HomeMy WebLinkAbout2023-236Bank
CASH MANAGEMENT MASTER AGREEMENT
Customer: INDIAN RIVER COUNTY
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)...........................................................................
2.
TD ACH Origination Services (Appendix II)..............................................................
3.
TD Wire Transfer Services (Appendix III)..................................................................
4.
TD Sweep Services (Appendix IV)..............................................................................
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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) .....................................
11.
TD Deposit Reconcilement Services (Appendix XI) ...................................................
❑
12.
TD Check Imaging Services (Appendix XII)...............................................................
❑
13.
TD Zero Balance Account Services (Appendix XIII) ..................................................
14.
TD Currency Services (Appendix XIV).......................................................................
❑
15.
TD EscrowDirect Services (Appendix XV).................................................................
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16.
TD Information Reporting File Transmission Services (Appendix XVI) ....................
❑
17.
TD Data Exchange Services (Appendix XVII)............................................................
18.
TD ACH Third Party Sender Services (Appendix XVIII) ...........................................
❑
19.
TD Image Cash Letter Services (Appendix XIX) ........................................................
❑
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=H)..............................................
❑
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24. TD Electronic Bill Payment Presentment & Payment Services (Appendix XXM .... ❑
25. TD Integrated Payables Processing Services (Appendix XXV).................................. ❑
26. TD Electronic Lockbox (Bill Payment Aggregation) Services (Appendix XXVI)..... ❑
27. TD Paymode-X Services (Appendix XXVII)............................................................. ❑
28. TD Integrated Receivables Services (Appendix XXVIII)........................................... ❑
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 (this "Agreement") is by and between Bank and Customer. Bank agrees to provide to
Customer and Customer agrees to use certain Cash Management Services (as defined above) offered and approved by Bank for
Customer's use. Bank and Customer agree that the Cash Management Services will be governed by the general terms and conditions
of this Agreement and the rules and procedures applicable to each of the Services (collectively, the "Rules'). The Rules are
contained in the Appendices to this Agreement, and are hereby incorporated in and made a part of this Agreement.
By signing this Agreement, Customer agrees to be bound by the terms and conditions of this Agreement and all applicable
Appendices, as the same may be amended from time to time as further described below. This Agreement becomes effective with
respect to a Cash Management Service(s) described herein when this Agreement has been executed without modification by
Customer, and the Agreement becomes effective for any subsequent Cash Management Service(s) that Customer may wish to use
when any relevant Appendices have been executed without modification by Customer. Bank will provide use of a Cash
Management Service when Bank has received all required and properly executed agreements and forms and when Customer has
satisfactorily completed Bank's implementation, testing and training requirements, if any, in the use of the Service(s). Customer
may not modify any portion of this Agreement or any Appendices to this Agreement without Bank's prior written consent and
agreement, and any attempt by Customer to do otherwise shall render Customer's Agreement null and void.
The following terms and conditions are applicable to all Cash Management Services provided to Customer hereunder.
1. Definitions. Capitalized terms used in this
Agreement and in any Appendix, unless otherwise defined
herein or therein, shall have the meanings set forth below:
"Access Devices" means collectively all security,
identification and authentication mechanisms, including,
without limitation, security codes or tokens, PINs, electronic
identities or signatures, encryption keys and/or individual
passwords associated with or necessary for Customer's
access to and use of any Cash Management Services.
"Account" means an Account, as such term is
defined in the Account Agreement, used in connection with
any Cash Management Services.
"Account Agreement" means the Business
Deposit Account Agreement issued by Bank and governing
Customer's deposit relationship with Bank, as the same may
be amended from time to time.
"Affiliate(s)" means, with respect to any party,
any company controlled by, under the control of, or under
common control with such party.
"Amended Appendix" means an amendment to an
Appendix that supplements or revises, but does not revoke
in its entirety, a prior Appendix for a particular Service.
"Appendix" means a description of the rules and
procedures applicable to a particular Service to be provided
by Bank to Customer. Each such Appendix, including any
Amended Appendix, is incorporated herein by reference and
made a part hereof, and all references herein to Agreement
shall be deemed to include all Appendices unless otherwise
expressly provided. If there is any conflict between the
provisions of this Agreement and any Appendix or Amended
Appendix, the Appendix or Amended Appendix shall
govern, but only to the extent reasonably necessary to
resolve such conflict.
"Authorized Representative" means a person
designated by Customer as an individual authorized to act on
behalf of Customer with respect to certain matters and/or
authorized to access and use the Services, as evidenced by
certified copies of resolutions from Customer's board of
directors or other governing body, if any, or other certificate
or evidence of authority satisfactory to Bank, including,
without limitation, any Customer enrollment or Setup
Form(s) completed by Customer.
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"Bank Internet System" means Bank's Internet -
based electronic information delivery and transaction
initiation system, as may be offered by Bank from time to
time, including but not limited to Bank's eTreasury Services.
"Bank Internet System Appendix" means the
agreement issued by Bank that governs Customer's use of
the Bank Intemet System.
"Business Day" has the meaning given to it in the
Account Agreement.
"Calendar Day "has the meaning given to it in the
Account Agreement.
"Primary Account" means the Account
designated by Customer to which any direct Service fees due
Bank may be charged in accordance with this Agreement.
Unless otherwise agreed upon in writing by Bank, the
address for Customer associated with the Primary Account
shall be the address to which all notices and other
communications concerning the Services may be sent by
Bank.
"Substitute Check" has the meaning given to it in
Section 3(16) of the Check Clearing for the 21 s` Century Act
("Check 21'), P.L. 108-100, 12 U.S.C. § 5002(16).
2. The Services.
2.1 Bank shall provide to Customer, subject
to this Agreement and the applicable Appendix, all Cash
Management Services that Customer may request and that
Bank may approve from time to time. Bank shall not be
required to provide any Services specified in an Appendix
unless Customer also provides all information reasonably
required by Bank to provide to Customer the Service(s)
specified therein.
2.2 Customer, through its Authorized
Representative, may use the Services solely in accordance
with the terms and conditions of this Agreement and the
related Appendices.
2.3 With the exception of scheduled off-
peak downtime periods, Bank shall make all reasonable
efforts to make the Services available to Customer each
Business Day.
2.4 Access to on-line or Intemet-based
Services may be denied for various reasons, including if
invalid Access Devices are used or if the user exceeds the
number of invalid attempts allowed by Bank.
2.5 Customer is authorized to use the
Services only for the purposes and in the manner
contemplated by this Agreement.
2.6 Customer agrees to cooperate with
Bank, as Bank may reasonably request, in conjunction with
the performance of the Services.
2.7 Customer agrees to comply with the
Rules, as they may be amended from time to time by Bank.
2.8 A number of Bank's Services are
subject to processing cut-off times on a Business Day.
Customer can obtain information on Bank's current cut-off
time(s) for Service(s) by reviewing the relevant Service's
Setup Form(s), as applicable, or by calling Treasury
Management Services Support at 1-866-475-7262, or by
contacting Customer's Treasury Management Services
Representative. Instructions received after a cut-off time or
on a day other than a Business Day will generally be deemed
received as of the next Business Day.
2.9 Bank may make changes to this
Agreement and any Appendix at any time by providing
notice to Customer in accordance with the terms of this
Agreement or as may be required by applicable law.
Notwithstanding anything to the contrary herein, any
Appendix that provides for an alternative form and method
for making changes to such Appendix and for providing
notice of the same shall govern for that Service. Further,
notwithstanding anything to the contrary in this Agreement
or in any Appendix, if Bank believes immediate action is
necessary for the security of Bank or Customer funds, Bank
may immediately initiate changes to any security procedures
associated with the Services and provide prompt subsequent
notice thereof to Customer.
2.10 In connection with this Agreement and
the Services, Customer agrees that it shall present, and Bank
shall have a duty to process, only Substitute Checks that are
created by financial institutions; providedhowever, that this
limitation shall not apply to Substitute Checks created with
data from Customer pursuant to any Appendix for Services
involving the creation of electronic check images using
check conversion technology.
3. Covenants, Representations and Warranties.
3.1 Customer represents and warrants that
the individual(s) executing this Agreement and any other
agreements or documents associated with the Services
has/have been authorized by all necessary Customer action
to do so, to issue such instructions as may be necessary to
carry out the purposes and intent of this Agreement and to
enable Customer to receive each selected Service. Each
Authorized Representative whom Customer permits to
access and use the Services is duly authorized by all
necessary action on the part of Customer to (i) access the
Account(s) and use the Services; (ii) access any information
related to any Account(s) to which the Authorized
Representative has access; and (iii) engage in any transaction
relating to any Account(s) to which the Authorized
Representative has access.
3.2 Bank may unconditionally rely on the
validity and accuracy of any communication or transaction
made, or purported to be made, by an Authorized
Representative and in accordance with the terms of this
Agreement.
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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
Services.
3.4 Customer is not a "consumer" as such
tern is defined in the regulations promulgated pursuant to
the Gramm -Leach -Bliley Act, 15 U.S.C. § 6801 et seq., nor
a legal representative of a "consumer."
3.5 Customer shall use the Services only for
its own lawful business purposes. Customer shall not use the
Services for or on behalf of any third party, except as may
otherwise be approved by Bank in its sole and exclusive
discretion, and as further described in Section 33. Customer
shall take all reasonable measures and exercise reasonable
precautions to ensure that Customer's officers, employees
and Authorized Representatives do not use the Services for
personal, family or household purposes, or for any other
purpose not contemplated by this Agreement.
3.6 Customer agrees not to use or attempt to
use the Services (a) to engage in any illegal purpose or
activity or to violate any applicable law, rule or regulation,
(b) to breach any contract or agreement by which Customer
is bound, or (c) to engage in any Internet or online gambling
transaction, whether or not gambling is legal in any
applicable jurisdiction, or (d) to engage in any transaction or
activity that is not specifically authorized and permitted by
this Agreement. Customer acknowledges and agrees that
Bank has no obligation to monitor Customer's use of the
Services for transactions and activity that is impermissible
or prohibited under the terms of this Agreement; provided,
however, that Bank reserves the right to decline to execute
any transaction or activity that Bank believes violates the
terms of this Agreement.
3.7 Customer and Bank shall comply with
(i) all applicable federal, state and local laws, regulations,
rules and orders; (ii) the Account Agreement; (iii) all
applicable National Automated Clearing House Association
("NACHA") rules, regulations, and policies; (iv) the
Uniform Commercial Code; (v) Office of Foreign Asset
Control ("OFAC") requirements; and (vi) all applicable
laws, regulations and orders administered by the U.S.
Department of the Treasury's Financial Crimes Enforcement
Network ("FinCEN") (collectively (i) through (vi),
"Compliance Laws").
4. Account Agreement; Service Fees.
4.1 Bank and Customer agree that any
Account established by Customer in connection with
Services offered by Bank shall be governed by the Account
Agreement, including one or more fee schedules issued by
Bank for the Account. If there is any conflict between the
terms and provisions of this Agreement and the Account
Agreement, the terns and provisions of this Agreement shall
govern, but only to the extent reasonably necessary to
resolve such conflict.
4.2 Customer agrees to compensate Bank
for all Accounts and Services that Bank provides pursuant to
this Agreement, including any Appendices, in accordance
with the applicable fee schedules or agreements between
Bank and Customer in effect from time to time that apply to
the Services (the "Service Fees"). By signing below,
Customer acknowledges receipt of the Account Agreement
and acceptance of the Service Fees, and agrees to be bound
by their terms, as those terms may be amended from time to
time in accordance with the terms of this Agreement.
4.3 Customer authorizes Bank to charge the
Primary Account for all applicable charges and fees to the
extent that such charges and fees are not offset by earnings
credits or other allowances for Customer's Account(s). If
the balance of available funds in the Primary Account is not
sufficient to cover such fees, Bank may charge such fees to
any other deposit Account maintained on Bank's records in
Customer's name. Customer also agrees to pay all sales, use
or other taxes (other than taxes based upon Bank's net
income) that may be applicable to the Services provided by
Bank hereunder.
4.4 Bank may amend Service Fee(s), in
aggregate or individually, at any time. To the extent that such
changes adversely affect Customer, Bank will use
commercially reasonable efforts to give notice to Customer
of such changes, in accordance with applicable law, or as
may otherwise be agreed to by the parties.
5. Customer Information. Customer agrees to
provide to Bank, before Bank begins providing any Services
to Customer, any and all information required to comply
with applicable law and Bank's policies and procedures
relating to customer identification and authority. Such
information may include, without limitation, official
certificates of customer existence, copies of Customer
formation agreements, business resolutions or equivalent
documents, in a form acceptable to Bank authorizing
Customer to enter into this Agreement and to receive
Services from Bank pursuant hereto, and designating certain
individuals as Customer's Authorized Representatives.
6. Software.
6.1 Bank may supply Customer with certain
software owned by or licensed to Bank to be used by
Customer in connection with the Services ("Software").
Customer agrees that all such Software is and shall remain
the sole property of Bank and/or the vendor of such
Software. Customer agrees to comply with all of the terms
and conditions of all license and other agreements which are
provided to Customer by Bank and/or the Software vendor
and/or which govern Customer's use of Software associated
with the Services. Unless otherwise agreed in writing
between Bank and Customer, Customer shall be responsible
for the payment of all costs of installation of any Software
provided to Customer in connection with the Services, as
well as for selection, installation, maintenance and repair of
all hardware required on Customer's premises for the
successful operation of the Software.
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6.2 Except as otherwise expressly
prohibited or limited by applicable law, Customer shall
indemnify, defend and hold harmless Bank, its successors
and assigns, from and against any loss, damage or other
claim or liability attributable to Customer's unauthorized
distribution or disclosure of any Software provided with the
Services or any other breach by Customer of any Software
license. The provisions of this paragraph shall survive
termination of this Agreement.
6.3 Any breach or threatened breach of this
Section will cause immediate irreparable injury to Bank, and
Customer agrees that injunctive relief, including preliminary
injunctive relief and specific performance, should be
awarded as appropriate to remedy such breach, without
limiting Bank's right to other remedies available in the case
of such a breach. Bank may apply to a court for preliminary
injunctive relief, permanent injunctive relief and specific
performance, but such application shall not abrogate Bank's
right to proceed with an action in a court of competent
jurisdiction in order to resolve the underlying dispute.
7. Computer Requirements. For certain Cash
Management Services, Customer will need to provide, at
Customer's own expense, a computer or similar Internet -
enabled device, software and Internet or other connections
and equipment as needed to access the Services
(collectively, the "Computer"). Customer's Internet or other
web browser software must support a minimum 128 -bit SSL
encryption or other security measures as Bank may specify
from time to time. Customer's browser must be one that is
certified and supported by Bank for optimal performance.
Customer is responsible for the installation, maintenance
and operation of the Computer and all related charges,
including without limitation all Internet service provider,
telephone and other similar charges incurred in connecting
to the Services. Customer is responsible for installing and
maintaining appropriate virus protection software on
Customer's Computer. Bank recommends that Customer
routinely scan the Computer using reliable virus protection
products, and to remove any viruses found using such
products. Bank is not responsible for any errors or failures
caused by any malfunction of the Computer. Bank is not
responsible for any Computer virus or related problems that
may be associated with access to or use of the Services, any
Software, the Computer or other Internet access, including
but not limited to any virus, Trojan horse, worm, keystroke
logger, rootkit, spyware, dishonest adware, crimeware or
other malicious or unwanted software or related problems
that may be associated with access to or use of the Services,
any Software or the Computer. Bank also is not responsible
for any losses or delays in transmission of information
Customer provides to Bank or otherwise arising out of or
incurred in connection with the use of any Internet or other
service provider providing Customer's connection to the
Internet or any browser software. From time to time, Bank
may require that Customer upgrade or install software to the
Computer 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.
8. Bank Third Parties.
8.1 Customer acknowledges that certain
third parties, agents or independent service providers
(hereinafter "Third Parties") may, from time to time, provide
services ("Third Party Services') to Bank in connection with
Bank's provision of the Services to Customer and that
accordingly, Bank's ability to provide the Services
hereunder may be contingent upon the continuing
availability of certain services from such Third Parties.
Third Party Services may involve the processing and/or
transmission of Customer's data, instructions (oral or
written) and funds. In addition, Customer agrees that Bank
may disclose Customer's financial information to such Third
Parties (i) where it is necessary to provide the Services
requested; (ii) in order to comply with laws, government
agency rules or orders, court orders, subpoenas or other legal
process or in order to give information to any government
agency or official having legal authority to request such
information; or (iii) when Customer gives its written
permission.
8.2 Bank will be responsible for the acts and
omissions of its Third Parties in the same manner as if Bank
had performed that portion of the Services itself, and no
claim may be brought by Customer against such Third
Parties. Notwithstanding the foregoing, any claims against
Bank (with respect to the acts or omissions of its Third
Parties) or its Third Parties shall be subject to the limitations
of liability set forth herein to the same extent as if Bank had
performed that portion of the Services itself. However, Bank
will not be deemed to be the agent of, or responsible for, the
acts or omissions of any person (other than its Third Parties),
and no such person shall be deemed Bank's agent.
9. Customer Communications; Security
Procedures.
9.1 In providing the Services, Bank shall be
entitled to rely upon the accuracy of all information and
authorizations received from Customer or an Authorized
Representative and, where applicable, the authenticity of any
signatures purporting to be of Customer or an Authorized
Representative. Customer agrees promptly to notify Bank
of any changes to any information or authorizations provided
to Bank in connection with the Services, and further agrees
to promptly execute any new or additional documentation
Bank reasonably deems necessary from time to time in order
to continue to provide the Services to Customer.
9.2 Customer agrees that it shall be solely
responsible for ensuring its compliance with any
commercially reasonable security procedures established by
Bank in connection with the Services, as such may be
amended from time to time, and that Bank shall have no
liability for any losses sustained by Customer as a result of a
breach of security procedures if Bank has complied with the
security procedures.
9.3 Bank shall be entitled to rely on any
written list of Authorized Representatives provided to Bank
by Customer until revoked or modified by Customer in
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writing. Customer agrees that Bank may refuse to comply
with requests from any individual until Bank receives
documentation reasonably satisfactory to it confirming the
individual's authority. Bank shall be entitled to rely on any
notice or other writing believed by it in good faith to be
genuine and convect and to have been signed by an
Authorized Representative. Bank may also accept verbal
instructions from persons identifying themselves as an
Authorized Representative, and Bank's only obligation to
verify the identity of such person as an Authorized
Representative shall be to call back such person at a
telephone number(s) previously provided to Bank by
Customer as part of the Account or Services' Setup Form(s).
