the unauthorized disclosure or use of all Access Devices
associated with or necessary for Customer's use of the
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Services.3.4 Customer is not a"consumer" as such applicable to Accounts or Services generally. By
term is defined in the regulations promulgated pursuant to signing below, Customer acknowledges receipt of the
the Gramm-Leach-Bliley Act, 15 U.S.C. §6801 et seq.,nor Account Agreement and acceptance of the Service Fees,and
a legal representative of a"consumer." agrees to be bound by their terms,
3.5 Customer shall use the Services only 4.3 Customer authorizes Bank to charge
for its own lawful business purposes. Customer shall not the Primary Account for all applicable charges and fees to
use the Services for or on behalf of any third party,except the extent that such charges and fees are not offset by
as may otherwise be approved by Bank in its sole and earnings credits or other allowances for Customer's
exclusive discretion,and as further described in Section 33. Account(s). If the balance of available funds in the
Customer shall take all reasonable measures and exercise Primary Account is not sufficient to cover such fees,Bank
reasonableP recautions to ensure that Customer's officers, may charge such fees to any other deposit Account
employees and Authorized Representatives do not use the maintained on Bank's records in Customer's name.
Services for personal,family or household purposes,or for Customer also agrees to pay all sales, use or other taxes
any other purpose not contemplated by this Agreement. (other than taxes based upon Bank's net income)that may
be applicable to the Services provided by Bank hereunder.
3.6 Customer agrees not to use or attempt
to use the Services(a)to engage in any illegal purpose or 4.4 During the Term of this Agreement,as
activity or to violate any applicable law,rule or regulation, described in Section 14, Bank may not amend Service
(b)to breach any contract or agreement by which Customer Fees(s)associated with those Services provided by Bank in
is bound, or (c) to engage in any Internet or online accordance with the Contract, unless by mutual written
gambling transaction, whether or not gambling is legal in agreement of the parties. Bank acknowledges and agrees
any applicable jurisdiction, or (d) to engage in any that the fees reflected in the Proposal,shall control and be in
transaction or activity that is not specifically authorized and effect for the Term of this Agreement.Notwithstanding,the
permitted by this Agreement. Customer acknowledges and forgoing, Bank may charge or amend Service Fee(s)
agrees that Bank has no obligation to monitor Customer's associated with new or additional Services that Customer
use of the Services for transactions and activity that is may request that are not included Services under the
impermissible or prohibited under the terns of this Contract.
Agreement;provided,however,that Bank reserves the right
to decline to execute any transaction or activity that Bank 5. Customer Information. Customer agrees to
believes violates the terms of this Agreement. provide to Bank, before Bank begins providing any
Services to Customer, any and all information required to
3.7 Customer and Bank shall comply with comply with applicable law and Bank's policies and
(i) all applicable federal, state and local laws, regulations, procedures relating to customer identification and
rules and orders; (ii) the Account Agreement; (iii) all authority. Such information may include, without
applicable National Automated Clearing House Association limitation,official certificates of customer existence,copies
("NACHA") rules, regulations, and policies; (iv) the of Customer formation agreements,business resolutions or
Uniform Commercial Code; (v) Office of Foreign Asset equivalent documents, in a form acceptable to Bank
Control ("OFAC") requirements; and (vi) all applicable authorizing Customer to enter into this Agreement and to
laws, regulations and orders administered by the U.S. receive Services from Bank pursuant hereto, and
Department of the Treasury's Financial Crimes designating certain individuals as Customer's Authorized
Enforcement Network("FinCEN")(collectively(i)through Representatives.
(vi), "Compliance Laws").
6. Software.
4. Account Agreement;Service Fees.
6.1 Bank may supply Customer with
4.1 Bank and Customer agree that any certain software owned by or licensed to Bank to be used
Account established by Customer in connection with by Customer in connection with the Services("Software").
Services offered by Bank shall be governed by the Account Customer agrees that all such Software is and shall remain
Agreement,including one or more fee schedules issued by the sole property of Bank and/or the vendor of such
Bank for the Account. If there is any conflict between the Software. Customer agrees to comply with all of the terms
terms and provisions of this Agreement and the Account and conditions of all license and other agreements which
Agreement, the terms and provisions of this Agreement are provided to Customer by Bank and/or the Software
shall govern,but only to the extent reasonably necessary to vendor and/or which govern Customer's use of Software
resolve such conflict. associated with the Services. Unless otherwise agreed in
writing between Bank and Customer, Customer shall be
4.2 During the Term of the responsible for the payment of all costs of installation of
Agreement, as described in Section any Software provided to Customer in connection with the
14,Customer agrees to compensate Bank for all Services,as well as for selection,installation,maintenance
Accounts and Services that Bank provides pursuant to this and repair of all hardware required on Customer's premises
Agreement, an Appendices, in accordance with the for the successful operation of the Software.
gre � Y PP � P
Proposal (the "Service Fees"). Any fees and charges
associated with Accounts or Services that are not 6.2 Except as otherwise expressly
specified in the Contract shall be governed by prohibited or limited by applicable law, Customer shall
Bank's standard schedule of fees and charges indemnify, defend and hold harmless Bank, its successors
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and assigns, from and against any loss, damage or other 8. Bank Third Parties.
claim or liability attributable to Customer's unauthorized
distribution or disclosure of any Software provided with the 8.1 Customer acknowledges that certain
Services or any other breach by Customer of any Software third parties, agents or independent service providers
license. Notwithstanding the foregoing,Bank shall have (hereinafter "Third Parties') may, from time to time,
no right to be indemnified as otherwise limited or prohibited provide services ("Third Party Services") to Bank in
by applicable law, including without limitation, Section connection with Bank's provision of the Services to
768.28 of the Florida Statutes,as applicable and as the same Customer and that accordingly, Bank's ability to provide
may be amended from time to time.The provisions of this the Services hereunder may be contingent upon the
paragraph shall survive termination of this Agreement. continuing availability of certain services from such Third
Parties. Third Party Services may involve the processing
6.3 Any breach or threatened breach of this
and/or transmission
Section will cause immediate irreparable injury to Bank,
and Customer agrees that injunctive relief including B written) and fundss.. In addition, Customer agrees that
Customer's data, instructions (oral
Bank may disclose Customer's financial information to
preliminary injunctive relief and specific performance, such Third Parties (i)where it is necessary to provide the
should be awarded as appropriate to remedy such breach, Services requested; (ii) in order to comply with laws,
without limiting Bank's right to other remedies available in government agency rules or orders,court orders,subpoenas
the case of such a breach. Bank may apply to a court for or other legal process or in order to give information to any
preliminary injunctive relies; permanent injunctive relief government agency or official having legal authority to
and specific performance, but such application shall not request such information; or(iii)when Customer gives its
abrogate Bank's right to proceed with an action in a court written permission.
of competent jurisdiction in order to resolve the underlying
dispute. 8.2 Bank will be responsible for the acts
and omissions of its Third Parties in the same manner as if
7. Computer Requirements. For certain Cash Bank had performed that portion of the Services itself,and
Management Services, Customer will need to provide, at no claim may be brought by Customer against such Third
Customer's own expense, a computer or similar Internet- Parties. Notwithstanding the foregoing, any claims against
enabled device, software and Internet or other connections Bank (with respect to the acts or omissions of its Third
and equipment as needed to access the Services Parties) or its Third Parties shall be subject to the
(collectively, the "Computer'). Customer's Internet or limitations of liability set forth herein to the same extent as
other web browser software must support a minimum 128- if Bank had performed that portion of the Services itself.
bit SSL encryption or other security measures as Bank may However,Bank will not be deemed to be the agent of, or
specify from time to time. Customer's browser must be responsible for, the acts or omissions of any person(other
one that is certified and supported by Bank for optimal than its Third Parties),and no such person shall be deemed
performance. Customer is responsible for the installation, Bank's agent.
maintenance and operation of the Computer and all related
charges, including without limitation all Internet service 9. Customer Communications; Security
provider, telephone and other similar charges incurred in Procedures.
connecting to the Services. Customer is responsible for
installing and maintaining appropriate virus protection 9.1 In providing the Services, Bank shall
software on Customer's Computer. Bank recommends that be entitled to rely upon the accuracy of all information and
Customer routinely scan the Computer using reliable virus authorizations received from Customer or an Authorized
protection products,and to remove any viruses found using Representative and, where applicable, the authenticity of
such products. Bank is not responsible for any errors or any signatures purporting to be of Customer or an
failures caused by any malfunction of the Computer. Bank Authorized Representative. Customer agrees promptly to
is not responsible for any Computer virus or related notify Bank of any changes to any information or
problems that may be associated with access to or use of authorizations provided to Bank in connection with the
the Services, any Software,the Computer or other Internet Services, and further agrees to promptly execute any new
access,including but not limited to any virus,Trojan horse, or additional documentation Bank reasonably deems
worm, keystroke logger, rootkit, spyware, dishonest necessary from time to time in order to continue to provide
adware, crimeware or other malicious or unwanted the Services to Customer.
software or related problems that may be associated with
access to or use of the Services, any Software or the 9.2 Customer agrees that it shall be solely
Computer. Bank also is not responsible for any losses or responsible for ensuring its compliance with any
delays in transmission of information Customer provides to commercially reasonable security procedures established
Bank or otherwise arising out of or incurred in connection by Bank in connection with the Services, as such may be
with the use of any Internet or other service provider amended from time to time, and that Bank shall have no
providing Customer's connection to the Internet or any liability for any losses sustained by Customer as a result of
browser software. From time to time, Bank may require a breach of security procedures if Bank has complied with
that Customer upgrade or install software to the Computer the security procedures.
to ensure the proper operation of the Services. Customer
agrees to promptly load any such upgrades or additional
installations upon Bank's notice to Customer.
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9.3 Bank shall be entitled to rely on any Bank, subject to any limitation imposed on Customer by
written list of Authorized Representatives provided to Bank law enforcement or applicable law.
by Customer until revoked or modified by Customer in
writing. Customer agrees that Bank may refuse to comply 9.6 BANK'S SECURITY PROCEDURES
with requests from any individual until Bank receives ARE STRICTLY CONFIDENTIAL AND SHOULD BE
documentation reasonably satisfactory to it confirming the DISCLOSED ONLY TO THOSE INDIVIDUALS WHO
individual's authority. Bank shall be entitled to rely on any ARE REQUIRED TO KNOW THEM OR AS
notice or other writing believed by it in good faith to be OTHERWISE PROVIDED BY LAW. IF A SECURITY
genuine and correct and to have been signed by an PROCEDURE INVOLVES THE USE OF ACCESS
Authorized Representative. Bank may also accept verbal DEVICES, THE CUSTOMER SHALL BE
instructions from persons identifying themselves as an RESPONSIBLE TO SAFEGUARD THESE ACCESS
Authorized Representative, and Bank's only obligation to DEVICES AND MAKE THEM AVAILABLE ONLY TO
verify the identity of such person as an Authorized DESIGNATED INDIVIDUALS. CUSTOMER HAS THE
Representative shall be to call back such person at a SOLE RESPONSIBILITY TO INSTRUCT THOSE
telephone number(s) previously provided to Bank by INDIVIDUALS THAT THEY MUST NOT DISCLOSE
Customer as part of the Account or Services' Setup OR OTHERWISE MAKE AVAILABLE TO
Form(s). Bank may,but shall have no obligation to, call UNAUTHORIZED PERSONS THE SECURITY
back an Authorized Representative other than the PROCEDURE OR ACCESS DEVICES. CUSTOMER
Authorized Representative from whom Bank purportedly HAS THE SOLE RESPONSIBILITY TO ESTABLISH
received an instruction. Bank may, but shall have no AND MAINTAIN ITS OWN PROCEDURES TO
obligation to, request additional confirmation, written or ASSURE THE CONFIDENTIALITY OF ANY
verbal, of an instruction received from an Authorized PROTECTED ACCESS TO THE SECURITY
Representative via telephone at any time or for any reason PROCEDURE.
whatsoever prior to executing the instruction. Bank may
also in its discretion require the use of security codes for 10. Fraud Detection / Deterrence; Positive Pay.
Authorized Representatives and/or for receiving Bank offers certain products and services such as Positive
instructions or items from Customer. Customer Pay(with or without payee validation),ACH Positive Pay,
understands and agrees, and Customer shall advise each and Account blocks and filters that are designed to detect
Authorized Representative that, Bank may, at Bank's and/or deter check, automated clearing house ("ACH") or
option, record telephone conversations regarding other payment system fraud. While no product or service
instructions received from an Authorized Representative. will be completely effective, Bank believes that the
products and services it offers will reduce the likelihood
9.4 Any security procedures maintained by that certain types of fraudulent items or transactions will be
Bank are not intended to detect errors in the content of an paid against Customer's Account. Failure to use such
instruction received from Customer or Customer's products or services could substantially increase the
Authorized Representative. Any errors in an instruction likelihood of fraud. Customer agrees that if, after being
from Customer or Customer's Authorized Representative informed by Bank or after Bank otherwise makes
shall be Customer's sole responsibility. Customer agrees information about such products or services available to
that all security procedures described in this Agreement and Customer consistent with Section 27 of this Agreement,
applicable Appendix are commercially reasonable and that Customer declines or fails to implement and use any of
Bank may charge Customer's Account for any instruction these products or services, or fails to follow these and
that Bank executed in good faith and in conformity with the other Bank-identified or recommended precautions
security procedures, whether or not the transfer is in fact reasonable for Customer's particular circumstances,
authorized. Customer will be precluded from asserting any claims
against Bank for paying any unauthorized, altered,
9.5 Customer agrees to adopt and counterfeit or other fraudulent item that such product,
implement its own commercially reasonable internal service, or precaution was designed to detect or deter,
policies, procedures and systems to provide security to and Bank will not be required to re-credit Customer's
information being transmitted and to receive, store, Account or otherwise have any liability for paying such
transmit and destroy data or information in a secure manner items, except to the extent that Bank has failed to
to prevent loss, theft or unauthorized access to data or exercise the required standard of care under the
information("Data Breaches'). Customer also agrees that it Uniform Commercial Code.
will promptly investigate any suspected Data Breaches and
monitor its systems regularly for unauthorized intrusions. 11. Duty to Inspect. Customer is responsible for
Customer will provide timely and accurate notification to monitoring all Services provided by Bank, including each
Bank of any Data Breaches when known or reasonably individual transaction processed by Bank, and notifying
suspected by Customer and will take all reasonable Bank of any errors or other problems within ten (10)
measures,which may include,without limitation, retaining Calendar Days (or such longer period as may be required
and/or utilizing competent forensic experts, to determine by applicable law) after Bank has made available to
the scope of and data or transactions affected by any Data Customer any report,statement or other material containing
Breaches, and promptly providing all such information to or reflecting the error, including an Account analysis
statement or on-line Account access. Except to the extent
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otherwise required by law, failure to notify Bank of an appropriate showing Customer's financial condition,assets,
error or problem within such time will relieve Bank of any liabilities,stockholder's equity,current income and surplus,
and all liability for interest upon correction of the error or and such other information regarding the financial
problem(and for any loss from any subsequent transaction condition of Customer as Bank may reasonably request to
involving the same error or problem). In the event enable Bank to evaluate its exposure or risk. Any limits
Customer fails to report such error or problem within thirty established by Bank hereunder shall be made in Bank's
(30)Calendar Days after Bank made available such report, sole discretion and shall be communicated promptly to
statement or on-line Account access, the transaction shall Customer.
be deemed to have been properly authorized and executed,
and Bank shall have no liability with respect to any error or 14. Term and Termination.
problem. Customer agrees that its sole remedy in the event
of an error in implementing any selection with the Services 14.1 This Agreement shall be effective when
shall be to have Bank correct the error within a reasonable (i) signed by an Authorized Representative of Customer
period of time after discovering or receiving notice of the and accepted by Bank, and(ii)Customer delivers to Bank
error from Customer. all documents and information, including any Setup
Form(s) and electronic data, reasonably required by Bank
12. Overdrafts; Set-off. Bank may,but shall not be prior to commencing to provide the Services or otherwise in
obligated to, complete any transaction in connection with accordance with the Contract,and shall terminate three(3)
providing the Services if there are insufficient available years thereafter(The "Initial Service Term"). The parties
funds in Customer's Account(s) to complete the may renew this Agreement by mutual written agreement for
transaction. In the event any actions by Customer result in an additional two(2)year term(each an Extended Service
an overdraft in any of Customer's Accounts, including but Term"). Bank will determine the adequacy of such
not limited to Customer's failure to maintain sufficient documentation and information in its sole discretion and
balances in any of Customer's Accounts,Customer shall be may refuse to provide the Services to Customer until
responsible for repaying the overdraft immediately,without adequate documentation and information are provided.
notice or demand. Bank has the right, in addition to all
other rights and remedies available to it, to set off the 14.2 This Agreement shall continue in effect
unpaid balance of any amount owed it in connection with as described in Section 14.1 unless and until terminated by
the Services against any debt owing to Customer by Bank, either party with thirty (30) Calendar Days' prior written
including, without limitation, any obligation under a notice to the other.Either party may terminate an Appendix
repurchase agreement or any funds held at any time by in accordance with the provisions of this Section without
Bank, whether collected or in the process of collection, or terminating either this Agreement or any other Appendix.
in any other Account maintained by Customer at, or Upon termination of this Agreement or any Appendix,
evidenced by any certificate of deposit issued by, Bank. Customer shall, at its expense, return to Bank, in the
Except as otherwise expressly prohibited or limited by law, same condition as when delivered to Customer,
if any of Customer's Accounts become overdrawn, under- normal wear and tear excepted, all property belonging to
funded or for any reason contain a negative balance, then Bank and all proprietary material delivered to Customer in
Bank shall have the right of set-off against all of connection with the terminated Service(s).
Customer's Accounts and other property or deposit
Accounts maintained at Bank,and Bank shall have the right 14.3 If an Appendix is terminated in
to enforce its interests in collateral held by it to secure accordance with this Agreement, Customer must contact
debts of Customer to Bank arising from notes or other Treasury Management Services Support for instructions
indebtedness now or hereafter owing or existing under this regarding the cancellation of all future dated payments and
Agreement,whether or not matured or liquidated. transfers. Bank may continue to make payments and
transfers and to perform other Services that Customer has
13. Transaction Limits. previously authorized or may subsequently authorize;
however,Bank is not under any obligation to do so. Bank
13.1 In the event that providing the Services will not be liable if it chooses to make any payment or
to Customer results in unacceptable credit exposure or transfer or to perform any other Services that Customer has
other risk to Bank, or will cause Bank to violate any law, previously authorized or subsequently authorizes after an
regulation,rule or order to which it is subject,Bank may,in Appendix had terminated.
Bank's sole and exclusive discretion,without prior notice,
limit Customer's transaction volume or dollar amount and 14.4 Notwithstanding the foregoing, Bank
refuse to execute transactions that exceed any such limit,or may,without prior notice,terminate this Agreement and/or
Bank may terminate any Service then being provided to terminate or suspend any Service(s)provided to Customer
Customer. Bank will provide notice of such limits to pursuant hereto(i)if Customer or Bank closes any Account
Customer in accordance with the terms of this Agreement. established in connection with the Service(s) that is
necessary for the ongoing use of the Service(s)or necessary
13.2 Customer shall, upon request by Bank for Bank to charge Service Fees,including,but not limited
from time to time, provide Bank with such financial to, closure of the Primary Account,(ii)if Bank determines
information and statements and such other documentation that Customer has failed to maintain a financial condition
as Bank reasonably determines to be necessary or deemed reasonably satisfactory to Bank to minimize any
credit or other risks to Bank in providing Services to
Customer, including the commencement of a voluntary or
involuntary proceeding under the United States Bankruptcy
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Code or other statute or regulation relating to bankruptcy or 15.2 Except as otherwise expressly provided
relief of debtors, (iii) in the event of a material breach, in Section 8 of this Agreement,Bank shall not be liable for
default in the performance or observance of any term, or any loss,damage or injury caused by any act or omission of
material breach of any representation or warranty by any third party;for any charges imposed by any third party;
Customer, (iv) in the event of default by Customer in the or for any loss, damage or injury caused by any failure of
payment of any sum owed by Customer to Bank hereunder the hardware or software utilized by a third party to provide
or under any note or other agreement, as may be defined Services to Customer.
therein, (v) if there has been a seizure, attachment, or
garnishment of Customer's Accounts, assets or properties, 15.3 Bank shall not be liable or responsible
(vi)if Bank believes immediate action is necessary for the for damages incurred as a result of data supplied by
security of Bank or Customer funds or (vii) if Bank Customer that is inaccurate,incomplete,not current,or lost
reasonably believes that the continued envision of
asO y p in transmission. It is understood that Bank assumes no
Services in accordance with the terms of this Agreement or liability or responsibility for the inaccuracy,
any Appendix would violate federal,state or local laws or incompleteness or incorrectness of data as a result of such
regulations,or would subject Bank to unacceptable risk of data having been supplied to Customer through data
loss. In the event of any termination hereunder,all fees due transmission.
Bank under this Agreement as of the time of termination
shall become immediately due and payable. 15.4 Bank is not liable for failing to act
Notwithstanding any termination, this Agreement shall sooner than required by any Appendix or applicable law.
remain in full force and effect with respect to all Bank also has no liability for failing to take action if Bank
transactions initiated prior to such termination. had discretion not to act.
15. Limitation of Liability; Disclaimer of 15.5 Bank shall not be responsible for
Warranties. Customer's acts or omissions (including, without limitation,
the amount, accuracy, timeliness of transmittal or due
15.1 Customer acknowledges that Bank's authorization of any entry, funds transfer order, or other
fees and charges for the Services are very small in relation instruction received from Customer)or the acts or omissions
to the amounts of transfers initiated through the Services of any other person, including, without limitation, any
and as a resin Bank's willingness to provide the Services
� � p Automated Clearing House processor, any Federal Reserve
is based on the limitations and allocations of liability Bank, any financial institution or bank, any transmission or
contained in this Agreement.Unless expressly prohibited or communication facility, any receiver or receiving depository
otherwise restricted by applicable law,the liability of Bank financial institution, including, without limitation, the return
in connection with the Services will be limited to actual of an entry or rejection of a funds transfer order by such
damages sustained by Customer and only to the extent such receiver or receiving depository financial institutions, and no
damages are a direct result of Bank's gross negligence, such person shall be deemed Banks agent Bank shall be
willful misconduct,or bad faith. In no event shall Bank be excused from failing to transmit or delay in transmitting an
liable for any consequential, special, incidental, indirect, entry or funds transfer order if such transmittal would result in
punitive or similar loss or damage that Customer may Bank's having exceeded any limitation upon its intra-day net
suffer or incur in connection with the Services, including, funds position established pursuant to Federal Reserve
without limitation, attorneys' fees, lost earnings or profits guidelines or otherwise violating any provision of any risk
and loss or damage from subsequent wrongful dishonor control program of the Federal Reserve or any rule or
resulting from Bank's acts, regardless of whether the regulation of any other U.S. governmental regulatory
likelihood of such loss or damage was known by Bank and authority. In no event shall Bank be liable for any damages
regardless of the basis, theory or nature of the action on resulting from Bank's action or inaction which is consistent
which a claim is asserted. Unless expressly prohibited by with regulations issued by the Board of Governors of the
or otherwise restricted by applicable law, and without Federal Reserve System, operating circulars issued by a
limiting the foregoing, Bank's aggregate liability to Federal Reserve Bank or general banking customs and
Customer for all losses,damages,and expenses incurred in usage.To the extent required by applicable laws,Bank will
connection with any single claim shall not exceed an compensate Customer for loss of interest on funds as a
amount equal to the monthly billing paid by,charged to or direct result of Bank's failure to comply with such laws in
otherwise assessed against Customer for Services over the executing electronic transfers of funds, if such failure was
three (3) month-period immediately preceding the date on within Bank's control. Bank shall not be liable for
which the damage or injury giving rise to such claim is Customer's attorney's fees in connection with any such
alleged to have occurred or such fewer number of claim.
preceding months as this Agreement has been in effect.
Notwithstanding any of the foregoing, for transactions 15.6 EXCEPT AS OTHERWISE SET
which are subject to Article 4A of the UCC,Bank shall be FORTH IN THIS AGREEMENT, CUSTOMER
liable for such damages as may be required or provided EXPRESSLY AGREES THAT USE OF THE SERVICES
under Article 4A or the Fedwire Regulations,as applicable, IS AT CUSTOMER'S SOLE RISK,AND THE SERVICE
except as otherwise agreed in this Agreement. This IS PROVIDED "AS IS," AND BANK AND ITS
Agreement is only between Bank and Customer,and Bank SERVICE PROVIDERS AND AGENTS DO NOT
shall have no liability hereunder to any third party. MAKE, AND EXPRESSLY DISCLAIM ANY,
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J.R. SMITH, CLERK
WARRANTIES, EITHER EXPRESSED OR HVIPLIED, survive termination of this Agreement.
WITH RESPECT TO THE SERVICES, INCLUDING
WITHOUT LIMITATION ANY IMPLIED 17. RESERVED.
WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, OR NON- 18. Force Majeure. Neither party shall bear
INFRINGEMENT OF INTELLECTUAL PROPERTY responsibility for non-performance of this Agreement to the
the
RIGHTS, OR THAT THE SERVICES WELL BE extent that such non-performance is caused by an event
UNINTERRUPTED OR ERROR FREE, WITHOUT beyond that party's control, including, but not necessarily
REACHES OF SECURITY OR WITHOUT DELAYS. limited to,fire,casualty,breakdown in equipment or failure
BRIN EACHES
STATES THAT DO NOT ALLOW THE of telecommunications or data processing services,lockout,
EXCLUSION OR LIMITATION OF LIABILITY, THE strike, unavoidable accident, act God, riot, warthe
LIABILITY OF BANK AND ITS SERVICE PROVIDERS enactment, issuance or operation any adverse erse
AND AGENTS IS LIMITED TO THE FULLEST governmental law,ruling,regulation,orderer or decree,or an
POSSIBLE EXTENT PERMITTED BY LAW. emergency that prevents Bank or Customer from operating
normally.