Bank may, but shall have no obligation to, call back an
Authorized Representative other than the Authorized
Representative from whom Bank purportedly received an
instruction. Bank may, but shall have no obligation to,
request additional confirmation, written or verbal, of an
instruction received from an Authorized Representative via
telephone at any time or for any reason whatsoever prior to
executing the instruction. Bank may also in its discretion
require the use of security codes for Authorized
Representatives and/or for receiving instructions or items
from Customer. Customer understands and agrees, and
Customer shall advise each Authorized Representative that,
Bank may, at Bank's option, record telephone conversations
regarding instructions received from an Authorized
Representative.
9.4 Any security procedures maintained by
Bank are not intended to detect errors in the content of an
instruction received from Customer or Customer's
Authorized Representative. Any errors in an instruction
from Customer or Customer's Authorized Representative
shall be Customer's sole responsibility. Customer agrees
that all security procedures described in this Agreement and
applicable Appendix are commercially reasonable and that
Bank may charge Customer's Account for any instruction
that Bank executed in good faith and in conformity with the
security procedures, whether or not the transfer is in fact
authorized.
9.5 Customer agrees to adopt and
implement its own commercially reasonable internal
policies, procedures and systems to provide security to
information being transmitted and to receive, store, transmit
and destroy data or information in a secure manner to
prevent loss, theft or unauthorized access to data or
information ("Data Breaches"). Customer also agrees that it
will promptly investigate any suspected Data Breaches and
monitor its systems regularly for unauthorized intrusions.
Customer will provide timely and accurate notification to
Bank of any Data Breaches when known or reasonably
suspected by Customer and will take all reasonable
measures, which may include, without limitation, retaining
and/or utilizing competent forensic experts, to determine the
scope of and data or transactions affected by any Data
Breaches, and promptly providing all such information to
Bank, subject to any limitation imposed on Customer by law
enforcement or applicable law.
9.6 BANK'S SECURITY PROCEDURES
ARE STRICTLY CONFIDENTIAL AND SHOULD BE
DISCLOSED ONLY TO THOSE INDIVIDUALS WHO
ARE REQUIRED TO KNOW THEM OR AS
OTHERWISE PROVIDED BY LAW. IF A SECURITY
PROCEDURE INVOLVES THE USE OF ACCESS
DEVICES, THE CUSTOMER SHALL BE RESPONSIBLE
TO SAFEGUARD THESE ACCESS DEVICES AND
MAKE THEM AVAILABLE ONLY TO DESIGNATED
INDIVIDUALS. CUSTOMER HAS THE SOLE
RESPONSIBILITY TO INSTRUCT THOSE
INDIVIDUALS THAT THEY MUST NOT DISCLOSE OR
OTHERWISE MAKE AVAILABLE TO
UNAUTHORIZED PERSONS THE SECURITY
PROCEDURE OR ACCESS DEVICES. CUSTOMER
HAS THE SOLE RESPONSIBILITY TO ESTABLISH
AND MAINTAIN ITS OWN PROCEDURES TO ASSURE
THE CONFIDENTIALITY OF ANY PROTECTED
ACCESS TO THE SECURITY PROCEDURE.
10. Fraud Detection / Deterrence; Positive Pay.
Bank offers certain products and services such as Positive
Pay (with or without payee validation), ACH Positive Pay,
and Account blocks and filters that are designed to detect
and/or deter check, automated clearing house ("ACH") or
other payment system fraud. While no product or service
will be completely effective, Bank believes that the products
and services it offers will reduce the likelihood that certain
types of fraudulent items or transactions will be paid against
Customer's Account. Failure to use such products or
services could substantially increase the likelihood of fraud.
Customer agrees that if, after being informed by Bank or
after Bank otherwise makes information about such
products or services available to Customer consistent
with Section 27 of this Agreement, Customer declines or
fails to implement and use any of these products or
services, or fails to follow these and other Bank -identified
or recommended precautions reasonable for Customer's
particular circumstances, Customer will be precluded
from asserting any claims against Bank for paying any
unauthorized, altered, counterfeit or other fraudulent
item that such product, service, or precaution was
designed to detect or deter, and Bank will not be required
to re -credit Customer's Account or otherwise have any
liability for paying such items, except to the extent that
Bank has failed to exercise the required standard of care
under the Uniform Commercial Code.
I1. Duty to Inspect. Customer is responsible for
monitoring all Services provided by Bank, including each
individual transaction processed by Bank, and notifying
Bank of any errors or other problems within ten (10)
Calendar Days (or such longer period as may be required by
applicable law) after Bank has made available to Customer
any report, statement or other material containing or
reflecting the error, including an Account analysis statement
or on-line Account access. Except to the extent otherwise
required by law, failure to notify Bank of an error or problem
within such time will relieve Bank of any and all liability for
interest upon correction of the error or problem (and for any
loss from any subsequent transaction involving the same
error or problem). In the event Customer fails to report such
6 oj54 1018
error or problem within thirty (30) Calendar Days after Bank
made available such report, statement or on-line Account
access, the transaction shall be deemed to have been properly
authorized and executed, and Bank shall have no liability
with respect to any error or problem. Customer agrees that
its sole remedy in the event of an error in implementing any
selection with the Services shall be to have Bank correct the
error within a reasonable period of time after discovering or
receiving notice of the error from Customer.
12. Overdrafts; Set-off. Bank may, but shall not be
obligated to, complete any transaction in connection with
providing the Services if there are insufficient available
funds in Customer's Account(s) to complete the transaction.
In the event any actions by Customer result in an overdraft
in any of Customer's Accounts, including but not limited to
Customer's failure to maintain sufficient balances in any of
Customer's Accounts, Customer shall be responsible for
repaying the overdraft immediately, without notice or
demand. Bank has the right, in addition to all other rights
and remedies available to it, to set off the unpaid balance of
any amount owed it in connection with the Services against
any debt owing to Customer by Bank, including, without
limitation, any obligation under a repurchase agreement or
any funds held at any time by Bank, whether collected or in
the process of collection, or in any other Account maintained
by Customer at, or evidenced by any certificate of deposit
issued by, Bank. Except as otherwise expressly prohibited
or limited by law, if any of Customer's Accounts become
overdrawn, under -funded or for any reason contain a
negative balance, then Bank shall have the right of set-off
against all of Customer's Accounts and other property or
deposit Accounts maintained at Bank, and Bank shall have
the right to enforce its interests in collateral held by it to
secure debts of Customer to Bank arising from notes or other
indebtedness now or hereafter owing or existing under this
Agreement, whether or not matured or liquidated.
13. Transaction Limits.
13.1 In the event that providing the Services
to Customer results in unacceptable credit exposure or other
risk to Bank, or will cause Bank to violate any law,
regulation, rule or order to which it is subject, Bank may, in
Bank's sole and exclusive discretion, without prior notice,
limit Customer's transaction volume or dollar amount and
refuse to execute transactions that exceed any such limit, or
Bank may terminate any Service then being provided to
Customer. Bank will provide notice of such limits to
Customer in accordance with the terms of this Agreement.
13.2 Customer shall, upon request by Bank
from time to time, provide Bank with such financial
information and statements and such other documentation as
Bank reasonably determines to be necessary or appropriate
showing Customer's financial condition, assets, liabilities,
stockholder's equity, current income and surplus, and such
other information regarding the financial condition of
Customer as Bank may reasonably request to enable Bank to
evaluate its exposure or risk. Any limits established by Bank
hereunder shall be made in Bank's sole discretion and shall
be communicated promptly to Customer.
14. Term and Termination.
14.1 This Agreement shall be effective when
(i) signed by an Authorized Representative of Customer and
accepted by Bank, and (ii) Customer delivers to Bank all
documents and information, including any Setup Form(s)
and electronic data, reasonably required by Bank prior to
commencing to provide the Services. Bank will determine
the adequacy of such documentation and information in its
sole discretion and may refuse to provide the Services to
Customer until adequate documentation and information are
provided.
14.2 This Agreement shall continue in effect
until terminated by either party with thirty (30) Calendar
Days' prior written notice to the other. Either party may
terminate an Appendix in accordance with the provisions of
this Section without terminating either this Agreement or
any other Appendix. Upon termination of this Agreement or
any Appendix, Customer shall, at its expense, return to
Bank, in the same condition as when delivered to Customer,
normal wear and tear excepted, all property belonging to
Bank and all proprietary material delivered to Customer in
connection with the terminated Service(s).
14.3 If an Appendix is terminated in
accordance with this Agreement, Customer must contact
Treasury Management Services Support for instructions
regarding the cancellation of all future dated payments and
transfers. Bank may continue to make payments and
transfers and to perform other Services that Customer has
previously authorized or may subsequently authorize;
however, Bank is not under any obligation to do so. Bank
will not be liable if it chooses to make any payment or
transfer or to perform any other Services that Customer has
previously authorized or subsequently authorizes after an
Appendix had terminated.
14.4 Notwithstanding the foregoing, Bank
may, without prior notice, terminate this Agreement and/or
terminate or suspend any Service(s) provided to Customer
pursuant hereto (i) if Customer or Bank closes any Account
established in connection with the Service(s) that is
necessary for the ongoing use of the Service(s) or necessary
for Bank to charge Service Fees, including, but not limited
to, closure of the Primary Account, (ii) if Bank determines
that Customer has failed to maintain a financial condition
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
Code or other statute or regulation relating to bankruptcy or
relief of debtors, (iii) in the event of a material breach,
default in the performance or observance of any term, or
material breach of any representation or warranty by
Customer, (iv) in the event of default by Customer in the
payment of any sum owed by Customer to Bank hereunder
or under any note or other agreement, as may be defined
therein, (v) if there has been a seizure, attachment, or
garnishment of Customer's Accounts, assets or properties,
(vi) if Bank believes immediate action is necessary for the
7 oj54 1018
security of Bank or Customer funds or (vii) if Bank
reasonably believes that the continued provision of Services
in accordance with the terms of this Agreement or any
Appendix would violate federal, state or local laws or
regulations, or would subject Bank to unacceptable risk of
loss. In the event of any termination hereunder, all fees due
Bank under this Agreement as of the time of termination
shall become immediately due and payable.
Notwithstanding any termination, this Agreement shall
remain in full force and effect with respect to all transactions
initiated prior to such termination.
14.5 TERMINATION IN REGARDS TO
F.S. 287.135: Bank certifies that it and those related entities
of Bank as defined by Florida law are not on the Scrutinized
Companies that Boycott Israel List, created pursuant to s.
215.4725 of the Florida Statutes, and are not engaged in a
boycott of Israel. Customer may terminate this Contract if
Bank, including all wholly owned subsidiaries, majority-
owned subsidiaries, and parent companies that exist for the
purpose of making profit, is found to have been placed on
the Scrutinized Companies that Boycott Israel List or is
engaged in a boycott of Israel as set forth in section
215.4725, Florida Statutes. In addition, if this agreement is
for goods or services of one million dollars or more, Bank
certifies that it and those related entities of Bank as defined
by Florida law are not on the Scrutinized Companies with
Activities in Sudan List or the Scrutinized Companies with
Activities in the Iran Petroleum Energy Sector List, created
pursuant to Section 215.473 of the Florida Statutes and are
not engaged in business operations in Cuba or Syria.
Customer may terminate this Contract if Bank is found to
have submitted a false certification as provided under section
287.135(5), Florida Statutes, been placed on the Scrutinized
Companies with Activities in Sudan List or the Scrutinized
Companies with Activities in the Iran Petroleum Energy
Sector List, or been engaged in business operations in Cuba
or Syria, as defined by section 287.135, Florida Statutes.
15. Limitation of Liability; Disclaimer of
Warranties.
15.1 Customer acknowledges that Bank's
fees and charges for the Services are very small in relation
to the amounts of transfers initiated through the Services
and, as a result, Bank's willingness to provide the Services
is based on the limitations and allocations of liability
contained in this Agreement. Unless expressly prohibited or
otherwise restricted by applicable law, the liability of Bank
in connection with the Services will be limited to actual
damages sustained by Customer and only to the extent such
damages are a direct result of Bank's gross negligence,
willful misconduct, or bad faith. In no event shall Bank be
liable for any consequential, special, incidental, indirect,
punitive or similar loss or damage that Customer may suffer
or incur in connection with the Services, including, without
limitation, attorneys' fees, lost earnings or profits and loss or
damage from subsequent wrongful dishonor resulting from
Bank's acts, regardless of whether the likelihood of such loss
or damage was known by Bank and regardless of the basis,
theory or nature of the action on which a claim is asserted.
Unless expressly prohibited by or otherwise restricted by
applicable law, and without limiting the foregoing, Bank's
aggregate liability to Customer for all losses, damages, and
expenses incurred in connection with any single claim shall
not exceed an amount equal to the monthly billing paid by,
charged to or otherwise assessed against Customer for
Services over the three (3) month -period immediately
preceding the date on which the damage or injury giving rise
to such claim is alleged to have occurred or such fewer
number of preceding months as this Agreement has been in
effect. Notwithstanding any of the foregoing, for
transactions which are subject to Article 4A of the UCC,
Bank shall be liable for such damages as may be required or
provided under Article 4A or the Fedwire Regulations, as
applicable, except as otherwise agreed in this Agreement.
This Agreement is only between Bank and Customer, and
Bank shall have no liability hereunder to any third party.
15.2 Except as otherwise expressly provided
in Section 8 of this Agreement, Bank shall not be liable for
any loss, damage or injury caused by any act or omission of
any third party; for any charges imposed by any third party;
or for any loss, damage or injury caused by any failure of the
hardware or software utilized by a third party to provide
Services to Customer.
15.3 Bank shall not be liable or responsible
for damages incurred as a result of data supplied by
Customer that is inaccurate, incomplete, not current, or lost
in transmission. It is understood that Bank assumes no
liability or responsibility for the inaccuracy, incompleteness
or incorrectness of data as a result of such data having been
supplied to Customer through data transmission.
15.4 Bank is not liable for failing to act
sooner than required by any Appendix or applicable law.
Bank also has no liability for failing to take action if Bank
had discretion not to act.
15.5 Bank shall not be responsible for
Customer's acts or omissions (including, without limitation, the
amount, accuracy, timeliness of transmittal or due
authorization of any entry, funds transfer order, or other
instruction received from Customer) or the acts or omissions of
any other person, including, without limitation, any Automated
Clearing House processor, any Federal Reserve Bank, any
financial institution or bank, any transmission or
communication facility, any receiver or receiving depository
financial institution, including, without limitation, the return of
an entry or rejection of a funds transfer order by such receiver
or receiving depository financial institutions, and no such
person shall be deemed Bank's agent. Bank shall be excused
from failing to transmit or delay in transmitting an entry or
fiords transfer order if such transmittal would result in Bank's
having exceeded any limitation upon its intra -day net funds
position established pursuant to Federal Reserve guidelines or
otherwise violating any provision of any risk control program
of the Federal Reserve or any rule or regulation of any other
U.S. governmental regulatory authority. In no event shall
Bank be liable for any damages resulting from Bank's action
or inaction which is consistent with regulations issued by the
Board of Governors of the Federal Reserve System,
operating circulars issued by a Federal Reserve Bank or
8 of 34 1018
general banking customs and usage. To the extent required
by applicable laws, Bank will compensate Customer for loss
of interest on funds as a direct result of Bank's failure to
comply with such laws in executing electronic transfers of
funds, if such failure was within Bank's control. Bank shall
not be liable for Customer's attorney's fees in connection
with any such claim
15.6 EXCEPT AS OTHERWISE SET
FORTH IN THIS AGREEMENT, CUSTOMER
EXPRESSLY AGREES THAT USE OF THE SERVICES
IS AT CUSTOMER'S SOLE RISK, AND THE SERVICE
IS PROVIDED "AS IS," AND BANK AND ITS SERVICE
PROVIDERS AND AGENTS DO NOT MAKE, AND
EXPRESSLY DISCLAIM ANY, WARRANTIES, EITHER
EXPRESSED OR IMPLIED, WITH RESPECT TO THE
SERVICES, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NON -INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS, OR THAT THE SERVICES WILL
BE UNINTERRUPTED OR ERROR FREE, WITHOUT
BREACHES OF SECURITY OR WITHOUT DELAYS.
IN THOSE STATES THAT DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY, THE
LIABILITY OF BANK AND ITS SERVICE PROVIDERS
AND AGENTS IS LIMITED TO THE FULLEST
POSSIBLE EXTENT PERMITTED BY LAW.
15.7 The provisions of this Section 15 shall
survive termination of this Agreement.
16. Indemnification.
16.1 Except as otherwise expressly
prohibited or limited by law, Customer shall indemnify and
hold Bank harmless from any and all liabilities, losses,
damages, costs, and expenses of any kind (including,
without limitation, the reasonable fees and disbursements of
counsel in connection with any investigative, administrative
or judicial proceedings, whether or not Bank shall be
designated a party thereto) which may be incurred by Bank
due to any claim or action by any person, entity or other
third -party against Bank to the extent such claim or action
relates to or arises out of:
(i) any claim of any person that
(a) Bank is responsible for any act or omission of Customer
or (b) a Customer payment order contravenes or
compromises the rights, title or interest of any third party, or
contravenes any law, rule, regulation, ordinance, court order
or other mandate or prohibition with the force or effect of
law;
(ii) any failure by Customer to
observe and perform properly all of its obligations hereunder
or any wrongful act of Customer or any of its Affiliates;
(iii) any breach by Customer of
any of its warranties, representations or agreements;
(iv) any action taken by Bank in
reasonable reliance upon information provided to Bank by
Customer or any Affiliate or subsidiary of Customer; and
(v) any legal action that Bank
responds to or initiates, including any interpleader action
Bank commences, involving Customer or Customer's
Account(s), including without limitation, any state or federal
legal process, writ of attachment, execution, garnishment,
tax levy or subpoena.
16.2 The provisions of this Section 16 shall
survive termination of this Agreement.
17. RESERVED.
18. Force Majeure. Neither party shall bear
responsibility for non-performance of this Agreement to the
extent that such non-performance is caused by an event
beyond that party's control, including, but not necessarily
limited to, fire, casualty, breakdown in equipment or failure
of telecommunications or data processing services, lockout,
strike, unavoidable accident, act of God, riot, war or the
enactment, issuance or operation of any adverse
governmental law, ruling, regulation, order or decree, or an
emergency that prevents Bank or Customer from operating
normally.
19. Documentation. The parties acknowledge and
agree that all documents evidencing, relating to or arising
from the parties' relationship may be scanned or otherwise
imaged and electronically stored and the originals (including
manually signed originals) destroyed. The parties agree to
treat such imaged documents as original documents and
further agree that such reproductions and copies may be used
and introduced as evidence at any legal proceedings
including, without limitation, trials and arbitrations, relating
to or arising under this Agreement.
20. Entire Agreement. Bank and Customer
acknowledge and agree that this Agreement and any
amendments hereto, all other documents incorporated by
reference therein, and Appendices constitute the complete
and exclusive statement of the agreement between them with
respect to the Services, and supersede any prior oral or
written understandings, representations, and agreements
between the parties relating to the Services.