15.7 The provisions of this Section 15 shall
survive termination of this Agreement. 19. Documentation. The parties acknowledge and
agree that all documents evidencing, relating to or arising
16. Indemnification. from the parties' relationship may be scanned or otherwise
imaged and electronically stored and the originals
16.1 Customer shall indemnify and hold Bank (including manually signed originals) destroyed The
harmless from any and all liabilities,losses,damages,costs, parties agree to treat such imaged documents as original
and expenses of any kind (including, without limitation, documents and further agree that such reproductions and
the reasonable fees and disbursements of counsel in copies may be used and introduced as evidence at any legal
connection with any investigative,administrative or judicial proceedings including, without limitation, trials and
proceedings, whether or not Bank shall be designated a arbitrations,relating to or arising under this Agreement.
party thereto)which may be incurred by Bank due to any
claim or action by any person, entity or other third-party Entire Agreement. Bank and Customer
acknowledge and agree that the Contract and any
against Bank to the extent such claim or action relates to or ac
arises out of: amendments hereto, all other documents incorporated by
reference therein, constitute the complete and exclusive
(i) any claim of any person that statement of the agreement between them with respect to
(a)Bank is responsible for any act or omission of Customer the Services, and supersede any prior oral or written
or (b) a Customer payment order contravenes or understandings, representations, and agreements between
compromises the rights,title or interest of any third party, the parties relating to the Services.
or contravenes any law, rule, regulation, ordinance, court
order or other mandate or prohibition with the force or Fees as further defined Amendments. Except for the Service
in Section 4.2 of
effect of law;
Fen d
this Agreement) a of included
g ) and scope
(ii) any failure by Customer to Services applicable to the Term of the
observe and perform properly all of its obligations Contract. Bank may, at any time, amend this
hereunder or any wrongful act of Customer or any of its Agreement,the Services or Appendices in its sole discretion
Affiliates; and from time to time. Except as expressly provided
otherwise in this Agreement, any such changes generally
(iii) any breach by Customer of will be effective as provided in the notice to Customer as
any of its warranties,representations or agreements; described below. Customer will be deemed to accept any
such changes if Customer accesses or uses any of the
(iv) any action taken by Bank in Services after the date on which the change becomes
reasonable reliance upon information provided to Bank by effective. Customer will remain obligated under this
Customer or any Affiliate or subsidiary of Customer;and Agreement and any Appendices, including without
limitation, being obligated to pay all amounts owing
(v) any legal action that Bank thereunder, even if Bank amends this Agreement or any
responds to or initiates, including any interpleader action Appendices. Notwithstanding anything to the contrary in
Bank commences, involving Customer or Customer's this Agreement, in any Appendix or the Contract, if Bank
Account(s), including without limitation, any state or believes immediate action is necessary for the security of
federal legal process, writ of attachment, execution, Bank or Customer funds, Bank may immediately initiate
garnishment,tax levy or subpoena. changes to any security procedures and provide prompt
subsequent notice thereof to Customer. As set forth in
This provision shall be only to the Section 14.2, Customer may terminate this Agreement or
extent allowed by and within the limits of liability provided any Appendix upon its receipt of any notice of change that
by section 768.28,Florida Statutes,and shall not otherwise is not acceptable to Customer.
be deemed a waiver of Customers sovereign immunity.
22. Severability. If any provision of this Agreement
shall be determined by a court of competent jurisdiction to
16.2 The provision of this Section 16 shall be unenforceable as written, that provision shall be
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J.R. SMITH, CLERK
interpreted so as to achieve, to the extent permitted by any such notice or communication as being given to all
applicable law, the purposes intended by the original Account owners when such notice or communication is
provision,and the remaining provisions of this Agreement given to any one Account owner.
shall continue intact. In the event that any statute,
regulation or government policy to which Bank is subject 28. Jury Trial Waiver. BANK AND CUSTOMER
and that governs or affects the transactions contemplated by EACH AGREE THAT NEITHER BANK NOR
this Agreement,would invalidate or modify any portion of CUSTOMER SHALL(I)SEEK A JURY TRIAL IN ANY
this Agreement, then this Agreement or any part thereof LAWSUIT, PROCEEDING, COUNTERCLAIM, OR
shall be deemed amended to the extent necessary to comply ANY OTHER ACTION BASED UPON, OR ARISING
with such statute,regulation or policy,and Bank shall incur OUT OF,THIS AGREEMENT OR ANY ACCOUNT OR
no liability to Customer as a result of Bank's compliance THE DEALINGS OF THE RELATIONSHIP BETWEEN
with such statute,regulation or policy. BANK AND CUSTOMER, OR (H) SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH
23. Assignment and Delegation. Bank may assign
ANOTHER IN WHICH A JURY TRIAL CANNOT BE
any of its rights or delegate any of its responsibilities in OR HAS NOT BEEN WAIVED. THE PROVISIONS OF
whole or in part without notice to or consent from THIS SECTION SHALL BE SUBJECT TO NO
Customer. Customer may not assign,delegate or otherwise EXCEPTIONS. NEITHER BANK NOR CUSTOMER
transfer its rights or responsibilities under this Agreement HAS AGREED WITH OR REPRESENTED TO THE
without Bank's prior written consent,which consent Bank OTHER THAT THE PROVISIONS OF THIS SECTION
may grant or withhold in its sole discretion. WILL NOT BE FULLY ENFORCED IN ALL
24. Successors. This Agreement shall be binding INSTANCES. BANK AND CUSTOMER EACH
ACKNOWLEDGE THAT THIS WAIVER HAS BEEN
upon and inure to the benefit of the parties and their KNOWINGLY AND VOLUNTARILY MADE. The
successors and permitted assigns. provisions of this Section 28 shall survive termination of
25. Non-Waiver. No deviation from any of the this Agreement.
terms and conditions set forth or incorporated in this 29. Beneficiaries. This Agreement is for the benefit
Agreement shall constitute a waiver of any right or duty of only of the undersigned parties hereto and is not intended to
either party, and the failure of either party to exercise any and shall not be construed as granting any rights to or
of its rights hereunder on any occasion shall not be deemed otherwise benefiting any other person.
to be a waiver of such rights on any future occasion.
2 30. Recording of Communications. Customer and
6. Governing Law. Any claim, controversy or
dispute arising under or related to this Agreement shall be Bank agree that all telephone conversations a data
in
governed by and interpreted in accordance with federal law transmissions between them or their agents ma
and,to the extent not preempted or inconsistent therewith, connection with this Agreement and related to the Services
by the laws of the State of New Jersey. may be recorded and retained by either party by use of any
reasonable means,except as otherwise expressly prohibited
27. Notices. or limited by applicable law.
31. Facsimile Signature. The parties acknowledge
27.1 Except as otherwise expressly provided
and agree that this Agreement and any Appendix or
in this Agreement,all notices that are required or permitted
Amended Appendices may be executed and delivered by
to be given by Customer (including all documents
facsimile, and that a facsimile signature shall treated e.
incorporated herein by reference)shall be sent by first class a
mail,postage prepaid,and addressed to Bank at the address and have the same force and effect as an original l signature.
Notwithstanding the foregoing, Bank may, t its sole and
provided to Customer in writing for that purpose.All such exclusive discretion, also require Customer to deliver this
notices shall be effective upon receipt.
Agreement and any Appendix or Amended Appendices
27.2 Customer authorizes Bank to, and with an original signature for its records.
Customer agrees that Bank may, send any notice or 32. Relationship. Customer and Bank are not,and
communication that Bank is required or permitted to give Customer and Bank's licensors are not, partners, joint
to Customer under this Agreement, including but not venturers or agents of each other as a result of this
limited to notice of any change to the Services, this Agreement.
Agreement or any Appendix, to Customer's business
mailing address or Customer's business e-mail address as it 33. Third-Party Service Provider Activities.
appears on Bank's records,or electronically by posting the
notice on Bank's website, on an Account statement or via 33.1 Customer As a Third-Party Service
facsimile, and that any such notice or communication will Provider. Subject to Bank's prior approval and in its sole
be effective and deemed delivered when provided to and exclusive discretion,Customer may be permitted to use
Customer in such a manner. Customer agrees to notify one or more of the Services provided hereunder on behalf
Bank promptly about any change in Customer's business of and in conjunction with Accounts that belong to
mailing or Customer's business e-mail address and Customer's clients, who may or may not otherwise be
acknowledges and agrees that no such change will be
effective until Bank has had a reasonable opportunity to act
upon such notice. Customer agrees that Bank may consider
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J.R. SMITH, CLLR;
customers of Bank, as well as on Customer's own behalf reasonable fees and disbursements of counsel in connection
(hereinafter, when acting in such capacity, referred to as with any investigative, administrative or judicial
"Customer As Service Provider'). Customer shall execute proceedings, whether or not Bank shall be designated a
any such other agreement(s) or documents as deemed pal'thereto)which may be incurred by Bank relating to or
necessary or appropriate by Bank prior to the initiation or arising out of the acts or omissions of Customer's Third-
continuation by Customer of any Services in such capacity. Party Service Provider on behalf of Customer. Customer
Customer agrees that Bank retains the right to reject any and Customer's Third-Party Service Provider shall execute
request b Customer to engage in Customer As Service any such other agreement(s) or documents as deemed
qu Y
Provider activities as well as any transactions initiated by necessary or appropriate b Y Bank prior to the initiation or
Customer in such capacity,in Bank's sole discretion.In the any continuation by Customer's Third-Party Service
event Bank approves Customer's use of the Services in the Provider of any Services on Customer's behalf. Notice of
capacity of Customer As Service Provider, then the any termination of Customer's Third-Party Service
following shall also apply: Providers authority to use one or more of the Services on
Customer's behalf shall be given to Bank in writing. The
(a) Customer represents and warrants to Bank effective date of such termination shall be ten(10)Business
that each Customer client has given Customer authority to Days after Bank receives written notice of such
access and conduct transactions with respect to its termination. Customer agrees that Bank retains the right to
Accounts through use of any of the Services to the same reject any transactions initiated by Customer's Third-Party
extent as if Customer owned them, including in the Service Provider in its sole discretion.
capacity of a"third party service provider;"
34. Section Headings. The section headings used in
(b) each reference to "Customer" in the this Agreement are only meant to organize this Agreement,
Agreement will be deemed to be a collective reference to and do not in any way limit or define Customer's or Bank's
Customer and each Customer client whose Accounts are rights or obligations.
included in Bank's implementation of Customer's set-up
for the Services; 35. Confidentiality. In fin Cher consideration of the terms
of this Agreement,Customer expressly covenants and agrees
(c) all of the provisions set forth in the that,effective as of its execution of this Agreement,
Agreement will apply to Customer client's Account(s)as if Customer will not disclose,nor authorize its agents or
Customer owned them; attorneys to disclose,directly or indirectly,orally or in
writing,spontaneously or in response to inquiries from any
(d) each person who is authorized to act on entity or person,the terms of this Agreement,and any other
Customer's behalf with respect to a Service is also document or agreement to which reference is made herein,
authorized to act on Customer's behalf to the same extent except pursuant to any order,summons or other legal process
with respect to the Accounts of each Customer client whose issued by any state or federal court,or any state,federal,
Accounts are included in Bank's implementation of municipal or other governmental agency,or as reasonably
Customer's set-up for that Service;and necessary to tax advisors,attorneys,accountants,and other
professionals,or as necessary to fulfill any contractual
(e) Customer shall be liable for all monetary, undertakings hereunder. Customer expressly recognizes that
confidentiality and other obligations to Bank under this any unauthorized disclosure of information specified herein,
Agreement as they relate to Customer's use of the Services or any threatened disclosure,would cause irreparable injury
for itself as well as each such Customer client. Bank may to Bank which may not be adequately compensated by
require written confirmation from each Customer client that damages. Accordingly,in the event of a breach or threatened
it has authorized Customer to include its Accounts in breach of the provisions of Section 35 of this Agreement by
Bank's implementation of Customer's set-up for the Customer,Bank shall be entitled to an injunction restraining
Services, and Customer agrees to notify Bank immediately and prohibiting Customer from doing so or continuing to do
if that authority is revoked or changed. so. Nothing herein shall be construed as prohibiting Bank
from pursuing any other remedies available for such breach
33.2 Customer Engaging a Third-Party or threatened breach,including the recovery of damages.
Service Provider. Subject to Bank's prior approval and in The restrictions set forth in this Section 35 shall not apply to
its sole and exclusive discretion, Customer may appoint a information which(i)was,is or becomes public knowledge
third-party service provider to act as Customer's agent to not in violation of this Section 35;(ii)is acquired by
use one or more of the Services (hereinafter such third- Customers from a third party lawfully possessing such
party to be referred to as "Customer's Third-Party Service information;(iii)is disclosed in testimony,pleadings or
Provider'). In such event, all transactions received by papers filed by Bank in any judicial proceeding;or(iv)is
Bank from Customer's Third-Party Service Provider are disclosed pursuant to state law. Customer understands and
hereby authorized by Customer.All acts and omissions of agrees that this Section 35 is a material provision of this
Customer's Third-Party Service Provider shall be the acts, Agreement,that Bank would not have entered into this
omissions and responsibility of Customer and shall be Agreement without such confidentiality obligations,and that
governed by the provisions of this Agreement. Customer any breach of this Section 35 shall be a material breach of
agrees,jointly and severally with Customer's Third-Party this Agreement.
Service Provider, to indemnify and hold Bank harmless
from any and all liabilities, losses, damages, costs and
expenses of any kind (including, without limitation, the
110f58 0916
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J.R. SMITH, CLERK
IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement,including all applicable Appendices,to be
executed by an Authorized Representative.
INDIAN RIVER COUNTY BOARD OF ATTEST:
COUNTY COMMISSIONERS Jeffrev R. Smith, Clerk of Court and
(Customer)
Comptroller
1800 27�'Street (/Y1
Vero Beach,FL 32960 BY: A4��71 f
(Address) N•....,o C putt' e
�b�NIISSlpN•,,,,
• G•.•• ..Fq ti ated: December 7, 2016
By: a0d
2�� •.��
ignat Authoriz Representative) o;• ••
e o
ntName: Joseph E. Flescher •�.
X t ;�j
Title: Chairman
Governmental °•%NRIVf
APPROVED AS TO FORM
AND LEGAL SUFFIOIENOY
TD BANK,N.A. B ^ a
5DYLAN REINGOLD
COUNTY ATTORNEY
By:
Printed:Name:
Title:
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S'-RK
J. E:�. ,���ITH, GL
Bank
EXHIBIT TO CASH MANAGEMENT MASTER AGREEMENT:
GOVERNMENTAL ENTITY SERVICES
This Exhibit is incorporated by reference into the parties'Cash Management Master Agreement(the"Agreement")and applies to
all Cash Management Services made available by Bank to Customer,as a governmental entity or unit. All capitalized terms used
herein without definition shall have the meanings given to them in the Agreement. Bank and Customer agree that,
notwithstanding anything to the contrary contained in the Agreement, the following terms and provisions shall apply to the
Agreement:
TERMS AND CONDITIONS Agreement has been duly authorized and
� Y
approved by the governing body of Customer in
1. Section 26, "Governing Law,"of the Agreement accordance with applicable law, and, at Bank's
is hereby deleted in its entirety and replaced with the request, as evidenced by the certification of the
following: Secretary or other legal authority of the
governing body and provided with this
26. Governing Law. Any claim, Agreement; n
gre t; ('•i) that only persons authorized to
controversy or dispute arising under or related to disburse Customer funds from any Account will
this Agreement shall be governed by and be enrolled as Authorized Users having access to
interpreted in accordance with the laws of the wire transfer,ACH or Account transfer functions;
jurisdiction pursuant to which Customer was (iv) that if this Agreement remains in effect for
incorporated or otherwise organized, except more than one budget year,upon request of Bank,
where applicable federal law is controlling.In the Customer will ratify and provide evidence of the
event of a conflict between the provisions of this renewal of this Agreement in subsequent years;
Agreement and any applicable law or regulation, and(v)that this Agreement is the valid and binding
this Agreement shall be deemed modified to the obligation of Customer, enforceable against
extent necessary to comply with such law or Customer in accordance with its terms.
regulation.
(b) If Customer is a Governmental Unit of the type
2. The following new Section 34 is hereby added included in(g)above,Customer and the individual
immediately after Section 33: signing below represent,wan-ant and agree: (i)that
this Agreement has been duly executed by a
34. Additional Representations and financial or other officer authorized by law with
Warranties. For purposes of this Section, signatory authority to enter into banking services
"Governmental Unit" means: (A) any town, city,
agreements as behalf y Customer; y ni this
county or similar local governmental unit,including
Agreement has been duly authorized by a senior or
without limitation any school district or school similar officer of Customer;(iii)that Customer has
administrative unit of any nature, water district, complied with all state laws and regulations,
sewer district, sanitary district, housing authority, including any regulations or policies adopted by
hospital district,municipal electric district or other Customer with respect to electronic commerce in
political subdivision,agency,bureau,department or entering into and performing this Agreement and
other instrumentality thereof, or similar quasi- any related ACH or wire transfer service
governmental corporation or entity defined by
livable law, agreement; (iv) that only persons authorized to
app , and (B) any state government or
any agency, department, bureau, office or other disburse Customer ed from any Account will be
enrolled as Authorized Users having access to wire
instrumentality thereof transfer, ACH or Account transfer functions; and
(v) that this Agreement is the valid and binding
(a) If Customer is a Governmental Unit of the type obligation of Customer, enforceable against
included in(A)above,Customer and the individual Customer in accordance with its terms.
signing below represent,warrant and agree: (i)that
this Agreement has been duly executed by the
Treasurer, Finance Director, or other officer (c) For a Customer of the type included in either(A)or
abov Customer and the individual sr
authorized b law with signatory authorityto enter
�) e, >�g
Y fin rl'
into banking services agreements; (ii) that this below fiuther representwan-ant and agree. (i)that
upon Banks request, Customer shall provide
HCW 4818-2416348/v 1
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J.R. SMITH, CLERK
evidence of those persons authorized to disburse 3. Effectiveness. Customer agrees to all the terms
Customer funds as described in(a)(iii) and (bxiv) and conditions of this Exhibit. The liability of Bank under
above;(ii)that upon Bank's request,Customer will this Exhibit shall in all cases be subject to the provisions of
certify its compliance with(a)or(b),as applicable, the Cash Management Master Agreement, including,
on an annual or other periodic basis; and(iii)that without limitation, any provisions thereof that exclude or
Customer will provide notice to Bank if any person limit warranties made by,damages payable by or remedies
authorized to disburse Customer funds as described available from Bank.This Exhibit shall remain in full force
in(a)(iii)and(b)(iv)is no longer so authorized or and effect until such time as a different or amended Exhibit
his/her position of such authority is terminated for is accepted in writing by Bank or the Cash Management
any reason. Master Agreement is terminated.
Remainder of page intentionally left blank.
HC#4818-1416-3481 v 1 14 of S8 0916
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Bank
APPENDIX I
TD eTREASURY SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and governs Customer's use
of the Bank Internet System(the"Services"or"eTreasury").All capitalized terms used herein without definition shall have the
meanings given to them in the parties' Cash Management Master Agreement. Except as otherwise expressly provided in this
Appendix,to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement,this
Appendix and any amendment hereto from time to time shall control,but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS delivery and transaction initiation services that Bank makes
available using the Bank Internet System.
1. Definitions. 2.2 By accessing the Services with the
Access Devices (as defined in the Cash Management
"Account(s)"means,with respect to eTreasury,a Master Agreement), Customer may perform any or all of
checking,regular statement savings,money market deposit, the Services described in this Appendix and selected for
certificate of deposit,investment or commercial loan or line use in the Services' Setup Form(s) and that Bank has
of credit account(s) Customer maintains with Bank for approved for Customer's use. Bank reserves the right to
business or non-consumer purposes that is designated by reject Customer's Services' Setup Form(s), schedules and
Customer for use with the Services,as described below. other required documents and to refuse Customer access to
or use of the Services for any reason and in Bank's sole
"Account Agreement" means, in addition to the discretion. Bank may, in its sole and exclusive discretion,
meaning contained in the parties' Cash Management introduce new features of the Services from time to time
Master Agreement, any and all agreements between but is not required to notify Customer of the availability of
Customer and Bank which govern Customer Accounts (as any such new features.
defined above)and which were provided to Customer when
Customer opened its Account(s), or any other documents 2.3 By subscribing to the Services,
governing Customer's Account(s), each as may be Customer will have access to the Services' basic features,
amended from time to time. which include but may not be limited to,in Bank's sole and
exclusive discretion,the following:
"Administrator" or `Account Administrator"
means Customer's employee(s) or other person(s) that 2.3.1 Previous-Day Balance
Customer (or any Administrator designated by Customer) Reporting. Previous-Day Balance Reporting allows
designates on the Services' Setup Form(s) (or by on-line Customer to review the balances and transaction history in
changes to such designations as described below) as being Customer's checking, savings, money market deposit and
its Authorized Representative, or as authorized to act on loan Account(s)for such period of time as described in the
Customer's behalf,with respect to the Services. Services' Setup Form(s). Customer may also view images
of deposit tickets, deposit items, paid checks and return
"Authorized User"means any person Customer's deposited items. This information may be viewed upon
Administrator designates as being authorized to access or implementation of the Services. The scope of the time
use any of the Services on Customer's behalf periods for which transactional history and check images
may be viewed (including pre-implementation periods)
"Login ID" means the electronic identification, may vary and depend upon various factors, such as when
in letters and numerals,assigned to Customer by Bank or to Account(s)were opened and when the Services were first
any additional Authorized Users designated by Customer's implemented and set-up.
Account Administrator.
2.3.2 Real-Time Balance
"Payment"means a transfer of funds to or from Reporting. Real-Time Balance Reporting allows
Customer's Account(s). Customer to review current Account balance(s) and
transaction activity in real-time.
2. Services.
2.3.3 Book Transfers. Book
2.1 This Appendix describes the terms and Transfers allows Customer to make intra-Bank fund
conditions under which Bank will provide Customer with transfers between Customer's checking, savings and loan
access to and use of any of the electronic information Accounts.
HC#4816-8874-0154 v 1 15 of 58 1016
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J.R. SMITH, CLERIC
2.3.3.1 General. Book a response message from the Bank Internet System
Transfers may be made as one-time or recurring,same-day indicates a response other than a successful confirmation.
or in the future.Book Transfers may also be initiated from Customer must provide Bank with the EXACT CHECK
(i) one-Account-to-one-Account, (ii) one-Account-to- NUMBER OR RANGE OF CHECK NUMBERS.When
many-Accounts, or (iii) many-Accounts-to-one-Account. known, Customer should also provide the EXACT
Recurring Book Transfers may utilize one of several AMOUNT OF THE CHECK. If the check number is
repeating frequency options (weekly,monthly,etc.), as set incorrect in any way or the amount of the check is
forth in the Services. Book Transfer templates may be inaccurate by one cent or more in the stop payment order,
created and saved for frequently executed transfers. payment will not be stopped and Bank will not be
Pending Book Transfers and templates may be edited or responsible for resulting losses. All other information must
deleted (cancelled) through the Services by Authorized be reasonably accurate. Requests are generally effective
Users at any time prior to the Business Day on which the when successfully entered and submitted by Customer via
associated transfer is scheduled to occur. Book Transfer the Services. Notwithstanding the foregoing, Customer
amounts and the order in which such transfers occur are understands that if the stop payment request comes too late
limited to the available balance in the Account(s) on the for Bank to have a reasonable time to act on it prior to
effective date of the transfer. For same-day transactions, paying, settling for, posting or becoming accountable for
Customer will need to have a sufficient available balance in the check described in the request, then Customer's stop
the Account from which funds are to be transferred to cover payment request shall be of no effect. Stop payments
the amount of the Book Transfer. For future or recurring requested using the Bank Internet System are effective for
Book Transfers, Customer will need to have sufficient three hundred sixty-five (365) Calendar Days unless
available funds on the day the transaction is to occur. The renewed before the end of the 365-day period. Customer is
number of Book Transfers from interest bearing checking solely responsible for confirming the status of a stop
and savings Accounts are subject to the terms of the payment order. Except as otherwise provided by
Account Agreement and federal regulations. Book Compliance Laws or the terms of the Cash Management
Transfers that Customer transmits by Bank's cut-off time as Master Agreement, Customer shall not have the right to
set forth on the Services' designated website or the stop payment on or recall any electronic fund transfers or
Services' Setup Form(s)on a Business Day will be posted similar payment order or transfer request given hereunder
to the Account as of that Business Day;however,a request after it has been transmitted to Bank. Only stop payment
(whether a same-day funds transfer or a future-dated orders initiated or recalled through the Bank Internet
transfer)may not result in an immediate transfer of funds or System will be displayed on the Bank Internet System's
immediate availability because of the time required to Stop Payments_screen. Stop payment orders that are not
process the transaction. Customer is solely responsible for initiated through the Bank Internet System may also be
the review of the previous day's transaction report and the cancelled through the Bank Internet System.
status of the Book Transfer request within the Services to
ensure that the transaction was processed. Only Book 2.3.5 E-Learning. E-Leaming is
Transfers initiated through the Services will be displayed a self-paced, interactive educational tool available via the
on the Services' "Transfer" reports tab. All transfers are Services that Customer may use to learn more about the
subject to the Account Agreement. various features or modules related to the Services, as well
as how to use them.
2.3.3.2 Future-Dated
Book Transfer. In conjunction with Book Transfers, a 2.3.6 Customizable Dashboard.
request to transfer funds between Customer's Accounts Using this feature, Customer can configure and save
may be initiated and approved for a future date.The future Account balance views, as well as command one-click
transfer date may be scheduled for such date in advance as access to detailed information, balance and payment
may be permitted from time to time by Bank and as set reports, and high-use transaction initiation features. It is
forth within the Bank Internet System. Future-dated Customer's responsibility to view the "Dashboard" for
transfers may be scheduled as a one-time request or a Bank notices when designating another section of the Bank
recurring request in a pre-determined amount,based on the Internet System as the desired landing page.
instructions entered by Customer with the request. Future-
dated Book Transfers will be initiated on the Business Day 2.4 In addition to the Services as described
requested b Customer,not on the date Customer entered in this Appendix and/or in '
qu y ppe the Services' Setup Form(s),
the transaction using the Services. additional features, modules or other Cash Management
Services related to eTreasury may be offered from time to
2.3.4 Stop Payment. Stop time by Bank,in its sole and exclusive discretion,including
payments of checks drawn on Customer's Account(s) are but not limited to the following:
subject to the terms and conditions of the Account
Agreement. Notwithstanding anything in the Account 2.4.1 Wire Transfers. Wire
Agreement to the contrary,Customer may use the Services transfers are subject to the terms and conditions of the TD
to initiate stop payment orders for an individual check or a Wire Transfer Services Appendix. Once approved by Bank
range of checks. Bank shall have no responsibility for for use by Customer, this Service allows Customer to
losses resulting from any delay in Bank's receipt of stop transfer funds electronically using the Fedwire or similar
payment orders transmitted by means of the Bank Internet funds transfer system, typically from Customer's
System or for Customer not taking additional actions when Account(s)to other account(s)with Bank or to account(s)
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at other banks. Domestic or foreign wire transfers entered Customer understands that the Administrator(s) will
through the Services will be processed as set forth in the control, and Customer authorizes the Administrator(s) to
TD Wire Transfer Services Appendix. control, access by other Administrators and Authorized
Users of the Services through the issuance of Access
2.4.2 ACH Originations. ACH Devices. The Administrator(s) may add, change or
originations are subject to the terms and conditions of the terminate Customer's Authorized User(s)from time to time
TD Automated Clearing House (ACH) Origination and in his/her sole discretion. Bank does not control access
Appendix, the TD Third-Party Sender Services Appendix by any of Customer's Authorized Users to any of the
or the TD ACH Third Party Service Provider Agreement, Services. If Customer designates more than one (1)
as applicable. Once approved by Bank for use by Administrator, Bank recommends that Customer manage
Customer, this Service allows Customer to initiate and its use of the Services and its Administrators by requiring
approve ACH transactions that Customer desires Bank to dual control to set up new Authorized Users. Bank also
enter into the ACH network on Customer's behalf. ACH recommends that Customer review and assign limits for
transactions entered through the Services will be processed Authorized User;that create and/or approve wire transfers
and settled) as set forth in the TD Automated Clearing and ACH transactions, as established on the Services'
House (ACH) Origination Appendix, the TD Third-Party Setup Form(s). In the event that Bank, in its sole and
Sender Services Appendix or the TD ACH Third Party exclusive discretion, assists Customer in any way with the
Service Provider Agreement,as applicable. establishment, addition or general set-up of Authorized
Users, Customer understands and agrees that the
2.4.3 File Transfers. File Administrator(s)shall remain responsible for verifying the
transfers is a method for Customer and Bank to send and accuracy thereof and shall otherwise control access by any
receive reports and files (including, but not limited to, of Customer's Authorized Users to any of the Services.