21. Amendments. Bank may, at any time, amend this
Agreement, the Services or Appendices in its sole discretion
and from time to time. Except as expressly provided
otherwise in this Agreement, any such changes generally
will be effective as provided in the notice to Customer as
described below. Customer will be deemed to accept any
such changes if Customer accesses or uses any of the
Services after the date on which the change becomes
effective. Customer will remain obligated under this
Agreement and any Appendices, including without
limitation, being obligated to pay all amounts owing
thereunder, even if Bank amends this Agreement or any
Appendices. Notwithstanding anything to the contrary in
this Agreement or in any Appendix, if Bank believes
9 of 54 1018
immediate action is necessary for the security of Bank or
Customer funds, Bank may immediately initiate changes to
any security procedures and provide prompt subsequent
notice thereof to Customer. As set forth in Section 14.2,
Customer may terminate this Agreement or any Appendix
upon its receipt of any notice of change that is not acceptable
to Customer.
22. Severability. If any provision of this Agreement
shall be determined by a court of competent jurisdiction to
be unenforceable as written, that provision shall be
interpreted so as to achieve, to the extent permitted by
applicable law, the purposes intended by the original
provision, and the remaining provisions of this Agreement
shall continue intact. In the event that any statute, regulation
or government policy to which Bank is subject and that
governs or affects the transactions contemplated by this
Agreement, would invalidate or modify any portion of this
Agreement, then this Agreement or any part thereof shall be
deemed amended to the extent necessary to comply with
such statute, regulation or policy, and Bank shall incur no
liability to Customer as a result of Bank's compliance with
such statute, regulation or policy.
23. Assignment and Delegation. Bank may assign
any of its rights or delegate any of its responsibilities in
whole or in part without notice to or consent from Customer.
Customer may not assign, delegate or otherwise transfer its
rights or responsibilities under this Agreement without
Bank's prior written consent, which consent Bank may grant
or withhold in its sole discretion.
24. Successors. This Agreement shall be binding
upon and inure to the benefit of the parties and their
successors and permitted assigns.
25. Non -Waiver. No deviation from any of the terms
and conditions set forth or incorporated in this Agreement
shall constitute a waiver of any right or duty of either party,
and the failure of either party to exercise any of its rights
hereunder on any occasion shall not be deemed to be a
waiver of such rights on any future occasion.
26. Governing Law. Any claim, controversy or
dispute arising under or related to this Agreement shall be
governed by and interpreted in accordance with federal law
and, to the extent not preempted or inconsistent therewith,
by the laws of the State of New Jersey.
27. Notices.
27.1 Except as otherwise expressly provided
in this Agreement, all notices that are required or permitted
to be given by Customer (including all documents
incorporated herein by reference) shall be sent by first class
mail, postage prepaid, and addressed to Bank at the address
provided to Customer in writing for that purpose. All such
notices shall be effective upon receipt.
27.2 Customer authorizes Bank to, and
Customer agrees that Bank may, send any notice or
communication that Bank is required or permitted to give to
Customer under this Agreement, including but not limited to
notice of any change to the Services, this Agreement or any
Appendix, to Customer's business mailing address or
Customer's business e-mail address as it appears on Bank's
records, or electronically by posting the notice on Bank's
website, on an Account statement or via facsimile, and that
any such notice or communication will be effective and
deemed delivered when provided to Customer in such a
manner. Customer agrees to notify Bank promptly about any
change in Customer's business mailing or Customer's
business e-mail address and 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 any such notice or
communication as being given to all Account owners when
such notice or communication is given to any one Account
owner.
28. Jury Trial Waiver. BANK AND CUSTOMER
EACH AGREE THAT NEITHER BANK NOR
CUSTOMER SHALL (I) SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY
OTHER ACTION BASED UPON, OR ARISING OUT OF,
THIS AGREEMENT OR ANY ACCOUNT OR THE
DEALINGS OF THE RELATIONSHIP BETWEEN BANK
AND CUSTOMER, OR (II) SEEK TO CONSOLIDATE
ANY SUCH ACTION WITH ANOTHER IN WHICH A
JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. THE PROVISIONS OF THIS SECTION
SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER
BANK NOR CUSTOMER HAS AGREED WITH OR
REPRESENTED TO THE OTHER THAT THE
PROVISIONS OF THIS SECTION WILL NOT BE FULLY
ENFORCED IN ALL INSTANCES. BANK AND
CUSTOMER EACH ACKNOWLEDGE THAT THIS
WAIVER HAS BEEN KNOWINGLY AND
VOLUNTARILY MADE. The provisions of this Section 28
shall survive termination of this Agreement.
29. Beneficiaries. This Agreement is for the benefit
only of the undersigned parties hereto and is not intended to
and shall not be construed as granting any rights to or
otherwise benefiting any other person.
30. Recording of Communications. Customer and
Bank agree that all telephone conversations or data
transmissions between them or their agents made in
connection with this Agreement and related to the Services
may be recorded and retained by either party by use of any
reasonable means, except as otherwise expressly prohibited
or limited by applicable law.
31. Facsimile Signature. The parties acknowledge
and agree that this Agreement and any Appendix or
Amended Appendices may be executed and delivered by
facsimile, and that a facsimile signature shall be treated as
and have the same force and effect as an original signature.
Notwithstanding the foregoing, Bank may, in its sole and
exclusive discretion, also require Customer to deliver this
Agreement and any Appendix or Amended Appendices with
an original signature for its records.
10 of 54 1018
32. Relationship. Customer and Bank are not, and
Customer and Bank's licensors are not, partners, joint
venturers or agents of each other as a result of this
Agreement.
33. Third -Party Service Provider Activities.
33.1 Customer As a Third -Party Service
Provider. Subject to Bank's prior approval and in its sole
and exclusive discretion, Customer may be permitted to use
one or more of the Services provided hereunder on behalf of
and in conjunction with Accounts that belong to Customer's
clients, who may or may not otherwise be customers of
Bank, as well as on Customer's own behalf (hereinafter,
when acting in such capacity, referred to as "Customer As
Service Provider"). Customer shall execute any such other
agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or continuation by
Customer of any Services in such capacity. Customer agrees
that Bank retains the right to reject any request by Customer
to engage in Customer As Service Provider activities as well
as any transactions initiated by Customer in such capacity,
in Bank's sole discretion. In the event Bank approves
Customer's use of the Services in the capacity of Customer
As Service Provider, then the following shall also apply:
(a) Customer represents and warrants to Bank that
each Customer client has given Customer authority to access
and conduct transactions with respect to its Accounts
through use of any of the Services to the same extent as if
Customer owned them, including in the capacity of a "third
party service provider;"
(b) each reference to "Customer" in the
Agreement will be deemed to be a collective reference to
Customer and each Customer client whose Accounts are
included in Bank's implementation of Customer's set-up for
the Services;
(c) all of the provisions set forth in the Agreement
will apply to Customer client's Account(s) as if Customer
owned them;
(d) each person who is authorized to act on
Customer's behalf with respect to a Service is also
authorized to act on Customer's behalf to the same extent
with respect to the Accounts of each Customer client whose
Accounts are included in Bank's implementation of
Customer's set-up for that Service; and
(e) Customer shall be liable for all monetary,
confidentiality and other obligations to Bank under this
Agreement as they relate to Customer's use of the Services
for itself as well as each such Customer client. Bank may
require written confirmation from each Customer client that
it has authorized Customer to include its Accounts in Bank's
implementation of Customer's set-up for the Services, and
Customer agrees to notify Bank immediately if that authority
is revoked or changed.
33.2 Customer Enanine a Third -Party
Service Provider. Subject to Bank's prior approval and in
its sole and exclusive discretion, Customer may appoint a
third -party service provider to act as Customer's agent to use
one or more of the Services (hereinafter such third -party to
be referred to as "Customer's Third -Party Service
Provider"). In such event, all transactions received by Bank
from Customer's Third -Party Service Provider are hereby
authorized by Customer. All acts and omissions of
Customer's Third -Party, Service Provider shall be the acts,
omissions and responsibility of Customer and shall be
governed by the provisions of this Agreement. Customer
agrees, jointly and severally with Customer's 'Third -Party
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 reasonable fees
and disbursements of counsel in connection with any
investigative, administrative or judicial proceedings,
whether or not Bank shall be designated a party thereto)
which may be incurred by Bank relating to or arising out of
the acts or omissions of Customer's Third -Party Service
Provider on behalf of Customer. Customer and Customer's
Third -Party Service Provider shall execute any such other
agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or any
continuation by Customer's Third -Party Service Provider of
any Services on Customer's behalf. Notice of any
termination of Customer's Third -Party Service Provider's
authority to use one or more of the Services on Customer's
behalf shall be given to Bank in writing. The effective date
of such termination shall be ten (10) Business Days after
Bank receives written notice of such termination. Customer
agrees that Bank retains the right to reject any transactions
initiated by Customer's Third -Party Service Provider in its
sole discretion.
34. Section Headings. 'The section headings used in
this Agreement are only meant to organize this Agreement,
and do not in any way limit or define Customer's or Bank's
rights or obligations.
35. E -Verify. Bank is registered with and will use the
Department of Homeland Security's E -Verify system
(www.e-verify.gov) to confirm the employment eligibility
of all newly hired employees for the duration of this
agreement, as required by Section 448.095, F.S. Bank is also
responsible for obtaining an affidavit from all
subcontractors, as required in Section 448.095(5)(b), F.S.,
stating the subcontractor does not employ, contract with, or
subcontract with an unauthorized alien.
L of 54 1018
IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement, including all applicable Appendices, to be
executed by an Authorized Representative.
Date:
INDIAN RIVER COUNTY
(Customer)
Administrati
Print Name: Joseph H. Earman,
Title: Chairman
LE
By:_
Ryan L.
By:
TD Bank, N.A.
•........
1
Court and Comptroller
Approved as to Form and Legal Su f ciency:
al'g,* By:
William K. DeBraal, County Attorney
Governmental
12 oj54 1018
Ll.:_L I I
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
1. Section 26, "Governing Law," of the Agreement
is hereby deleted in its entirety and replaced with the
following:
26. Governing Law. Any claim,
controversy or dispute arising under or related to
this Agreement shall be governed by and
interpreted in accordance with the laws of the
jurisdiction pursuant to which Customer was
incorporated or otherwise organized, except where
applicable federal law is controlling. In the event
of a conflict between the provisions of this
Agreement and any applicable law or regulation,
this Agreement shall be deemed modified to the
extent necessary to comply with such law or
regulation.
2. The following new Section 35 is hereby added
immediately after Section 34:
35. Additional Representations and
Warranties. For purposes of this Section,
"Governmental Unit" means: (A) any town, city,
county or similar local governmental unit, including
without limitation any school district or school
administrative unit of any nature, water district,
sewer district, sanitary district, housing authority,
hospital district, municipal electric district or other
political subdivision, agency, bureau, department or
other instrumentality thereof, or similar quasi -
governmental corporation or entity defined by
applicable law, and (B) any state government or any
agency, department, bureau, office or other
instrumentality thereof.
(a) If Customer is a Governmental Unit of the type
included in (A) above, Customer and the individual
signing below represent, wan -ant and agree: (i) that
this Agreement has been duly executed by the
Treasurer, Finance Director, or other officer
authorized by law with signatory authority to enter
into banking services agreements; (ii) that this
Agreement has been duly authorized and approved
XC# 4818-2416-3481 v.1 13 oj54
0521
by the governing body of Customer in accordance
with applicable law, and, at Bank's request, as
evidenced by the certification of the Secretary or
other legal authority of the governing body and
provided with this Agreement; (iii) that only
persons authorized to disburse Customer funds
from any Account will be enrolled as Authorized
Users having access to wire transfer, ACH or
Account transfer functions; (iv) that if this
Agreement remains in effect for more than one
budget year, upon request of Bank, Customer will
ratify and provide evidence of the renewal of this
Agreement in subsequent years; and (v) that this
Agreement is the valid and binding obligation of
Customer, enforceable against Customer in
accordance with its terms.
(b) If Customer is a Governmental Unit of the type
included in (B) above, Customer and the individual
signing below represent, wan -ant and agree: (i) that
this Agreement has been duly executed by a
financial or other officer authorized by law with
signatory authority to enter into banking services
agreements on behalf of Customer; (ii) that this
Agreement has been duly authorized by a senior or
similar officer of Customer; (iii) that Customer has
complied with all state laws and regulations,
including any regulations or policies adopted by
Customer with respect to electronic commerce in
entering into and performing this Agreement and
any related ACH or wire transfer service agreement;
(iv) that only pentons authorized to disburse
Customer funds from any Account will be enrolled
as Authorized Users having access to wire transfer,
ACH or Account transfer functions; and (v) that this
Agreement is the valid and binding obligation of
Customer, enforceable against Customer in
accordance with its terns.
(c) For a Customer of the type included in either (A) or
(B) above, Customer and the individual signing
below further represent, warrant and agree: (i) that
upon Bank's request, Customer shall provide
evidence of those persons authorized to disburse
Customer funds as described in (a)(iii) and (b)(iv)
above; (ii) that upon Bank's request, Customer will
certify its compliance with (a) or (b), as applicable,
on an annual or other periodic basis; and (iii) that
Customer will provide notice to Bank if any person
authorized to disburse Customer funds as described
in (a)(iii) and (b)(iv) is no longer so authorized or
his/her position of such authority is terminated for
any reason.
3. Effectiveness. Customer agrees to all the terms
and conditions of this Exhibit. The liability of Bank under
this Exhibit 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 Exhibit shall remain in full force
and effect until such time as a different or amended Exhibit
is accepted in writing by Bank or the Cash Management
Master Agreement is terminated.
Remainder of page intentionally left blank.
HC# 4818-24263481 v1 14 of 54
0521
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
1. Definitions.
' Account(s) " means, with respect to eTreasury, a
checking, regular statement savings, money market deposit,
certificate of deposit, investment or commercial loan or line
of credit account(s) Customer maintains with Bank for
business or non -consumer purposes that is designated by
Customer for use with the Services, as described below.
"Account Agreement" means, in addition to the
meaning contained in the parties' Cash Management Master
Agreement, any and all agreements between Customer and
Bank which govern Customer Accounts (as defined above)
and which were provided to Customer when Customer
opened its Account(s), or any other documents governing
Customer's Account(s), each as may be amended from time
to time.
"Administrator" or `Account Administrator"
means Customer's employee(s) or other person(s) that
Customer (or any Administrator designated by Customer)
designates on the Services' Setup Form(s) (or by on-line
changes to such designations as described below) as being
its Authorized Representative, or as authorized to act on
Customer's behalf, with respect to the Services.
`Authorized User" means any person Customer's
Administrator designates as being authorized to access or
use any of the Services on Customer's behalf.
"Login ID" means the electronic identification, in
letters and numerals, assigned to Customer by Bank or to any
additional Authorized Users designated by Customer's
Account Administrator.
"Payment" means a transfer of funds to or from
Customer's Account(s).
2. Services.
2.1 This Appendix describes the terms and
conditions under which Bank will provide Customer with
access to and use of any of the electronic information
delivery and transaction initiation services that Bank makes
available using the Bank Internet System.
2.2 By accessing the Services with the
Access Devices (as defined in the Cash Management Master
Agreement), Customer may perform any or all of the
Services described in this Appendix and selected for use in
the Services' Setup Form(s) and that Bank has approved for
Customer's use. Bank reserves the right to reject Customer's
Services' Setup Form(s), schedules and other required
documents and to refuse Customer access to or use of the
Services for any reason and in Bank's sole discretion. Bank
may, in its sole and exclusive discretion, introduce new
features of the Services from time to time but is not required
to notify Customer of the availability of any such new
features.
2.3 By subscribing to the Services,
Customer will have access to the Services' basic features,
which include but may not be limited to, in Bank's sole and
exclusive discretion, the following:
2.3.1 Previous -Day Balance
Reporting. Previous -Day Balance Reporting allows
Customer to review the balances and transaction history in
Customer's checking, savings, money market deposit and
loan Account(s) for such period of time as described in the
Services' Setup Form(s). Customer may also view images
of deposit tickets, deposit items, paid checks and return
deposited items. This information may be viewed upon
implementation of the Services. The scope of the time
periods for which transactional history and check images
may be viewed (including pre -implementation periods) may
vary and depend upon various factors, such as when
Account(s) were opened and when the Services were first
implemented and set-up.
2.3.2 Real -Time Balance
Reporting. Real -Time Balance Reporting allows Customer
to review current Account balance(s) and transaction activity
in real -rime.
2.3.3 Book Transfers. Book
Transfers allows Customer to make intra -Bank fund
transfers between Customer's checking, savings and loan
Accounts.
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2.3.3.1 General. Book
Transfers may be made as one-time or recurring, same-day
or in the future. Book Transfers may also be initiated from
(i) one -Account -to -one -Account, (ii) one -Account -to -many -
Accounts, or (iii) many -Accounts -to -one -Account.
Recurring Book Transfers may utilize one of several
repeating frequency options (weekly, monthly, etc.), as set
forth in the Services. Book Transfer templates may be
created and saved for frequently executed transfers. Pending
Book Transfers and templates may be edited or deleted
(cancelled) through the Services by Authorized Users at any
time prior to the Business Day on which the associated
transfer is scheduled to occur. Book Transfer amounts and
the order in which such transfers occur are limited to the
available balance in the Account(s) on the effective date of
the transfer. For same-day transactions, Customer will need
to have a sufficient available balance in the Account from
which funds are to be transferred to cover the amount of the
Book Transfer. For future or recurring Book Transfers,
Customer will need to have sufficient available funds on the
day the transaction is to occur. The number of Book
Transfers from interest bearing checking and savings
Accounts are subject to the terms of the Account Agreement
and federal regulations. Book Transfers that Customer
transmits by Bank's cut-off time as set forth on the Services'
designated website or the Services' Setup Form(s) on a
Business Day will be posted to the Account as of that
Business Day; however, a request (whether a same-day
funds transfer or a future -dated transfer) may not result in an
immediate transfer of funds or immediate availability
because of the time required to process the transaction.
Customer is solely responsible for the review of the previous
day's transaction report and the status of the Book Transfer
request within the Services to ensure that the transaction was
processed. Only Book Transfers initiated through the
Services will be displayed on the Services' "Transfer"
reports tab. All transfers are subject to the Account
Agreement.
2.3.3.2 Future -Dated
Book Transfer. In conjunction with Book Transfers, a
request to transfer funds between Customer's Accounts may
be initiated and approved for a future date. The future
transfer date may be scheduled for such date in advance as
may be permitted from time to time by Bank and as set forth
within the Bank Internet System. Future -dated transfers may
be scheduled as a one-time request or a recurring request in
a pre -determined amount, based on the instructions entered
by Customer with the request. Future -dated Book Transfers
will be initiated on the Business Day requested by Customer,
not on the date Customer entered the transaction using the
Services.
2.3.4 Stop Payment. Stop
payments of checks drawn on Customer's Account(s) are
subject to the terms and conditions of the Account
Agreement. Notwithstanding anything in the Account
Agreement to the contrary, Customer may use the Services
to initiate stop payment orders for an individual check or a
range of checks. Bank shall have no responsibility for losses
resulting from any delay in Bank's receipt of stop payment
orders transmitted by means of the Bank Intemet System or
for Customer not taking additional actions when a response
message from the Bank Internet System indicates a response
other than a successful confirmation. Customer must
provide Bank with the EXACT CHECK NUMBER OR
RANGE OF CHECK NUMBERS. When known,
Customer should also provide the EXACT AMOUNT OF
THE CHECK. If the check number is incorrect in any way
or the amount of the check is inaccurate by one cent or more
in the stop payment order, payment will not be stopped and
Bank will not be responsible for resulting losses. All other
information must be reasonably accurate. Requests are
generally effective when successfully entered and submitted
by Customer via the Services. Notwithstanding the
foregoing, Customer understands that if the stop payment
request comes too late for Bank to have a reasonable time to
act on it prior to paying, settling for, posting or becoming
accountable for the check described in the request, then
Customer's stop payment request shall be of no effect. Stop
payments requested using the Bank Intemet System are
effective for three hundred sixty-five (365) Calendar Days
unless renewed before the end of the 365 -day period.
Customer is solely responsible for confirming the status of a
stop payment order. Except as otherwise provided by
Compliance Laws or the terms of the Cash Management
Master Agreement, Customer shall not have the right to stop
payment on or recall any electronic fund transfers or similar
payment order or transfer request given hereunder after it has
been transmitted to Bank. Only stop payment orders
initiated or recalled through the Bank Intemet System will
be displayed on the Bank Internet System's Stop Payments"
screen. Stop payment orders that are not initiated through
the Bank Internet System may also be cancelled through the
Bank Internet System.
2.3.5 E -Learning. E -Learning is
a self -paced, interactive educational tool available via the
Services that Customer may use to learn more about the
various features or modules related to the Services, as well
as how to use them.
2.3.6 Customizable Dashboard.
Using this feature, Customer can configure and save
Account balance views, as well as command one -click
access to detailed information, balance and payment reports,
and high -use transaction initiation features. It is Customer's
responsibility to view the "Dashboard" for Bank notices
when designating another section of the Bank Internet
System as the desired landing page.
2.3.7 FedWire 1031 Drawdown
Request Origination. When made available by Bank,
Customer may originate an outgoing service message to a
specified third -party financial institution ("Receiving
Financial Institution") to request a transfer of funds from an
account at the Receiving Financial Institution to Customer's
Account at Bank via FedWire (a method of electronic funds
or wire transfer operated by the Federal Reserve System for
participating financial institution members). Customer is
responsible for completing all required information, which
may include, but is not limited to, the following: the routing
number of the Receiving Financial Institution, the account
number at the Receiving Financial Institution and the
amount of the requested wire drawdown. Bank shall have no
16 of 54 0522
responsibility for losses resulting from any action or failure
to act by Receiving Financial Institution.
2.4 In addition to the Services as described
in this Appendix and/or in the Services' Setup Form(s),
additional features, modules or other Cash Management
Services related to eTreasury may be offered from time to
time by Bank, in its sole and exclusive discretion, including
but not limited to the following:
2.4.1 Wire Transfers. Wire
transfers are subject to the terms and conditions of the TD
Wire Transfer Services Appendix. Once approved by Bank
for use by Customer, this Service allows Customer to
transfer funds electronically using the Fedwire or similar
funds transfer system, typically from Customer's Account(s)
to other account(s) with Bank or to account(s) at other banks.
Domestic or foreign wire transfers entered through the
Services will be processed as set forth in the TD Wire
Transfer Services Appendix.
2.4.2 ACH Originations. ACH
originations are subject to the terms and conditions of the TD
Automated Clearing House (ACH) Origination Appendix,
the TD Third -Party Sender Services Appendix or the TD
ACH Third Party Service Provider Agreement, as
applicable. Once approved by Bank for use by Customer,
this Service allows Customer to initiate and approve ACH
transactions that Customer desires Bank to enter into the
ACH network on Customer's behalf. ACH transactions
entered through the Services will be processed and settled)
as set forth in the TD Automated Clearing House (ACH)
Origination Appendix, the TD Third -Party Sender Services
Appendix or the TD ACH Third Party Service Provider
Agreement, as applicable.
2.4.3 File Transfers. File transfers
is a method for Customer and Bank to send and receive
reports and files (including, but not limited to, ACH,
Reconciliation, Lockbox, and BAI files) to each other
through the Internet and are subject to the terms and
conditions of applicable Appendices. Such reports and files
may also be auto -generated and auto -delivered.
3. Hours of Access. Customer generally may access
the Services 24 hours a day, seven (7) days a week.
Customer may not be able to access some or all of the
Services from time to time, however, during any special or
other scheduled maintenance periods, or during
emergencies, interruptions or delays due to causes beyond
Bank's control.
4. Account Designation.
4.1 Customer may designate any
of Customer's Accounts maintained with Bank for business
or non -consumer purposes for use with the Services.
Generally, the taxpayer identification number for each
Account must be the same, and each Account is subject to
the other conditions set forth in this Appendix, except as
Bank, in its sole discretion, may otherwise permit. Bank
reserves the right to deny any Account designation for use
with the Services in its sole discretion.
4.2 Customer may at any time add
or delete any Account that Customer has designated for use
with any of the Services, or change the Services associated
with any Account, by notifying Bank in writing.
5. Administrator(s) and Authorized Users.
5.1 Customer shall designate
Administrator(s) with Bank as set forth in the Services'
Setup Form(s). Customer is solely responsible for
designating its Administrator(s).
5.2 The Administrator(s) may designate
other Administrators and/or Authorized Users. Customer
accepts as its sole responsibility the Administrator's
designation of other Administrators and Authorized Users.
Customer understands that the Administrator(s) will control,
and Customer authorizes the Administrator(s) to control,
access by other Administrators and Authorized Users of the
Services through the issuance of Access Devices. The
Administrator(s) may add, change or terminate Customer's
Authorized User(s) from time to time and in his/her sole
discretion. Bank does not control access by any of
Customer's Authorized Users to any of the Services. If
Customer designates more than one (1) Administrator, Bank
recommends that Customer manage its use of the Services
and its Administrators by requiring dual control to set up
new Authorized Users. Bank also recommends that
Customer review and assign limits for Authorized Users that
create and/or approve wire transfers and ACH transactions,
as established on the Services' Setup Form(s). In the event
that Bank, in its sole and exclusive discretion, assists
Customer in any way with the establishment, addition or
general set-up of Authorized Users, Customer understands
and agrees that the Administrator(s) shall remain responsible
for verifying the accuracy thereof and shall otherwise control
access by any of Customer's Authorized Users to any of the
Services.
5.3 Customer will require each
Administrator and each Authorized User to comply with all
provisions of this Appendix and all other applicable
agreements. Customer acknowledges and agrees that it is
fully responsible for the failure of any Administrator or any
Authorized User to so comply. Customer is responsible for
any Payment, transfer and other use of the Services and
charges incurred by any Administrator and any Authorized
User, even if such Administrator or Authorized User exceeds
his/her authorization. Bank recommends that Customer
require its Administrator(s) to review all entitlement reports
available through the Services with respect to Customer's
Authorized User(s).
5.4 Customer acknowledges and agrees that
an Authorized User is not permitted to authorize other
persons/entities to use its Access Devices. Notwithstanding
the foregoing, if an Authorized User does authorize other
persons/entities to use the Authorized User's Access
Devices in any manner, such authorization will be
considered by Bank as unlimited in amount and manner, and
Customer is responsible for any transactions made by such
persons/entities, until Customer's Administrator has
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deactivated the subject Authorized User's Access Devices.
Bank will not be liable for and will not reimburse Customer
for any losses that may occur as a result of this authorized
use of an Authorized User's Access Devices.
5.5 Whenever any Authorized User leaves
Customer's employ or Customer otherwise revokes the
authority of any Authorized User to access or use the
Services, the Administrator(s) are solely responsible for de-
activating such Authorized User's Access Devices.
Customer shall notify Bank in writing whenever a sole
Customer Administrator leaves Customer's employ or
Customer otherwise revokes a sole Administrator's
authority to access or use the Services.
6. Access Devices; Security Procedures.
6.1 Upon successful enrollment, Customer
can access the Services from Bank's designated website by
using Customer's Computer or, as may be permitted by Bank
from time to time in its sole discretion and in accordance
with Bank's terms and conditions for such access, using
mobile or other Intemet-enabled system(s) or device(s),
along with the Services' security procedures as described
from time to time. A company ID assigned to Customer by
Bank, a unique Login ID and an individual password will be
used for log -in by Customer's Administrator(s) and
Authorized User(s). The Administrator(s) and Authorized
User(s) must change his or her individual password from
time to time for security purposes, as prompted by the Bank
Internet System or more frequently (subject to the additional
security procedures described below).
6.2 Customer acknowledges that the
Administrator(s) will, and Customer authorizes the
Administrator(s) to, select other Administrators and
Authorized Users by issuing to any person a unique Login
ID and password (subject to the additional security
procedures described below). Customer further
acknowledges that the Administrator(s) may, and Customer
authorizes the Administrator(s) to, change or de -activate the
unique Login ID and/or password from time to time and in
his or her sole discretion (subject to the additional security
procedures described below).
6.3 Customer acknowledges that, in
addition to the above individual passwords, access to the
Services includes, as part of the Access Devices, additional
security procedures, including as described below:
6.3.1 Additional security
procedures include a risk-based authentication security
procedure for Customer, including Customer's
Administrator and Authorized Users. This additional
security procedure involves an additional credential for each
user that is in addition to Login IDs and individual password
security (hereinafter "Enhanced Authentication Security,"
and/or "Enhanced Log -in Security"). With Enhanced
Authentication Security, additional information regarding
each Authorized User's Computer and method of website
access will be collected and validated automatically with the
set-up process. An electronic access identity will be created
for each Authorized User by combining a number of key
identification points, such as IP address, Intemet service
provider, PC and browser settings, time of day and
geographic location. These access identities are used by
Bank to authenticate Authorized Users. Further
authentication may occur automatically due to the detection
of unusual source occurrences in relation to that access
identity.
6.3.2 An additional security
procedure incorporates use of a physical security device or
token ("Token") for, by way of example only, initial log -in
and/or certain transactional or administrative functionality.
A Token may be issued to any Authorized User(s), for
example, for use in initiating and/or approving ACH
transactions and wire transfers, to log in to the Services, as
well as with certain administrative functionality, and/or for
the creation of ACH and wire templates. Physical security of
each Token is Customer's sole responsibility. With the
Token, each Authorized User will receive a PIN number that
the Authorized User must keep in a secure place. When an
Authorized User (or Administrator) leaves Customer's
employ, his or her Login ID must be deleted by Customer
(or by Bank upon Customer's request) and, if a Token had
been issued to such Authorized User (or Administrator),
Bank must be promptly notified so that Bank may deactivate
such Authorized User's (or Administrator's) Token. Any
additional Authorized User requiring a Token must be
authorized, in writing by Customer to Bank, for Token
creation or re-creation and deployment. If applicable, fees
may be assessed for additional Tokens.
6.4 Customer further acknowledges and
agrees that all wire transfers and ACH transactions initiated
through the Services require "dual control" or separation of
duties. With this additional security feature, one Authorized
User will create, edit, cancel, delete and restore ACH batches
or wire transfer orders under his/her unique Login ID,
password and Token; a second different Authorized User
with his/her own unique Login ID, password and Token will
be required to approve, release or delete ACH batches or
wire transfer orders.
6.5 Customer accepts as its sole
responsibility the selection, use, protection and maintenance
of confidentiality of, and access to, the Access Devices.
Customer agrees to take reasonable precautions to safeguard
the Access Devices and keep them confidential. Customer
agrees not to reveal the Access Devices to any unauthorized
person. Customer further agrees to notify Treasury
Management Services Support immediately at 1-866-475-
7262 if Customer believes that the confidentiality of the
Access Devices has been compromised in any manner.
6.6 The Access Devices identify and
authenticate Customer (including the Administrator and
Authorized Users) to Bank when Customer accesses or uses
the Services. Customer authorizes Bank to rely on the
Access Devices to identify Customer when Customer
accesses or uses any of the Services, and as signature
authorization for any Payment, transfer or other use of the
Services. Customer acknowledges and agrees that Bank is
authorized to act on any and all communications or
instructions received using the Access Devices, where such
communications were provided to Bank in accordance with
18 of 54 0522
the security procedures and other terms as set forth in the
Cash Management Master Agreement, regardless of whether
the communications or instructions are authorized. Bank
owns the Access Devices, and Customer may not transfer
them to any other person or entity.
6.7 Customer acknowledges and agrees that
the Access Devices and other security procedures applicable
to Customer's use of the Services and set forth in this
Appendix, as well as such security best practices as
described by Bank from time to time and made available on
the Bank Internet System, are a commercially reasonable
method for the purpose of verifying whether any Payment,
transfer or other use of the Services was initiated by
Customer. Customer also agrees that any election Customer
may make to change or waive any optional security
procedures recommended by Bank is at Customer's risk and
that any loss resulting in whole or in part from such change
or waiver will be Customer's responsibility. Customer
further acknowledges and agrees that the Access Devices are
not intended, and that it is commercially reasonable that the
Access Devices are not intended, to detect any errors relating
to or arising out of a Payment, transfer or any other use of
the Services.
6.8 If Customer has reason to believe that
any Access Devices have been lost, stolen or used (or may
be used) or that a Payment or other use of the Services has
been or may be made with any Access Devices without
Customer's permission, Customer must contact its
Administrator and Bank. In no event will Bank be liable for
any unauthorized transaction(s) that occurs with any Access
Devices, where such communications or instructions were
provided to Bank in accordance with the security procedures
and other terms as set forth in the Cash Management Master
Agreement.
6.9 Bank may, from time to time, propose
additional or enhanced security procedures to Customer.
Customer understands and agrees that if it declines to use any
such additional or enhanced procedures, it will be liable for any
losses that would have been prevented by such procedures.
Notwithstanding anything else contained in this Appendix, if
Bank believes immediate action is required for the security of
Bank or Customer funds, Bank may initiate additional security
procedures immediately and provide prompt subsequent notice
thereof to Customer.
7. Debiting Customer's Account(s). Customer
authorizes Bank to charge and automatically deduct the
amount of any Payment from Customer's Account(s) (or any
other Account that Customer maintains with Bank, if
necessary), in accordance with the Cash Management
Master Agreement and the Account Agreement.
8. Electronic Statements.
8.1 As an eTreasury user, and subject to
Bank's approval and applicable set-up and enrollment
requirements, Customer may elect to stop or resume the
mailing of paper statements for eligible Accounts by
requesting this feature from Bank.
8.2 Only Accounts accessible via the
Services may be enrolled for electronic statement delivery.
Eligible Accounts are displayed on the "Statements" page of
the Services. If Customer currently receives a consolidated
periodic statement that includes multiple Accounts and
Customer selects electronic statement delivery, all Accounts
shown on the consolidated statement will be automatically
enrolled for electronic statement delivery. For joint
Accounts, only one Account owner need enroll for electronic
statement delivery; provided, that each Account owner must
separately enroll if that Account owner wishes to receive and
have access to its Account statements electronically.
8.3 Customer's electronic statement will
generally be available within 24 hours after the statement
cut-off date. The statement cut-off date for Customer's
electronic statement is the same as Customer's paper
statement. Once made available as described herein, the
information contained in Customer's electronic statement
shall be deemed to have been delivered to Customer
personally, whether actually received or not. Customer may
view, print and download current statements and such period
of statement history as set forth on the Bank Internet System.
To view or print an electronic statement, Customer must
have an appropriate version of Adobe Acrobat software
installed on Customer's Computer sufficient to support
access to a PDF file.
8.4 At Customer's request, Bank will send
Customer a paper copy of Customer's electronic statement
previously delivered through the Services at any time.
Bank's standard fee then in effect and charged for paper
delivery of copies of Account statements will apply. A
request for a paper copy does not cause a termination of the
electronic statement feature. A paper copy can be obtained
until the copy is no longer required to be maintained by Bank
as a record for the designated Account under applicable law
or regulation.
8.5 Customer may revoke consent for the
electronic statement feature for Customer's Accounts at any
time by contacting Customer's Relationship Manager.
Electronic posting of Customer's electronic statement on the
Services' site and transmission of related email notices will
continue until: (i) termination of the electronic statement
feature; (ii) termination of Customer's designated Accounts
with Bank; or (iii) termination of this Appendix, the Cash
Management Master Agreement or Customer's use of the
Services.
8.6 Bank may discontinue the electronic
statements feature at any time in Bank's discretion and
resume mailing paper statements to Customer. Bank may
also add, modify or delete any feature of the electronic
statements feature in Bank's discretion. Bank will provide
Customer with notice of any change or termination in the
electronic statement feature in accordance with the terms of
the parties' Cash Management Master Agreement.
9. Alerts.
19 oj54 0522
9.1 The Services allow Customer to
voluntarily choose alert messages regarding Customer's
Account(s), including but not limited to messages to alert
Customer about high or low Account balance thresholds,
debit or credit transactions cleared, and payment status for
ACH and wire transactions. Bank may add new alerts from
time to time, or cancel existing alerts. If Customer has opted
to receive an alert that is being canceled, Bank will notify
Customer in accordance with the terms of the parties' Cash
Management Master Agreement. Each alert has different
options available, and Customer will be asked to select from
among these options upon activation of Customer's alerts
service.
9.2 Voluntary Alerts.
9.2.1 Electronic alerts will be sent
to the email address Customer has provided as Customer's
primary email address for the Services or via the Services'
secure messaging feature. If Customer's email address
changes, Customer is responsible for informing Bank of the
change. Customer can also choose to have alerts sent to a
secondary email address. Changes to Customer's primary
and secondary email addresses will apply to all of
Customer's alerts.
9.2.2 Customer understands and
agrees that Customer's alerts may be delayed or prevented
by a variety of factors. Bank will use commercially
reasonable efforts to provide alerts in a timely manner with
accurate information. Bank neither guarantees the delivery
nor the accuracy of the contents of any alert. Customer also
agrees that Bank shall not be liable for any delays, failure to
deliver, or misdirected delivery of any alert; for any errors in
the content of an alert; or for any actions taken or not taken
by Customer or any third party in reliance on an alert.
Customer agrees that Bank is not responsible for any costs
or fees incurred as a result of alerts sent to email addresses
or phone numbers connected with mobile or similar devices.