ACH, Reconciliation, Lockbox, and BAI files) to each
other through the Internet and are subject to the terns and 5.3 Customer will require each
conditions of applicable Appendices. Such reports and files Administrator and each Authorized User to comply with all
may also be auto-generated and auto-delivered. provisions of this Appendix and all other applicable
agreements. Customer acknowledges and agrees that it is
3. Hours of Access. Customer generally may fully responsible for the failure of any Administrator or any
access the Services 24 hours a day,seven(7)days a week. Authorized User to so comply. Customer is responsible for
Customer may not be able to access some or all of the any Payment, transfer and other use of the Services and
Services from time to time,however,during any special or charges incurred by any Administrator and any Authorized
other scheduled maintenance periods, or during User, even if such Administrator or Authorized User
emergencies, interruptions or delays due to causes beyond exceeds his/her authorization. Bank recommends that
Bank's control. Customer require its Administrator(s) to review all
entitlement reports available through the Services with
4. Account Designation. respect to Customer's Authorized User(s).
4.1 Customer may designate any 5.4 Customer acknowledges and agrees
of Customer's Accounts maintained with Bank for business that an Authorized User is not permitted to authorize other
or non-consumer purposes for use with the Services. persons/entities to use its Access Devices.Notwithstanding
Generally, the taxpayer identification number for each the foregoing, if an Authorized User does authorize other
Account must be the same,and each Account is subject to persons/entities to use the Authorized User's Access
the other conditions set forth in this Appendix, except as Devices in any manner, such authorization will be
Bank, in its sole discretion,may otherwise permit Bank considered by Bank as unlimited in amount and manner,
reserves the right to deny any Account designation for use and Customer is responsible for any transactions made by
with the Services in its sole discretion. such persons/entities, until Customer's Administrator has
deactivated the subject Authorized User's Access Devices.
4.2 Customer may at any time Bank will not be liable for and will not reimburse Customer
add or delete any Account that Customer has designated for for any losses that may occur as a result of this authorized
use with any of the Services, or change the Services use of an Authorized User's Access Devices.
associated with any Account,by notifying Bank in writing.
5.5 Whenever any Authorized User leaves
5. Administrator(s)and Authorized Users. Customer's employ or Customer otherwise revokes the
authority of any Authorized User to access or use the
5.1 Customer shall designate Services,the Administrator(s)are solely responsible for de-
Administrator(s) with Bank as set forth in the Services' activating such Authorized User's Access Devices.
Setup Form(s). Customer is solely responsible for Customer shall notify Bank in writing whenever a sole
designating its Administrator(s). Customer Administrator leaves Customer's employ or
Customer otherwise revokes a sole Administrator's
5.2 The Administrator(s) may designate authority to access or use the Services.
other Administrators and/or Authorized Users. Customer
accepts as its sole responsibility the Administrator's
designation of other Administrators and Authorized Users.
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6. Access Devices;Security Procedures. well as with certain administrative functionality,and/or for
the creation of ACH and wire templates. Physical security
6.1 Upon successful enrollment, Customer of each Token is Customer's sole responsibility. With the
can access the Services from Bank's designated website by Token, each Authorized User will receive a PIN number
using Customer's Computer or, as may be permitted by that the Authorized User must keep in a secure place.When
Bank from time to time in its sole discretion and in an Authorized User (or Administrator) leaves Customer's
accordance with Bank's terms and conditions for such employ,his or her Login ID must be deleted by Customer
access,using mobile or other Internet-enabled system(s)or (or by Bank upon Customer's request)and,if a Token had
device(s), along with the Services' security procedures as been issued to such Authorized User (or Administrator),
described from time to time. A company ID assigned to Bank must be promptly notified so that Bank may
Customer by Bank, a unique Login ID and an individual deactivate such Authorized User's (or Administrator's)
password will be used for log-in by Customer's Token. Any additional Authorized User requiring a Token
Administrator(s) and Authorized User(s). The must be authorized, in writing by Customer to Bank, for
Administrator(s) and Authorized User(s) must change his Token creation or re-creation and deployment. If
or her individual password from time to time for security applicable,fees may be assessed for additional Tokens.
purposes,as prompted by the Bank Internet System or more
frequently (subject to the additional security procedures 6.4 Customer further acknowledges and
described below). agrees that all wire transfers and ACH transactions initiated
through the Services require"dual control"or separation of
6.2 Customer acknowledges that the duties.With this additional security feature,one Authorized
Administrator(s) will, and Customer authorizes the User will create, edit, cancel, delete and restore ACH
Administrator(s) to, select other Administrators and batches or wire transfer orders under his/her unique Login
Authorized Users by issuing to any person a unique Login ID, password and Token; a second different Authorized
ID and password (subject to the additional security User with his/her own unique Login ID, password and
procedures described below). Customer further Token will be required to approve, release or delete ACH
acknowledges that the Administrator(s)may,and Customer batches or wire transfer orders.
authorizes the Administrator(s) to, change or de-activate
the unique Login ID and/or password from time to time and 6.5 Customer accepts as its sole
in his or her sole discretion (subject to the additional responsibility the selection, use, protection and
security procedures described below). maintenance of confidentiality of,and access to,the Access
Devices. Customer agrees to take reasonable precautions
6.3 Customer acknowledges that, in to safeguard the Access Devices and keep them
addition to the above individual passwords, access to the confidential. Customer agrees not to reveal the Access
Services includes,as part of the Access Devices,additional Devices to any unauthorized person. Customer further
security procedures,including as described below: agrees to notify Treasury Management Services Support
immediately at 1-866-475-7262 if Customer believes that
6.3.1 Additional security the confidentiality of the Access Devices has been
procedures include a risk-based authentication security compromised in any manner.
procedure for Customer, including Customer's
Administrator and Authorized Users. This additional 6.6 The Access Devices identify and
security procedure involves an additional credential for authenticate Customer (including the Administrator and
each user that is in addition to Login IDs and individual Authorized Users)to Bank when Customer accesses or uses
password security (hereinafter "Enhanced Authentication the Services. Customer authorizes Bank to rely on the
Security," and/or "Enhanced Log-in Security'). With Access Devices to identify Customer when Customer
Enhanced Authentication Security, additional information accesses or uses any of the Services, and as signature
regarding each Authorized User's Computer and method of authorization for any Payment,transfer or other use of the
website access will be collected and validated Services. Customer acknowledges and agrees that Bank is
automatically with the set-up process. An electronic access authorized to act on any and all communications or
identity will be created for each Authorized User by instructions received using the Access Devices,where such
combining a number of key identification points,such as IP communications were provided to Bank in accordance with
address,Internet service provider,PC and browser settings, the security procedures and other terms as set forth in the
time of day and geographic location. These access Cash Management Master Agreement, regardless of
identities are used by Bank to authenticate Authorized whether the communications or instructions are authorized.
Users. Further authentication may occur automatically due Bank owns the Access Devices, and Customer may not
to the detection of unusual source occurrences in relation to transfer them to any other person or entity.
that access identity.
6.3.2 An additional security 6.7 Customer acknowledges and agrees
procedure incorporates use of a physical security device or that the Access Devices and other security procedures
token("Token")for,by way of example only,initial log-in applicable to Customer's use of the Services and set forth
and/or certain transactional or administrative functionality. in this Appendix,as well as such security best practices as
A Token may be issued to any Authorized User(s), for described by Bank from time to time and made available on
example, for use in initiating and/or approving ACH the Bank Internet System, are a commercially reasonable
transactions and wire transfers,to log in to the Services,as method for the purpose of verifying whether any Payment,
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transfer or other use of the Services was initiated by 8.3 Customer's electronic statement will
Customer. Customer also agrees that any election generally be available within 24 hours after the statement
Customer may make to change or waive any optional cut-off date. The statement cut-off date for Customer's
security procedures recommended by Bank is at electronic statement is the same as Customer's paper
Customer's risk and that any loss resulting in whole or in statement. Once made available as described herein, the
part from such change or waiver will be Customer's information contained in Customer's electronic statement
responsibility. Customer further acknowledges and agrees shall be deemed to have been delivered to Customer
that the Access Devices are not intended, and that it is personally,whether actually received or not.Customer may
commercially reasonable that the Access Devices are not view, print and download current statements and such
intended,to detect any errors relating to or arising out of a period of statement history as set forth on the Bank Internet
Payment,transfer or another use of the Services. System.To view r
Y y o print an electronic statement,Customer
must have an appropriate version of Adobe Acrobat
6.8 If Customer has reason to believe that software installed on Customer's Computer sufficient to
any Access Devices have been lost,stolen or used(or may support access to a PDF file.
be used)or that a Payment or other use of the Services has
been or may be made with any Access Devices without 8.4 At Customer's request, Bank will send
Customer's permission, Customer must contact its Customer a paper copy of Customer's electronic statement
Administrator and Bank. In no event will Bank be liable previously delivered through the Services at any time.
for any unauthorized transaction(s) that occurs with any Bank's standard fee then in effect and charged for paper
Access Devices, where such communications or delivery of copies of Account statements will apply. A
instructions were provided to Bank in accordance with the request for a paper copy does not cause a termination of the
security procedures and other terms as set forth in the Cash electronic statement feature.A paper copy can be obtained
Management Master Agreement. until the copy is no longer required to be maintained by
Bank as a record for the designated Account under
6.9 Bank may, from time to time,propose applicable law or regulation.
additional or enhanced security procedures to Customer.
Customer understands and agrees that if it declines to use any 8.5 Customer may revoke consent for the
such additional or enhanced procedures, it will be liable for electronic statement feature for Customer's Accounts at
any losses that would have been prevented by such any time by contacting Customer's Relationship Manager.
procedures. Notwithstanding anything else contained in this Electronic posting of Customer's electronic statement on
Appendix,if Bank believes immediate action is required for the Services' site and transmission of related email notices
the security of Bank or Customer funds, Bank may initiate will continue until: (i) termination of the electronic
additional security procedures immediately and provide statement feature;(ii)termination of Customer's designated
prompt subsequent notice thereof to Customer. Accounts with Bank;or(iii)termination of this Appendix,
the Cash Management Master Agreement or Customer's
7. Debiting Customer's Account(s). Customer use of the Services.
authorizes Bank to charge and automatically deduct the
amount of any Payment from Customer's Account(s) (or 8.6 Bank may discontinue the electronic
any other Account that Customer maintains with Bank, if statements feature at any time in Bank's discretion and
necessary), in accordance with the Cash Management resume mailing paper statements to Customer. Bank may
Master Agreement and the Account Agreement. also add, modify or delete any feature of the electronic
statements feature in Bank's discretion. Bank will provide
8. Electronic Statements. Customer with notice of any change or termination in the
electronic statement feature in accordance with the terms of
8.1 As an eTreasury user, and subject to the parties'Cash Management Master Agreement.
Bank's approval and applicable set-up and enrollment
requirements, Customer may elect to stop or resume the 9. Alerts.
mailing of paper statements for eligible Accounts by
requesting this feature from Bank. 9.1 The Services allow Customer to
voluntarily choose alert messages regarding Customer's
8.2 Only Accounts accessible via the Account(s), including but not limited to messages to alert
Services may be enrolled for electronic statement delivery. Customer about high or low Account balance thresholds,
Eligible Accounts are displayed on the "Statements"page debit or credit transactions cleared, and payment status for
of the Services. If Customer currently receives a ACH and wire transactions. Bank may add new alerts from
consolidated periodic statement that includes multiple time to time, or cancel existing alerts. If Customer has
Accounts and Customer selects electronic statement opted to receive an alert that is being canceled, Bank will
delivery,all Accounts shown on the consolidated statement notify Customer in accordance with the terms of the
will be automatically enrolled for electronic statement parties' Cash Management Master Agreement. Each alert
delivery.For joint Accounts,only one Account owner need has different options available,and Customer will be asked
enroll for electronic statement delivery;provided,that each to select from among these options upon activation of
Account owner must separately enroll if that Account Customer's alerts service.
owner wishes to receive and have access to its Account
statements electronically.
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J.R. SMITH, CLERK
9.2 Voluntary Alerts. described in this Appendix. Customer should verify all
9.2.1 Electronic alerts will be sent Account data obtained and any transactions that may be
to the email address Customer has provided as Customer's executed on Customer's Accounts using FM software, as
primary email address for the Services or via the Services' applicable. Bank's records of transactions, instructions and
secure messaging feature. If Customer's email address communications regarding Customer's Accounts and use of
changes,Customer is responsible for informing Bank of the the Services supersede any records stored or created on
change. Customer can also choose to have alerts sent to a Customer's Computer through the use of FM software.
secondary email address. Changes to Customer's primary Customer is responsible for any and all obligations to any
and secondary email addresses will apply to all of software vendor arising from Customer's use of that
Customer's alerts. vendor's FM software. Customer acknowledges and agrees
that the FM software versions supported by Bank for
9.2.2 Customer understands and purposes of use with the Services shall be in accordance
agrees that Customer's alerts may be delayed or prevented with the sunset policy of the FM software provider.
by a variety of factors. Bank will use commercially
reasonable efforts to provide alerts in a timely manner with 11. Additional Security Terms. In addition to the
accurate information. Bank neither guarantees the delivery other terms of this Appendix and of the parties' Cash
nor the accuracy of the contents of any alert.Customer also Management Master Agreement, Customer agrees not to
agrees that Bank shall not be liable for any delays, failure disclose any proprietary information regarding the Services
to deliver, or misdirected delivery of any alert; for any to any third party (except to Customer's Administrator(s)
errors in the content of an alert;or for any actions taken or and Authorized User(s)). Customer acknowledges that
not taken by Customer or any third party in reliance on an there can be no guarantee of secure transmissions over the
alert. Customer agrees that Bank is not responsible for any Internet and agrees to comply with any operating and
costs or fees incurred as a result of alerts sent to email commercially reasonable security procedures Bank may
addresses or phone number; connected with mobile or establish from time to time with respect to the Services.
similar devices. Customer will be denied access to the Services if Customer
fails to comply with any of these procedures. Customer is
9.2.3 Alerts are not encrypted and responsible for reviewing the transaction reports Bank
will never include Customer's Access Devices or full Provides on-line and in Customer's monthly statements to
Account number(s). However, alerts may include detect unauthorized or suspicious transactions. In addition
Customer's name and some information about Customer's to any other provision hereof regarding authorization of
Accounts,depending upon which alert(s)Customer selects. transactions using the Services or in the parties' Cash
Anyone with access to Customer's email address will be Management Master Agreement, all transactions will be
deemed to be authorized by Customer and to be correct)
able to view the contents of these alerts. Y
executed thirty (30) Calendar Days after Bank first
9.2.4 Customer may,at its option, provides Customer with a statement or online transaction
customize the subject line of Customer's alerts for easier
report showing that transaction, unless Customer has
identification by Customer. Customer acknowledges and Provided written notice that the transaction was
unauthorized or erroneous) executed within that period.In
es that Customer should not include 11 Y P
afire fix Account
number(s) or other sensitive Customer or Account order to minimize risk of loss,Customer agrees to cause its
information in ancustomized subject line. Administrator or designated Authorized User(s) to review
Y the transaction audit log available with the Services to
detect unauthorized or erroneous transactions not less
10. Use of Financial Management(FM)Sofware.
frequently than once every five(5)Calendar Days.
Use of the Services may be supplemented by use of certain
FM software. Compatibility and functionality of the FM 12. Terminating this Appendix;Liability.
software with the Services may vary depending upon the
FM software Customer is using, and Bank makes no 12.1 This Appendix may be terminated in
representations or guarantees regarding use of the Services accordance with the terms and conditions of the Cash
with Customer's FM software. Customer is responsible for Management Master Agreement.
obtaining and maintaining the FM software. Customer's
use of the FM software is governed by the software license 12.2 The provisions of this Appendix
agreement(s) included with each software application. relating to Customer's and Bank's liability and the
Customer must agree to the terms and conditions of the disclaimer of warranties set forth in the Cash Management
software license agreement(s)during the installation of the Master Agreement and incorporated
FM software on Customer's Computer. Customer is hisA herein by reference
P shall survive the termination of this Appendix.
responsible for the correct set-up and installation of the FM
software, as well as maintenance,updates and upgrades to 13. Changes to the Services and this Appendix.
the FM software and/or Customer's Computer. Bank will Bank may change the Services and this Appendix
provide Customer with reasonable assistance, when (including any amendments hereto)in accordance with the
requested, to enable Customer's use of the Services with terms and conditions of the Cash Management Master
FM software. Bank is not responsible for any problems Agreement.
related to the FM software itself,Customer's Computer or
Customer's ability to connect using the FM software as
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14. Notices. Notices required by this Appendix exclude or limit warranties made by, damages payable by
shall be provided in accordance with the terms and or remedies available from Bank. This Appendix laces
PPe replaces
conditions of the Cash Management Agreement.ag gn: and supersedes all prior agreements on file with respect to
15. Effectiveness. Customer agrees to all the terms the Services and shall remain in full force and effect until
and conditions of this Appendix. The liability of Bank termination or such time as a different or amendedA Appendix is accepted in writing b B r
under this Appendix shall in all cases be subject to the PPe P g Y Bank o the Cash
provisions of the Cash Management Master Agreement, Management Master Agreement is terminated.
including, without limitation, any provisions thereof that
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Im Bank
APPENDIX H
TD ACH ORIGINATION SERVICES
This Appendix is incorporated by reference into the parties'Cash Management Master Agreement and the parties'Bank Internet
System Agreement, as applicable. This Appendix applies to all automated clearing house("ACH") Services made available to
Customer,in Customer's capacity as an Originator by Bank, as an Originating Depository Financial Institution("ODFI'). All
capitalized terms used herein without definition shall have the meanings given to them in either the Cash Management Master
Agreement or the NACHA Rules(as defined below),as applicable. Except as otherwise expressly provided in this Appendix,to
the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement,this Appendix and
any amendment hereto from time to time shall control,but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS discretion and at any time, to delayed settlement of debit
Entries requested by Customer,in accordance with the terms
and conditions of any agreement between Bank and Customer
1. Services. The ACH network is a funds transfer relating thereto.
system which provides for the interbank clearing of
electronic credit and debit Entries for participating financial 2.3 Customer agrees from time to time,
institutions. The ACH system is governed by the National upon Bank's request and in accordance with this Appendix
Automated Clearing House Association's ("NACHA") and the parties' Cash Management Master Agreement, to
Operating Rules and Operating Guidelines(collectively the promptly provide Bank with information pertaining to
"NACHA Rules"). Customer's financial condition as Bank may request,
including without limitation,the name(s)of other financial
2. Customer Obligations. institutions that Customer is using to originate Entries.
2.1 Customer will comply and shall cause 2.4 Nothing in this Appendix or any course
its employees,officers,directors, agents and its Authorized of dealing between Customer and Bank (i) constitutes a
Representative(s) and Administrator(s) to comply with (i) commitment or obligation of Bank to lend money to
the NACHA Rules as amended from time to time and (ii) Customer, (ii) obligates Bank to extend any credit to
any specifications, advisories, interim policies, or Customer, to make a loan to Customer or otherwise to
instructions related to ACH transactions issued, from time advance funds to Customer to pay for any payment order
to time, by Bank, NACHA or any federal or state contrary to Bank's published availability schedules and the
regulatory authorities. The duties of Customer set forth in settlement timing as reflected herein, and in such other
this Appendix in no way limit the requirement that documents and materials as may be provided to Customer by
Customer comply with the NACHA Rules. Customer Bank with regard to the Services from time to time, (iii)
specifically adopts and makes to Bank all representations constitutes a modification of this Appendix, the NACHA
and warranties of an Originator under the NACHA Rules, Rules, or the Security Procedures, or (iv) otherwise
including that Customer will not initiate Entries in violation constitutes an agreement between Bank and Customer
of the laws of the United States. Customer has access to a regardless of whatever practices and procedures Bank and
copy of the NACHA Rules and acknowledges receipt of a Customer may use.
copy. (The NACHA Rules may be obtained at NACHA's
website at www.NACHA.org or by contacting NACHA 2.5 Customer is responsible for all tariffs,
directly at 703-561-1100.)Customer agrees to subscribe to duties or taxes(excluding U.S.federal,state and local taxation
receive revisions to the NACHA Rules directly from of the income of Bank) that may be imposed by any
NACHA. government or govemmental agency in connection with any
payment order executed pursuant to this Appendix,including
2.2 Customer will maintain a checking without limitation any international tariffs, duties or taxes
Account ("Settlement Account') at Bank with available related to international ACH Entries as further described in
balances as of the Effective Entry Date sufficient to offset any Section 6 below.
Entries submitted and against which any rejected or returned
Entries may be credited or debited.Bank reserves the right,in 2.6 Customer shall be liable for all fines
its sole and exclusive discretion and at any time, to require including without limitation any international fines related to
ACH pre-funding of credit Entries requested by Customer,in international ACH Entries as further described in Section 6
accordance with the terms and conditions of any agreement below,that may be incurred by Bank that are attributable to
between Bank and Customer relating to pre-funding of such Customer's failure to comply with (i)the NACHA Rules, or
Entries, including as otherwise set forth in this Appendix. (ii) the laws, regulations and orders administered by the
Bank also reserves the right, in its sole and exclusive U.S.,including without limitation,the U.S.Department of
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the Treasury's Office of Foreign Assets Control("OFAC") 4.1 Customer may elect,in accordance with
and the U.S. Department of the Treasury's Financial the Services' Setup Form(s),to transmit a NACHA-formatted
Crimes Enforcement Network("FinCEN"). file to Bank via the following methods, or via such other
methods as Bank may permit from time to time in its sole and
3. Risk Exposure Limits. exclusive discretion:
3.1 Bank will establish for Customer, in 4.1.1 Bank Internet System
Bank's sole and exclusive discretion, a transactional Transmission. Customer may transmit a NACHA-
"Credit Exposure Limit" and a "Debit Exposure Limit" formatted file to Bank via the service described in the Bank
("Exposure Limit(s)").Each Exposure Limit will be Internet System Appendix.Customer agrees to the terms of
established as an aggregate limit over multiple Settlement the Bank Internet System Appendix and its related security
Dates with other not-yet-settled transactions issued by procedures when initiating Entries as described therein.
Customer through any ACH application with Bank. The
Exposure Limits are based on Customer's financial 4.1.2 Direct Electronic
condition and anticipated or historical level(s) of Entry Transmission. Customer may transmit a NACHA-formatted
instructions with Bank. Bank will notify Customer of file directly to Bank,as described in or as otherwise permitted
Customer's Exposure Limits prior to implementation of the by Bank's Appendix for Data Transmission Services.
Services. Connectivity between Bank and Customer must be
established and successfully tested prior to live transactions.
3.2 Customer shall promptly notify Bank if
Customer anticipates a significant increase or decrease in 4.2 Electronic Data Interchange
the dollar amount of any of its ACH transactions. Bank ("EDI"). EDI consists of the electronic movement of data
may, from time to time, in its sole discretion, change the between Customer and Bank in a structured, computer-
amount of Customer's Exposure Limits. Bank may, on an retrievable data format that permits information to be
annual or more frequent basis, in Bank's sole discretion, transferred between a computer program at Customer's
review Customer's Exposure Limits and make any location and a computer program at Bank's location
adjustments to Customer's Exposure Limits that Bank may without re-keying. Customer and Bank may transmit
deem appropriate. between each other an ACH file that contains ACH
Addenda which conform to the NACHA Rules via EDI,and
3.3 Bank monitors all Exposure Limits for as described in or as otherwise permitted by Bank's Appendix
every customer that originates ACH transactions. Bank for Data Transmission Services. Bank will process and
may suspend or reject processing of any Entry instructions forward Addenda information along with financial
if such Entry exceeds Customer's Exposure transactions through the ACH network. Bank will, upon
Limit(s). Bank may, in its sole and exclusive discretion, Customer's request, forward Addenda information to
but shall have no obligation,to elect to process occasional Customer within two (2) Business Days of Bank's receipt
Entry instructions that would exceed Customer's Exposure of such information.
Limit(). If Customer's s En instructions exceed its
Entry
Exposure Limit(s), Bank may elect to process such 5. Transmittal of Entries by Customer.
instructions subject to there being sufficient available funds
in the Settlement Account, or in any other Customer 5.1 Customer will send file(s)of credit and
Account(s) authorized by Bank for ACH transaction debit Entries to Bank (i) with computer readable
purposes, for the total amount of all credit Entries information; (ii) with an ACH file and format consistent
submitted to Bank for processing.In such event,Bank may with current NACHA file and Bank specifications;and(iii)
elect to reduce available funds in the Settlement Account, on the medium as agreed by the parties and in accordance
as well as place a hold on available funds in any other with the security procedures associated with that
Customer Account(s) authorized by Bank for ACH transmission medium. Customer agrees to initiate Entries
transaction purposes to the extent necessary to cover the described herein in accordance with the requirements of,
total amount of the ACH credit Entries, on the Business and in compliance with its responsibilities, representations
Day that Bank begins processing Customer's ACH file. and warranties as an Originator under,the NACHA Rules.
Customer's Settlement Account will be debited on the
effective Settlement Date of the file, simultaneously with 5.2 With respect to any credit and debit
removal of the hold on funds in the other Customer Entries initiated and transmitted by Customer that involve
Account(s). Alternatively, if Customer's,Entry instructions consumers, Customer will comply with, each as may be
exceed Customer's Exposure Limit(s), Bank may elect to amended from time to time:(i)all authorization,disclosure
process such instructions and release a file against and other requirements of the NACHA Rules and (ii) all
insufficient collected funds, subject to Customer promptly applicable federal and state laws and regulations,including,
depositing collected funds in the Settlement Account in the without limitation, any applicable requirements of
form of a cash deposit, wire transfer, intra-bank fund Regulation E of the Consumer Financial Protection Bureau
transfer or loan advance to cover Customer's funding (or any successor entity who administers Regulation E)
obligation. (hereinafter "Regulation E") and the Federal Electronic
Funds Transfer Act.