9.2.3 Alerts are not encrypted and
will never include Customer's Access Devices or full
Account number(s). However, alerts may include
Customer's name and some information about Customer's
Accounts, depending upon which alert(s) Customer selects.
Anyone with access to Customer's email address will be able
to view the contents of these alerts.
9.2.4 Customer may, at its option,
customize the subject line of Customer's alerts for easier
identification by Customer. Customer acknowledges and
agrees that Customer should not include full Account
number(s) or other sensitive Customer or Account
information in any customized subject line.
10. Use of Financial Management (FM) Software.
Use of the Services may be supplemented by use of certain
FM software. Compatibility and functionality of the FM
software with the Services may vary depending upon the FM
software Customer is using, and Bank makes no
representations or guarantees regarding use of the Services
with Customer's FM software. Customer is responsible for
obtaining and maintaining the FM software. Customer's use
of the FM software is governed by the software license
agreement(s) included with each software application.
Customer must agree to the terms and conditions of the
software license agreement(s) during the installation of the
FM software on Customer's Computer. Customer is
responsible for the correct set-up and installation of the FM
software, as well as maintenance, updates and upgrades to
the FM software and/or Customer's Computer. Bank will
provide Customer with reasonable assistance, when
requested, to enable Customer's use of the Services with FM
software. Bank is not responsible for any problems related
to the FM software itself, Customer's Computer or
Customer's ability to connect using the FM software as
described in this Appendix. Customer should verify all
Account data obtained and any transactions that may be
executed on Customer's Accounts using FM software, as
applicable. Bank's records of transactions, instructions and
communications regarding Customer's Accounts and use of
the Services supersede any records stored or created on
Customer's Computer through the use of FM software.
Customer is responsible for any and all obligations to any
software vendor arising from Customer's use of that
vendor's FM software. Customer acknowledges and agrees
that the FM software versions supported by Bank for
purposes of use with the Services shall be in accordance with
the sunset policy of the FM software provider.
11. Additional Security Terms. In addition to the
other terms of this Appendix and of the parties' Cash
Management Master Agreement, Customer agrees not to
disclose any proprietary information regarding the Services
to any third party (except to Customer's Administrator(s)
and Authorized User(s)). Customer acknowledges that there
can be no guarantee of secure transmissions over the Internet
and agrees to comply with any operating and commercially
reasonable security procedures Bank may establish from
time to time with respect to the Services. Customer will be
denied access to the Services if Customer fails to comply
with any of these procedures. Customer is responsible for
reviewing the transaction reports Bank provides on-line and
in Customer's monthly statements to detect unauthorized or
suspicious transactions. In addition to any other provision
hereof regarding authorization of transactions using the
Services or in the parties' Cash Management Master
Agreement, all transactions will be deemed to be authorized
by Customer and to be correctly executed thirty (30)
Calendar Days after Bank first provides Customer with a
statement or online transaction report showing that
transaction, unless Customer has provided written notice
that the transaction was unauthorized or erroneously
executed within that period. In order to minimize risk of loss,
Customer agrees to cause its Administrator or designated
Authorized User(s) to review the transaction audit log
available with the Services to detect unauthorized or
erroneous transactions not less frequently than once every
five (5) Calendar Days.
12. Terminating this Appendix; Liability.
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12.1 This Appendix may be terminated in
accordance with the terms and conditions of the Cash
Management Master Agreement.
12.2 The provisions of this Appendix relating
to Customer's and Bank's liability and the disclaimer of
warranties set forth in the Cash Management Master
Agreement and incorporated herein by reference shall
survive the termination of this Appendix.
13. Changes to the Services and this Appendix.
Bank may change the Services and this Appendix (including
any amendments hereto) in accordance with the terms and
conditions of the Cash Management Master Agreement.
14. Notices. Notices required by this Appendix shall
be provided in accordance with the terms and conditions of
the Cash Management Master Agreement.
15. 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 Master Agreement
is terminated.
Remainder of page intentionally left blank.
21 oj54 0522
APPENDIX II
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
1. Services. The ACH network is a funds transfer
system which provides for the interbank clearing of
electronic credit and debit Entries for participating financial
institutions. The ACH system is governed by the National
Automated Clearing House Association's ("NACHA")
Operating Rules and Operating Guidelines (collectively the
"NACHA Rules").
2. Customer Obligations.
2.1 Customer will comply and shall cause
its employees, officers, directors, agents and its Authorized
Representative(s) and Administrator(s) to comply with (i)
the NACHA Rules as amended from time to time and (ii) any
specifications, advisories, interim policies, or instructions
related to ACH transactions issued, from time to time, by
Bank, NACHA or any federal or state regulatory authorities.
The duties of Customer set forth in this Appendix in no way
limit the requirement that Customer comply with the
NACHA Rules.! Customer specifically adopts and makes to
Bank all representations and warranties of an Originator
under the NACHA Rules,! including that Customer will not
initiate Entries in violation of the laws of the United States.
Customer has access to a copy of the NACHA Rules and
acknowledges receipt of a copy. (The NACHA Rules may be
obtained at NACHA's website at www.NACRA.org or by
contacting NACHA directly at 703-561-1100.) Customer
agrees to subscribe to receive revisions to the NACHA Rules
directly from NACHA.
2.2 Customer will maintain a checking
Account ("Settlement Account') at Bank with available
balances as of the Effective Entry Date sufficient to offset any
Entries submitted and against which any rejected or returned
Entries may be credited or debited. Bank reserves the right, in
its sole and exclusive discretion and at any time, to require
ACH pre -funding of credit Entries requested by Customer, in
accordance with the terms and conditions of any agreement
between Bank and Customer relating to pre -funding of such
Entries, including as otherwise set forth in this Appendix. Bank
also reserves the right, in its sole and exclusive 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 relating thereto.
2.3 Customer agrees from time to time,
upon Bank's request and in accordance with this Appendix
and the parties' Cash Management Master Agreement, to
promptly provide Bank with information pertaining to
Customer's financial condition as Bank may request,
including without limitation, the name(s) of other financial
institutions that Customer is using to originate Entries.
2.4 Nothing in this Appendix or any course of
dealing between Customer and Bank (i) constitutes a
commitment or obligation of Bank to lend money to Customer,
(ii) obligates Bank to extend any credit to Customer, to make a
loan to Customer or otherwise to advance funds to Customer to
pay for any payment order contrary to Bank's published
availability schedules and the settlement timing as reflected
herein, and in such other documents and materials as may be
provided to Customer by Bank with regard to the Services from
time to time, (iii) constitutes a modification of this Appendix,
the NACHA Rules, or the Security Procedures, or (iv)
otherwise constitutes an agreement between Bank and
Customer regardless of whatever practices and procedures
Bank and Customer may use.
2.5 Customer is responsible for all tariffs,
duties or taxes (excluding U.S. federal, state and local taxation
of the income of Bank) that may be imposed by any
government or governmental agency in connection with any
payment order executed pursuant to this Appendix, including
without limitation any international tariffs, duties or taxes
related to international ACH Entries as further described in
Section 6 below.
2.6 Customer shall be liable for all fines
including without limitation any international fines related to
international ACH Entries as further described in Section 6
below, that may be incurred by Bank that are attributable to
Customer's failure to comply with (i) the NACHA Rules, or (ii)
the laws, regulations and orders administered by the U.S.,
including without limitation, the U.S. Department of the
Treasury's Office of Foreign Assets Control ("OFAC") and
the U.S. Department of the Treasury's Financial Crimes
Enforcement Network ("FinCEN").
CAP ID 88442 0722
3. Risk Exposure Limits.
3.1 Bank will establish for Customer, in
Bank's sole and exclusive discretion, a transactional "Credit
Exposure Limit" and a "Debit Exposure Limit" ("Exposure
Limit(s)"). Each Exposure Limit will be established as an
aggregate limit over multiple Settlement Dates with other
not -yet -settled transactions issued by Customer through any
ACH application with Bank. The Exposure Limits are
based on Customer's financial condition and anticipated or
historical level(s) of Entry instructions with Bank. Bank
will notify Customer of Customer's Exposure Limits prior
to implementation of the Services.
3.2 Customer shall promptly notify Bank if
Customer anticipates a significant increase or decrease in the
dollar amount of any of its ACH transactions. Bank may,
from time to time, in its sole discretion, change the amount
of Customer's Exposure Limits. Bank may, on an annual or
more frequent basis, in Bank's sole discretion, review
Customer's Exposure Limits and make any adjustments to
Customer's Exposure Limits that Bank may deem
appropriate.
3.3 Bank monitors all Exposure Limits for
every customer that originates ACH transactions. Bank may
suspend or reject processing of any Entry instructions if such
Entry exceeds Customer's Exposure Limit(s). Bank may,
in its sole and exclusive discretion, but shall have no
obligation, to elect to process occasional Entry instructions
that would exceed Customer's Exposure Limit(s). If
Customer's Entry instructions exceed its Exposure Limit(s),
Bank may elect to process such instructions subject to there
being sufficient available funds in the Settlement Account,
or in any other Customer Account(s) authorized by Bank for
ACH transaction purposes, for the total amount of all credit
Entries submitted to Bank for processing. In such event,
Bank may elect to reduce available funds in the Settlement
Account, as well as place a hold on available funds in any
other Customer Account(s) authorized by Bank for ACH
transaction purposes to the extent necessary to cover the total
amount of the ACH credit Entries, on the Business Day that
Bank begins processing Customer's ACH file. Customer's
Settlement Account will be debited on the effective
Settlement Date of the file, simultaneously with removal of
the hold on funds in the other Customer Account(s).
Alternatively, if Customer's Entry instructions exceed
Customer's Exposure Limit(s), Bank may elect to process
such instructions and release a file against insufficient
collected funds, subject to Customer promptly depositing
collected funds in the Settlement Account in the form of a
cash deposit, wire transfer, intra -bank fund transfer or loan
advance to cover Customer's funding obligation.
4. File Transmission Methods; Addenda.
4.1 Customer may elect, in accordance with
the Services' Setup Form(s), to transmit a NACHA-formatted
file to Bank via the following methods, or via such other
methods as Bank may permit from time to time in its sole and
exclusive discretion:
4.1.1 Bank Internet System
Transmission. Customer may transmit a NACHA-
formatted file to Bank via the service described in the Bank
Internet System Appendix. Customer agrees to the terms of
the Bank Internet System Appendix and its related security
procedures when initiating Entries as described therein.
4.1.2 Direct Electronic
Transmission. Customer may transmit a NACHA-formatted
file directly to Bank, as described in or as otherwise permitted
by Bank's Appendix for Data Transmission Services.
Connectivity between Bank and Customer must be established
and successfully tested prior to live transactions.
4.2 Electronic Data Interchange ("EDI").
EDI consists of the electronic movement of data between
Customer and Bank in a structured, computer -retrievable
data format that permits information to be transferred
between a computer program at Customer's location and a
computer program at Bank's location without re -keying.
Customer and Bank may transmit between each other an
ACH file that contains ACH Addenda which conform to the
NACHA Rules via EDI, and as described in or as otherwise
permitted by Bank's Appendix for Data Transmission
Services. Bank will process and forward Addenda
information along with financial transactions through the
ACH network. Bank will, upon Customer's request, forward
Addenda information to Customer within two (2) Business
Days of Bank's receipt of such information.
5. Transmittal of Entries by Customer.
5.1 Customer will send file(s) of credit and
debit Entries to Bank (i) with computer readable
information; (ii) with an ACH file and format consistent with
current NACHA file and Bank specifications; and (iii) on the
medium as agreed by the parties and in accordance with the
security procedures associated with that transmission
medium. Customer agrees to initiate Entries described
herein in accordance with the requirements of, and in
compliance with its responsibilities, representations and
warranties as an Originator under, the NACHA Rules.
5.2 With respect to any credit and debit
Entries initiated and transmitted by Customer that involve
consumers, Customer will comply with, each as may be
amended from time to time: (i) all authorization, disclosure
and other requirements of the NACHA Rules and (ii) all
applicable federal and state laws and regulations, including,
without limitation, any applicable requirements of
Regulation E of the Consumer Financial Protection Bureau
(or any successor entity who administers Regulation E)
(hereinafter "Regulation E") and the Federal Electronic
Funds Transfer Act.
5.3 Customer acknowledges the right of a
consumer Receiver of an unauthorized debit Entry, as
applicable and as described in the NACHA Rules, to obtain a
refund of the funds debited from Receiver's account by such
Receiver sending a written notice to Receiver's Receiving
CAP ID 88442 0722
Depository Financial Institution ("RDFI") in accordance
with the NACHA Rules (i.e., a Written Statement of
Unauthorized Debit), and where such notification is received
in time and in a manner that reasonably allows the RDFI to
meet the deadline for transmitting a Return Entry as
provided in the NACHA Rules. Customer also acknowledges
the right of a corporate Receiver of a debit Entry, as
applicable and as described in the NACHA Rules, to obtain a
refund of the funds debited from such Receiver's account by
such Receiver sending a notice to Receiver's RDFI within
two (2) Business Days following the Settlement Date of the
original Entry. Customer indemnifies Bank against any such
claim for a refund by any Receiver.
5.4 In accordance with this Appendix,
Customer may use the Services to initiate and transmit credit
and debit Entries with certain Standard Entry Class ("SEC")
Codes. Authorized SEC Codes include PPD, PPD+, CCD,
CCD+ and CTX. All other SEC Codes may be used with
proper designation on the Services' Setup Form(s) and in
accordance with additional instructions from and
requirements by Bank, as applicable. Bank may also suspend
or terminate Customer's use of one or more SEC Codes at
any time in Bank's sole and exclusive discretion.
5.5 Bank may suspend Customer's use of
one or more inactive ACH set-ups after 12 months of
inactivity and subsequently terminate Customer's use of the
inactive ACH set-up on one or more channels of delivery,
after 16 months of inactivity. Non-use of ACH Origination
for 16 months, mal result in the termination and removal of
the ACH Service.
6. International ACH Transactions ("IAT
Entries").
6.1 An IAT Entry is a debit or credit Entry
that is part of a payment transaction involving a Financial
Agency located outside of the territorial borders of the
United States, which is processed through the domestic ACH
network, pursuant to the NACHA Rules, including the rules
pertaining to Intemational ACH Transactions. IAT Entries
also include those that are funded directly by an incoming
international wire or similar funding source. The NACHA
Rules establish SEC Code "IAT" for all International ACH
Transactions. Customer agrees to be bound by the NACHA
Rules and all other statutes and regulations pertaining to IAT
Entries, including all applicable OFAC and FinCEN rules
and regulations associated with IAT Entries. Customer
acknowledges that IAT Entries require additional mandatory
information, according to special formatting requirements,
in the computer record for such Entries within an ACH batch
file. Customer expressly agrees to identify and properly
initiate all IAT Entries. Bank will facilitate IAT Entries to
Receivers located in foreign countries approved by Bank and
facilitated by the ACH or the Gateway Operator (hereinafter
in this Section, collectively, "ACH Operator"). Bank will
process each IAT Entry in accordance with (a) the laws and
payment system rules and requirements of the receiving
foreign country ("Foreign Country Rules"), (b) any
agreement governing IAT Entries between Bank and the
ACH Operator through which Bank processes the IAT
Entry, the terms of which Bank communicates to Customer
prior to Customer's use of the Services or from to time
thereafter, and (c) the NACHA Rules.
6.2 Customer acknowledges and agrees that
IAT Entries may be subject to laws, regulations and
restrictions of U.S. and foreign governments relating to
foreign exchange transactions. Before initiating an IAT
Entry, Customer agrees to understand and accept the Foreign
Country Rules. An IAT Entry must be authorized by the
Receiver. The form and content of the Receiver's
authorization, including whether such authorization is oral,
electronic or written, is govemed by Foreign Country Rules.
Customer assumes the risk of rejection of its Entries
according to Foreign Country Rules, Bank and the ACH
Operator. Customer expressly acknowledges and agrees that
Outbound IAT Entries, once transmitted, are irrevocable and
are subject to the Foreign Country Rules; furthermore, the
time frames for return of an Entry are determined by the
Foreign Country Rules and may exceed the sixty (60) day
return window for consumer Entries defined by the U.S.
ACH system and the NACHA Rules, as well as the return
window for non -consumer Entries. Customer also agrees
that IAT Entries may not be dishonored, reversed or settled
upon a specific date, and that pre -notifications are not
permitted with respect to IAT Entries involving certain
foreign countries. To the extent not otherwise prohibited by
law, in connection with IAT Entries, (1) Customer assumes
the risk of all fluctuations in foreign exchange rates or
availability, and (2) Customer assumes the risk of loss for
creating any and all erroneous IAT Entries. Customer
acknowledges and agrees that the processing, settlement
and/or availability of such Entries may be delayed or
suspended in the event that Bank determines that enhanced
scrutiny or verification of such Entries is necessary under the
NACHA Rules and/or applicable U.S. law. The ACH
Operator through which Bank processes the IAT Entry, in its
sole discretion, may also refuse to handle IAT Entries.
Customer acknowledges that Bank shall have no liability for
such delay or refusal.
6.3 In addition to the provisions of Section 22
of this Appendix, Customer makes the following additional
representations and warranties with respect to any IAT Entry
submitted by Customer or on Customer's behalf:
6.3.1 Customer is in compliance with U.S.
law, including, but not limited to, Customer's obligations
under programs administered by OFAC and FinCEN; and
6.3.2 The origination of an Outbound IAT
Entry is in compliance with the Foreign Country Rules,
including any requirements regarding authorization with
respect to an IAT Entry.
6.4 Bank will not be liable for (a) any failure
or delay by the ACH Operator, any intermediary financial
institution, or the financial institution designated to receive
the IAT Entry in the receiving country in processing or
failing to process any IAT Entry that is transmitted to the
receiving country, or (b) the acts or omissions by a third
party, including without limitation, the delay or failure of
any third party to process, credit or debit any IAT Entry.
Bank is also not responsible for the transmission or
CAP ID 88442 0722
settlement of IAT Entries on foreign holidays or other days
on which foreign countries may not process Entries.
6.5 With respect to credit IAT Entries that
Customer wishes to originate in the currency of a designated
foreign government or intergovernmental organization
("Foreign Currency"), Bank will originate the IAT Entries in
U.S. dollars ("USD") only. Once the Entry is transmitted by
Bank to the ACH Operator, the ACH Operator will convert
the amount to be transferred from USD to the Foreign
Currency. If the financial institution designated to receive
the funds does not pay the Receiver specified in the Entry,
or if the Entry is subsequently determined to be erroneous,
the ACH Operator will convert the amount to be returned
from the Foreign Currency to USD. Bank will not be liable
for any difference in the amount of the original Entry after it
has been converted from the Foreign Currency to USD.