4. File Transmission Methods;Addenda.
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J.R. SMITH, CLERK
5.3 Customer acknowledges es the right
gof a prior to Customer's use of the Services or from to time
consumer Receiver of an unauthorized debit Entry, as thereafter,and(c)the NACHA Rules.
applicable and as described in the NACHA Rules,to obtain a
refund of the funds debited from Receiver's account by 6.2 Customer acknowledges and agrees
such Receiver sending a written notice to Receiver's that IAT Entries may be to laws,subject regulations and
J
Receiving Depository Financial Institution ("RDFI") in restrictions of U.S. and foreign governments relating to
accordance with the NACHA Rules (i.e., a Written foreign exchange transactions. Before initiating an IAT
Statement of Unauthorized Debit), and where such Entry, Customer agrees to understand and accept the
notification is received in time and in a manner that Foreign Country Rules. An IAT Entry must be authorized
reasonably allows the RDFI to meet the deadline for by the Receiver. The form and content of the Receiver's
transmitting a Return Entry as provided in the NACHA authorization,including whether such authorization is oral,
Rules. Customer also acknowledges the right of a electronic or written, is governed by Foreign Country
corporate Receiver of a debit Entry, as applicable and as Rules. Customer assumes the risk of rejection of its Entries
described in the NACHA Rules, to obtain a refund of the according to Foreign Country Rules, Bank and the ACH
funds debited from such Receiver's account by such Operator. Customer expressly acknowledges and agrees
Receiver sending a notice to Receiver's RDFI within two that Outbound IAT Entries, once transmitted, are
(2) Business Days following the Settlement Date of the irrevocable and are subject to the Foreign Country Rules;
original Entry. Customer indemnifies Bank against any furthermore, the time frames for return of an Entry are
such claim for a refund by any Receiverdetermined by the Foreign Country Rules and may exceed
the sixty (60) day return window for consumer Entries
5.4 In accordance with this Appendix, defined by the U.S.ACH system and the NACHA Rules, as
Customer may use the Services to initiate and transmit well as the return window for non-consumer Entries.
credit and debit Entries with certain Standard Entry Class Customer also agrees that IAT Entries may not be
("SEC") Codes. Authorized SEC Codes include PPD, dishonored, reversed or settled upon a specific date, and
PPD+, CCD, CCD+ and CTX. All other SEC Codes may that pre-notifications are not permitted with respect to IAT
be used with proper designation on the Services' Setup Entries involving certain foreign countries. To the extent
Form(s) and in accordance with additional instructions not otherwise prohibited by law, in connection with IAT
from and requirements by Bank, as applicable. Bank may Entries,(1)Customer assumes the risk of all fluctuations in
also suspend or terminate Customer's use of one or more foreign exchange rates or availability, and (2) Customer
SEC Codes at any time in Bank's sole and exclusive assumes the risk of loss for creating any and all erroneous
discretion. IAT Entries. Customer acknowledges and agrees that the
processing, settlement and/or availability of such Entries
6. International ACH Transactions ("IAT may be delayed or suspended in the event that Bank
Entries"). determines that enhanced scrutiny or verification of such
Entries is necessary under the NACHA Rules and/or
6.1 An IAT Entry is a debit or credit Entry applicable U.S. law. The ACH Operator through which
that is part of a payment transaction involving a Financial Bank processes the IAT Entry, in its sole discretion, may
Agency located outside of the territorial borders of the also refuse to handle IAT Entries. Customer acknowledges
United States, which is processed through the domestic that Bank shall have no liability for such delay or refusal.
ACH network,pursuant to the NACHA Rules, including the
rules pertaining to International ACH Transactions. IAT 6.3 In addition to the provisions of Section 22
Entries also include those that are funded directly by an of this Appendix,Customer makes the following additional
incoming international wire or similar funding source. The representations and warranties with respect to any IAT
NACHA Rules establish SEC Code "IAT' for all Entry submitted by Customer or on Customer's behalf:
International ACH Transactions. Customer agrees to be
bound by the NACHA Rules and all other statutes and 6.3.1 Customer is in compliance with U.S.
regulations pertaining to IAT Entries, including all law, including, but not limited to, Customer's obligations
applicable OFAC and FinCEN rules and regulations under programs administered by OFAC and FinCEN;and
associated with IAT Entries. Customer acknowledges that
IAT Entries require additional mandatory information, 6.3.2 The origination of an Outbound IAT
according to special formatting requirements, in the Entry is in compliance with the Foreign Country Rules,
computer record for such Entries within an ACH batch file. including any requirements regarding authorization with
Customer expressly agrees to identify and properly initiate respect to an IAT Entry.
all IAT Entries. Bank will facilitate IAT Entries to
Receivers located in foreign countries approved by Bank 6.4 Bank will not be liable fora an failure
Y
and facilitated by the ACH or the Gateway Operator or delay by the ACH Operator, any intermediary financial
(hereinafter in this Section,collectively,"ACH Operator"). institution,or the financial institution designated to receive
Bank will process each IAT Entry in accordance with (a) the IAT Entry in the receiving country in processing or
the laws and payment system rules and requirements of the failing to process any IAT Entry that is transmitted to the
receiving foreign country ("Foreign Country Rules"), (b) receiving country, or (b) the acts or omissions by a third
any agreement governing IAT Entries between Bank and party, including without limitation, the delay or failure of
the ACH Operator through which Bank processes the IAT any third party to process, credit or debit any IAT Entry.
Entry,the terms of which Bank communicates to Customer Bank is also not responsible for the transmission or
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J.R. SMITH, CLERK
settlement of IAT Entries on foreign holidays or other days Protect the confidentiality and integrity of the
on which foreign countries may not process Entries. protected information,
Protect against anticipated threats or hazards to the
6.5 With respect to credit IAT Entries that security or integrity of protected information until
Customer wishes to originate in the currency of a its destruction,and
designated foreign government or intergovernmental Protect against unauthorized use of protected
organization ("Foreign Currency'), Bank will originate the information that could result in substantial harm to
IAT Entries in U.S. dollars ("USD")only.Once the Entry the Receiver/customer.
is transmitted by Bank to the ACH Operator, the ACH
Operator will convert the amount to be transferred from Customer warrants to Bank that no individual will be allowed
USD to the Foreign Currency. If the financial institution to initiate transfers in the absence of proper supervision and
designated to receive the funds does not pay the Receiver safeguards, and Customer agrees to take reasonable steps to
specified in the Entry, or if the Entry is subsequently maintain the confidentiality of the Security Procedures and
determined to be erroneous,the ACH Operator will convert any passwords, codes, security devices and related
the amount to be returned from the Foreign Currency to instructions Bank provides in connection with the Security
USD. Bank will not be liable for any difference in the Procedures. If Customer believes or suspects that any such
amount of the original En� after it has been converted
information or instructions have been known or accessed by
from the Foreign Currency to USD. Further, if Customer an unauthorized person, Customer agrees to notify Bank
designates the currency to arrive at the receiving financial immediately by calling 1-866475-7262,followed by written
institution in Foreign Currency, and the designated confirmation to TD Bank,N.A.,Attn:Treasury Management
Receiver account at the receiving financial institution is a Services Support,6000 Atrium Way,Mt.Laurel,New Jersey,
USD account, Customer acknowledges that the receiving 08054. The occurrence of unauthorized access will not affect
financial institution may: (1) elect to convert the currency any transfers Bank makes in good faith prior to,and within a
back to USD and post the transfer to the Receiver's account reasonable time period after,its receipt of such notification.
accordingly, or (2) return the Entry, in which case the
amount transferred is converted from Foreign Currency 7.3 Bank may, from time to time,propose
back to USD to post back to Customer's account.Customer additional or enhanced security procedures to Customer.
assumes all foreign exchange risk associated with any of Customer understands and agrees that if it declines to use any
the foregoing. such enhanced procedures,it will be liable for any losses that
would have been prevented by such procedures.
7. Security Procedures. Notwithstanding anything else contained in this Appendix,if
Bank believes immediate action is required for the security of
7.1 Customer and Bank shall comply with Bank or Customer fiords, Bank may initiate additional
the security procedures set forth or incorporated by reference security procedures immediately and provide prompt
in this Appendix,the Cash Management Master Agreement,� 1� t, subsequent notice thereof to Customer.
the Bank Internet System Appendix, Data Transmission
Services Appendix and/or associated documents provided by 8. Compliance with Security Procedures.
Bank, including without limitation the Services' Setup
Form(s) (collectively the "Security Procedures"), with 8.1 If an Entry (or a request for
respect to Entries transmitted by Customer to Bank. cancellation or amendment of an Entry)received by Bank
Customer acknowledges and agrees the Security purports to have been transmitted or authorized by
Procedures are a commercially reasonable method for the Customer,it will be deemed effective as Customer's Entry
purpose of verifying the authenticity of Entries (or any (or request), and Customer shall be obligated to pay Bank
request for cancellation or amendment thereof). Customer the amount of such Entry (or request) even though the
further acknowledges that the purpose of the Security Entry (or request) was not authorized by Customer,
Procedures is not to detect an error in the transmission or provided Bank acted in compliance with the Security
content of an Entry. No security procedures have been Procedures. To the extent that signature comparison is to
agreed upon between Bank and Customer for the detection be used as part of any applicable Security Procedures,Bank
of any such error. shall be deemed to have complied with that part of such
Security Procedures if it compares the signature
7.2 Customer is strictly responsible for accompanying a file of Entries (or request) with the
establishing, implementing, maintaining and (as appropriate) signature of an Authorized Representative of Customer
updating its own security procedures(a)to safeguard against and,on the basis of such comparison,believes the signature
unauthorized transmissions, and (b)relating to the initiation, to be that of such Authorized Representative.
processing and storage of Entries. As required by the NACHA
Rules with respect to the protection of ACH information(non- 8.2 If an Entry (or a request for
public information, including financial information of cancellation or amendment of an Entry)received by Bank
Receivers and Customer's customers, used to create, or was transmitted or authorized by Customer,Customer shall
contained within, an ACH Entry and any related addenda be obligated to pay the amount of the Entry as provided
record), Customer shall ensure that its security policies, herein, whether or not Bank complied with the Security
procedures and systems: Procedures and whether or not that Entry was erroneous in
any respect or that error would have been detected if Bank
had complied with the Security Procedures.
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J.R. SMITH, CLERK
debit the Receiver's account in the amount of such Entry on
9. Recording and Use of Communications. the next Banking Day following the date the Entry was
Customer and Bank agree that all telephone conversations received by Bank. Bank will have the right to reject an On-
or data transmissions between them or their agents made in Us Entry as described in Section 12,Returned or Rejected
connection with this Appendix may be electronically Entries. In the case of an On-Us Entry,Bank will have all
recorded and retained by either party by use of any rights of an RDFI including, without limitation, the rights
reasonable means. set forth in NACHA Rules.
10. Processing, Transmittal and Settlement of 12. Returned or Rejected Entries.
Entries by Bank
12.1 In the event any Entry is returned or
10.1 Bank will process,transmit and settle for rejected by the ACH Operator or any RDFI or Intermediary
credit and debit Entries initiated by Customer as provided in Depository Financial Institution for any reason whatsoever,it
the NACHA Rules as in effect from time to time,and pursuant shall be the responsibility of Customer to remake and
to this Appendix. Exclusive of"Same Day ACH Entries," resubmit such Entry or otherwise resolve the returned Entry in
which are described in Section 23 below,Bank will transmit accordance with the NACHA Rules.
such Entries as an ODFI to the ACH Operator by the deadline
of the ACH Operator,provided such Entries are received by 12.2 Bank shall remake such Entry in any
Bank prior to 8:00 p.m. Eastern Time ("ET) and the ACH case where rejection by the ACH Operator was due to
Operator is open for business on such Business Day. Entries mishandling of such Entry by Bank and sufficient data is
received after 8:00 p.m. ET will be deemed received the available to Bank to permit it to remake such Entry. In all
following Business Day. If the Effective Entry Date falls on a other instances, Bank's responsibility will be to receive
non-Business Day, final settlement will occur on the next rejected or returned Entries from the ACH Operator,perform
Business Day. Customer may submit a NACHA-formatted necessary processing,control and settlement functions,and to
file up to the time limit in advance of the Effective Entry Date forward such Entries to Customer. Except for an Entry
as the Services permit,or as may otherwise be permitted by retransmitted by Customer in accordance with the
Bank under the terms of this Appendix. Customer will hold requirements of Section 5, Transmittal of Entries by
Bank hamiless from all charges and liabilities that may be Customer, Bank shall have no obligation to retransmit a
incurred as a result of the delivery of late Entries. returned Entry to the ACH Operator if Bank complied with
the terms of this Appendix with respect to the original Entry.
10.2 If the file of Entries is received other
than in specified NACHA and Bank format,Customer will 12.3 Bank may reject any Entry which does
be required to provide Bank with a corrected file. If a not comply with the requirements of Section 5,Transmittal of
corrected file of Entries is received later than 8:00 p.m.ET Entries by Customer,or Section 7,Security Procedures.Bank
on the delivery date with an intended Effective Entry Date may also reject any Entry which contains a future Settlement
of next-Business Day, Customer will hold Bank harmless Date that exceeds the limits set forth within the Services.
from all charges and liabilities that may be incurred as a Bank may reject an On-Us Entry for any reason for which an
result of the processing of late Entries. Entry may be returned under the NACHA Rules. Bank may
reject any Entry or file if Customer has failed to comply with
10.3 For purposes of this Appendix,Entries its Settlement Account balance obligations under Section 2,
shall be deemed received by Bank,in the case of electronic Customer Obligations, or Customer's Exposure Limit under
file transmission,when the transmission is completed as set Section 3,Risk Exposure Limits.Notices of rejection shall be
forth in Bank's Appendix for Data Transmission Services effective when given. Bank shall have no liability to
and/or the Services'Setup Form(s). Customer by reasons of the rejection of any such Entry or the
fact that such notice is not given at an earlier time than that
10.4 If any of the requirements of this provided for herein. Bank may monitor Customer's rejected
Section 10 (or of Section 23 with respect to Same Day or returned Entries. Bank reserves the right, in its sole and
ACH Entries)are not met,Bank shall use reasonable efforts exclusive discretion, to require Customer to establish a
to transmit such Entries to the ACH Operator by the next reserve Account in the event that an excessive number of
deposit deadline on which the ACH Operator is open for Customer's debit Entries are rejected or returned.
business.
On-Us Entries. Except as otherwise provided
12.4 In accordance with NACHA Rules, Bank
11. may monitor returned Entries,and in its sole discretion,may:
herein,in the case of an Entry received for credit or debit to
(1) require Customer to f lower its return rates, siv invoke
an account maintained by Bank(an"On-Us Entry'),Bank
premium penalty fees for unauthorized or excessive return
will credit or debit the Receiver's account in the amount of rates and/or (3) invoke termination or suspension of the
such Entry on the Effective Entry Date, provided the Services and/or this Appendix in conjunction with Section 31
requirements set forth herein are otherwise met. If those of this Appendix.
requirements are not met, by reason of stale or same-day
Effective Entry Dates on such Entries, Bank will credit or 13. Cancellation or Amendment by Customer.
debit the Receiver's account in the amount of such Entry on
the date the Entry was received by Bank, or if the Entry Customer shall have no right to cancel amend any Entry
was received on anon-Business Day,Bank will credit or or file after its receipt by Bank. However, if such request
complies with the Security Procedures applicable to the
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J.R. SMITH, CLERK
cancellation of data,Bank shall use reasonable efforts to act notice that any such pre-notification has been rejected by
on a request by Customer for cancellation of an Entry prior an RDFI, Customer will not initiate any related Entry until
to transmitting it to the ACH Operator,or in the case of an the cause for rejection is resolved as provided in the
On-Us Entry, prior to crediting or debiting a Receiver's NACHA Rules. If Customer receives notice that an RDFI
account, but Bank shall have no liability if such will not receive Entries without having first received a copy
cancellation is not effected.Customer shall reimburse Bank of the authorization signed by its customer, Customer will
for any expenses, losses, or damages Bank may incur in not initiate any Entry to such customer(s) until it has
effecting or attempting to effect the cancellation or provided the RDFI with such authorization within the time
amendment of an Entry. limits provided in the NACHA Rules.Customer understands
and acknowledges that once a pre-notification has been
14. Reversing Entries/Files. If Customer discovers initiated using the Services, Customer will be restricted
that any Entry or file Customer has initiated was in error,it from initiating any Entry to such customer(s) for three(3)
may use the Services to correct the Entry or file by Business Days.
initiating a reversal or adjustment, or Customer may notify
Bank of such error and Bank will utilize reasonable efforts 18. Participant Authorization for Entries.
on behalf of Customer, consistent with the NACHA Rules,
to correct the Entry or file by initiating a reversal or 18.1 To the extent required by the NACHA
adjustment of such Entry or file. In all such cases, it shall Rules or applicable law, Customer will obtain all consents
be the responsibility of Customer to notify the affected and written authorizations for all Entries in accordance
Receiver that an Entry or file has been made which is at therewith. Such authorizations and any related disclosures
variance with the authorization or is otherwise erroneous. shall be in a form that complies with(i)all requirements of
Customer indemnifies Bank against any claim by any the NACHA Rules and (ii) all applicable federal and state
Receiver that a reversing Entry or file requested by laws and regulations, as the same may be amended from
Customer is wrongful. Customer understands and time to time, including, without limitation, any applicable
acknowledges that certain RDFIs may not or cannot requirements of Regulation E,the Federal Electronic Funds
comply with such reversal and that,in such an event,Bank Transfer Act, and sanctions enforced by OFAC. Customer
will debit Customer's Settlement Account in the amount of shall obtain and maintain current information regarding
the provisional credit applied to the Settlement Account for OFAC enforced sanctions. (This information may be
such Entry or file. obtained directly from the OFAC Compliance Hotline at
(800) 540-OFAC or by visiting the OFAC website at
15. Notice of Returned Entries. Bank will use www.ustreas. ovg /ofac.) Each Entry will be made according
reasonable efforts to notify Customer by phone or to such authorization and shall comply with the NACHA
electronic transmission of the receipt of a returned Entry Rules. No Entry will be initiated by Customer after such
from the ACH Operator no later than one(1)Business Day authorization has been revoked or the arrangement between
after the Business Day of such receipt.Except for an Entry Customer and such Receiver or other party has terminated.
re-transmitted by Customer in accordance with the
requirements of Section 5, Transmittal of Entries by 18.2 Customer shall retain all consents and
Customer, Bank shall have no obligation to re-transmit a authorizations for the period required by the NACHA Rules.
returned Entry to the ACH Operator if Bank complied with Customer will fiunish to Receiver, or to Bank upon its
the terms of this Appendix with respect to the original request, an original or a copy of an authorization as
Entry. required under or for any purpose required by the NACK4
Rules. No investigation or verification procedure
16. Notifications of Change. Bank will use undertaken by Bank shall be deemed to limit or waive
reasonable efforts to notify Customer of each Notification Customer's obligations under this Section.
of Change ("NOC") or Corrected Notification of Change
("Corrected NOC") received by Bank related to Entries 19. Re-initiation of Entries. Customer may not re-
transmitted by Customer within two (2) Business Days initiate Entries except as prescribed by the NACHA Rules.
after receipt p thereof. Customer shall ensure that changes
requested by the NOC or Corrected NOC are made within 20. Payment by Customer for Entries;Payment
six(6)Business Days of Customer's receipt of the NOC or by Bank for Entries.
Corrected NOC information from Bank or prior to initiating
another Entry to the Receiver's account,whichever is later. 20.1 Except as may otherwise be agreed by
Bank in its sole and exclusive discretion, Customer shall
17. Pre-Notification and Rejection of Pre- pay Bank the amount of each credit Entry transmitted by
Notification. Bank recommends that, as permitted by the Bank pursuant to this Appendix at such time on the date of
NACHA Rules or applicable law, Customer send pre- transmittal by Bank of such credit Entry as Bank, in its
notifications at least three (3) Business Days prior to discretion,may determine.
initiating an authorized Entry to a particular account in a
format and medium approved by the NACHA Rules. 20.2 Customer shall promptly pay Bank the
Customer may also initiate a new pre-notification(i)when amount of each debit Entry returned by an RDFI pursuant
any changes are made to an account number, financial to this Appendix.
institution, or individual identification number or (ii) as
otherwise stated in the NACHA Rules.If Customer receives
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J.R. SMITH, CLERK
20.3 Bank will pay Customer the amount of
each debit Entry transmitted by Bank pursuant to this 21.2 Customer may not use the services
Appendix at such time on the Settlement Date with respect provided hereunder to process Entries on behalf of
to such debit Entry as Bank, in its discretion, may Customer's clients defined as a "Th' - '
Y "Third-Party Sender'
( �Y
determine, and the amount of each On-Us Entry at such under the NACHA Rules), except where Customer has
time on the Effective Entry Date as Bank,in its discretion, formally requested to engage in such activity in advance
may determine. and where Bank has provided its prior approval, which
Bank may grant or withhold in its sole and exclusive
20.4 Bank will use reasonable efforts to discretion. In the event Bank approves of such use,
promptly pay Customer the amount of each credit Entry Customer shall execute such other agreement(s) or
returned by an RDFI that was transmitted by Bank pursuant documents as deemed necessary or appropriate by Bank
to this Appendix. prior to the initiation or continuation by Customer of any
ACH services in the capacity of a Third-Party Sender.
20.5 Customer acknowledges and agrees Customer agrees that Bank retains the right to reject any
that any failure of Customer to make payment to Bank as request by Customer to engage in Third-Party Sender
described in this Section may constitute an event of default activities as well as any Entries initiated by Customer in
under any other agreement for credit that Customer or any such capacity,in Bank's sole discretion.
of Customer's Affiliates has with Bank or any Affiliate of
Bank Customer further acknowledges and agrees to 22. Customer Representations and Agreements;
execute and deliver any further documents and instruments Indemnity. In addition to Customer representations,
as Bank may require to effectuate the cross-default agreements and warranties otherwise described in this
contemplated hereby. Appendix, Customer further represents and warrants to
Bank and agrees, with respect to each and every Entry
21. Third-Party Service Provider; Third-Party transmitted by Customer or any Third-Party Service
Sender Activities. Provider on Customer's behalf,that:
21.1 Subject to Bank's prior approval and in (i) Each person shown as the Receiver of
its sole and exclusive discretion, Customer may appoint a an Entry received by Bank from Customer has authorized
third party to act as Customer's agent to process Entries on the initiation of such Entry and the crediting or debiting of
Customer's behalf and for purposes of the services its account in the amount and on the Effective Entry Date
provided hereunder("Third-Party Service Provider"),as set shown on such Entry;
forth in the Services' Setup Form(s). All data received by
Bank from Third-Party Service Provider,including Entries (ii) Such authorization is operative at the
and instructions (and corrections or adjustments thereto), time of transmittal or crediting or debiting by Bank as
are hereby authorized by Customer.All acts and omissions provided herein;
of Third-Party Service Provider shall be the acts,omissions (iii) Entries transmitted to Bank by
and responsibility of Customer and shall be governed by Customer are limited as set forth in Sections 3 and 5;
the provisions of this Appendix. Customer agrees,jointly
and severally with Third-Party Service Provider, to (iv) Customer shall perform its obligations
indemnify and hold Bank harmless from any and all under this Appendix in accordance with the laws of the
liabilities,losses, damages, costs and expenses of any kind United States and all other applicable laws,regulations and
(including, without limitation, the reasonable fees and orders, including, but not limited to, the transaction
disbursements of counsel in connection with any screening and sanctions laws, regulations and orders
investigative, administrative or judicial proceedings, administered by OFAC; laws, regulations and orders
whether or not Bank shall be designated a party thereto) administered by FinCEN;and any state laws,regulations or
which may be incurred by Bank relating to or arising out of orders applicable to the providers of ACH payment
the acts or omissions of Third-Party Service.Provider on services;
behalf of Customer. Customer and Third-Party Service (v) Customer shall be bound by and
Provider shall execute any such other agreement(s) or comply with the provisions of the NACHA Rules (among
documents as deemed necessary or appropriate by Bank other provisions of the NACHA Rules)that make payments
prior to the initiation or continuation by Third-Party of an Entry by the RDFI to the Receiver provisional until
Service Provider of any services on Customer's behalf, receipt by the RDFI of final settlement for such Entry;
including without limitation Bank's Third-Party Service
Provider Agreement,as the same may be modified by Bank (vi) Customer specifically acknowledges
from time to time. Notice of any termination of Third- that it has received notice of the rule regarding provisional
Party Service Provider's authority to transmit data and payment and of the fact that, if such settlement is not
instructions to Bank on Customer's behalf shall be given to received, the RDFI shall be entitled to a refund from the
Bank in writing. The effective date of such termination Receiver of the amount of the Entry;
shall be ten(10)Business Days after Bank receives written
notice of such termination. Customer agrees that Bank (vii) with respect to each International ACH
retains the right to reject any Third-Party Service Provider Transaction ("IAT") that Customer may be permitted by
and any Entries initiated by Customer's Third-Party Bank to initiate, Customer shall (a) classify and format
Service Provider in its sole discretion. payments transmitted to or received from a financial
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I.R. SMITH, CLERK
agency outside the U.S. as an IAT in accordance with the of the Receiver, (b) Customer has established and
NACHA Rules, (b) provide data necessary to accompany maintains a working telephone number for Receiver
the transaction in compliance with the Bank Secrecy Act's inquiries regarding the transaction that is answered during
"Travel Rule,"(c)screen the IAT prior to transmitting any normal business hours and that such number is displayed
file(s) of Entries to the Bank in accordance with the on the notice required by the NACHA Rules for BOC
requirements of OFAC and comply with OFAC sanctions, Entries, (c) the amount of the Entry, the routing number,
and (d)otherwise comply with and be subject to all other the account number and the check serial number are in
requirements of U.S. law, the NACHA Rules, OFAC and accordance with the source document, (d) Customer will
FinCEN,as well as the Foreign Country Rules; retain a reproducible, legible image,microfilm or copy of
the front of the Receiver's source document for each BOC
(viii) with respect to each Internet- Entry for two (2) years from the Settlement Date of the
initiated/mobile ("WEB") (as defined under the NACHA BOC Entry, (e) Customer has employed commercially
Rules) ACH Entry that Customer may be permitted by reasonable procedures to securely store (1) all source
Bank to initiate, (a) Customer employs (1) commercially documents until destruction and(2)all banking information
reasonable detection systems to minimize risk of fraud relating to BOC Entries, and (f) the source document to
related to Intemet-initiated payments, (2) commercially which each BOC Entry relates will not be presented or
reasonable procedures to verify validity of routing returned such that any person will be required to make
numbers, (3) commercially reasonable methods of payment based on the source document unless the BOC
authentication to verify the identity of the Receiver,and(4) Entry is returned;
a commercially reasonable level of encryption technology,
and(b)where required by the NACHA Rules and/or Bank, NO with respect to each Point-of-Purchase
Customer conducts annual audits as to its security practices ("POP")Entry that Customer may be permitted by Bank to
and procedures that include,at a minimum,verification of initiate,the source document provided to Customer for use
adequate levels of(1) physical security to protect against in obtaining the Receiver's routing number, account
theft, tampering, or damage, (2) personnel and access number, and check serial number for the initiation of the
controls to protect against unauthorized access and use and POP Entry(a)is returned voided to the Receiver after use
(3)network security to ensure secure capture,storage, and by Customer and(b)has not been provided to the Receiver
distribution, and will provide proof of such audits to Bank for use in any prior POP Entry;and
upon request;
(xiii) with respect to each Returned Check
(ix) with respect to each Telephone- ("RCK")Entry that Customer may be permitted by Bank to
Initiated("TEL")Entry that Customer may be permitted by initiate, (a) all signatures on the item are authentic and
Bank to initiate, Customer has(a)employed commercially authorized,(b)the item has not been altered,(c)the item is
reasonable procedures to verify the identity of the Receiver, not subject to a defense or claim, (d)the Entry accurately
and (b) utilized commercially reasonable procedures to reflects the item, (e)the item will not be presented unless
verify that routing numbers are valid; the related Entry has been returned by the RDFI, (f) the
information encoded after issue in magnetic ink on the item
(x) with respect to each Accounts is correct,and(g)any restrictive endorsement placed on the
Receivable("ARC")Entry that Customer may be permitted item is void or ineffective.
by Bank to initiate,(a)the amount of the Entry,the routing
number, the account number and the check serial number Customer shall indemnify and hold Bank harmless from
are in accordance with the source document, (b)Customer any loss, liability or expense (including reasonable
will retain a reproducible,legible image,microfilm or copy attorneys' fees and costs) resulting from or arising out of
of the front of the Receiver's source document for each any breach of the foregoing warranties, representations or
ARC Entry for two (2) years from the Settlement Date of agreements. Customer shall also indemnify and hold Bank
the ARC Entry, (c) Customer has employed commercially harmless from any claim of any person that Bank is
reasonable procedures to securely store (1) all source responsible for any acts or omissions of Customer regarding
documents until destruction and(2)all banking information any Entry received from Customer, or those of any other
relating to ARC Entries, (d) Customer has established person related thereto, including, without limitation, any
reasonable procedures under which the Receiver may Federal Reserve Bank, ACH Operator or transmission or
notify Customer that receipt of Receiver's checks does not communications facility,any Receiver or RDFI.
constitute authorization for ARC Entries to the Receiver's
account and that Customer will allow the Receiver to opt- 23. Same Day ACH("SDA"). Upon the effective
out of check conversion activity, and (e) the source date of the changes to the NACHA Rules enabling the same-
document to which each ARC Entry relates may not be day processing of certain ACH payments (the "SDA
presented or returned such that any person will be required Rule'), Customer may be permitted, in Bank's sole and
to make payment based on the source document unless the exclusive discretion, to initiate SDA Entries. In the event
ARC Entry is returned; Bank approves Customer's initiation of SDA Entries,either
on a one time or other periodic basis, Customer agrees as
(xi) with respect to each Back Office follows:
Conversion (`BOC") Entry that Customer may be
permitted by Bank to initiate, (a) Customer has employed 23.1 Customer shall be solely responsible
commercially reasonable procedures to verify the identity for transmitting its SDA Entries with the appropriate
HC 4814-6754-1549 29 Of 58 022016
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J.R. SMITH, CLERK
intended Effective Entry Date to qualify as an SDA Entry Entry) on the basis of the account number, even if it
under the NACHA Rules. identifies a person different from the named Receiver and
(ii) Customer's obligation to pay the amount of Entry to
23.2 Customer shall only initiate individual Bank is not excused in such circumstances. Similarly,if an
Entries that comply with the $25,000 or less transaction Entry describes an RDFI inconsistently by name and
limit per SDA Entry, as large-dollar transactions (over routing number,payment of such Entry may be made based
$25,000)are not eligible for same-day processing under the on the routing number,and Customer shall be liable to pay
NACHA Rules. that Entry.
23.3 Customer will not initiate an SDA 25. Banks Unable to Accept ACH Transactions. If
Entry as an IAT, as IATs are not eligible for same-day Customer submits an Entry to Bank relating to an RDFI
processing under the NACHA Rules. which is not a participant in the ACH, then (i) Bank may
reject such Entry and use reasonable efforts to notify
23.4 Customer will transmit its SDA Entries Customer of such rejection or (ii) if Bank does not reject
to Bank in accordance with Bank's SDA Entry processing such Entry, upon receiving a return transaction related to
deadlines, as established by Bank from time to time and the Entry from the ACH Operator, Bank may offset the
disclosed to Customer. Settlement Account and notify Customer of such
transaction.
23.5 Customer acknowledges and agrees
that if Customer sends an Entry with a stale or invalid 26. Notices,Instructions,Etc.
Effective Entry Date, such Entry may be deemed and
processed by Bank as an SDA Entry if transmitted in 26.1 Except as otherwise expressly provided
accordance with Bank's SDA Entry processing deadlines. herein,Bank shall not be required to act upon any notice or
instruction received from Customer or any other person,or
23.6 Customer acknowledges and agrees to provide any notice or advice to Customer or any other
that if any of the requirements of this Section 23 are not person with respect to any matter.
met, including without limitation a failure by Customer to
meet Bank's or the ACH Operator's deadline for SDA, 26.2 Bank shall be entitled to rely on any
Bank shall use reasonable efforts to transmit such Entries to written notice or other written communication believed by
the ACH Operator by the next available processing it in good faith to be genuine and to have been provided in
deadline on which the ACH Operator is open for business. accordance with the provisions of the parties' Cash
Management Master Agreement.
23.7 Customer further acknowledges that
Bank will not consider the content of the Company 27. Data Retention. Customer shall retain data on
Descriptive Date indicator when determining Customer's file adequate to permit remaking of Entries for five (5)
intent for processing and settlement of SDA Entries. Business Days following the date of their transmittal by
Bank as provided herein and shall provide such data to
23.8 Customer will not initiate SDA Entries Bank upon request. Without limiting the generality of the
that are otherwise ineligible for SDA Entry processing and foregoing provision, Customer specifically agrees to be
settlement in accordance with the NACHA Rules. bound by and comply with all applicable provisions of the
NACHA Rules regarding the retention of documents or any
23.9 Customer otherwise agrees to and will record, including, without limitation, Customer's
comply with all other requirements under the NACHA responsibilities to retain all items, source documents and
Rules and by Bank with respect to SDA Entries,including records of authorization, in accordance with the NACHA
as the same may be amended from time to time. Rules.
23.10 Customer will indemnify and hold 28. Data Breaches.
Bank harmless from any SDA Entry processing and
settlement that is performed by Bank as described herein 28.1 Customer agrees that it will adopt and
and in accordance with the NACHA Rules,notwithstanding implement commercially reasonable policies, procedures
Customer's intent. and systems to provide security as to the information being
transmitted and to receive,store,transmit and destroy data
23.11 Customer will indemnify and hold or information in a secure manner to prevent loss,theft,or
Bank harmless from any intended SDA Entry not meeting unauthorized access to data or information ("Data
the ACH Operator deadline due to Customer delays,or due Breaches"), including but not limited to, Consumer-Level
to Bank processing delays that are beyond Bank's ACH Data.
reasonable control.
28.2 Customer agrees that it will promptly
24. Inconsistency of Name and Account Number. investigate any suspected Data Breaches and monitor its
Customer acknowledges and agrees that if an Entry systems regularly for unauthorized intrusions.
describes a Receiver inconsistently by name and account
number, then (i) payment of such Entry transmitted to an 28.3 Customer will provide timely and
RDFI may be made by the RDFI(or by Bank for an On-Us accurate notification to Bank by calling 1-866-475-7262
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J.R. SMITH, CLERK
with regard to any Data Breaches when known or provisions that by the nature of their terms survive
reasonably suspected by Customer, including but not termination of this Appendix, including without limitation
limited to, Data Breaches to Consumer-Level ACH Data, Sections 2,5, 10, 12,13, 14, 18,20,21,22,27,32,33 and
and will take all reasonable measures, including, without 34.
limitation, retaining computer forensic experts, to
determine the scope of any data or transactions affected by 32. Cooperation in Loss Recovery Efforts. In the
any Data Breaches, providing all such determinations to event of any damages for which Customer or Bank may be
Bim• liable to the other or to a third party relative to the Services,
both parties shall undertake reasonable efforts to cooperate
29. Audit. Bank has the right to periodically audit with the other, as permitted by applicable law, in
Customer's compliance with the NACHA Rules U.S. law
p � performing loss recovery efforts and in connection with any
and Bank policies, including, but not limited to, this actions that Customer or Bank may be obligated to defend
Appendix. or elects to pursue against a third party.
30. Records. All electronic or other files,Entries,
Security Procedures and related records used by Bank for 33. Governing Law. In addition to the terms and
transactions contemplated by this Appendix shall be and conditions of the parties' Cash Management Master
remain Bank's property. Bank may, in its sole discretion, Agreement, the parties agree that if any payment order
make available such information upon Customer's request. governed by this Appendix is part of a funds transfer
subject to the federal Electronic Funds Transfer A then
Any expenses incurred by Bank in making such �
information available to Customer shall be paid by all actions and disputes as between Customer,or any Third-
Customer. Party Service Provider acting on Customer's behalf, and
Bank shall be governed by Article 4-A of the Uniform
31. Termination. The parties may terminate this Commercial Code,as varied by this Appendix.
Appendix in accordance with the terms and conditions of 34. Effectiveness. Customer agrees to all the terms
the parties' Cash Management Master Agreement. In and conditions of this Appendix. The liability of Bank
addition,if Customer breaches the NACHA Rules or causes under this Appendix shall in all cases be subject to the
Bank to breach the NACHA Rules, this Appendix may be provisions of the Cash Management Master Agreement,
terminated or suspended by Bank upon ten (10) Business including, without limitation, any provisions thereof that
Days' notice,or such shorter period as may be provided in exclude or limit warranties made by, damages payable by
the parties' Cash Management Master Agreement. Any or remedies available from Bank. This Appendix replaces
termination of this Appendix shall not affect any of Bank's and supersedes all prior agreements on file with respect to
rights and Customer's obligations with respect to Entries the services described herein and shall remain in full force
initiated by Customer prior to temmination, the payment and effect until termination or such time as a different or
obligations of Customer with respect to services performed amended Appendix is accepted in writing by Bank or the
by Bank prior to termination, or any other obligations or
Cash Management Master Agreement is terminated.
HC 4814-6754-1549 31 of 58 022016
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CERITIFICAT10%,ON LAST PACE
J.R. SMITH, CLERK
IM Bank
APPENDIX III
TD WIRE TRANSFER SERVICES
This Appendix is incorporated by reference into the parties'Cash Management Master Agreement,and the parties'Bank Internet
System Agreement,and applies to all TD Wire Transfer Services("Services")made available to Customer by Bank via the Bank
Internet System. All capitalized terms used herein without definition shall have the meanings given to them in the Cash
Management Master Agreement or the Bank Internet System Agreement, as applicable. To the extent that this Appendix is
inconsistent with the provisions of the Cash Management Master Agreement, or with the terms and conditions of the Bank
Internet System Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent
necessary to resolve such conflict.
TERMS AND CONDITIONS correspondent bank that Bank reasonably selects to transfer
funds from time to time.
1. Description of the Services.
2.3 Each wire transfer must include the
1.1 The Services described in this following information in addition to any information which
Appendix provide Customer with the capability to transfer Bank may require for proper identification and security
funds from specific Account(s) to other accounts (the purposes: (i) account number from which the funds are to
"Recipient Account(s)") as directed via the Bank Internet be withdrawn, (ii) amount to be transferred, (iii)
System. The Recipient Account(s) may be Customer Customer's address,(iv)name and ABA routing number of
accounts or third-party accounts,and may be with Bank or the payee's bank, and (v) account name, address and
with domestic or foreign third-party financial institutions. account number of the payee. In the event a wire transfer
Customer may use the Services to initiate one-time wire describes an account number for the payee that is in a name
transfers, or to create templates for wire transfers made on other than the designated payee,Bank may execute the wire
a repetitive basis which involve the same Customer transfer to the account number so designated
Account and Recipient Account("Repetitive Transfer(s)"). notwithstanding such inconsistency.
All wire transfers must be initiated by an Authorized
Representative of Customer. 2.4 Templates created by Customer for
Repetitive Transfers are the sole and exclusive
1.2 Prior to Customer's use of the Services, responsibility of Customer. Customer agrees to release and
Customer must first agree to and transmit all instructions in hold Bank harmless from any loss or liability which
accordance with all of the terms, conditions and security Customer may incur after Bank has executed a Repetitive
procedures associated with the Bank Internet System, as Transfer, including without limitation, any loss due to
further set forth in the Cash Management Master Customer error in creating the Repetitive Transfer template.
Agreement.
3. Time of Execution.
2. Execution of Wire Transfers.
3.1 Bank will execute each authenticated
2.1 By submitting a wire transfer, wire transfer that is in conformity with all security
Customer authorizes Bank to withdraw the amount of any procedures, cut-off times and other requirements set forth
requested wire transfer which Customer may authorize and herein. Bank may require additional authentication of any
instruct via the Bank Internet System, plus any applicable wire transfer request. Bank reserves the right to reject a
fees and charges, from Customer's designated Account. wire transfer request that cannot be properly authenticated.
Subject to the terms of this Appendix,Bank will accept and Cut-off times may be established and changed by Bank
execute a wire transfer received from Customer that has from time to time. Instructions for wire transfers received
been authenticated by Bank and that is in conformity with after such cut-off times may be treated by Bank for all
the Security Procedure(as further described below),cut-off purposes as having been received on the following
times and other requirements as described in this Appendix Business Day.
.Y
and associated Bank setup form()
s and other
documentation. 3.2 Except for future-dated wire transfers,
>
domestic wire transfers(U.S.-based receivers)initiated and
2.2 All wire transfers to accounts at other approved by Bank's cut-off time on a Business Day will be
depository institutions are transmitted using the Fedwire processed that same day if that day is also a Business Day
funds transfer system owned and operated by the Federal for Bank's correspondent facility and the recipient bank;
Reserve Bank, or a similar wire transfer system used wire transfers initiated and approved after Bank's cut-off
primarily for funds transfers between financial institutions. time for domestic wire transfers will be processed the next
Notwithstanding the foregoing or anything to the contrary Business Day if that day is also a Business Day for Bank's
in this Appendix,Bank may use any means of transmission, correspondent facility and the recipient bank. Future-dated
funds transfer system, clearing house, intermediary or domestic wire transfers will be initiated on the effective
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J.R. SMITH, CLERIC
date requested by Customer, not on the date Customer entities or countries restricted by government regulation or
entered the transaction using the Services. prior Bank experience with particular countries. To the
extent not otherwise prohibited by law, in connection with
3.3 Bank may handle wire transfers any international wire transfer(s)involving a transfer to or
received from Customer in any order convenient to Bank, from any country outside of the U.S., Customer agrees to
regardless of the order in which they are received. release and hold Bank harmless from any loss or liability
which Customer may incur after Bank has executed the
4. International Wires. international wire transfer(s), including without limitation,
any loss due to failure of a foreign bank or intermediary to
4.1 International wire transfers(non-U.S. deliver the funds to a beneficiary.
receivers) of foreign currency initiated and approved by
Bank's cut-off time for international wire transfers of 5. Cancellation and Amendment of a Wire. An
foreign currency on a Business Day, and an international Authorized Representative may request that Bank attempt
wire transfer of U.S. currency initiated and approved by to cancel or amend a wire transfer previously received from
Bank's cut-off time for international wire transfers of U.S. Customer. If a cancellation or amendment request is
currency on a Business Day will be processed within the received by Bank before the wire transfer is executed and
industry standard delivery time(in most, but not all cases, with sufficient time to afford Bank an opportunity to act
two (2) Business Days). Foreign wire transfers may be upon Customer's request, Bank may, on its own initiative
subject to delays based on time-zone issues; the remote but without obligation,make a good faith effort to act upon
location of the recipient bank; cultural differences with such request. In the event Customer's cancellation or
respect to holidays and times of observation, etc.; and amendment request is received after execution of
incorrect or incomplete information being supplied by Customer's wire transfer request,Bank will attempt to have
Customer. the wire transfer returned. Notwithstanding the foregoing,
Bank shall have no liability for the failure to effect a
4.2 Bank shall send Customer's authorized cancellation or amendment, and Bank makes no
and authenticated wire transfers to foreign banks through representation or warranty regarding Bank's ability to
any bank which is a member of Bank's correspondent amend or cancel a wire transfer. Customer agrees to
network. Neither Bank nor any of Bank's correspondents indemnify Bank against
any loss liability or expense which
shall be liable for an errors delays or defaults i Y is in the Bank incurs as a result
Y of the request to cancel or amend a
transfer of any messages in connection with such a foreign wire transfer and the actions Bank takes pursuant to such
wire transfer by any means of transmission. If the wire request.
transfer is of currency other than that of the country to
which it is being transferred, it shall be payable in the 6. Notice of Rejection or Return. Bank shall have
currency of the country of the recipient financial institution, no liabilityfor wire transfers sent b Bank as directed b
Y Y
unless the payee arranges otherwise. If the wire transfer is Customer which cannot be completed or which are returned
received by Bank prior to any cut-off time established from due to incorrect information furnished by Customer.
time
to time, the currency exchange shall be made at the Customer is required to fully complete beneficiary name,
rate quoted by Bank at the time of the wire transfer. and address, as beneficiary bank may elect to return an
otherwise valid wire transfer for incomplete beneficiary
4.3 Bank makes no guarantee or information. Bank may reject or impose conditions that
representation as to the availability of funds at the foreign must be satisfied before it will accept Customer's
destination. Bank makes no express or implied warranty as instructions for any wire transfer, in its sole discretion,
to the time or date the wire transfer will arrive at the including without limitation Customer's violation of this
receiving bank,the amount of any fees to be charged by the Appendix, Customer's failure to maintain a sufficient
receiving bank or the time or date the beneficiary will Account balance, or Bank's belief that the wire transfer
receive credit for funds. may not have in fact been authorized. A wire transfer may
also be rejected by an intermediary or beneficiary bank
4.4 Customer understands and other than Bank,or by operation of law.If a wire transfer is
acknowledges that if the named beneficiary does not match rejected by Bank,Bank will notify Customer by telephone,
the account at the receiving bank, there is a risk the by electronic means,by facsimile or by mail,depending on
beneficiary may not receive the wired funds. If the transfer the method of origination. Upon rejection or return,Bank
is not received or credited in a timely manner, Bank will shall have no further obligation to act upon a wire transfer,
follow normal and customary procedures to complete the nor shall Bank have any liability to Customer due to
wire transfer, determine the location of the wired funds rejection by another person in the wire transfer process, or
and/or return the funds to Customer. If Bank is unable to the fact that notice was not given or was not given at an
determine that the funds have been credited to the earlier time, or within any specified time of receipt,
beneficiary's account or have the funds returned,Customer acceptance,execution or payment of any wire transfer.
assumes all financial liability or risk of loss for the amount
of the wire transfer. 7. Security Procedure.
4.5 International wire transfers are subject 7.1 Customer agrees that the security
to any and all applicable regulations and restrictions of U.S. procedures used by Customer and set forth or incorporated by
and foreign governments relating to foreign exchange reference in this Appendix and/or associated documents,
transactions. Bank has no obligation to accept any including but not limited to the Bank Internet System
international wire transfer(s)directed to or through persons, Appendix, are a commercially reasonable method of
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J.R. SYNTH, CLERK
providing security against unauthorized wire transfers and for agrees that, in accordance with Article 4A of the Uniform
.all other instructions from Customer to Bank(hereinafter the Commercial Code, Bank shall be entitled to rely upon the
"Security Procedure'). Any wire transfer by Customer shall numbers supplied by Customer to identify banks,
bind Customer, whether or not authorized, if transmitted in beneficiaries and other parties to the wire transfer, even if
Customer's name and accepted by Bank in compliance with those numbers disagree or are inconsistent with the names
the Security Procedure. Customer also agrees that any of those parties as provided by Customer.
election Customer may make to change or refuse the
Security Procedure is at Customer's risk and that any loss 9. Payment; Authorization to Charge Account.
resulting in whole or in part from such change or refusal Customer agrees to pay Bank the amount of each wire
will be Customer's responsibility. transfer received from Customer on the Business Day Bank
executes said wire transfer or at such other time as Bank
7.2 Bank may,from time to time,modify the may determine. Bank will validate that sufficient funds are
Security Procedure.Except as expressly provided otherwise available in Customer's Account prior to a wire transfer
in this Appendix or in the parties' Cash Management being executed. Generally, if sufficient funds are not
Master Agreement, any such changes generally will be available in Customer's Account,the wire transfer will not
effective immediately upon notice to Customer as be executed by Bank Bank may, without prior notice or
described in the parties' Cash Management Master demand, obtain payment of the amount of each wire
Agreement. Customer will be deemed to accept any such transfer by debiting the Account designated. In the event
changes if Customer accesses or uses any of the Services there are not sufficient funds available in the Account,
after the date on which the change becomes effective. Bank also reserves the right to debit any other Account that
Customer maintains with Bank.
7.3 Bank may,from time to time,propose
additional or enhanced security procedures to Customer. 10. Wire Confirmation; Account Reconciliation.
Customer understands and agrees that if it declines to use any Customer may confirm the execution of a wire transfer via
such enhanced procedures,it will be liable for any losses that the Bank Internet System. Completed wire transfers will
would have been prevented by such procedures. also be reflected in Customer's periodic Account statement.
Notwithstanding anything else contained in this Appendix,if Customer acknowledges and agrees that Bank is not
Bank believes immediate action is required for security of obligated to provide Customer with a separate advice or
Bank or Customer funds, Bank may initiate additional notice for each completed wire transfer. If Customer
security procedures immediately and provide prompt requests that Bank provide a special notice and Bank agrees
subsequent notice thereof to Customer. to do so, Bank reserves the right to impose a Service Fee
for such notice in accordance with the Cash Management
7.4 Customer hereby acknowledges that the Master Agreement.
Security Procedure is neither designed nor intended to detect
errors in the content or verify the contents of a wire transfer 11. Service Providers. Bank may use a service
by Customer. Accordingly, any errors contained in wire provider to perform, as Bank's agent, all or any portion of
transfers from Customer shall be Customer's responsibility, Bank's obligations under this Appendix. Customer may be
and Customer shall be obligated to pay or repay(as the case required to direct wire transfers and other requests to said
may be)the amount of any such wire transfer. No security provider.
procedure for the detection of any such Customer error has
been agreed upon between Bank and Customer. 12. Bank Reliance;Authentication.
7.5 Customer is strictly responsible for 12.1 Bank shall be entitled to rely in good
establishing and maintaining procedures to safeguard faith on communications it receives as being given or sent
against unauthorized wire transfers. Customer covenants by an Authorized Representative and as being genuine and
that no employee or other individual will be allowed to correct. Bank shall not be liable to Customer for the
initiate wire transfers in the absence of proper authority, consequences of such reliance.
supervision and safeguards, and agrees to take reasonable
steps to maintain the confidentiality of the Security 12.2 BANK MAY TAKE SUCH
Procedure and any Access Devices and related instructions ADDITIONAL STEPS AND IMPLEMENT SUCH
provided by Bank in connection with any Security PROCEDURES AS IT MAY DEEM APPROPRIATE
Procedure utilized by Bank and/or Customer. If Customer TO VERIFY THE AUTHENTICITY OF ANY WIRE
believes or suspects that any such Access Devices,Security TRANSFER BANK MAY DELAY THE
Procedure,information or instructions have been disclosed EXECUTION OF ANY WIRE TRANSFER PENDING
to or accessed by unauthorized persons,Customer agrees to COMPLETION OF A CALL-BACK, OR RECEIPT
notify Bank immediately by calling 1-866-475-7262, OF ANOTHER FORM OF VERIFICATION WHICH
followed by written confirmation to TD Bank,N.A.,Attn: IS SATISFACTORY TO BANK IF BANK IS
Cash Management Customer Care, 6000 Atrium Way, ML UNABLE TO OBTAIN SATISFACTORY
Laurel,New Jersey,08054. The occurrence of unauthorized VERIFICATION, BANK, IN ITS SOLE
access will not affect any transfers made in good faith by DISCRETION, MAY REFUSE TO EXECUTE ANY
Bank prior to receipt of such notification and within a WIRE TRANSFER In no event shall Bank be liable for
reasonable time period thereafter. any delay in executing a wire transfer or for failure to
execute a wire transfer due to the absence of satisfactory
8. Inconsistency of Receiving Beneficiary Name verification.
and Account Number. Customer acknowledges and
HCk 4851-0801-1554 34 of 58 0614
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J.R. SMiTH, CLERK
12.3 Bank may electronicallyrecord an under this Appendix shall in all cases be subject to the
Y PP J
telephone conversations between Bank personnel and provisions of the Cash Management Master Agreement,
Customer. including, without limitation, any provisions thereof that
exclude or limit warranties made by,damages payable by
12.4 Wire transfer transactions are subject to or remedies available from Bank. This Appendix replaces
all the foregoing and all regulations governing electronic and supersedes all prior agreements on file with respect to
transactions,including but not limited to Article 4A of the the Services and shall remain in full force and effect until
Uniform Commercial Code. termination or such time as a different or amended
Appendix is accepted in writing by Bank or the Cash
13. Effectiveness. Customer agrees to all the terms Management Master Agreement is terminated.
and conditions of this Appendix. The liability of Bank
HC4 4851-0802-2554 35 oj58 0614
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GERTIFMATION' ,N LAST FACE
J.R. SMITH, CL E RK
Bank
APPENDIX V
TD POSITIVE PAY SERVICES
This Appendix is incorporated by reference into the parties'Cash Management Master Agreement and applies to all TD Positive
Pay Services(the"Services")made available to Customer by Bank. All capitalized terms used herein without definition shall
have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this
Appendix,to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement,this
Appendix and any amendment hereto from time to time shall control,but only to the extent necessary to resolve such conflict. In
the event of inconsistency between a provision of this Appendix and the Uniform Commercial Code("U.C.C.,"as further defined
below),the parties intend to modify the effect of the applicable U.C.C.provisions to the maximum extent permitted by law.
TERMS AND CONDITIONS "Return Decision(s)" means the instructions of
Customer to Bank instructing Bank not to pay an Exception
1. Definitions. Check.
1.1 Statutory Definitions. Unless "U.C.C." means the Uniform Commercial Code
otherwise defined in this Appendix,words or phrases shall as in effect under the laws of the State specified in the
have the meanings set forth in the U.C.C. in effect from parties'Cash Management Master Agreement,as it may be
time to time under the laws of the State specified in the amended from time to time.
governing law provision of the parties' Cash Management
Master Agreement. 2. Services.
1.2 Definitions. 2.1 Description.
"Authorized Account" means the Account(s) of 2.1.1 The Services described in this
Customer, maintained at Bank, to which the Services Appendix will provide Customer with a means to either
described herein will apply. affirmatively approve the payment of a particular check
upon presentment or to object to its payment. Customer
"Available Funds"means funds on deposit in an acknowledges that the Services have been identified by
Authorized Account and available for withdrawal pursuant Bank as reducing the risk of fraudulent items being paid
to Federal Reserve Board Regulation CC and Bank's against Customer's Account(s) when such Services are
applicable funds availability schedule and policies. adopted and properly utilized by Customer.By conforming
to the terms and conditions of this Appendix, Customer
"Check Issue File" means a record describing agrees and acknowledges that Customer may significantly
checks drawn by Customer on an Authorized Account and reduce the possibility that fraudulent items will post to
provided by Customer to Bank in accordance with Section Customer's Account(s).
2.2.
2.1.2 Customer acknowledges and
"Exception Check"means a Presented Check or a agrees that the Services apply only to magnetic ink
Systematic Override Check (described in Section 2.2.2 character recognition (MICR) encoded paper checks and
below)that does not match data included in a Check Issue documents.Therefore,the Services and this Appendix shall
File. not apply to any electronic funds transfer (EFT),
Automated Clearing House (ACH) transaction, or check
"Exception Check Report" means a record that has been converted to an ACH transaction that does not
describing Exception Checks which is provided by Bank to contain a serial number. Accordingly,this Appendix shall
Customer in accordance with Section 2.3. have no effect with respect to any such transactions on
Bank or Customer's respective rights,obligations,duties or
"Pay Decision(s)" means the instructions of responsibilities under any other agreement between the
Customer to Bank instructing Bank to pay an Exception parties or applicable law or regulation.
Check.
2.2 Check Issue File.
"Presented Check" means a check, substitute
check, or electronically-presented check drawn on an 2.2.1 Customer shall submit a
Authorized Account and presented to Bank for payment Check Issue File to Bank. The Check Issue File shall
through the check collection system or over-the-counter at accurately state the check number and the exact amount of
one of Bank's branch teller stations. each check drawn on each Authorized Account since the
last Check Issue File was submitted(and the payee name,if
Customer elects to receive payee verification services
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described below). Each Check Issue File shall also identify check number, amount and payee name (if applicable), a
any checks that have been cancelled by Customer prior to check shown in any Check Issue File;
issuance.