Further, if Customer designates the currency to arrive at the
receiving financial institution in Foreign Currency, and the
designated Receiver account at the receiving financial
institution is a USD account, Customer acknowledges that
the receiving financial institution may: (1) elect to convert
the currency back to USD and post the transfer to the
Receiver's account accordingly, or (2) return the Entry, in
which case the amount transferred is converted from Foreign
Currency back to USD to post back to Customer's account.
Customer assumes all foreign exchange risk associated with
any of the foregoing.
Security Procedures.
7.1 Customer and Bank shall comply with
the security procedures set forth or incorporated by reference
in this Appendix, the Cash Management Master Agreement,
the Bank Internet System Appendix, Data Transmission
Services Appendix and/or associated documents provided by
Bank, including without limitation the Services' Setup Form(s)
(collectively the "Security Procedures"), with respect to
Entries transmitted by Customer to Bank. Customer
acknowledges and agrees the Security Procedures are a
commercially reasonable method for the purpose of
verifying the authenticity of Entries (or any request for
cancellation or amendment thereof). Customer further
acknowledges that the purpose of the Security Procedures is
not to detect an error in the transmission or content of an
Entry. No security procedures have been agreed upon
between Bank and Customer for the detection of any such
error.
7.2 Customer is strictly responsible for
establishing, implementing, maintaining and (as appropriate)
updating its own security procedures (a) to safeguard against
unauthorized transmissions, and (b) relating to the initiation,
processing and storage of Entries. As required by the NACHA
Rules with respect to the protection of ACH information (non-
public information, including financial information of
Receivers and Customer's customers, used to create, or
contained within, an ACH Entry and any related addenda
record), Customer shall ensure that its security policies,
procedures and systems:
• Protect the confidentiality and integrity of the
protected information,
Protect against anticipated threats or hazards to the
security or integrity of protected information until its
destruction, and
Protect against unauthorized use of protected
information that could result in substantial harm to
the Receiver/customer.
Abide by all rules pertaining to commercially
reasonable data security as prescribed within the
NACHA Ruler
Customer warrants to Bank that no individual will be allowed
to initiate transfers in the absence of proper supervision and
safeguards, and Customer agrees to take reasonable steps to
maintain the confidentiality of the Security Procedures and
any passwords, codes, security devices and related instructions
Bank provides in connection with the Security Procedures. If
Customer believes or suspects that any such information or
instructions have been known or accessed by an unauthorized
person, Customer agrees to notify Bank immediately by
calling 1-866475-7262, followed by written confirmation to
TD Bank, N.A., Attn: Treasury Management Services Support,
6000 Atrium Way, Mt. Laurel, New Jersey, 08054. The
occurrence of unauthorized access will not affect any transfers
Bank makes in good faith prior to, and within a reasonable time
period after, its receipt of such notification.
7.3 Bank may, from time to time, propose
additional or enhanced security procedures to Customer.
Customer understands and agrees that if it declines to use any
such enhanced procedures, it will be liable for any losses that
would have been prevented by such procedures.
Notwithstanding anything else contained in this Appendix, if
Bank believes immediate action is required for the security of
Bank or Customer funds, Bank may initiate additional security
procedures immediately and provide prompt subsequent notice
thereof to Customer.
8. Compliance with Security Procedures.
8.1 If an Entry (or a request for cancellation
or amendment of an Entry) received by Bank purports to
have been transmitted or authorized by Customer, it will be
deemed effective as Customer's Entry (or request), and
Customer shall be obligated to pay Bank the amount of such
Entry (or request) even though the Entry (or request) was not
authorized by Customer, provided Bank acted in compliance
with the Security Procedures.
8.2 If an Entry (or a request for cancellation
or amendment of an Entry) received by Bank was
transmitted or authorized by Customer, Customer shall be
obligated to pay the amount of the Entry as provided herein,
whether or not Bank complied with the Security 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.
9. Recording and Use of Communications.
Customer and Bank agree that all telephone conversations or
data transmissions between them or their agents made in
connection with this Appendix may be electronically
recorded and retained by either party by use of any
reasonable means.
CAP ID 88442 0722
10. Processing, Transmittal and Settlement of
Entries by Bank.
10.1 Bank will process, transmit and settle for
credit and debit Entries initiated by Customer as provided in
the NACHA Rules as in effect from time to time, and pursuant
to this Appendix. Exclusive of "Same Day ACH Entries,"
which are described in Section 23 below, Bank will transmit
such Entries as an ODFI to the ACH Operator by the deadline
of the ACH Operator, provided such Entries are received by
Bank prior to 8:00 p.m. Eastern Time ("ET") and the ACH
Operator is open for business on such Business Day. Entries
received after 8:00 p.m. ET will be deemed received the
following Business Day. If the Effective Entry Date falls on a
non -Business Day, final settlement will occur on the next
Business Day. Customer may submit a NACHA-formatted file
up to the time limit in advance of the Effective Entry Date as
the Services permit, or as may otherwise be permitted by Bank
under the terms of this Appendix. Customer will hold Bank
harmless from all charges and liabilities that may be incurred
as a result of the delivery of late Entries.
10.2 If the file of Entries is received other
than in specified NACHA and Bank format, Customer will
be required to provide Bank with a corrected file. If a
corrected file of Entries is received later than 8:00 p.m. ET
on the delivery date with an intended Effective Entry Date
of next -Business Day, Customer will hold Bank harmless
from all charges and liabilities that may be incurred as a
result of the processing of late Entries.
10.3 For purposes of this Appendix, Entries
shall be deemed received by Bank, in the case of electronic
file transmission, when the transmission is completed as set
forth in Bank's Appendix for Data Transmission Services
and/or the Services' Setup Form(s).
10.4 If any of the requirements of this Section
10 (or of Section 23 with respect to Same Day ACH Entries)
are not met, Bank shall use reasonable efforts to transmit
such Entries to the ACH Operator by the next deposit
deadline on which the ACH Operator is open for business.
Any stale dated Effective Entry Date, may result in "Same
Day ACH Entries".
11. On -Us Entries. Except as otherwise provided
herein, in the case of an Entry received for credit or debit to
an account maintained by Bank (an "On -Us Entry"), Bank
will credit or debit the Receiver's account in the amount of
such Entry on the Effective Entry Date, provided the
requirements set forth herein are otherwise met. If those
requirements are not met, by reason of stale or same-day
Effective Entry Dates on such Entries, Bank will credit or
debit the Receiver's account in the amount of such Entry on
the date the Entry was received by Bank, or if the Entry was
received on a non -Business Day, Bank will credit or debit
the Receiver's account in the amount of such Entry on the
next Banking Day following the date the Entry was received
by Bank. Bank will have the right to reject an On -Us Entry
as described in Section 12, Returned or Rejected Entries. In
the case of an On -Us Entry, Bank will have all rights of an
RDFI including, without limitation, the rights set forth in
NACHA Rules.
12. Returned or Rejected Entries.
12.1 In the event any Entry is returned or
rejected by the ACH Operator or any RDFI or Intermediary
Depository Financial Institution, it shall be the responsibility of
Customer to (i) remake and resubmit such Entry, (ii) with
respect to an ACH Debit Entry, enroll in Bank's Auto-
Redeposit service or (iii) otherwise resolve the returned Entry
in accordance with the NACHA Rules.
12.2 Bank shall remake such Entry in any case
where rejection by the ACH Operator was due to mishandling
of such Entry by Bank and sufficient data is available to Bank
to permit it to remake such Entry. In all other instances, Bank's
responsibility will be to receive rejected or returned Entries
from the ACH Operator, perform necessary processing, control
and settlement functions, and to forward such Entries to
Customer. Except for an Entry retransmitted by Customer in
accordance with the requirements of Section 5, Transmittal of
Entries by Customer, or the enrollment m Bank's Auto-
Redeposit service for ACH Debit Entries, Bank shall have no
obligation to retransmit a returned Entry to the ACH Operator
if Bank complied with the terms of this Appendix with respect
to the original Entry.
12.3 Bank may reject any Entry which does not
comply with the requirements of Section 5, Transmittal of
Entries by Customer, or Section 7, Security Procedures. Bank
may also reject any Entry which contains a future Settlement
Date that exceeds the limits set forth within the Services. Bank
may reject an On -Us Entry for any reason for which an Entry
may be returned under the NACHA Rules. Bank may reject
any Entry or file if Customer has failed to comply with its
Settlement Account balance obligations under Section 2,
Customer Obligations, or Customer's Exposure Limit under
Section 3, Risk Exposure Limits. Notices of rejection shall be
effective when given. Bank shall have no liability to 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 provided for
herein. Bank may monitor Customer's rejected or returned
Entries. Bank reserves the right, in its sole and exclusive
discretion, to require Customer to establish a reserve Account
in the event that an excessive number of Customer's debit
Entries are rejected or returned.
12.4 In accordance with NACHA Rules, Bank
may monitor returned Entries, and in its sole discretion, may:
(1) require Customer to lower its return rates, (2) invoke
premium penalty fees for unauthorized or excessive return
rates, and/or (3) invoke termination or suspension of the
Services and/or this Appendix in conjunction with Section 31
of this Appendix.
12.5 In Bank's sole discretion, and upon
Customer request, Bank may enroll eligible customers in the
ACH Auto-Redeposit service for ACH debit origination. The
service automates Customers redeposit of eligible returns due
to insufficient funds (ROI) and uncollected funds (R09), one or
two additional times, within nine (9) calendar days as selected
by Customer at the time of enrollment in the service. Customer
CAP ID 88442 0722
will receive notice of each return attempt and be responsible for
any associated fees. Customer's account will be setoff for the
amount of the returned Debit Entry after the final attempt to
Auto-Redeposit the Entry is determined by Bank to be
unsuccessful.
13. Cancellation or Amendment by Customer.
Customer shall have no right to cancel or amend any Entry
or file after its receipt by Bank. However, if such request
complies with the Security Procedures applicable to the
cancellation of data, Bank shall use reasonable efforts to act
on a request by Customer for cancellation of an Entry prior
to transmitting it to the ACH Operator, or in the case of an
On -Us Entry, prior to crediting or debiting a Receiver's
account, but Bank shall have no liability if such cancellation
is not effected. Customer shall reimburse Bank for any
expenses, losses, or damages Bank may incur in effecting or
attempting to effect the cancellation or amendment of an
Entry.
14. Reversing Entries/Files. If Customer discovers
that any Entry or file Customer has initiated was in error, it
may use the Services to correct the Entry or file by initiating
a reversal or adjustment, or Customer may notify Bank of
such error and Bank will utilize reasonable efforts on behalf
of Customer, consistent with the NACHA Rules, to correct
the Entry or file by initiating a reversal or adjustment of such
Entry or file. In all such cases, it shall be the responsibility
of Customer to notify the affected Receiver that an Entry or
file has been made which is at variance with the
authorization or is otherwise erroneous. Customer
indemnifies Bank against any claim by any Receiver that a
reversing Entry or file requested by Customer is wrongful.
Customer understands and acknowledges that certain RDFIs
may not or cannot comply with such reversal and that, in
such an event, Bank will debit Customer's Settlement
Account in the amount of the provisional credit applied to
the Settlement Account for such Entry or file.
15. Notice of Returned Entries. Bank will use
reasonable efforts to notify Customer by electronic
transmission of the receipt of a returned Entry from the ACH
Operator no later than one (1) Business Day after the
Business Day of such receipt. Except for an Entry re-
transmitted by Customer in accordance with the
requirements of Section 5, Transmittal of Entries by
Customer, or the enrollment in Bank's Auto-Redeposit service
for ACH Debit Entries, Bank shall have no obligation to re-
transmit a returned Entry to the ACH Operator if Bank
complied with the terms of this Appendix with respect to the
original Entry.
16. Notifications of Change. Bank will use
reasonable efforts to notify Customer of each Notification of
Change ("NOC") or Corrected Notification of Change
("Corrected NOC") received by Bank related to Entries
transmitted by Customer within two (2) Business Days after
receipt thereof. Customer shall ensure that changes
requested by the NOC or Corrected NOC are made within
six (6) Business Days of Customer's receipt of the NOC or
Corrected NOC information from Bank or prior to initiating
another Entry to the Receiver's account, whichever is later.
In the event that Customer has not updated the NOC, the
Bank will undertake this convection on the Customer's
behalf, before each subsequent Entry is placed into the
Network, in order to be compliant with the NACHA Rules.
Bank will access a fee for updating the NOC as outlined in
the fee schedule.
17. Pre -Notification and Rejection of Pre -
Notification. Bank recommends that, as permitted by the
NACHA Rules or applicable law, Customer send pre -
notifications at least three (3) Business Days prior to
initiating an authorized Entry to a particular account in a
format and medium approved by the NACHA Rules.
Customer may also initiate a new pre -notification (i) when
any changes are made to an account number, financial
institution, or individual identification number or (ii) as
otherwise stated in the NACHA Rules. Customer understands
and acknowledges that once a pre -notification has been
initiated using the Services, Customer will be restricted from
initiating any Entry to such customer(s) for three (3)
Business Days.
18. Participant Authorization for Entries.
18.1 To the extent required by the NACHA
Rules or applicable law, Customer will obtain all consents
and written authorizations for all Entries in accordance
therewith. Such authorizations and any related disclosures
shall be in a form that complies with (i) all requirements of
the NACHA Rules and (ii) all applicable federal and state
laws and regulations, as the same may be amended from time
to time, including, without limitation, any applicable
requirements of Regulation E, the Federal Electronic Funds
Transfer Act, and sanctions enforced by OFAC. Customer
shall obtain and maintain current information regarding
OFAC enforced sanctions. (This information may be
obtained directly from the OFAC Compliance Hotline at
(800) 540-OFAC or by visiting the OFAC website at
www.ustreas.eov/ofac.) Each Entry will be made according to
such authorization and shall comply with the NACHA Rules.
No Entry will be initiated by Customer after such authorization
has been revoked or the arrangement between Customer and
such Receiver or other party has terminated.
18.2 Customer shall retain all consents and
authorizations for the period required by the NACHA Rules.
Customer will famish to Receiver, or to Bank upon its
request, an original or a copy of an authorization as required
under or for any purpose required by the NACHA Rules. No
investigation or verification procedure undertaken by Bank
shall be deemed to limit or waive Customer's obligations
under this Section.
19. Re-initiation of Entries. Customer may not re-
initiate Entries except as prescribed by the NACHA Rules.
20. Payment by Customer for Entries; Payment
by Bank for Entries.
20.1 Except as may otherwise be agreed by
Bank in its sole and exclusive discretion, Customer shall pay
Bank the amount of each credit Entry transmitted by Bank
pursuant to this Appendix at such time on the date of
CAP ID 88442 0722
transmittal by Bank of such credit Entry as Bank, in its
discretion, may determine.
20.2 Customer shall promptly pay Bank the
amount of each debit Entry returned by an RDFI pursuant to
this Appendix.
20.3 Bank will pay Customer the amount of
each debit Entry transmitted by Bank pursuant to this
Appendix at such time on the Settlement Date with respect
to such debit Entry as Bank, in its discretion, may determine,
and the amount of each On -Us Entry at such time on the
Effective Entry Date as Bank, in its discretion, may
determine.
20.4 Bank will use reasonable efforts to
promptly pay Customer the amount of each credit Entry
returned by an RDFI that was transmitted by Bank pursuant
to this Appendix.
20.5 Customer acknowledges and agrees that
any failure of Customer to make payment to Bank as
described in this Section may constitute an event of default
under any other agreement for credit that Customer or any of
Customer's Affiliates has with Bank or any Affiliate of
Bank. Customer further acknowledges and agrees to execute
and deliver any further documents and instruments as Bank
may require to effectuate the cross -default contemplated
hereby.
21. Third -Party Service Provider; Third -Party
Sender Activities.
21.1 Subject to Bank's prior approval and in
its sole and exclusive discretion, Customer may appoint a
third party to act as Customer's agent to process Entries on
Customer's behalf and for purposes of the services provided
hereunder ("Third -Party Service Provider"), as set forth in
the Services' Setup Form(s). All data received by Bank from
Third -Party Service Provider, including Entries and
instructions (and corrections or adjustments thereto), are
hereby authorized by Customer. All acts and omissions of
Third -Party Service Provider shall be the acts, omissions and
responsibility of Customer and shall be governed by the
provisions of this Appendix. Customer agrees, jointly and
severally with Third -Party 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 reasonable fees and disbursements of counsel
in connection with any investigative, administrative or
judicial proceedings, whether or not Bank shall be
designated a party thereto) which may be incurred by Bank
relating to or arising out of the acts or omissions of Third -
Party Service Provider on behalf of Customer. Customer and
Third -Party Service Provider shall execute any such other
agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or continuation by
Third -Party Service Provider of any services on Customer's
behalf, including without limitation Bank's Third -Party
Service Provider Agreement, as the same may be modified
by Bank from time to time. Notice of any termination of
Third -Party Service Provider's authority to transmit data and
instructions to Bank on Customer's behalf shall be given to
Bank in writing. The effective date of such termination shall
be ten (10) Business Days after Bank receives written notice
of such termination. Customer agrees that Bank retains the
right to reject any Third -Party Service Provider and any
Entries initiated by Customer's Third -Party Service Provider
in its sole discretion.
21.2 Customer may not use the services
provided hereunder to process Entries on behalf of
Customer's clients (defied as a "Third -Party Sender" under
the NACHA Rules), except where Customer has formally
requested to engage in such activity in advance and where
Bank has provided its prior approval, which Bank may grant
or withhold in its sole and exclusive discretion. In the event
Bank approves of such use, Customer shall execute such
other agreement(s) or documents as deemed necessary or
appropriate by Bank prior to the initiation or continuation by
Customer of any ACH services in the capacity of a Third -
Party Sender. Customer agrees that Bank retains the right to
reject any request by Customer to engage in Third -Party
Sender activities as well as any Entries initiated by Customer
in such capacity, in Bank's sole discretion.