(b) may pay and charge to the
2.2.2 Payee Verification Services. Authorized Account all Systematic Override Checks that
If Customer elects to receive payee verification services in match, by check number, amount and payee name (if
conjunction with the Services, the following additional applicable and as described herein), a check shown on any
terms shall also apply. Bank's payee verification services Check Issue File;and
require the payee name to match against Customer's Check
Issue File at a minimum threshold or matching score. The (c) shall provide to Customer an
payee name in the Check Issue File will be electronically Exception Check Report that indicates whether Bank has
compared to the payee name on Presented Checks. Other received any Exception Checks and, if so, provide the
information related to the payee name may also be image of the Exception Check(s)by the deadline set forth
electronically compared as part of the automated in the Services' Setup Form(s) via the Bank Internet
verification process to establish a matching score. Such System.Customer must provide check payment approval or
comparisons that result in a minimum threshold or return instructions to Bank on each Exception Check
matching score will be deemed to be a matching check reported by the deadline set forth in the Services' Setup
Customer is responsible for complying with the payee Form(s) via the Bank Internet System ("Pay or Return
verification services' check specifications as specified by Decisions").
Bank from time to time in order to ensure the highest level
of performance from the payee verification services. If 2.3.2 Bank shall not pay any
Customer is unable or unwilling to comply with the payee Presented Check for which Bank has received from
verification services' check specifications as specified by Customer a stop payment request consistent with the terms
Bank, Bank may, in its sole and exclusive discretion: (a) and conditions of the parties' eTreasury Services Appendix
terminate or suspend Customer's use of the payee or the Account Agreement.
verification services as provided in the Cash Management
Master Agreement, or (b) at Customer's request, re-
configure the software associated with the payee 2.4 Payment and Dishonor of Exception
verification services to systematically process Presented Checks. Except as provided in Section 2.4.4 below,Bank
Checks in reliance solely on the payee name provided by will pay or return Exception Checks in accordance with
Customer to Bank in the Check Issue File and without Customer's Pay or Return Decisions.
regard to any other information related to the payee name
that may appear on the Presented Checks (hereinafter 2.4.1 Pay Decisions. Bank shall
"Systematic Override Checks"). Any Presented Check or finally pay and charge to the Authorized Account, to the
Systematic Override Check that does not result in a extent there are sufficient Available Funds in the
minimum threshold or matching score shall be deemed an Authorized Account, any Exception Check that Customer
Exception Check and reported as such in accordance with directs Bank to pay.
the terms of this Appendix. Except as may otherwise be
provided in this Appendix and in the Cash Management 2.4.2 Return Requests. Bank
Master Agreement, Bank shall have no liability for shall return to the depositary bank any Exception Check
Systematic Override Checks. drawn on an Authorized Account that Customer directs
Bank to return.
2.2.3 Customer shall send the
Check Issue File to Bank in the format and medium,by the 2.4.3 Default Options. If
deadline(s),at scheduled day(s),at the place(s)specified by Customer fails to provide Pay or Return Decisions to Bank
Bank and agreed to by Customer, as set forth in Services' in accordance with these requirements, Exception Checks
Setup Form(s). The deadline for transmissions of the will be handled in accordance with the default option as set
Check Issue File to Bank shall be set forth in the Services' forth in the Services' Setup Form(s) for each Authorized
Setup Form(s). Account,in accordance with the following:
2.3 Payment of Presented Checks and (a) Return Default. Where
Reporting of Exception Checks. Customer has selected the return default option,Bank shall
return to the depositary bank any Exception Check drawn
2.3.1 Bank shall compare each on that Authorized Account.
Presented Check by check number, check amount and
payee name (if Customer elects to receive payee (b) Pay Default. Where
verification services) against each Check Issue File Customer has selected the pay default option, Bank may
received by Bank. Bank may satisfy its obligation finally pay and charge to the Authorized Account any
hereunder by comparing check number, amount and payee Exception Check drawn on that Authorized Account.
name(if applicable)set forth in Substitute Checks, checks
presented over-the-counter at one of Bank's teller stations 2.4.4 Checks Presented for
and/or electronic presentment of checks. On each Business Payment at Bank Teller Stations.
Day,Bank:
2.4.4.1 Notwithstanding
(a) may pay and charge to the anything in this Appendix to the contrary,Bank may,in its
Authorized Account each Presented Check that matches,by sole and absolute discretion,return to the person presenting
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a check drawn on an Authorized Account for payment more additional such lists so that all outstanding, unpaid
over-the-counter at one of Bank's teller stations any such checks issued on any Authorized Account have been
check that does not appear on a Check Issue File (i.e., an reported to Bank prior to the implementation of the
Exception Check). Customer acknowledges and agrees that Services.
Bank shall have no obligation to inform Customer that any
such check has been presented for payment at a Bank teller 3. Remedies.
station. Bank shall have no liability to Customer for
wrongful dishonor with respect to any such check. 3.1 U.C.C. Liability. To the extent
applicable,the liability provisions of U.C.C.Articles 3 and
2.4.4.2 If a check drawn on 4 shall govern this Appendix, except as modified below.
an Authorized Account is presented for payment over-the- To the extent permitted by U.C.C. Articles 3 and 4, the
counter during such time the Bank is experiencing an liability of Bank under this Appendix shall in all cases be
interni tion
or failure of
p communications or data
subject to the provisions of the parties' Cash Management
processing facilities or systems, emergency conditions, or Master Agreement, including, without limitation, any
any other difficulties beyond the control of Bank, then, provisions thereof that exclude or limit warranties made by,
notwithstanding any other provision of this Appendix, damages payable by or remedies available from Bank.
Customer authorizes Bank to pay the Presented Check,
even if the Presented Check is an Exception Check. 3.2 Wrongful Honor. It shall constitute
Additionally, Bank shall have no obligation to notify wrongful honor by Bank if Bank pays an Exception Check
Customer of any such Presented Check. listed in a timely Exception Check Report unless: (i)
Customer issued a Pay Decision,or(ii) Customer selected
2.5 Customer and Bank the pay default option and did not issue a Return Decision
Communications. by the deadline set forth in the Services' Setup Form(s). In
the event that there is wrongful honor, the following shall
2.5.1 Customer or Bank, at its apply:
discretion,may each submit to the other party a revision of
any communication provided for under this Appendix(e.g., 3.2.1 Bank shall be liable to
the revision of Check Issue Files, Exception Check Customer for the lesser of the amount of the wrongfully
Reports, Pay Decisions, Return Decisions). The revised paid Exception Check or Customer's actual damages
communication must(i)be sent in its entirety and not in the resulting from Bank's payment of the Exception Check.
form of a partial amendment to the communication
originally sent, (ii) identify the original communication, 3.2.2 Bank expressly waives any
and (iii) be sent in the format and medium, by the right it may have to assert that Customer is liable for the
deadline(s), and at the place(s)established by the receiving amount of the wrongfully honored Exception Check on the
party.A properly submitted revised communication serves grounds that the Exception Check was properly payable
to revoke the original communication. under U.C.C.Section 4401.
2.5.2 Bank shall use only Check 3.2.3 Bank retains the right to
Issue Files that comply with Section 2.2 and have not been assert Customer's failure to exercise reasonable care under
revoked in accordance with Section 2.5.1 in the preparation U.C.C.Sections 3406 and 4406.
of Exception Check Reports under this Appendix.
3.2.4 Bank retains the right to
2.5.3 Customer shall use only assert the defense that Customer has sustained no actual
Exception Check Reports that comply with Section 2.3 and damages because Bank's honor of the Exception Check
have not been revoked in accordance with Section 2.5.1 in discharged for value an indebtedness of Customer.
the preparation of Pay Decisions and Return Decisions.
Bank shall not be obligated to comply with any Pay 3.3 Wrongful Dishonor. Except as
Decision or Return Decision received in a format or provided below, it shall constitute wrongful dishonor by
medium,after a deadline,or at a place not permitted under Bank if Bank dishonors an Exception Check: (i)that Bank
this Appendix and Services' Setup Form(s), but may has been ordered to pay pursuant to a Pay Decision,or(ii)
instead treat such a Pay Decision or Return Decision in for which Customer has not issued a Return Decision under
accordance with the default option selected by Customer in the pay default option by the deadline set forth in the
the Services'Setup Form(s). Services'Setup Form(s).
2.5.4 Bank is not responsible for 3.3.1 Bank's liability for wrongful
detecting any Customer error contained in any Check Issue dishonor of an Exception Check shall be limited to the
File,Pay Decision or Return Decision sent by Customer to damages for wrongful dishonor recoverable under U.C.C.
Bim• Articles 3 and 4.
2.6 Submission of Data Prior to 3.3.2 Notwithstanding Section
Implementation of Services. Customer shall submit to 3.3.1,Bank shall have no liability to Customer for wrongful
Bank a current, reconciled list of all outstanding checks dishonor when Bank, acting in good faith, returns an
issued on each Authorized Account one (1)week prior to Exception Check:
the implementation of the Services hereunder. Depending
on the frequency with which Customer issues checks,Bank (a) that it reasonably believed was not
reserves the right to require Customer to submit one or properly payable;or
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error, unless Bank provided Customer with timely
(b) if there are insufficient Available information that disclosed the error.
Funds on deposit in the Authorized Account;or
3.6 Assignment. To the extent that
(c) if required to do so by the service Customer suffers a loss under this Appendix,Bank assigns
of legal process on Bank or the instructions of regulatory or to Customer any claim that Bank would have against a
government authorities or courts. depositary or collecting bank to recover the loss,including
any claim of breach of warranty under U.C.C. Sections 4-
3.4 Rightful Payment and Dishonor. 207,4-208,and 4-209.
Except as provided in Section 3.5, the following shall
apply: 4. Stop Payment and Return Decisions. The
Services will not be used as a substitute for Bank's stop
3.4.1 If Bank honors an Exception payment services. Customer will follow Bank's standard
Check in accordance with the pay default option selected stop payment procedures if it desires to return a check that
by Customer or in accordance with a Pay Decision issued matches the data included in a Check Issue File or other
by Customer, such honor shall be rightful, and Customer check that was validly issued. Nothing in this Appendix
waives any right it may have to assert that the Exception will limit Customer's right to stop payment on any check
Check was not properly payable under U.C.C. section 4- that matches the data included in a Check Issue File or
401. other check, or Bank's right to return an check that
� Y
matches the data included in a Check Issue File or other
3.4.2 If Bank dishonors an check that Customer has authorized Bank to pay in
Exception Check in accordance with the return default accordance with this Appendix if Bank determines in its
option selected by Customer or in accordance with a Return sole discretion that the check is not properly payable for
Decision issued by Customer,the dishonor shall be rightful, any reason(without Bank's agreeing to,or being required
and Customer waives any right it may have to assert that to, make such determination in any circumstance)or that
the dishonor was wrongful under the U.C.C.section 4-402. there are insufficient collected or Available Funds in the
Authorized Account to pay it.
3.4.3 Customer agrees that Bank
exercises ordinary care whenever it rightfully pays or 5. Governing Law. Except where expressly
returns an Exception Check consistent with the provisions required by contrary provisions of the U.C.C., any claim,
of this Appendix. controversy or dispute arising under or related to this
Appendix shall be governed by and interpreted in
3.5 Faulty Information. Subject to the accordance with the governing law provision of the parties'
terms and conditions of the Cash Management Master Cash Management Master Agreement.
Agreement, Bank shall be liable for losses, other than
incidental or consequential damages, proximately caused 6. Effectiveness. Customer agrees to all the terms
by its honor of a check that was not properly payable,or its and conditions of this Appendix. The liability of Bank
dishonor of a check that was properly payable,if the honor under this Appendix shall in all cases be subject to the
or dishonor occurred because Bank,in accordance with the provisions of the Cash Management Master Agreement,
provisions of Section 2 of this Appendix: including, without limitation, any provisions thereof that
exclude or limit warranties made by, damages payable by
(a) should have shown the check on an or remedies available from Bank. This Appendix replaces
Exception Check Report but failed to do so due to Bank and supersedes all prior agreements on file with respect to
error, unless Bank provided Customer with timely the Services and shall remain in full force and effect until
information that disclosed the error;or termination or such time as a different or amended
Appendix is accepted in writing by Bank or the parties'
(b) showed the check on an Exception Check Cash Management Master Agreement is terminated.In the
Report but referenced the wrong check number due to Bank event of termination, all sums owed to Bank hereunder
shall be immediately due and payable.
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IM Bank
APPENDIX VIII
TD DIGITAL EXPRESS SERVICES
This Appendix is incorporated by reference into the parties'Cash Management Master Agreement and applies to all TD Digital
Express Services(the "Services")made available to Customer by Bank. All capitalized terms used herein without definition
shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in
this Appendix,to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement,
this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such
conflict.
TERMS AND CONDITIONS conform to Bank's then current applicable standards for use
of the Services. Bank Hardware is provided to Customer
1. Services. The Services provide Customer with with a standard manufacturer's warranty. Customer shall
an Internet-based system designed to expedite check thereafter be responsible for purchasing any and all
depositing services by enabling Customer to use check additional manufacturer warranty period(s) beyond the
conversion technology to submit to Bank, for deposit to standard warranty, as may be made available by the
Customer's Account(s), electronic check images and manufacturer, for complying with all manufacturer
associated information ("Check Images') in lieu of the recommendations for preventive maintenance, or for
original checks from which such Check Images were repairing or replacing Bank Hardware.
obtained. These Services are provided in accordance with
the Check Clearing for the 21"Century Act("Check 21"). (iv) Customer shall bear the entire
risk of loss,theft,damage or destruction of Bank Hardware
2. Hardware Requirements. from the date of receipt until return shipment to a Bank
branch or shipped postage-paid to Bank.Such loss,damage
2.1 In order to use the Services, Customer or destruction of Bank Hardware shall not relieve Customer
must utilize certain Bank-approved image/scanner of the obligation to make payments or to comply with any
hardware(the"Hardware"). Customer must either(a)have other obligation under this Appendix.
or obtain the Hardware, as approved by Bank ("CustomerHardw (v) Upon termination of this
CSank ar a (b) utilize Hardware provided o Bank Appendix by either party for any reason, Customer shall
(`Bank Hardware'). Customer must also have a Computer return Bank Hardware in the same condition as when
B outlined in the Cash Management Master Agreement,as originally provided to Customer, except for ordinary wear
Bank may specify and approve from time to time. and tear resulting from proper use.Bank Hardware shall be
2.2 If Customer elects option(a),Customer packed for proper return shipment to such place as Bank
Hardware,Customer is solely responsible for the purchase, shall specify. In the event Bank Hardware has not been
maintenance, performance and adequacy of Customer returned within fifteen (15) Business Days of termination
Hardware. Bank makes no representations or warranties of this Appendix,Customer shall make payment to Bank in
concerning, and has no responsibility or liability for, an amount equivalent to the depreciated value for Bank
Customer Hardware or its use with the Services. Bank Hardware. Where agreed to by Bank in its sole discretion,
shall have no liability or responsibility whatsoever for Customer may purchase Bank Hardware from Bank,
errors, including but not limited to processing or subject to the terms and conditions of Bank's bill of sale or
transmission errors, resulting from any Check Images similar agreement.
transmitted by Customer using Customer Hardware.
3. Check Images; Image Replacement
2.3 If Customer elects option (b), Bank Documents.
Hardware,Customer agrees as follows:
(i) Bank will retain ownership of 3.1 Customer may use the Services to
Bank Hardware provided by Bank for use with the deposit original paper checks using the Hardware to scan,
Services. capture and submit Check Images to Bank through the
Services' Internet site("Services Site"). Eligible items for
(ii) Customer will not use Bank deposit include original checks that Customer has received
Hardware in connection with any remote check deposit for payment or deposit, and obligations of financial
service offered by any other financial institution other than institutions (travelers' checks, cashier checks, official
Bank• checks,and money orders).
3.1.1 The following check types are not eligible for use
(iii) Customer acknowledges that with and may not be processed using the Services:
Bank did not manufacture Bank Hardware and has
provided the same to Customer on an "AS IS"basis, and
warrants only that, upon delivery, Bank Hardware will
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(i) Checks drawn on banking institutions outside the
U.S.or in currencies other than U.S.Dollars; Customer is authorized to enforce each Third Party Check
(ii) Irregular checks (e.g., where the numerical and that is transmitted to Bank using the Services, and
written amounts are different); Customer is authorized to obtain payment of and each
(iii) Previously-returned checks; Third Party Check is properly payable to and enforceable
(iv) Checks payable to or in cash; by Customer,
(v) Checks exceeding any Customer transaction or
file limits as Bank may establish from time to time;and Consistent with the terms of this Appendix as well as the
(vi) Checks that are postdated or more than six (6) Account Agreement, if a Third Party Check is returned,
months old. Customer owes Bank the amount of the Third Party Check,
regardless of when the Third Party Check is returned.Bank
3.1.2 The following check types may withdraw funds from Customer's Account to pay the
are restricted for use with and may only be processed using amount owed to Bank,and if there are insufficient funds in
the Services with prior approval by Bank (as further Customer's Account, Customer will owe the remaining
described below): balance;and
(i) Checks payable to a third party (rather than to Except where otherwise provided, all other provisions of
Customer)(hereinafter"Third Party Checks");and this Appendix shall apply to Third Party Checks and to
Customer's use of the Services in conjunction with Third
(ii) Remotely-created checks (or remotely created Party Checks.
payment orders deposited into or cleared through the check
clearing system) (hereinafter, collectively referred to 3.3 Remotel)-Created Checks. A remotely-created
simply as "remotely-created checks" unless otherwise check,unlike atypical check or draft,is not created by the
expressly specified). paying or drawer bank and does not contain the signature of
the account-holder (or a signature purporting to be the
Notwithstanding the foregoing, under no circumstances signature of the account-holder).In place of a signature,the
may Customer use the Services to deposit any check types check generally has a statement that the account-holder
that Customer is banned or prohibited from using or authorized the check or has the account-holder's name
accepting under applicable law, including, by way of typed or printed on the signature line. Customer shall
example only, the use or acceptance by sellers and request approval from Bank prior to any use of the Services
telemarketers of remotely created payment orders (which to process remotely-created checks,which permission Bank
include remotely-created checks) as defined and described may grant or refuse in its sole and exclusive discretion.
in the Federal Trade Commission's Telemarketing Sales Such use of the Services and the scope of permitted
Rule. remotely-created checks may be limited or restricted by
Bank in its sole and exclusive discretion, and/or by
3.2 Third Party Checks. Customer shall applicable law.
request approval from Bank prior to any use of the Services
to process Third Party Checks,which permission Bank may 3.3.1 If approved to use the
grant or refuse in its sole and exclusive discretion. Such Services to process remotely-created checks, Customer
use of the Services and the scope of permitted Third Party shall be deemed to make the following additional
Checks may be limited or restricted by Bank in its sole and representations and warranties upon each delivery to Bank
exclusive discretion, including without limitation to those of an Electronic File containing remotely-created checks:
Third Party Checks that have been properly endorsed over
to Customer as further described below. (i) Customer has received
express and verifiable authorization to create the check in
3.2.1 If approved to use the Services to process Third the amount and to the payee that appears on the check;
Party Checks, Customer shall make the following
additional representations and warranties upon each (ii) Customer will maintain proof
delivery to Bank of an Electronic File (as defined below) of the authorization for at least two(2)years from the date
containing Third Party Checks: of the authorization, and supply Bank with such proof, if
Bank requests it, within five (5) Business Days of the
(i) All endorsement(s) on the original Third Party request;and
Checks are legible,genuine and accurate; (iii) Consistent with the terms of
this Appendix as well as the Account Agreement, if a
Customer has instituted procedures to ensure that each remotely-created check is returned, Customer owes Bank
original Third Party Check was authorized by the drawer in the amount of the check, regardless of when the check is
the amount stated on the original Third Party Check and to returned. Bank may withdraw funds from Customer's
the payee(s)stated on the original Third Party Check; Account to pay the amount owed to Bank,and if there are
insufficient funds in Customer's Account, Customer will
Each Third Party Check contains all endorsements applied owe the remaining balance.
by the prior payee(s) stated on the original Third Party
Check and has been properly endorsed by such payee(s)for
payment over to Customer,
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(iv) All other provisions of this Appendix shall apply transactions and any transactions rejected by the Services
to remotely-created checks and to Customer's use of the on the Services Site. Customer shall process any rejected
Services in conjunction with remotely-created checks. transactions as paper checks through the normal paper
check deposit process.
3.3.2 Customer agrees to operate in
accordance with applicable laws and regulations regarding 3.8 Customer shall enter the dollar amount
remotely-created checks, including but not limited to, of a paper check(s), along with any other optional
Regulation CC and applicable warranties, the Uniform information that Customer would like retained by the
Commercial Code and applicable warranties, the Bank Services Site. The Services Site provides for reports and
Secrecy Act, USA Patriot Act, and the Federal Trade exporting of the information that has been entered.
Commission Telemarketing Sales Rule,as the same may be
amended from time to time.Without limiting the foregoing, 3.9 Bank shall electronically deliver to
Customer represents,warrants and covenants that it will not Customer, through the Services Site, a confirmation of
use the Services to deposit any check types that Customer receipt for each deposit submitted, and the deposit shall be
is banned or prohibited from using or accepting under considered received by Bank when such confirmation is
applicable law. delivered to Customer. Deposits received via the Service
by 9:00 p.m.Eastern Time on any Business Day or at any
3.4 If at any time Bank believes that time on any Calendar Day that is not a Business Day will
Customer's use of the Services to deposit Third Party be posted to Customer's Account on the same Business
Checks and/or remotely-created checks may create a risk of Day,with next Business Day availability of deposits based
financial loss or otherwise result in unacceptable exposure on Bank's Account Agreement. Bank reserves the right to
to Bank,including but not limited to unacceptable rates of reject any single Check Image or group of Check Images
returned items, or may be subject to or otherwise involve for any reason,before or after delivery of confirmation of
irregular, unauthorized, fraudulent or illegal activity,Bank receipt.
may, at its sole discretion, immediately and without prior
notice to Customer,suspend or terminate Customer's use of 3.10 Customer acknowledges and agrees
the Services, and/or Customer's use in conjunction with that in the event any deposited item converted to a Check
Third Party Checks and/or remotely-created checks, in Image is returned for any reason (for example, non-
addition to but not in lieu of all other rights and remedies sufficient funds),Bank may return the item to Customer by
available to Bank under this Appendix and the Agreement. delivery of either a Substitute Check or the Check Image,
including all return infonnation. Return items will be
3.5 Customer shall enter check information into the handled in the same manner as check deposits in
Services Site,imaging the front and the back of each paper accordance with the Account Agreement.
check and capturing the information contained in the MICR
line of the paper check. Customer shall review each Check 4. Customer Responsibilities and Obligations.
Image for clarity to ensure that the item is legible and can 4.1 Customer represents, warrants and
be reproduced as an Image Replacement Document
("IRD(s)" or "Substitute Check(s)'). Using the Services, covenants that after truncation o an original check,
an electronic file will be created ("Electronic File") that Customer shall safeguard the Electronic Items and original
contains electronic information relating to and converted checks identified in any Electronic File previously sent to
from the paper checks that have otherwise been truncated Bank m order to ensure that such original checks and
or removed from the forward collection and payment Electronic Items:(i)shall not be submitted for deposit with
process (each an "Electronic Item"). To ensure accuracy, Bank or any other financial institution, except in
Customer shall balance the dollar total of each deposit to accordance with the terms and conditions of this Appendix
the sum of the Electronic Items prior to transmitting the related to un-processable Electronic Items and(ii)shall not
Electronic File to Bank. be transferred for value to any other person or other entity.
As an additional security control, Customer shall ensure
3.6 Customer authorizes and agrees that Bank may, that the front of each original check is properly marked
in conjunction with and via the Services, add the image of with wording or other marking in order to reflect that the
an endorsement, an electronic endorsement or a `virtual deposit has been sent for processing.
endorsement" for Customer to the Check Image of any 4.2 Upon receipt of any transmitted
check or item deposited under the terms of this Appendix, Electronic File, Bank shall be the lawful owner of such
and that such endorsement shall be legally enforceable Electronic File and each Electronic Item with respect to
against Customer even though the endorsement did not original checks imaged in that Electronic File. Customer
appear and was not placed on the original paper check or shall retain all original checks truncated pursuant to this
item. In the event Bank does supply a virtual or similar Appendix for a period of thirty (30) Calendar Days in a
endorsement,Bank may instruct Customer not to otherwise manner that is mutually agreed upon between the parties
endorse the check or item so as to minimize any conflict hereto. However, for accounting,auditing and other legal
with the legibility of the virtual endorsement. purposes, Customer may keep electronic records regarding
its receipt and deposit of such checks, provided such
3.7 Customer shall determine that the Electronic File internal electronic records cannot be used to generate
has been received based on the confirmation page of the duplicate Electronic Files for purposes of depositing and
Services Site. Bank will indicate acceptance of the presenting such checks for payment.
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4.3 Customer shall deliver promptly to shall redeposit a returned original check or a returned
Bank, upon its request, the original check if a request is Electronic Item by delivering the same to any Bank branch
made within the retention period provided above, or location. A returned original check or returned Electronic
Substitute Check or Sufficient Copy thereof, for each Item may not be re-submitted by Customer using the
Electronic Item created by Customer. The term"Sufficient Services. Customer may only use the Services to re-submit
Copy" means a copy of an original check that accurately an IRD or Substitute Check that has been returned to
represents all of the information on the front and back of Customer for non-sufficient funds.
the original check as of the time the original check was
truncated or is otherwise sufficient to determine whether or 5.2 With respect to each Electronic Item in
not a claim is valid. any Electronic File delivered to Bank, the Electronic Item
accurately represents all of the information on the front and
4.4 Customer shall not create at any time back of the original check as of the time that the original
an Electronic File under this Appendix or otherwise use the check was created by the payor; contains all required and
Services to capture or maintain tax identification numbers valid endorsements; replicates the MICR line of the
or non-public personal information of any third-party from original check; and meets all FRB standards of and
whom Customer has received an original check for technical requirements for sending Electronic Items to any
payment or deposit or which Customer has selected for as set forth in the applicable FRB operating circular,or as
truncation. established by the American National Standards Institute
4.5 Customer agrees to abide by all federal ("ANSI')or any other regulatory agency,clearing house or
and state laws, and rules and regulations applicable to association. Specifically, each Electronic Item of each
banking transactions. original check shall be of such quality that the following
information can clearly be read and understood by sight
4.6 If Bank receives a returned item for a review of such Electronic Item:
check deposited by Customer after Customer has
terminated this Appendix,then Customer agrees that Bank (i) the amount of the check;
may debit Customer's Account, or if such Account has (ii) the payee of the check;
been closed by Customer, Bank will send a request for
payment to Customer, and Customer agrees to pay Bank (iii) the signature of the payor of the check;
within a commercially reasonable period of time. (iv) the date of the check;
4.7 Customer agrees to have controls in (v) the check number;
place to ensure that the Services, including the Hardware
and checks processed through the Hardware, are properly (vi) the information identifying
safeguarded and stored in accordance with the timeframe the payor and the paying bank that is preprinted on the
set forth in Section 4.2 above and in a secure location, check,including the MICR line;and
under effective control, in order to safeguard against (vii) all other information placed
unauthorized access and use.Customer shall ensure that all on the original check prior to the time an image of the
such checks are thereafter destroyed by a cross-shredder, original check is captured, such as any required
and/or pulped or otherwise destroyed in such a manner that identification written on the front of the check and any
does not permit recovery, reconstruction or future use of endorsements applied to the back of the check.
the checks. Customer agrees that it will not simply throw
out such paper checks with other classes of records or with 5.3 Customer shall also ensure that the
miscellaneous trash. Customer agrees to be responsible for following information is captured from the MICR line of
all damages resulting from lack of proper controls over each original check:
processed checks. (i) the American Bankers
4.8 Customer shall notify Bank of any Association routing transit number("RTN");
interruptions in,delay or unavailability of,or errors caused
by the Services immediately upon discovery thereof (ii) the number of the account on
Notwithstanding the foregoing, in the case of any error Which the check is drawn;
caused by the Services and subject to Section 11 of the (iii) when encoded,the amount of
parties' Cash Management Master Agreement, Customer the check;and
shall provide such notice within thirty(30)Calendar Days
of the date of the earliest notice to Customer which reflects (iv) when encoded,the auxiliary
the error. Failure of Customer to provide such notice to on-us field(serial number)and the process control field of
Bank shall relieve Bank of any liability or responsibility for the check.
such error,omission or discrepancy. 5.4 The Electronic Item bears all
5. Customer Warranties, Covenants. Customer endorsements, if any, applied by previous parties that
makes the following representations, warranties and handled the check in any form (including the original
covenants as of the effective date of this Appendix and check, as Substitute Check, or another paper or electronic
upon each delivery of an Electronic File to Bank: representation of such original check or Substitute Check)
5.1 An Electronic File may include an for transfer,forward collection or return.
electronic representation of a Substitute Check. Customer
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5.5 Customer is entitled to enforce the of monthly transactions returned;and maximum number of
original check, or Customer is authorized to obtain items to be deposited per day.
payment of the original check on behalf of a person who is
either entitled to enforce the original check or is authorized 7. Administrator(s)and Authorized Users.
to obtain payment on behalf of a person entitled to enforce 7.1 Customer may designate
the original check. Administrator(s)relative to the Services,as set forth in the
5.6 Customer will submit financial and/or Services' Setup Form(s). Customer is solely responsible
other additional information to Bank upon request in order for designating its Administrator(s). Customer agrees to
for Bank to establish or amend Customer's deposit and file provide Bank,upon Bank's request,with any certificate or
limits as further described in Section 6 and as established documentation that is acceptable to Bank specifying the
by Bank and communicated to Customer, or to otherwise name of the person who is authorized to be designated as
monitor or audit Customer's use of the Services and Administrator(s)from time to time.
compliance with this Appendix. Customer will also notify
Bank of any change in transaction volumes or financial 7.2 The Administrator(s) may designate
condition that may have an effect on this Appendix or other Administrators and/or Authorized Users. Customer
Customer's use of the Services. accepts as its sole responsibility an Administrator's
designation of other Administrators and Authorized Users.