22. Customer Representations and Agreements;
Indemnity. In addition to Customer representations,
agreements and warranties otherwise described in this
Appendix, Customer further represents and warrants to Bank
and agrees, with respect to each and every Entry transmitted
by Customer or any Third -Party Service Provider on
Customer's behalf, that:
(i) Each person shown as the Receiver of an
Entry received by Bank from Customer has authorized the
initiation of such Entry and the crediting or debiting of its
account in the amount and on the Effective Entry Date
shown on such Entry;
(ii) Such authorization is operative at the
time of transmittal or crediting or debiting by Bank as
provided herein;
(iii) Entries transmitted to Bank by
Customer are limited as set forth in Sections 3 and 5;
(iv) Customer shall perform its obligations
under this Appendix in accordance with the laws of the
United States and all other applicable laws, regulations and
orders, including, but not limited to, the transaction
screening and sanctions laws, regulations and orders
administered by OFAC; laws, regulations and orders
administered by FinCEN; and any state laws, regulations or
orders applicable to the providers of ACH payment services;
(v) Customer shall be bound by and comply
with the provisions of the NACHA Rules (among other
provisions of the NACHA Rules) that make payments of an
Entry by the RDFI to the Receiver provisional until receipt
by the RDFI of final settlement for such Entry;
(vi) Customer specifically acknowledges
that it has received notice of the rule regarding provisional
payment and of the fact that, if such settlement is not
received, the RDFI shall be entitled to a refund from the
Receiver of the amount of the Entry;
CAP /D 88442 0722
(vii) with respect to each International ACH
Transaction ("IAT") that Customer may be permitted by
Bank to initiate, Customer shall (a) classify and format
payments transmitted to or received from a financial agency
outside the U.S. as an IAT in accordance with the NACHA
Rules, (b) provide data necessary to accompany the
transaction in compliance with the Bank Secrecy Act's
"Travel Rule," (c) screen the IAT prior to transmitting any
file(s) of Entries to the Bank in accordance with the
requirements of OFAC and comply with OFAC sanctions,
and (d) otherwise comply with and be subject to all other
requirements of U.S. law, the NACHA Rules, OFAC and
FinCEN, as well as the Foreign Country Rules;
(viii) with respect to each Internet-
initiated/mobile ("WEB") (as defined under the NACHA
Rules) ACH Entry that Customer may be permitted by Bank
to initiate, (a) Customer employs (1) commercially
reasonable detection systems to minimize risk of fraud
related to Internet -initiated payments, (2) commercially
reasonable procedures to verify validity of routing numbers,
(3) commercially reasonable methods of authentication to
verify the identity of the Receiver, and (4) a commercially
reasonable level of encryption technology, and (b) where
required by the NACHA Rules and/or Bank, Customer
conducts annual audits as to its security practices and
procedures that include, at a minimum, verification of
adequate levels of (1) physical security to protect against
theft, tampering, or damage, (2) personnel and access
controls to protect against unauthorized access and use and
(3) network security to ensure secure capture, storage, and
distribution, and will provide proof of such audits to Bank
upon request;
(ix) with respect to each Telephone -Initiated
("TEL") Entry that Customer may be permitted by Bank to
initiate, Customer has (a) employed commercially
reasonable procedures to verify the identity of the Receiver,
and (b) utilized commercially reasonable procedures to
verify that routing numbers are valid;
(x) with respect to each Accounts
Receivable ("ARC") Entry that Customer may be permitted
by Bank to initiate, (a) the amount of the Entry, the routing
number, the account number and the check serial number are
in accordance with the source document, (b) Customer will
retain a reproducible, legible image, microfilm or copy of the
front of the Receiver's source document for each ARC Entry
for two (2) years from the Settlement Date of the ARC Entry,
(c) Customer has employed commercially reasonable
procedures to securely store (1) all source documents until
destruction and (2) all banking information relating to ARC
Entries, (d) Customer has established reasonable procedures
under which the Receiver may notify Customer that receipt
of Receiver's checks does not constitute authorization for
ARC Entries to the Receiver's account and that Customer
will allow the Receiver to opt -out of check conversion
activity, and (e) the source document to which each ARC
Entry relates may not be presented or returned such that any
person will be required to make payment based on the source
document unless the ARC Entry is returned;
(xi) with respect to each Back Office
Conversion ("BOC") Entry that Customer may be permitted
by Bank to initiate, (a) Customer has employed
commercially reasonable procedures to verify the identity of
the Receiver, (b) Customer has established and maintains a
working telephone number for Receiver inquiries regarding
the transaction that is answered during normal business
hours and that such number is displayed on the notice
required by the NACHA Rules for BOC Entries, (c) the
amount of the Entry, the routing number, the account
number and the check serial number are in accordance with
the source document, (d) Customer will retain a
reproducible, legible image, microfilm or copy of the front
of the Receiver's source document for each BOC Entry for
two (2) years from the Settlement Date of the BOC Entry,
(e) Customer has employed commercially reasonable
procedures to securely store (1) all source documents until
destruction and (2) all banking information relating to BOC
Entries, and (f) the source document to which each BOC
Entry relates will not be presented or returned such that any
person will be required to make payment based on the source
document unless the BOC Entry is returned;
(xii) with respect to each Point -of -Purchase
("POP") Entry that Customer may be permitted by Bank to
initiate, the source document provided to Customer for use
in obtaining the Receiver's routing number, account number,
and check serial number for the initiation of the POP Entry
(a) is returned voided to the Receiver after use by Customer
and (b) has not been provided to the Receiver for use in any
prior POP Entry; and
(xiii) with respect to each Returned Check
("RCK') Entry that Customer may be permitted by Bank to
initiate, (a) all signatures on the item are authentic and
authorized, (b) the item has not been altered, (c) the item is
not subject to a defense or claim, (d) the Entry accurately
reflects the item, (e) the item will not be presented unless the
related Entry has been returned by the RDFI, (f) the
information encoded after issue in magnetic ink on the item
is correct, and (g) any restrictive endorsement placed on the
item is void or ineffective.
Customer shall indemnify and hold Bank harmless from any
loss, liability or expense (including reasonable attorneys'
fees and costs) resulting from or arising out of any breach of
the foregoing warranties, representations or agreements.
Customer shall also indemnify and hold Bank harmless from
any claim of any person that Bank is responsible for any acts
or omissions of Customer regarding any Entry received from
Customer, or those of any other person related thereto,
including, without limitation, any Federal Reserve Bank, ACH
Operator or transmission or communications facility, any
Receiver or RDFI.
23. Same Day ACH ("SDA"). Customer may be
permitted, in Bank's sole and exclusive discretion, to initiate
SDA Entries. In the event Bank approves Customer's
initiation of SDA Entries, either on a one time or other
periodic basis, Customer agrees as follows:
23.1 Customer shall be solely responsible for
transmitting its SDA Entries with the appropriate intended
CAP /D 88442 0722
Effective Entry Date to qualify as an SDA Entry under the
NACHA Rules.
23.2 Customer shall only initiate individual
Entries that comply with the transaction limit per SDA
Entry, as provided in the NACHA Rules
23.3 Customer will not initiate an SDA Entry
as an IAT, as IATs are not eligible for same-day processing
under the NACHA Rules.
23.4 Customer will transmit its SDA Entries
to Bank in accordance with Bank's SDA Entry processing
deadlines, as established by Bank from time to time and
disclosed to Customer.
23.5 Customer acknowledges and agrees that
if Customer sends an Entry with a stale or invalid Effective
Entry Date, such Entry may be deemed and processed by
Bank as an SDA Entry if transmitted in accordance with
Bank's SDA Entry processing deadlines.
23.6 Customer acknowledges and agrees that
if any of the requirements of this Section 23 are not met,
including without limitation a failure by Customer to meet
Bank's or the ACH Operator's deadline for SDA, Bank shall
use reasonable efforts to transmit such Entries to the ACH
Operator by the next available processing deadline on which
the ACH Operator is open for business.
23.7 Customer further acknowledges that
Bank will not consider the content of the Company
Descriptive Date indicator when determining Customer's
intent for processing and settlement of SDA Entries.
23.8 Customer will not initiate SDA Entries
that are otherwise ineligible for SDA Entry processing and
settlement in accordance with the NACHA Rules.
23.9 Customer otherwise agrees to and will
comply with all other requirements under the NACHA Rules
and by Bank with respect to SDA Entries, including as the
same may be amended from time to time.
23.10 Customer will indemnify and hold Bank
harmless from any SDA Entry processing and settlement that
is performed by Bank as described herein and in accordance
with the NACHA Rules, notwithstanding Customer's intent.
23.11 Customer will indemnify and hold Bank
harmless from any intended SDA Entry not meeting the
ACH Operator deadline due to Customer delays, or due to
Bank processing delays that are beyond Bank's reasonable
control.
24. Inconsistency of Name and Account Number.
Customer acknowledges and agrees that if an Entry
describes a Receiver inconsistently by name and account
number, then (i) payment of such Entry transmitted to an
RDFI may be made by the RDFI (or by Bank for an On -Us
Entry) on the basis of the account number, even if it
identifies a person different from the named Receiver and
(ii) Customer's obligation to pay the amount of Entry to
Bank is not excused in such circumstances. Similarly, if an
Entry describes an RDFI inconsistently by name and routing
number, payment of such Entry may be made based on the
routing number, and Customer shall be liable to pay that
Entry.
25. Banks Unable to Accept ACH Transactions. If
Customer submits an Entry to Bank relating to an RDFI
which is not a participant in the ACH, then (i) Bank may
reject such Entry and use reasonable efforts to notify
Customer of such rejection or (ii) if Bank does not reject
such Entry, upon receiving a return transaction related to the
Entry from the ACH Operator, Bank may offset the
Settlement Account and notify Customer of such
transaction.
26. Notices, Instructions, Etc.
26.1 Except as otherwise expressly provided
herein, Bank shall not be required to act upon any notice or
instruction received from Customer or any other person, or
to provide any notice or advice to Customer or any other
person with respect to any matter.
26.2 Bank shall be entitled to rely on any
written notice or other written communication believed by it
in good faith to be genuine and to have been provided in
accordance with the provisions of the parties' Cash
Management Master Agreement.
27. Data Retention. Customer shall retain data on
file adequate to permit remaking of Entries for five (5)
Business Days following the date of their transmittal by
Bank as provided herein and shall provide such data to Bank
upon request. Without limiting the generality of the
foregoing provision, Customer specifically agrees to be
bound by and comply with all applicable provisions of the
NACHA Rules regarding the retention of documents or any
record, including, without limitation, Customer's
responsibilities to retain all items, source documents and
records of authorization, in accordance with the NACHA
Rules.
28. Data Breaches.
28.1 Customer agrees that it will adopt and
implement commercially reasonable policies, procedures
and systems to provide security as to the information being
transmitted and to receive, store, transmit and destroy data
or information in a secure manner to prevent loss, theft, or
unauthorized access to data or information ("Data
Breaches"), including but not limited to, Consumer -Level
ACH Data.
28.2 Customer agrees that it will promptly
investigate any suspected Data Breaches and monitor its
systems regularly for unauthorized intrusions.
28.3 Customer will provide timely and
accurate notification to Bank by calling 1-866-475-7262
with regard to any Data Breaches when known or reasonably
suspected by Customer, including but not limited to, Data
Breaches to Consumer -Level ACH Data, and will take all
CAP ID 88442 0722
reasonable measures, including, without limitation, retaining
computer forensic experts, to determine the scope of any
data or transactions affected by any Data Breaches,
providing all such determinations to Bank.
29. Audit. Bank has the right to periodically audit
Customer's compliance with the NACHA Rules, U.S. law
and Bank policies, including, but not limited to, this
Appendix.
30. Records. All electronic or other files, Entries,
Security Procedures and related records used by Bank for
transactions contemplated by this Appendix shall be and
remain Bank's property. Bank may, in its sole discretion,
make available such information upon Customer's request.
Any expenses incurred by Bank in making such information
available to Customer shall be paid by Customer.
31. Termination. The parties may terminate this
Appendix in accordance with the terns and conditions of the
parties' Cash Management Master Agreement. In addition,
if Customer breaches the NACHA Rules or causes Bank to
breach the NACHA Rules, this Appendix may be terminated
or suspended by Bank upon ten (10) Business Days' notice,
or such shorter period as may be provided in the parties'
Cash Management Master Agreement. Any termination of
this Appendix shall not affect any of Bank's rights and
Customer's obligations with respect to Entries initiated by
Customer prior to termination, the payment obligations of
Customer with respect to services performed by Bank prior
to termination, or any other obligations or provisions that by
the nature of their terms survive termination of this
Appendix, including without limitation Sections 2, 5, 10, 12,
13, 14, 18, 20, 21, 22, 27, 32, 33 and 34.
32. Cooperation in Loss Recovery Efforts. In the
event of any damages for which Customer or Bank may be
liable to the other or to a third party relative to the Services,
both parties shall undertake reasonable efforts to cooperate
with the other, as permitted by applicable law, in performing
loss recovery efforts and in connection with any actions that
Customer or Bank may be obligated to defend or elects to
pursue against a third party.
33. Governing Law. In addition to the terms and
conditions of the parties' Cash Management Master
Agreement, the parties agree that if any payment order
governed by this Appendix is part of a funds transfer subject
to the federal Electronic Funds Transfer Act, then all actions
and disputes as between Customer, or any Third -Party
Service Provider acting on Customer's behalf, and Bank
shall be governed by Article 4-A of the Uniform
Commercial Code, as varied by this Appendix.
34. 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 described herein 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 Master Agreement is terminated.
CAP ID 88442 0722
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 Appendix, 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 Appendix, 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 Appendix, 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. Description of the Services.
1.1 The Services described in this Appendix
provide Customer with the capability to transfer funds from
specific Account(s) with Bank to other accounts (the
"Recipient Accounts)") as directed via the Bank Internet
System. The Recipient Account(s) may be Customer
accounts or third -party accounts, and may be with Bank or
with domestic or foreign third -party financial institutions.
Customer may use the Services to initiate one-time wire
transfers, or to create templates for wire transfers made on a
repetitive basis which involve the same Customer Account
and Recipient Account ("Repetitive Transfer(s)"). All wire
transfers must be initiated by an Authorized Representative
of Customer.
1.2 Prior to Customer's use of the Services,
Customer must first agree to and transmit all instructions in
accordance with all of the terms, conditions and security
procedures associated with the Bank Internet System, as
further set forth in the Cash Management Master Agreement,
including the Bank Internet System Appendix.
2. Execution of Wire Transfers.
2.1 By submitting a wire transfer, Customer
authorizes Bank to withdraw the amount of any requested
wire transfer which Customer may authorize and instruct via
the Bank Internet System, plus any applicable fees and
charges, which may be withdrawn from Customer's
designated Account or from the wire transfer amount.
Subject to the terms of this Appendix, Bank will accept and
execute a wire transfer received from Customer that has been
authenticated by Bank and that is in conformity with the
Security Procedure (as further described below), cut-off
times and other requirements as described in this Appendix
and associated Bank Setup Form(s) and other
documentation.
2.2 All wire transfers to accounts at other
depository institutions are transmitted using the Fedwire
funds transfer system owned and operated by the Federal
Reserve Bank, or a similar wire transfer system used
primarily for funds transfers between financial institutions.
Notwithstanding the foregoing or anything to the contrary in
this Appendix, Bank may use any means of transmission,
HC# 4811-7511-8896 v.l 31 of J4
funds transfer system, clearing house, intermediary or
correspondent bank that Bank reasonably selects to transfer
funds from time to time.
2.3 Each wire transfer must include the
following information in addition to any information which
Bank may require for proper identification and security
purposes: (i) Account number from which the funds are to
be withdrawn, (ii) amount to be transferred, (iii) currency
type, (iv) Customer's address, (v) name and ABA routing
number or SWIFT BIC of the payee's (i.e., beneficiary's)
bank, and (vi) name, address and account number of the
payee (i.e., beneficiary). In the event a wire transfer
describes an account number for the payee that is in a name
other than the designated payee, Bank may execute the wire
transfer to the account number so designated
notwithstanding such inconsistency.
2.4 Templates created by Customer for
Repetitive Transfers are the sole and exclusive responsibility
of Customer. Except as otherwise expressly prohibited or
limited by law, Customer agrees to release and hold Bank
harmless from any loss or liability which Customer may
incur after Bank has executed a Repetitive Transfer,
including without limitation, any loss due to Customer error
in creating the Repetitive Transfer template.
3. Time of Execution.
3.1 Bank will execute each authenticated
wire transfer that is in conformity with all security
procedures, cut-off times and other requirements set forth
herein. Bank may require additional authentication of any
wire transfer request. Bank reserves the right to reject a wire
transfer request that cannot be properly authenticated. Cut-
off times may be established and changed by Bank from time
to time. Instructions for wire transfers received after such
cut-off times may be treated by Bank for all purposes as
having been received on the following Business Day.
3.2 Except for future -dated wire transfers,
domestic wire transfers (U.S.-based receivers) initiated and
approved by Bank's cut-off time on a Business Day will be
processed that same day if that day is also a Business Day
for Bank's correspondent facility and the recipient bank;
wire transfers initiated and approved after Bank's cut-off
time for domestic wire transfers will be processed the next
Business Day if that day is also a Business Day for Bank's
correspondent facility and the recipient bank. Future -dated
0621
domestic wire transfers will be initiated on the effective date
requested by Customer, not on the date Customer entered the
transaction using the Services.
3.3 Bank may handle wire transfers
received from Customer in any order convenient to Bank,
regardless of the order in which they are received.
4. International Wires.
4.1 International wire transfers (non -U.S.
receivers) of foreign currency initiated and approved by
Bank's cut-off time for international wire transfers of foreign
currency on a Business Day, and an international wire
transfer of U.S. currency initiated and approved by Bank's
cut-off time for international wire transfers of U.S. currency
on a Business Day, will be processed within the industry
standard delivery time (in most, but not all cases, two (2)
Business Days). Foreign wire transfers may be subject to
delays based on time -zone issues; the remote location of the
recipient bank; cultural differences with respect to holidays
and times of observation, etc.; and incorrect or incomplete
information supplied by Customer.
4.2 Bank shall send Customer's authorized
and authenticated wire transfers to foreign banks through
any bank which is a member of Bank's correspondent
network. Neither Bank nor any of Bank's correspondents
shall be liable for any errors, delays or defaults in the transfer
of any messages in connection with such a foreign wire
transfer by any means of transmission. Customer
acknowledges that foreign currency wire transfers must be
based on a currency that Bank trades and that all rates of
exchange will be the rate in effect at the time of execution of
the wire transfer order, or at any other rate as may be agreed
to by the parties. If the financial institution designated to
receive the funds does not pay the payee (beneficiary)
specified in a wire transfer order that is payable in foreign
currency and the funds are returned to Bank, Bank will not
be liable for a sum in excess of the value of the funds after
they have been converted from foreign currency to U.S.
dollars at Bank's buy rate for exchange at the time the
cancellation of the wire transfer order is confirmed by Bank,
less any charges and expenses incurred by Bank. If Customer
elects to initiate an international wire transfer in U.S.
currency, Customer acknowledges that the receiving bank
may elect to pay the payee (beneficiary) in foreign currency
at an exchange rate determined by the receiving bank.
Customer agrees to bear all risk of loss due to fluctuation in
exchange rates, and Customer shall pay Bank any costs and
expenses of foreign currency conversion at Bank's then -
prevailing rates, terms and conditions. Customer is advised
that Bank's prevailing exchange rates may be less favorable
to Customer than market exchange rates.
4.3 Bank makes no guarantee or
representation as to the availability of funds at the foreign
destination. Bank makes no express or implied warranty as
to the time or date the wire transfer will arrive at the
receiving bank, the amount of any fees to be charged by the
receiving bank, or the time or date the payee (beneficiary)
will receive credit for funds.