5.7 Customer shall also request permission from Customer understands that the Administrator(s) will
Bank in advance of any change in locations at which the control, and Customer authorizes the Administrator(s) to
Services are used or change in the physical location or control, access by other Administrator(s) and Authorized
address of any Hardware from its original Bank-approved Users of the Services through the issuance of passwords.
location or address, which permission Bank may grant or The Administrator(s) may add, change or terminate
refuse in its sole and exclusive discretion. In addition to Customer's Authorized Users from time to time and in
but not in lieu of the foregoing, Customer shall request his/her sole discretion. Bank does not control access by
advance permission from Bank prior to using the Services any of Customer's Authorized Users to any of the Services.
and/or any Hardware outside the continental United States
and/or outside of those states (including the District of 7.3 Customer will require each
Columbia)in which Bank operates from time to time.Bank Administrator and each Authorized User to comply with all
may grant or decline such request in its sole and exclusive provisions of this Appendix and all other applicable
discretion and in
consideration of applicable law.aw. agreements. Customer acknowledges and agrees that it is
5.8 Both Customer and the clients with fully responsible for the failure of any Administrator or any
Authorized onzed User to so comply.
whom it does business
are reputable and are not using Bank
as a conduit for money laundering or other illicit purposes. 7.4 Whenever any Authorized User leaves
5.9 None of Customer's transactions to be Customer's employ or Customer otherwise revokes the
processed by Bank are prohibited by any applicable law, authority of any Authorized User to access or use the
regulation,order,rule or judgment. Services, Customer must notify the Administrator
immediately, and the Administrator is solely responsible
5.10 Customer Electronic Files will not for de-activating such Authorized User's password.
contain viruses that originate from Customer's Computer, Whenever an Administrator leaves Customer's employ or
in accordance with the requirements of Section 7 of the Customer otherwise revoke an Administrator's authority to
Cash Management Master Agreement.
access or use the Services, Customer remains fully
5.11 None of Customer's employees are a responsible for all use of the passwords and the Services.
national of a designated blocked country or "Specially
Designated National", `Blocked Entity", "Specially 8. Security Procedures.
Designated Terrorist", "Specially Designated Narcotics 8.1 Upon successful enrollment, Customer
Trafficker", or "Foreign Terrorist Organizations" as can access the Services via the Services Site, or any
defined by the United States Office of Foreign Assets website that Bank may designate from time to time,using
Control. the security procedures as described from time to time.
5.12 Customer is responsible for Bank will provide Customer with an organizational or User
implementing operational controls and risk-monitoring ID that is the electronic identification, in letters and
processes, as well as conducting periodic self-assessments numerals, assigned to Customer by Bank that will be used
of the security of the Services and its processes and for log-in by Customer's Administrator(s) and Authorized
practices with regard to use of the Services. User(s). Bank will also provide the Administrator(s)
initially designated by Customer with an initial individual
6. Deposit and File Limits. Customer's use of the password to gain access to the Services. The
Services is limited as more particularly described in the Administrator(s) and Authorized User(s) must change his
Services' Setup Form(s), and as the parties may otherwise or her individual password from time to time for security
agree from time to time. Such limits may include but are purposes, as prompted by the Services Site, or more
not limited to, e.g., maximum total daily dollar amounts; frequently.
maximum per item dollar amounts; maximum percentage
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8.2 Customer acknowledges that authorized by Customer, including any fraudulent
Administrator(s) will, and Customer authorizes transmission by Customer's employees or agents.Customer
Administrator(s) to, select other Administrators and agrees that any election Customer may make to change or
Authorized Users by issuing to any person an individual waive any optional security procedures recommended by
password. Customer further acknowledges that Bank is at Customer's risk and that any loss resulting in
Administrator(s) may, and Customer authorizes whole or in part from such change or waiver will be
Administrator(s) to, change or de-activate the individual Customer's responsibility. Customer further acknowledges
password and/or any individual password from time to time and agrees that the Access Devices are not intended, and
and in his or her sole discretion. that it is commercially reasonable that the Access Devices
are not intended,to detect any errors relating to or arising
8.3 Customer acknowledges that, in out of a transaction, transfer or any other use of the
addition to the above individual passwords, access to the Services.
Services includes, as part of the Access Devices, a multi-
factor authentication security procedure at log-in for
Customer, including Administrator(s) and Authorized 8.8 If Customer has reason to believe that
Users. This additional security procedure involves an any Access Devices have been lost, stolen or used(or may
additional access code and Computer registration that is in be used) or that a transaction, transfer or other use of the
addition to User ID and individual password security Services has been or may be made with any Access
(hereinafter"Enhanced Log-in Security'). Devices without Customer's permission, Customer must
contact its Administrator. Customer also agrees to provide
8.4 Bank does recommend as a Bank with immediate notice of any actual or suspected
commercially reasonable security procedure that Customer breach in the security of or other unauthorized access to the
implement dual control of the Services, whereby one Services through use of Customer's Computer. Such notice
Authorized User creates,edits,cancels,deletes and restores shall include a description of the incident in general terms;
an Electronic File,and a second different Authorized User a description of the type of information or data related
reviews the Electronic File prior to it being released. thereto that was the subject of unauthorized access or use;a
description of what Customer has done to protect the
8.5 Customer accepts as its sole information or data from further unauthorized access;and a
responsibility the selection, use, protection and telephone number or other contact information so that Bank
maintenance of confidentiality of,and access to,the Access can call for finther information or inquiry. In no event will
Devices. Customer agrees to take reasonable precautions Bank be liable for any unauthorized transaction(s) that
to safeguard the Access Devices and keep them occurs with any Access Devices.
confidential. Customer agrees not to reveal the Access
Devices to any unauthorized person. Customer further 9. Limitation of Liability. In addition to but not in
agrees to notify Bank immediately if Customer believes lieu of the limitations of liability and related provisions
that the confidentiality of the Access Devices has been contained in the parties' Cash Management Master
compromised in any manner. Agreement, Bank shall have no liability for any error or
delay in performing the Services and shall have no liability
8.6 The Access Devices identify and for not affecting a Check Image,if.
authenticate Customer (including Administrator(s) and
Authorized Users)to Bank when Customer accesses or uses (i) Bank receives actual notice or has
the Services. Customer authorizes Bank to rely on the reason to believe that Customer has filed or commenced a
Access Devices to identify Customer when Customer petition or proceeding for relief under any bankruptcy or
accesses or uses any of the Services, and as signature similar law;
authorization for any transaction, transfer or other use of
the Services. Customer acknowledges and agrees that (ii) The ownership of funds involving a
Bank is authorized to act on any and all communications or Check Image or Customer's authorized representative's
instructions received using the Access Devices, regardless authority to transmit a Check Image is in question;
of whether the communications or instructions are
authorized. Bank owns the Access Devices,and Customer (iii) Bank suspects a breach of the security
may not transfer them to any other person or entity. If this procedures;
Appendix is terminated, Customer's access to the Services
will be immediately terminated. (iv) Bank suspects that Customer's Account
has been used for illegal or fraudulent oses•or
8.7 Customer acknowledges and agrees PmP
that the Access Devices and other security procedures (v) Bank reasonably believes that a Check
applicable to Customer's use of the Services are a Image is prohibited by federal law or regulation, or
commercially reasonable method for the purpose of otherwise so provided in the Appendix.
verifyingwhether an transaction transfer r
Y o other use of
the Services was initiated by Customer.Customer agrees to Further, Bank will not be liable to Customer for any
be responsible for any transmission Bank receives throughunauthorized actions or fraud initiated or caused b
Y
the Services that is processed by Bank in accordance with Customer or its employees or agents. Bank will also be
the security procedures, even if such transmission is not excused from failing to transmit or delay in transmitting a
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Check Image if such transmittal would result in it
exceeding any limitation imposed on it by any
governmental or regulatory body.
10. Audit Rights and Site Visits; Internal
Controls. Bank, its accountants, auditors or agents shall
have the right to conduct site visits of Customer,as well as
review, inspect and audit, at Bank's expense and with
reasonable notice, and at any time as Bank may in good
faith deem necessary or reasonable during or after the term
of this Appendix,Customer's compliance with the terms of
this Appendix,including but not limited to Customer's use
of the Services, its Computer and security infrastructure,
and the books and records of Customer related to: (i)
Customer's activities hereunder and/or (ii) conformance
with Customer's obligations hereunder. In addition, Bank
reserves the right, in its sole and exclusive discretion, to
require Customer to implement additional internal controls
at Customer location(s) where use of the Services occurs
and to request information from Customer relative to
Customer's security infrastructure. Any review,inspection
or audit to be performed by or for Bank pursuant to this
Section 10 shall be conducted only during normal business
hours,using reasonable care not to cause damage and not to
interrupt the normal business operations of Customer.
11. Survival. The provisions of Section 9,as well as
Customer's obligation to produce the original of or a
Sufficient Copy of, any item accepted within any deposit
upon Bank's request in accordance with Section 4 hereof,
and Customer's liability for breach of any representation
and/or warranty made in Sections 3, 4 and 5 hereof shall
survive termination of this Appendix and/or the Cash
Management Master Agreement.
12. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank
under this Appendix shall in all cases be subject to the
provisions of the Cash Management Master Agreement,
including,without limitation,any provisions thereof that
exclude or limit warranties made by,damages payable by
or remedies available from Bank.This Appendix replaces
and supersedes all prior agreements on file with respect to
the Services and shall remain in full force and effect until
termination or such time as a different or amended
Appendix is accepted in writing by Bank or the Cash
Management
HC 4814-6754-1549 46 Of 58 022016
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IM Bank
APPENDIX IX
TD ACCOUNT RECONCILEMENT SERVICES-FULL
This Appendix is incorporated by reference into the parties'Cash Management Master Agreement and applies to all TD Account
Reconcilement Services—Full(the"Services")made available to Customer by Bank. All capitalized terms used herein without
definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly
provided in this Appendix,to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master
Agreement,this Appendix and any amendment hereto from time to time shall control,but only to the extent necessary to resolve
such conflict.
TERMS AND CONDITIONS Setup Form(s)to ensure the readability of the Check Issue
File on Bank's equipment.
1. Services. The Services described in this
Appendix will assist Customer in reconciling and managing 2.5 Customer agrees to receive its paid
the check and deposit activity in Customer's designated check data("Paid Check Data")from Bank in the specified
checking Account(s) ("Authorized Accounts"). Use of the format and medium, on the scheduled day(s) and at the
Services does not affect any of Customer's obligations, place(s)specified by Bank and as set forth in the Services'
which are described in the Account Agreement,to discover Setup Form(s).
and report unauthorized or missing signatures and
endorsements, or alterations on checks drawn on 2.6 Prior to receiving a file from Bank
Customer's Accounts. containing Customer's Paid Check Data, Customer will be
provided with a test file b Bank to ensure the readability
P Y
2. Submission of Data. of the Paid Check Data, on Customers equipment.
Customer agrees to report any test file failures.
2.1 Customer shall have its checks
prepared in accordance with Bank specifications, and will 2.7 Bank shall compare each of Customer's
supply Bank with twenty-five (25) voided checks to be paid checks by check number and amount against each
used for testing. The checks will be tested t
g o ensure the
Check Issue File received b Bank.
y Bank does not, and
paper stock is of a minimum weight and is encoded with shall not be obligated to, compare any other data(such as
Bank's ABA(routing and transit)number,account number payee names)on a presented check with a Check Issue File,
and check number to ensure the readability of the MICR even if a Check Issue File contains such other data. Bank
line on Bank's equipment. may satisfy its obligation hereunder by comparing check
numbers and amounts received in Substitute Checks (as
2.2 Customer shall send a file to Bank defined in the Cash Management Master Agreement)
containing information regarding checks that have been and/or via electronic presentment of checks.
issued by Customer Check Issue File" in the format and
medium, by the scheduled day(s) and to the place(s) 3. Statement of Transactions. Within five (5)
specified by Bank and agreed to by Customer as set forth in Business Days following the scheduled date for
the Services' Setup Form(s). The Check Issue File shall reconcilement, as set forth in the Services' Setup Form(s),
include check issue date, check issue amount, payee, stop or receipt of the final Check Issue File for the current
payments,and voided or cancelled checks,if applicable. reconcilement period as set forth in the Services' Setup
Form(s), Bank will forward to the U.S. mailing address
2.3 Prior to implementation of the Services, provided by Customer a fully reconciled report including a
Customer shall submit to Bank a current,reconciled list of listing in check number sequence of all outstanding paid,
all outstanding checks issued on each Authorized Account issued, voided, stopped and cancelled items from the
one (1) week prior to the implementation of the Services statement schedule. Customer shall review the listing and
hereunder. Depending on the frequency with which report any errors as set forth in the Cash Management
Customer issues checks, Bank reserves the right to require Master Agreement between Bank and Customer.
Customer to submit one or more additional lists so that all Customer's use of the Services or Bank's receipt of
outstanding, unpaid checks issued on any Authorized information associated with the Services does not increase
Account have been reported to Bank prior to the Bank's duties or obligations with respect to Customer's
implementation of the Services hereunder. Accounts.
2.4 Customer will send to Bank a test file 4. Effectiveness. Customer agrees to all the terms
in the format and medium as identified in the Services' and conditions of this Appendix.Bank's liability under this
Appendix shall in all cases be subject to the provisions of
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the Cash Management Master Agreement, including, Services and shall remain in full force and effect until
without limitation, any provisions thereof that exclude or termination or such time as a different or amended Full
limit warranties made by,damages payable by or remedies Reconcilement Services Appendix is accepted in wri
PPeting by
available from Bank. This Appendix replaces and Bank or the Cash Management Master Agreement is
supersedes all prior agreements on file with respect to the terminated.
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APPENDIX XIII
TD ZERO BALANCE ACCOUNT SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Zero
Balance Account Services (the "Services') made available to Customer by Bank. All capitalized terms used herein without
definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly
provided in this Appendix,to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master
Agreement,this Appendix and any amendment hereto from time to time shall control,but only to the extent necessary to resolve
such conflict.
TERMS AND CONDITIONS 1.6 Bank is under no obligation to transfer
funds to any one or more ZBA Sub-Accounts to the extent
1. Services. that such transfer(s) would cause an overdraft of collected
balances in the ZBA Parent Account. Bank may,in its sole
1.1 Customer will designate a primary discretion, determine the priority in which fimds from the
checking Account(the"ZBA Parent Account'),and one or ZBA Parent Account are applied to ZBA Sub-Account(s).
more secondary Accounts(the"ZBA Sub-Accounts").
1.7 Customer agrees that Bank is not acting
1.2 Through the Services, Customer as a fiduciary with respect to funds in either the ZBA
authorizes Bank to transfer funds between the ZBA Parent Parent Account or in any ZBA Sub-Account.
Account and ZBA Sub-Accounts in order to bring the
respective balances of the ZBA Sub-Account(s)to the pre- 1.8 If any of the ZBA Sub-Accounts are
selected target balance(s),as set forth in the Services'Setup owned by an Affiliate of Customer, then (1) Customer
Form(s). represents and warrants it has all necessary power and
authority to transfer funds into and out of such ZBA Sub-
1.3 Customer may select a target balance Account(s), and (2) Customer will indemnify Bank from
for each Sub-Account in the amount of$0 or a pre-defined any claim by any owner(s)of such ZBA Sub-Account(s)or
collected or ledger balance amount. any third party with respect to a transfer into or out of such
1.4 Each ZBA Sub-Account's daily ZBA Sub-Account(s).
balance in excess of the target balance, including both 2. Effectiveness. Customer agrees to all the terms
collected and uncollected balances, will be transferred and conditions of this Appendix. The liability of Bank
automatically to the ZBA Parent Account,unless Customer under this Appendix shall in all cases be subject to the
elects to transfer daily collected balances only. provisions of the Cash Management Master Agreement,
including, without limitation, any provisions thereof that
1.5 In the event the daily balance in any exclude or limit warranties made by,damages payable to or
ZBA Sub-Account is less than the target balance,sufficient remedies available from Bank.This Appendix replaces and
funds from the ZBA Parent Account will, to the extent supersedes all prior agreements on file with respect to the
available,be transferred to the ZBA Sub-Account to reach Services and shall remain in full force and effect until
the target balance. termination or such time as a different or amended
Appendix is accepted in writing by Bank or the Cash
Management Master Agreement is terminated.
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J.R. SMITH, CLERK
IM Bank
APPENDIX XXI
TD DATA TRANSMISSION SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to TD Data
Transmission Services made available to Customer by Bank or Bank's third-party service provider. All capitalized terms used
herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as
otherwise expressly provided in this Appendix,to the extent that this Appendix is inconsistent with the provisions of the Cash
Management Master Agreement,this Appendix and any amendment hereto from time to time shall control,but only to the extent
necessary to resolve such conflict.
TERMS AND CONDITIONS
1. Services. The Data Transmission Services(the 2.4 To begin transmission by FTP, Bank
"Services')provide Customer with the ability to exchange will establish Customer's access to Bank's FTP server.
information files with Bank's (or its third-party service Bank will provide Customer with the domain name
provider's)information systems for a variety of needs and required for the FTP connection. Customer will be
functions. This Service allows Customer to send and/or provided a User ID and password that is unique to
receive its Bank files using File Transfer Protocol("FTP"), Customer and will be required each time Customer wishes
Hypertext Transfer Protocol Secure ("Secure Web'), to conned to Bank's transmission platform to send or
Secure File Transfer Protocol ("SFIF), SWIFT' receive files. PGP public keys for encryption will be
Transmission,or via such other method as the parties may exchanged. Bank and Customer will perform, to their
agree upon from time to time, as may be set forth in a mutual satisfaction, connectivity testing between platforms
Services'Setup Form(s),and as further described below. and encryption testing on transmitted files prior to
2. FTP Transmission. Customer's use of the Service via FTP transmission.
2.1 This method of data transmission 3. Secure Web Transmission.
permits Customer to deliver
p and/or receive encrypted files
cryp 3.1 This method of data transmission
to a Bank-maintained FTP server. Bank will create a drop- permits Customer to deliver and/or receive files using an
box directory on the server where Customer may upload Internet connection, User ID and password. Bank will
and deliver data files.To send data to Bank,Customer will provide Customer with the domain name of a website that
either push the data files to Bank's directory,or Customer will display a web page with Customer's root directory.
will give Bank a unique user name,password and Customer Customer can upload data files to this directory by clicking
service address, and Bank will deliver the file. For data the Browse button and selecting the file from Customer's
Bank sends Customer, Customer will pull the data files local network.Data files sent by Bank will be displayed in
from its outbound directory on the server. Customer's outbound directory and may be downloaded by
2.2 The technical requirements for FTP Customer to its local network.
over the Internet include an Internet connection,FTP client 3.2 The technical requirements for Secure
capabilities, and Pretty Good Privacy ("PGP") or Web include an Internet connection and browser supporting
equivalent software for file encryption and decryption. 128-bit Secure Sockets Layer("SSL")encryption.
2.3 Files for transmission by FTP must be 3.3 Files for transmission through Secure
encrypted using PGP Version 4.0 or higher.PGP provides Web are encrypted using SSL. SSL is an open protocol for
encryption technology including encryption, decryption, securing data communication across computer networks
key management, encrypted email, digital signatures, key that provides a secure channel for data transmission
generation, certified keys and key revocation. Bank will through its encryption capabilities. SSL allows for the
generate a public key/private key pair for Customer. The transfer of digitally-signed certificates for authentication
public part of the key will be sent to Customer via procedures and provides message integrity to protect
Customer's assigned mailbox on Bank's transmission against data being altered en route.Bank and Customer will
platform. The private part of the key will be securely kept perform, to their mutual satisfaction, connectivity testing
within Bank. Customer will also generate a key pair for between platforms and encryption testing on transmitted
files that it sends to Bank. The public part of this key pair files prior to Customer's use of the Service via Secure
will be sent to Bank, also via the mailbox, while only Web.
Customer will know the private key.
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4. Secure FTP(SFTP)Transmission. 5.2 The technical requirements for Secure
4.1 This method of data transmission Software include an Internet connection.
permits Customer to deliver to and/or receive files from a 5.3 Files for transmission through Secure
Bank-maintained SFT? server. Files transfers through Software are encrypted using SSL. SSL is an open protocol
SFTP communications are encrypted using Secure Shell for securing data communication across computer networks
("SSI4"). SSH is an open protocol for securing data that provides a secure channel for data transmission
communication across computer networks providing a through its encryption capabilities. SSL allows for the
secure channel for data transmission. The encryption used transfer of digitally-signed certificates for authentication
by SSH is intended to provide confidentiality and integrity procedures and provides message integrity to protect
of data over an unsecured network, such as the Internet. against data being altered en route.Bank and Customer will
SSH uses public-key cryptography to authenticate the perform, to their mutual satisfaction, connectivity testing
remote computer and allow the remote computer to between platforms and encryption testing on transmitted
authenticate the user,if necessary. files prior to Customer's use of the Services via Secure
4.2 Customer has the option to push files to Software.
Bank's SFTP server or have Bank pull Customer's files. 6. SWIFT Transmission.
For Customer push, Bank will create a drop-box directory
on the SFTP server and provide Customer with a user 6.1 This method of transmission provides
name, password, and URL/domain name. Customer must Customer with the ability to use Society of Worldwide
provide an external IP address of the location sending files Interbank Financial Telecommunications operating as
so that Customer's IP address can be added to access S.W.I.F.T. SCRL, Limited Liability Cooperative Society
control lists within Bank's firewalls. For Bank to pull ("SWIFT")messaging services as described in this Section
Customer's files, Bank will need a user name, password, to engage in certain electronic communications with Bank
URL/domain name, and directory from Customer so that (hereinafter the "SWIFT Services"). With the SWIFT
Bank can pull files from Customer's SFT? servers. Bank Services, Customer may: (1) transmit certain SWIFT
and Customer will perform, to their mutual satisfaction, messages and documents to Bank and receive certain
connectivity testing between platforms prior to Customer's SWIFT messages and documents from Bank and other
use of the Services. financial institutions, using SWIFT FIN and/or SWIFTNet
FileAct, the latter of which is a file transfer service that
4.3 Customer also has the option for Bank allows the transmission of messages and documents over
to push Customer files (recommended by Bank) or the SWIFT network in all formats agreed upon by Bank,
Customer can pull the files from Bank's SFTP server. For and(2)transmit and receive SWIFT Instructions(as further
Bank to push Customer's file, Bank needs Customer's described below)from Bank and other financial institutions
URL/domain name, unique user name, password, and in connection with certain Cash Management Services as
directory. For Customer to pull files from Bank's SFTP agreed by the parties from time to time. Bank is a
server, Customer must provide the external IP address of participating depository financial institution in SWIFT.
the location pulling the files so that Customer's IF address
can be added to access control lists within Bank's firewalls. 6.2 SWIFT Rules. The"SWIFT Rules"are
If Customer chooses to pull files from Bank's SFTP server, the documents and other publications as amended by
then files must be PGP encrypted,since files will reside on SWIFT from time to time that Customer may access at
an SFTP server within Bank's DMZ. Bank will need www.swift.com, whether in paper or electronic format,
Customer's public PGP key so that Bank can encrypt files. providing specific terms and conditions and other details
Bank and Customer will perform, to their mutual relating to the provision and use of the SWIFT Services,
satisfaction, connectivity testing between platforms and including without limitation the SWIFT Contractual
encryption testing (if necessary) on transmitted files prior Arrangements; the SWIFT General Terms and Conditions;
to Customer's use of the Services. the SWIFT Service Bureau Policy and the SWIFT Data
Retrieval Policy; the SWIFT MA-CUG, SCORE and
4.4 Customer will need an FTP client TRCO Service Descriptions and any other SWIFT Service
capable of using the SSH protocol. If Customer decides to Descriptions applicable to the SWIFT Services; and the
pull files from Bank, Customer will need an SWIFT On-line Support Service information. This
application/utility capable of creating a PGP key pair and Appendix,the SWIFT Services provided hereunder and the
decrypting PGP files. rights and obligations of the parties hereto shall be subject
to the SWIFT Rules,as they may be amended from time to
5. Secure Software. time. The parties agree to comply with the SWIFT Rules
5.1 This method of data transmission involves and to be aware of and comply with changes or updates to
the use of a Java®-based program that serves as a secure the SWIFT Rules.
access channel through which information may be 6.3 SWIFT Instructions.
exchanged between Customer's Computer and Bank. This
software is provided by Bank and must be installed on a 6.3.1 Bank may honor and act
Customers Computer or network. Secure Software upon any authenticated SWIFT message,communication or
facilitates the secure transfer of files both to and from instruction, including any Payment Orderereinafter a
Customer's network location. "SWIFT Instruction") received in Customer's name or
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under any SWIFT Business Identifier Code(BIC)that: (1) the SWIFT Instruction does not meet the
is unique to Customer,(2)is owned by a parent company or requirements of the SWIFT Rules or
other affiliate of Customer,or(3)is owned by an unrelated otherwise appears not to have been
third party and/or that is otherwise operating by agreement prepared or sent in accordance with this
with Customer as Customer's agent for purposes of Section:
Customer's use of the SWIFT Services. Each such BIC(s)
shall be identified by or through Customer in the Services' Bank considers that the execution of that
Setup Form(s) (hereinafter, collectively, "Customer's SWIFT Instruction may place Bank in
BIC(s)"). Customer acknowledges that the Services' Setup breach of any law or regulation,or
Form(s)shall also set out the key features and requirements B
that shall apply to Customer's use of the SWIFT'Services, Bank the
reasonably suspects that Instruction received by Bank he
which may include but are not limited to the following: SWIFmay not fully and accurately reflect an
i. the SWIFT messaging services to be advice, request instruction or
used to transmit SWIFT Instructions to Bank(e.g., SWIFT communication that Customer intended
FIN and/or SWIFTNet FileAct); to give to Bank, or (b) may not have
been given in accordance with
ii. the SWIFT message types and file Customer's authorization procedures.
formats that are supported by Bank under the SWIFT
Services, including the types of Payment Orders that Except to the extent prevented by applicable law or
Customer may transmit; regulation,Bank shall notify Customer if,under this
iii. the technical parameters associated Section 6.3,it does not act on a SWIFT Instruction.
with and required for SWIFTNet FileAct(e.g.,file transfer 6.4 Secure Communications Channel.
mode options and file transfer fields,etc.); 6.4.1 SWIFT offers SWIFT
iv. the type of information that Bank shall messaging services as a secure communications channel.
provide in conjunction with any SWIFT message sent by SWIFT has established procedures and requirements for
Bank to Customer within the SWIFT Services, including controlling access to SWIFT messaging services(each, an
any account status or other information made available by "Access Control") that may include, without limitation,
Bank; access codes, message authentication codes, secure card
readers, digital signatures, and hardware security modules.
V. the Customer Account(s)to be used in In addition, SWIFT authenticates certain messages based
connection with the SWIFT Services;and on SWIFT message type prior to accepting them for routing
vi. the SWIFT access model (e.g., as SWIFT Instructions(each,an"Authenticated Message").
SCORE, MA-CUG, etc.) and connectivity (e.g., direct This authentication may include confirming that the sender
access, Alliance Lite member, service bureau, etc.) and recipient of the message have exchanged bilateral keys
associated with Customer's use of the SWIFT Services. (`SKE"), entered into a relationship management
application ("RMA") agreement, or taken other steps to
6.3.2 SWIFT Instructions made in secure the transmission of SWIFT Instructions between
accordance with this Appendix and the SWIFT Rules shall them as SWIFT requires from time to time (each, an
be deemed to have been given by an individual authorized "Authentication Procedure'). Collectively, the Access
to act on behalf of Customer. Bank will act in reliance on Controls and Authentication Procedures shall be referred to
the accuracy and completeness of the SWIFT Instruction herein as the"SWIFT Security Procedures."
received by Bank in Customer's name or via Customer's 6.4.2 Bank and Customer rely on
BIC(s). Customer shall ensure that any SWIFT Instruction
sent to Bank fully and accurately reflects the advice, SWIFT's Access Controls and, in the case of an
request, instruction or communication intended d be Authenticated Message, the Authentication Procedures, if
provided n Bank by Customer and is duly authorized. any, that SWIFT requires to secure the transmission of
Customer irrevocably authorizes Bank to (a) treat as Customer's SWIFT Instructions. Bank does not undertake
and will have no obligation
accurate, authentic and properly authorized,rely upon and Customer to separately
implement any SWIFT Instruction received by Bank which authenticate any SWIFT Instruction that Bank receives in
originates Customer's name or under Customer's BIC,whether or not
g (or appears to originate) from Customer Customer actually issued the SWIFT Instruction. Bank
(including, in the case of a Payment Order, debiting the may, at Bank's sole election and option, contact Customer
Account as specified in the SWIFT Instruction), and(b)to with respect to any SWIFT Instruction that Bank receives
process each such SWIFT Instruction as described in this in Customer's name or under Customer's BIC, but Bank's
Section 6. election to contact Customer with respect to one or more
6.3.3 Notwithstanding the SWIFT Instruction will not obligate Bank to contact
foregoing, Bank is not obligated to act on a SWIFT Customer with respect to subsequent SWIFT Instructions
Instruction or treat a SWIFT Instruction as accurate, that Bank receives in Customer's name or under
authentic or authorized,if: Customer's BIC.
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6.5 Customer Representations and may be permitted to use the SWIFT Services provided
Warranties. Customer represents and warrants with respect hereunder on behalf of and in conjunction with Accounts
to itself and the Customer's BIC(s)identified by or through that belong to Customer's clients,as well as on Customer's
Customer in the Services'Setup Forms)that it: own behalf.Customer shall provide an appropriate letter of
authority and/or execute any such other agreement(s) or
• is registered with SWIFT as either a "Member documents as deemed necessary or appropriate by Bank
Administered Closed User Group" and/or prior to the initiation or continuation by Customer of the
"Closed User Group" and/or "SCORE SWIFT Services in the capacity of a third-party service
(Standardized Corporate Environment)"member; provider. Customer agrees that Bank retains the right to
• is in compliance with applicable SWIFT Rules; reject any request by Customer to engage in such activities
as well as any SWIFT Instructions by Customer in such
• is not in violation of any federal, state or local capacity, in Bank's sole discretion. In the event Bank
laws with respect to the SWIFT Services; approves Customer's use of the SWIFT Services as a third-
is a duly incorporated and validly existing legal party service provider,then the following shall also apply:
•
entity; (a) Customer represents and
warrants to Bank that each Customer client has given
• is in good standing financially and in compliance Customer authority to access and engage in SWIFT
with all laws and regulations applicable to Instructions with respect to its Accounts through use of the
Customer;and SWIFT Services to the same extent as if Customer owned
• is subject to regular audits in accordance with them, including in the capacity of a "third party service
internationally recognized accounting standards provider;"
by independent auditors.
(b) each reference to"Customer"
6.6 Third-Party Service Providers: Third herein will be deemed to be a collective reference to
Party-Service Provider Activities. Customer and each Customer client whose Accounts are
included in Bank's implementation of Customer's set-up
6.6.1 Customer may appoint a third for the SWIFT Services;
party, whether a SWIFT registered user/member, SWIFT
authorized service bureau or other third party, to send or (c) all of the provisions set forth
receive SWIFT Instructions,perform other functions and/or herein will apply to the Customer client's Account(s)as if
otherwise act as Customer's agent for purposes of the Customer owned them;
SWIFT Services provided hereunder (a "Third-Party
Service Provider"), as shall be set forth in the Services' (d) each person who is
Setup Form(s). In such event, Customer agrees that the authorized to act on Customer's behalf with respect to the
Third-Party Service Provider shall have all the powers of SWIFT Services is also authorized to act on Customer's
Customer in relation to the SWIFT Services. Customer behalf to the same extent with respect to the Accounts of
unconditionally authorizes Bank to deal directly with the each Customer client whose Accounts are included in
Third-Party Service Provider in connection with all matters Bank's implementation of Customer's set-up for the
relating to the SWIFT Services, including, without SWIFT Services;and
limitation,the receiving and sending of SWIFT Instructions
(including Payment Orders), and any testing to be (e) Customer shall be liable for
completed with respect to the SWIFT Services.All SWIFT all monetary, confidentiality and other obligations to Bank
Instructions received by Bank from Third-Party Service hereunder as they relate to Customer's use of the SWIFT
Provider are hereby authorized by Customer. All acts and Services for itself as well as each such Customer client.
omissions of Third-Party Service Provider shall be the acts, Customer agrees to notify Bank immediately if Customer's
omissions and responsibility of Customer and shall be authority with respect to Customer's client(s)is revoked or
governed by the provisions of this Appendix. For the changed.
avoidance of doubt, Customer shall ensure the Third-Party
Service Provider complies with the relevant provisions of 6.7 Customer Direction and Indemnitv.
this Appendix. Notice of any termination of Third-Party 6.7.1 In the event that the BIC(s)
Service Provider's authority to receive and send SWIFT identified by or through Customer in the Services' Setup
Instructions to Bank on Customer's behalf shall be given to Form(s) are owned by a parent company or other affiliate
Bank in writing. The effective date of such termination of Customer, or are owned by an unrelated third party
shall be ten(10)Business Days after Bank receives written and/or such third party is otherwise operating by agreement
notice of such termination. Notwithstanding the foregoing, with Customer as Customer's Third-Party Service Provider
Customer agrees that Bank retains the right to reject any for purposes of the SWIFT Services, Bank is prepared to
such Third-Party Service Provider and thus any associated act on a SWIFT Instruction from Customer's SWIFT
SWIFT Instructions initiated by Customer's Third-Party BIC(s)only upon receipt of the indemnity provided in this
Service Provider in Bank's sole discretion. Section 6.This indemnity shall be in addition to and not in
6.6.2 Subject to Bank's prior lieu of an additional indemnity provided by Customer in
approval and in its sole and exclusive discretion,Customer the Cash Management Master Agreement.
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6.7.2 Bank is authorized to accept without unreasonable cost to Bank or Customer; (c)
and honor any files and/or SWIFT Instructions sent from suspension is required by SWIFT or the SWIFT Rules; or
any of Customer's SWIFT BIC(s) without making any (d)suspension is necessary to avoid or reduce any material
inquiry as to the validity or sufficiency of the SWIFT damage or disadvantage to either party.
Instructions and to consider the SWIFT Instructions of like
force and effect as written orders made in accordance with 7. Security Procedures.
the signing authorities held by Bank from time to time for 7.1 Customer agrees that the security
the operation of Customer's Account(s)with Bank. procedures set forth or incorporated by reference in this
6.7.3 Without limiting the scope of Appendix (including without limitation the SWIFT Security
Section 6.7.2, Bank is authorized to disclose information Procedures),the Cash Management Master Agreement and/or
about Customer,its Accounts and banking relationship with associated documents provided by Bank, including without
Bank, including any changes to such information, in limitation the Services' Setup Form(s), are a commercially
response to and as directed in the SWIFT Instructions as reasonable method of providing security against unauthorized
required to process the same. access to or interception of transmissions between Customer
and Bank(hereinafter collectively the"Security Procedures").
6.7.4 Bank shall not be liable for Any transmission by Customer shall be deemed authorized if
any loss or damage incurred by Customer, or any third transmitted in accordance with the Security Procedures. Bank
party arising from or in any way related to Bank acting may,from time to time,modify the Security Procedures.Such
upon or refusing to act upon any SWIFT Instructions from modifications shall become effective upon receipt of notice by
Customer's BIC(s), unless due to the gross negligence or Customer or such later date as may be stated in the Bank's
willful misconduct of Bank.Notwithstanding the foregoing, notice to Customer. If Customer fails to object to such
in no event shall Bank be liable for any indirect,special or change,it shall be deemed to agree to such change.
inconsequential damages incurred by Customer or any third
party arising from or in any way related to Bank acting 7.2 With respect to SWIFT in particular,
upon or refusing to act upon any SWIFT Instructions. Customer further acknowledges that the SWIFT Security
Procedures are the only security procedures offered for
6.7.5 Customer hereby agrees to SWIFT Instructions that Customer transmits through the
indemnify and hold Bank harmless from and against any SWIFT Services. Customer has solely determined that the
losses, liabilities, claims, damages, fees, or expenses SWIFT Security Procedures best meet Customer's
whatsoever that Bank may suffer,incur or be under or that requirements with regard to the size,type and frequency of
may be brought against Bank, pursuant to, in connection the SWIFT Instructions issued by Customer to Bank using
with, or in any way related to Bank acting upon,delaying the SWIFT Services and that the SWIFT Security
in acting upon or refusing to act upon any SWIFT Procedures are a commercially reasonable method of
Instructions from Customer's BIC(s). providing security against unauthorized access to or
interception of transmissions between Customer and Bank
6.8 Termination of SWIFT Services. In Customer acknowledges that it is bound by the terms and
addition to but not in lieu of the provisions of the Cash conditions of each SWIFT Instruction, including any
Management Master Agreement,the SWIFT Services shall request to cancel or amend a SWIFT Instruction, whether
terminate automatically in the event that: or not authorized by Customer, that Bank receives in
either party loses user status as defined in the Customer's name or under Customer's BIC(s)through the
SWIFT General Terms and Conditions of the By- SWIFT Services and in accordance with the SWIFT
laws. Security Procedures.
SWIFT has ceased to provide, and not resumed 7.3 Nothing in this Appendix shall be
providing,any of the SWIFT messaging services; deemed a representation or warranty by Bank that FTP,
Secure Web, SFT? or SWIFT communications are secure.
SWIFT,in exercise of its rights under the SWIFT Rather,after review of the alternatives,Customer has selected
Rules, has required either party to terminate the a communication method that it believes best suits its needs.
SWIFT Services;or 7.4 Bank and/or SWIFT(as applicable)may,
Bank has ceased to provide the Cash from time to time, propose different, additional or enhanced
Management Services. security procedUies to Customer. Customer understands and
agrees that if it declines to use any such enhanced procedures,
6.9 Suspension of SWIFT Services. In it will be liable for any losses that would have been prevented
addition to but not in lieu of the provisions of the Cash by such procedures.Notwithstanding anything else contained
Management Master Agreement, either party may suspend in this Appendix,if Bank and/or SWIFT believes immediate
the use of the SWIFT Services for such period(s) as it action is required for the security of Bank, SWIFT or
considers appropriate in its absolute discretion by notice to Customer funds or data, Bank and/or SWIFT may initiate
the other party if. (a) suspension is necessary for the additional security procedures immediately and provide
purposes of(routine or emergency) maintenance; (b) for prompt subsequent notice thereof to Customer.
security or technical reasons,including a suspension of the
SWIFT messaging services by SWIFT, use of the SWIFT
messaging services is impossible or cannot be achieved
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7.5 Customer hereby aclmowledges that the that any such password, code, security device, Security
Security Procedures are neither designed nor intended to Procedure, information or instructions have been disclosed
detect errors in the content or verify the contents of a to or accessed by unauthorized persons,Customer agrees to
transmission between the parties. Accordingly, any errors notify Bank immediately followed by written confirmation
contained in a transmission from Customer shall be as provided in the Services'Setup Form(s).
Customer's responsibility. Except as otherwise expressly
provided in the parties'Cash Management Master Agreement 7.7 Customer shall retain data files for five
or other Appendix between the parties,no security procedure (5)Business Days following the date of their transmittal by
for the detection of any such Customer error has been agreed Customer as provided herein, and shall provide such data
upon between Bank and Customer. files to Bank upon request.
7.6 Customer is strictly responsible for 8. Effectiveness. Customer agrees to all the terms and
establishing and maintaining procedures to safeguard conditions of this Appendix. The liability of Bank under
against, detect and mitigate unauthorized access to or this Appendix shall in all cases be subject to the provisions
interception of transmissions. Customer covenants that no of the Cash Management Master Agreement, including,
employee or other individual under Customer's control will without limitation, any provisions thereof that exclude or
be allowed to initiate transmissions in the absence of proper limit warranties made by,damages payable by or remedies
authority, supervision and safeguards, and agrees to take available from Bank. This Appendix replaces and
reasonable steps to maintain the confidentiality of the supersedes all prior agreements on file with respect to Data
Security Procedures and any passwords, codes, security Transmission Services and shall remain in full force and
devices and related instructions provided by Bank in effect until termination or such time as a different or
connection with any Security Procedure utilized by Bank, amended Appendix is accepted in writing by Bank or the
SWIFT and/or Customer. If Customer believes or suspects parties' Cash Management Master Agreement is
terminated.
Remainder of page intentionally left blank.
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J.R. SMITH, CLERK
Bank
APPENDIX XXII
TD ACH POSITIVE PAY SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD
Automated Clearing House ("ACH") Positive Pay Services (the "Services") made available to Customer by Bank. All
capitalized terms used herein without definition shall have the meanings given to them in the Cash Management Master
Agreement or the NACHA Rules(as defined below). Except as otherwise expressly provided in this Appendix,to the extent that
this Appendix is inconsistent with the provisions of the Cash Management Master Agreement,this Appendix and any amendment
hereto from time to time shall control,but only to the extent necessary to resolve such conflict.
TERMS AND CONDITIONS meet Customer's ACH Authorizations, whereby all such
ACH Entries are scheduled to be returned to the Originator
of the ACH Entry.
1. Definitions.
2. Services.
"Authorized Account" means the Account(s) of
Customer, maintained at Bank, to which the Services will 2.1 Description.
apply.
2.1.1 The Services described in this
`ACH Entry"means an order or request for the Appendix will provide Customer with a means to review
transfer of money to an Authorized Account (a "Debit ACH Entries received on a particular Customer Account
Entry'), and/or an order or request for the withdrawal of that are scheduled to be returned to the Originator as an
money from an Authorized Account(a"Credit Entry"). Exception Entry in accordance with Customer's ACH
Authorizations and to confirm the return of the Exception
"ACH Authorizations"means Customer's written Entry through a Return Decision,or to override the Return
instructions and authorization criteria provided to Bank in Default Disposition and instruct Bank to pay/post the
conjunction with the set-up and implementation of the Exception Entry to Customer's Account through a Pay
Services, including via a separate ACH block and filter Decision.
agreement with Bank(hereinafter the"Filter Agreement'),
and/or otherwise in accordance with the Services as 2.1.2 Customer acknowledges that
described in this Appendix,which either prohibits all ACH the Services have been identified by Bank as a service that
Entries or permits only the posting of specified ACH can reduce the risk of fraudulent ACH Entries being posted
Entries to an Authorized Account. against Customer's Account(s) when such Services are
adopted and properly utilized by Customer.By conforming
"Exception Entry" means an ACH Entry to the terms and conditions of this Appendix, Customer
(excluding an ARC, BOC, POP, RCK, or XCK SEC acknowledges and agrees that it may significantly reduce
Codes)that does not meet Customer's ACH Authorizations the chance that fraudulent ACH Entries will post to
previously provided to Bank(and is referred to within the Customer's Account(s) by electronically matching
Services as a "Rejected" Entry), and that is therefore incoming ACH transactions to ACH Authorizations.
scheduled to be returned to the Originator of the ACH
Entry. 2.2 Customer Authorizations.
"NACHA Rules" means the National Automated 2.2.1 Customer will designate
Clearing House Association's ("NACHA') Operating Authorized Account(s)to be used with the Services via the
Rules and Operating Guidelines, which govern the ACH Services'Setup Form.
system.
2.2.2 As applicable,Customer shall
"Pay Decision(s)" means Customer's instruction begin the Services with either(a)any ACH Authorizations
to Bank to pay/post an Exception Entry. initially submitted by Customer to Bank and then
established by Bank on Customer's behalf in conjunction
"Return Decisron(s)" means Customer's with the set-up and implementation of the Services, or(b)
confirmation instruction to Bank to not pay/post an any existing ACH Authorizations on Customer's
Exception Entry but to instead return the ACH Entry to the Authorized Account(s) that have been established via a
Originator. Filter Agreement. Customer may add to or modify those
initial or existing ACH Authorizations from time to time as
"Return Default Disposition" means the set forth herein. Customer shall be responsible for the
automatic default disposition of all ACH Entries that do not accuracy and completeness of all information provided to
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Bank both through the use of the Services and via the 2.4 Payment and Dishonor of Exception
Services'Setup Form Entries.
2.2.3 Customer may submit 2.4.1 Customer may choose to
additional ACH Authorizations,make changes to initial or confirm the Return Default Disposition of individual
existing ACH Authorizations, or delete initial or existing Exception Entries presented via the Services by providing a
ACH Authorizations related to the Authorized Account(s) Return Decision to Bank by the pre-established deadline set
online via the Services. Such changes shall become forth within the Services, in which case such Exception
effective on the next Business Day following the day on Entries will be automatically returned to the Originator.
which the changes were made by Customer. Each Business 2.4.2 Customer may choose to
Day, Bank will provide an updated list of successfully override the Return Default Disposition of individual
processed ACH Authorizations to Customer via the Exception Entries presented via the Services by providing a
Services. In the event Customer submits a change or Pay Decision to Bank by the pre-established deadline set
addition to the ACH Authorizations that is incomplete, forth within the Services, in which case such Exception
contains an error or that cannot otherwise be processed by Entries will be paid/posted to Customer's Authorized
Bank, Bank will use commercially reasonable efforts to Account(s)at the end of the current Business Day.
notify Customer on the next Business Day that the
associated ACH Authorization(s) has been rejected. Until 2.4.3 Customer may choose not to
such time as Customer reviews and corrects it,the rejected or may otherwise fail to review and provide a Post Decision
ACH Authorization(s)will not appear on the updated list of or a Return Decision for any Exception Entries by the pre-
successfully processed ACH Authorizations that Customer established deadline, in which case the Return Default
receives. Disposition will apply and all such Exception Entries will
be automatically returned to the Originator.
2.2.4 Should Customer fail to fully
and accurately populate or complete all requested fields 2.8 Customer and Bank
associated with the ACH Authorizations,the following will Communications.
also apply:
2.8.1 Customer shall use the
(a) If Customer does not insert a Services' module of the Bank Internet System to report all
specified maximum dollar amount, then no maximum Pay Decisions or Return Decisions. Bank shall not be
dollar amount shall apply with respect to the applicable obligated to comply with any Pay Decision or Return
ACH Entry(ies) or transaction subject to the ACH Decision received in a format or medium, after a pre-
Authorization(s). established deadline,or at a place not permitted under this
Appendix or the Services' Setup Form(s), and may instead
(b) If Customer does not insert a treat any such Pay Decision as a Return Decision or
specified expiration date, then no expiration date shall otherwise apply the Return Default Disposition to such Pay
apply to the applicable ACH Entry(ies) or transaction Decision.
subject to the ACH Authorization(s).
2.8.2 Bank is not responsible for
2.3 Processing of ACH Entries and detecting any Customer error contained in any ACH Entries
Reporting of Exception Entries. Bank shall electronically presented,decisioned,returned or processed,or in any Pay
compare each ACH Entry presented to Bank for settlement Decision or Return Decision by Customer.
against Customer's Authorized Account(s) on a Business
Day (including those presented by other depository 2.8.3 In the event that Bank is
institutions, ACH Operators or by Bank) with Customer's unable to provide Customer with a listing of Exception
ACH Authorizations. On each Business Day,Bank: Entries through the Bank Internet System for Customer's
Pay Decision or Return Decision as described in Section
(a) will allow incoming ACH 2.3, the Return Default Disposition shall apply in
Entries that match Customer's ACH accordance with Customer's previously established ACH
Authorizations to post to Customer's Authorizations.
Authorized Account(s);and
2.8.4 Bank shall be bound only to
(b) will treat as Exception Entries all incoming exercise ordinary care in attempting to post or return ACH
ACH Entries that do match Customer's ACH Entries as described in this Appendix.
Authorizations and will provide to Customer, through the
Bank Internet System,a listing of all Exception Entries that 3. Remedies.
are otherwise scheduled for Return Default Disposition.
Customer must monitor, review and issue a Post Decision 3.1 Bank Liability. To the extent
or Return Decision on each Exception Entry reported permitted by applicable law,the liability of Bank under this
through the Bank Internet System by the pre-established Appendix shall in all cases be subject to the provisions of
deadline set forth within the Services. Customer may also the parties' Cash Management Master Agreement,
set up alerts to be sent to Customer by a pre-established including, without limitation, any provisions thereof that
time each Business Day advising Customer whether or not exclude or limit warranties made by, damages payable by
there are any Exception Entries to be reviewed that or remedies available from Bank.
Business Day.
HCN 4841-7018-3187 570j58 0315
3.2 Wrongful Payment/Posting. It shall Entries which Customer suspects in good faith are
constitute wrongful payment/posting by Bank if Bank fraudulent or otherwise unwarranted. The Services are
pays/posts an Exception Entry for which Customer has NOT intended to be a substitute for authorization
provided a Return Decision by the pre-established deadline instructions or to delay Customer's decision on ACH
set forth within the Services. In the event that there is Entries,including but not limited to stop payment orders on
wrongful payment/posting, Bank shall be liable to ACH Entries which are not suspected in good faith to be
Customer for the lesser of the amount of the wrongfully unauthorized. If Bank suspects or deems, in Bank's sole
paid/posted Exception Entry or Customer's actual damages discretion, that Customer is using the Services contrary to
resulting from Bank's posting of the Exception Entry, those intentions, Bank may require Customer to provide
subject to the terms of the parties' Cash Management evidence that ACH Entries that Bank returns pursuant to
Master Agreement. Customer's instructions were in fact unauthorized. In
addition, Bank may hold Customer liable for losses that
3.3 Rightful Payment and Return. Bank sustains on ACH Entries which Bank is requested to
return under the Services and which Customer does not
3.3.1 If Bank honors an Exception reasonably establish as unauthorized ACH Entries,
Entry in accordance with a Pay Decision by Customer as including as under the NACHA Rules.
described in Section 2.4.2, such payment/posting shall be
rightful, and Customer waives any right it may have to 5. Governing Law. Any claim, controversy or
assert otherwise. dispute arising under or related to this Appendix shall be
governed by and interpreted in accordance with the
3.3.2 If Bank retums an Exception governing law provision of the parties' Cash Management
Entry in accordance with a Return Decision by Customer as Master Agreement
described in Section 2.4.1, or otherwise pursuant to a
Return Default Disposition as described in this Appendix, 6. Effectiveness.
the return shall be rightful,and Customer waives any right
it may have to assert otherwise. 6.1 Customer agrees to all the terms and
conditions of this Appendix. The liability of Bank under
3.3.3 Customer agrees that Bank this Appendix shall in all cases be subject to the provisions
exercises ordinary care whenever it rightfully pays/posts or of the Cash Management Master Agreement, including,
returns an Exception Entry consistent with the provisions of without limitation, any provisions thereof that exclude or
this Appendix. limit warranties made by,damages payable by or remedies
available from Bank. This Appendix replaces and
4. Other Terms of the Services. supersedes all prior agreements on file with respect to the
Services, except for any existing ACH Authorizations
4.1 Customer acknowledges that the currently on record with regard to the Authorized
Services do not preclude Bank's standard ACH processing Account(s)as of the date of this Appendix.
procedures, which may cause an ACH Entry to be
dishonored even if Customer's instructions do not 6.2 This Appendix and the associated Services shall
otherwise require Bank to return such ACH Entry. remain in full force and effect until such time as the
Appendix or the Services are terminated, or a different or
4.2 Customer acknowledges that the amended Appendix is implemented by Bank. This
Services do not apply to transactions between Customer Appendix and the associated Services shall automatically
and Bank, including any Bank affiliates and subsidiaries, terminate in the event the underlying Authorized
such as loan or credit card payments ("Bank-Related Account(s) are closed or Customer's ACH Authorizations
Entries"). Bank is permitted to pay Bank-Related Entries are otherwise terminated.In the event of termination of this
whether or not Customer has included these in Customer's Appendix and the associated Services, Customer's ACH
ACH Authorizations as reflected in this Appendix and until Authorizations in effect as of the date of termination will
such time as Customer's authorization with respect to the remain in effect with respect to Customer's Authorized
underlying Bank-Related Entries is revoked or otherwise Accounts,and all ACH Entries will thereafter be processed
terminated. in accordance with such ACH Authorizations. Also, upon
termination of the Services, all sums owed to Bank
4.3 Customer acknowledges that the hereunder shall be immediately due and payable.
Services are intended to be used to identify and return ACH
STATE OF FLORIDA
INDIAN RIVER COUNTY
THIS IS TO CERTIFY THAT THIS IS
A TRUE AND CORRECT COPY OF
THE ORIGINAL ON FILE IN THIS
OFFICE.
J F MITH. LERK
BY / D.0
DATE
HC#4841-7018-3187 58 of 58 0315