4.4 Customer understands and
acknowledges that if the named payee (beneficiary) does not
match the account at the receiving bank, there is a risk the
payee may not receive the wired funds. If the transfer is not
received or credited in a timely manner, Bank will follow
normal and customary procedures to complete the wire
transfer, determine the location of the wired funds and/or
return the funds to Customer. If Bank is unable to determine
that the funds have been credited to the payee's account or
have the funds returned, Customer assumes all financial
liability or risk of loss for the amount of the wire transfer.
4.5 International wire transfers are subject
to any and all applicable regulations and restrictions of U.S.
and foreign governments relating to foreign exchange
transactions. Bank has no obligation to accept any
international wire transfer(s) directed to or through persons,
entities or countries restricted by government regulation or
prior Bank experience with particular countries. To the
extent not otherwise prohibited by law, in connection with
any international wire transfer(s) involving a transfer to or
from any country outside of the U.S., and except as
otherwise expressly prohibited or limited by law, Customer
agrees to release and hold Bank harmless from any loss or
liability which Customer may incur after Bank has executed
the international wire transfer(s), including without
limitation, any loss due to failure of a foreign bank or
intermediary to deliver the funds to a payee (beneficiary).
5. Cancellation and Amendment of a Wire.
5.1 An Authorized Representative may
request that Bank attempt to cancel or amend a wire transfer
previously received from Customer. If a cancellation or
amendment request is received by Bank before the wire
transfer is executed and with sufficient time to afford Bank
an opportunity to act upon Customer's request, Bank may,
on its own initiative but without obligation, make a good
faith effort to act upon such request. In the event Customer's
cancellation or amendment request is received after
execution of Customer's wire transfer request, Bank will
attempt to have the wire transfer returned. Notwithstanding
the foregoing, Bank shall have no liability for the failure to
effect a cancellation or amendment, and Bank makes no
representation or warranty regarding Bank's ability to
amend or cancel a wire transfer. Except as otherwise
expressly prohibited or limited by law, Customer agrees to
indemnify Bank against any loss, liability or expense which
Bank incurs as a result of the request to cancel or amend a
wire transfer and the actions Bank takes pursuant to such
request. Without limiting the foregoing, Customer agrees to
be responsible for any losses arising from currency
conversions effected by Bank pursuant to any foreign
currency wire transfer order previously received from
Customer that Customer subsequently requests be cancelled
or amended.
5.2 Customer acknowledges and agrees that
after a wire transfer order has been accepted by the payee's
(beneficiary's) financial institution, return of such funds must be
authorized by the beneficiary, and Bank has no responsibility to
procure the return of such fiords. If Customer asks Bank to
recover fiords which Bank has already transferred, Bank shall be
under no obligation to do so. If Customer deposits with Bank an
amount reasonably determined in good faith by Bank to
approximate the costs and expenses (including attorney's fees)
which Bank may incur in attempting to recover the funds
HC'#4811-7512-8896 v.1 33 of 54 0621
transferred, Bank may, in its sole discretion make an attempt to
recover the funds. In lieu of such a deposit, Bank may request
Customer to provide a bond or other assurance of payment
reasonably satisfactory to Bank Upon such deposit, or the
supplying of such other assurance, Bank may take such action as
it deems reasonable under the circumstances, including, for
example, sending a request to reverse the transfer to any financial
institution that received such funds. In no event, however, shall
Bank be deemed to have guaranteed or otherwise assured the
recovery of any portion of the amount transfened, nor to have
accepted responsibility for any amount transferred.
6. Notice of Rejection or Return. Bank shall have
no liability for wire transfers sent by Bank as directed by
Customer which cannot be completed or which are returned
due to incorrect information furnished by Customer.
Customer is required to fully complete payee (beneficiary)
name, and address, as the payee (beneficiary) bank may elect
to return an otherwise valid wire transfer for incomplete
payee (beneficiary) information. Bank may reject or impose
conditions that must be satisfied before it will accept
Customer's instructions for any wire transfer, in its sole
discretion, including without limitation Customer's
violation of this Appendix, Customer's failure to maintain a
sufficient Account balance, or Bank's belief that the wire
transfer may not have in fact been authorized. A wire
transfer may also be rejected by an intermediary or payee
(beneficiary) bank other than Bank, or by operation of law.
If a wire transfer is rejected by Bank, Bank will notify
Customer by telephone, by electronic means, by facsimile or
by mail, depending on the method of origination. Upon
rejection or return, Bank shall have no further obligation to
act upon a wire transfer, nor shall Bank have any liability to
Customer due to rejection by another person in the wire
transfer process, or the fact that notice was not given or was
not given at an earlier time, or within any specified time of
receipt, acceptance, execution or payment of any wire
transfer.
7. Security Procedure.
7.1 Customer agrees that the security
procedures used by Customer and set forth or incorporated by
reference in this Appendix and/or associated documents,
including but not limited to the Bank Internet System
Appendix, are a commercially reasonable method of providing
security against unauthorized wire transfers and for all other
instructions from Customer to Bank (hereinafter the "Security
Procedure"). Any wire transfer by Customer shall bind
Customer, whether or not authorized, if transmitted in
Customer's name and accepted by Bank in compliance with the
Security Procedure. Customer also agrees that any election
Customer may make to change or refuse the Security
Procedure is at Customer's risk and that any loss resulting in
whole or in part from such change or refusal will be
Customer's responsibility.
7.2 Bank may, from time to time, modify the
Security Procedure. Except as expressly provided otherwise
in this Appendix or in the parties' Cash Management Master
Agreement, any such changes generally will be effective
immediately upon notice to Customer as described in the
parties' Cash Management Master Agreement. Customer
will be deemed to accept any such changes if Customer
accesses or uses any of the Services after the date on which
the change becomes effective.
7.3 Bank may, from time to time, propose
additional or enhanced security procedures to Customer.
Customer understands and agrees that if it declines to use any
such additional or enhanced procedures, it will be liable for any
losses that would have been prevented by such procedures.
Notwithstanding anything else contained in this Appendix, if
Bank believes immediate action is required for security of
Bank or Customer funds, Bank may initiate additional security
procedures immediately and provide prompt subsequent notice
thereof to Customer.
7.4 Customer hereby acknowledges that the
Security Procedure is neither designed nor intended to detect
errors in the content or verify the contents of a wire transfer by
Customer. Accordingly, any errors contained in wire transfers
from Customer shall be Customer's responsibility, and
Customer shall be obligated to pay or repay (as the case may
be) the amount of any such wire transfer. No security
procedure for the detection of any such Customer error has
been agreed upon between Bank and Customer.
7.5 Customer is strictly responsible for
establishing and maintaining its own procedures to
safeguard against unauthorized wire transfers. Customer
covenants that no employee or other individual will be
allowed to initiate wire transfers in the absence of proper
authority, supervision and safeguards, and agrees to take
reasonable steps to maintain the confidentiality of the
Security Procedure and any Access Devices and related
instructions provided by Bank in connection with any
Security Procedure utilized by Bank and/or Customer. If
Customer believes or suspects that any such Access Devices,
Security Procedure, information or instructions have been
disclosed to or accessed by unauthorized persons, Customer
agrees to notify Bank immediately by calling 1-866-475-
7262, followed by written confirmation to TD Bank, N.A.,
Attn: Treasury Management Services Support, 6000 Atrium
Way, Mt. Laurel, New Jersey, 08054. The occurrence of
unauthorized access will not affect any transfers made in
good faith by Bank prior to receipt of such notification and
within a reasonable time period thereafter.
8. Accuracy; Inconsistency of Receiving
Beneficiary Name and Account Number. In submitting
any order or related instructions, Customer shall be
responsible for providing all necessary information required
by Bank in conjunction with the Services. The Services are
only designed to respond to information provided by
Customer. Accordingly, any inaccuracy in any information
provided by Customer may result in an unintended transfer
of funds. Bank bears no responsibility and shall not be liable
to Customer for any information provided by Customer in an
order or related instructions that are inaccurate, incomplete
or otherwise incorrect._When placing an international wire
transfer order, Customer may be responsible for entering
certain information provided to Customer by Bank, which
may include, but is not limited to, the applicable exchange
rate and/or a contract number. Customer acknowledges and
agrees that Bank will not be liable for any loss, liability or
expense incurred as a result of a Customer error related to
entry of such required information. Customer acknowledges
and agrees that, in accordance with Article 4A of the
HC# 4811-7512.8896 v.1 34 of 54 0621
Uniform Commercial Code, Bank shall be entitled to rely
upon the numbers supplied by Customer to identify banks,
payees (beneficiaries) and other parties to the wire transfer,
even if those numbers disagree or are inconsistent with the
names of those parties as provided by Customer. Bank and
any other receiving financial institution shall have no
obligation to determine whether a name and number identify
the same person or institution. Customer acknowledges that
payment of an order or related instructions may be made by
the payee's (beneficiary's) bank on the basis of an
identifying or bank account number even if it identifies a
person different from the named payee (beneficiary).
9. Payment; Authorization to Charge Account.
Customer agrees to pay Bank the amount of each wire
transfer received from Customer on the Business Day Bank
executes said wire transfer or at such other time as Bank may
determine. Bank will validate that sufficient funds are
available in Customer's Account prior to a wire transfer
being executed. Generally, if sufficient funds are not
available in Customer's Account, the wire transfer will not
be executed by Bank. Bank may, without prior notice or
demand, obtain payment of the amount of each wire transfer
by debiting the Account designated. In the event there are
not sufficient funds available in the Account, Bank also
reserves the right to debit any other Account that Customer
maintains with Bank.
10. Wire Confirmation; Account Reconciliation.
Customer may confirm the execution of a wire transfer via
the Bank Internet System. Completed wire transfers will also
be reflected in Customer's periodic Account statement.
Customer acknowledges and agrees that Bank is not
obligated to provide Customer with a separate advice or
notice for each completed wire transfer. If Customer
requests that Bank provide a special notice and Bank agrees
to do so, Bank reserves the right to impose a Service Fee for
such notice in accordance with the Cash Management
Master Agreement.
11. Service Providers. Bank may use a service
provider to perform, as Bank's agent, all or any portion of
Bank's obligations under this Appendix. Customer may be
required to direct wire transfers and other requests to said
provider.
12. Bank Reliance; Authentication.
12.1 Bank shall be entitled to rely in good
faith on communications it receives as being given or sent
by an Authorized Representative and as being genuine and
correct. Bank shall not be liable to Customer for the
consequences of such reliance.
12.2 BANK MAY TAKE SUCH
ADDITIONAL STEPS AND IMPLEMENT SUCH
PROCEDURES AS IT MAY DEEM APPROPRIATE
TO VERIFY THE AUTHENTICITY OF ANY WIRE
TRANSFER BANK MAY DELAY THE EXECUTION
OF ANY WERE TRANSFER PENDING
COMPLETION OF A CALL-BACK, OR RECEIPT OF
ANOTHER FORM OF VERIFICATION WHICH IS
SATISFACTORY TO BANK. IF BANK IS UNABLE
TO OBTAIN SATISFACTORY VERIFICATION,
BANK, IN ITS SOLE DISCRETION, MAY REFUSE
TO EXECUTE ANY WIRE TRANSFER. In no event
shall Bank be liable for any delay in executing a wire transfer
or for failure to execute a wire transfer due to the absence of
satisfactory verification.
12.3 Bank may electronically record any
telephone conversations between Bank personnel and
Customer with respect to the Services, in accordance with
applicable law.
12.4 Wire transfer transactions are subject to
all the foregoing and all regulations governing electronic
transactions, including but not limited to Article 4A of the
Uniform Commercial Code.
13. 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
Master Agreement is terminated.
HC# 4811-7511-8896 v.1 35 of 54 0621
1:FT"11
APPENDIX VII
TD LOCKBOX SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Lockbox
Retail and TD Lockbox Wholesale 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. Services. The Services described in this
Appendix provide Customer with a remittance or payment
processing arrangement that offers an efficient method for
the collection and processing of certain payment items
payable to Customer, and the accompanying documents or
information associated with such payment items. Through
the Services, Bank receives, opens and processes checks and
credit card payment authorizations (if authorized) for
Customer, and the accompanying documents for such
payments, that are addressed to Customer and delivered to
U.S. Post Office Boxes or locations designated by Bank.
1.1 Retail Lockbox. The Services
consolidate and expedite the automated processing of high
volume, low dollar remittance payments received by
Customer, as applicable, from its retail clients.
1.2 Wholesale Lockbox. The Services also
consolidate and expedite the automated processing of low
volume, large dollar remittance payments received by
Customer, as applicable, from its vendors or other third
parties.
2. Customer Obligations & Authorizations.
2.1 Customer will maintain an Account at
Bank as the designated depository Account for the Services
("Designated Account"). Customer will maintain balances in
the Designated Account or other Customer Account(s)
sufficient to offset any returns for payments that cannot be
deposited.
2.2 Customer authorizes Bank to establish
United States Postal Service ("USPS") Caller Boxes (as such
terms are defined by the USPS) (collectively, the "PO
Box(es)" or "Lockbox(es)") at pre -determined postal
facilities, or to utilize existing Customer -established PO
Boxes, to collect payments and accompanying documents
remitted for the benefit of Customer. If a Customer -
established PO Box will be used for purposes of the
Services, Customer is solely responsible for any and all
charges related to the rental and use of the PO Box.
2.3 Customer agrees to provide Bank with
unrestricted and exclusive access to Customer -established
Lockbox location(s) and contents, and Bank has the sole
right to process remittance materials contained therein.
2.4 Prior to deposit into the Designated
Account, the Lockbox contents will not be available to
Customer, except upon request to Bank, and only with
Bank's consent.
2.5 Customer is responsible for instructing
all of its clients about the requirements of the Services as
they relate and apply to payments and accompanying
documents remitted by those clients for the benefit of
Customer.
2.6 Customer authorizes Bank to endorse all
payments received by Bank with a standard lockbox
endorsement used by Bank and without the signature of
payee, date or payor name, and to deposit payments,
including those with restrictive legends and endorsements,
into Customer's Designated Account.
2.7 Bank may delegate all or a portion of its
duties or rights regarding the Services and as set forth in this
Appendix to Bank Third Parties (as defined in the Cash
Management Master Agreement). Bank may change the
Bank Third Parties to which it delegates these
responsibilities in its sole and exclusive discretion.
3. Mail Collection and Processing.
3.1 Mail Collection and Pre -Processing.
Bank shall collect the mail from Lockboxes in accordance
with Bank's schedule, as such schedule may change from
time to time. Bank will transport mail by courier to its
processing location(s), open the mail containing checks,
share drafts, money orders, credit card payment information
(if authorized), invoices or other contents (hereinafter
referred to collectively as "Lockbox Item(s)"). Bank will
also accept overnight delivery packages as part of the
Services, when the same are properly addressed to and
receipt properly confirmed by Services' personnel at Bank's
processing location(s), and will process the same in
accordance with this Appendix. For each Lockbox Item
HC# 4853-3056-9524 v.I Page 36 of 54
0716
received, using ordinary care, Bank will date stamp, inspect
and process the Lockbox Item as specified in the Services'
Setup Form(s).
3.2 Item Processing. Lockbox Items will
be processed according to the Account Agreement, except as
modified by this Appendix.
3.2.1 Domestic Checks. Bank may
accept for deposit to Customer's Account all items made
payable to or endorsed by Customer as an individual payee
or joint payee, regardless of whether those items bear
Customer's endorsement, subject to Bank's verification and
final inspection. Customer may also provide a list of
acceptable payee(s) (an "Acceptable Payee") on the
Services' Setup Form(s).
3.2.2 Foreign Checks. Foreign
check deposits are processed in accordance with the
Services' Setup Form(s). Checks drawn on U.S. banks in
U.S. dollars will be deposited. Checks drawn in foreign
currency (including Canadian checks in CAD) will be
processed according to the Services' Setup Form(s).
3.2.3 Cash. Cash deposits are not
accepted for processing under the Services. Customer shall
advise its clients not to send currency or coin to the Lockbox.
Bank is not responsible for cash intentionally sent to the
Lockbox, but never processed. Notwithstanding the
foregoing, in the event cash is received in the Lockbox, Bank
will make a good faith effort to deposit cash into Customer's
Designated Account and provide a control report regarding
these items to Customer.
3.2.4 Credit Cards.
(a) Credit
card payments may only be
processed through the Lockboxes
upon approval by Bank and
execution by Customer of all
required agreements and related
documentation, including without
limitation a merchant credit card
processing services agreement
("Card Processing Agreement")
and associated merchant account
with Bank and/or another financial
institution. Customer is responsible
for complying with the terms of
Customer's Card Processing
Agreement, and with all applicable
card network rules with respect to
credit card payments.
(b) In order
to be eligible for processing by
Bank, written authorizations to
charge payments due Customer to
the payors' credit cards ("Charge
Authorizations") must be received
through the Lockboxes. A Charge
Authorization received in the
Lockbox must contain the name of
the account debtor, the account
debtor's credit card number,
expiration date, the three digit
security code, and the amount of
the payment authorized, all of
which must be written or imprinted
on the authorization form in a
reasonably legible manner. If any
one of these items of information is
missing from a Charge
Authorization, or is, in the sole
judgement of Bank or its service
provider, not sufficiently legible
for processing purposes, the
Charge Authorization will not be
processed, and will be forwarded to
Customer as set forth below.
(c) Bank will proceed to process
for approval each Charge Authorization received in the
Lockbox which contains the information required above and
is otherwise eligible for processing. Bank will seek approval
from the issuer of the applicable credit card for the payment
transaction set forth on the Charge Authorization. Bank will
submit for settlement each Charge Authorization approved
in this manner.
(d) Credit card payments will be
batched independently from regular payment items in the
Lockbox. Following processing of Charge Authorizations
for approval, Bank will segregate those Charge
Authorizations which are approved from those Charge
Authorizations which are declined. Reports will be sent to
Customer regarding these deposits based on the Services'
Setup Form(s).
3.2.5 Other Items. Items received
from the Lockbox other than Lockbox Items or cash will be
forwarded to Customer as unprocessed items. Except for its
gross negligence or willful misconduct, Bank shall not be
responsible for any claimed loss or disappearance of cash or
other payments in bearer form.
3.2.6 Additional Terms.
(a) Customer guarantees to Bank
the payment of all deposited items identified in this Section
3.2. Bank will return to Customer any payments that cannot
be deposited. Lockbox Items with apparent alterations will
not be deposited. Under no circumstances shall Bank be
responsible or liable for identifying or failing to identify
stale -dated and post-dated checks or checks specifying
"payment in fall" (or similar statements) in Customer's
Lockbox Items, or for processing such items. Customer
acknowledges that if checks specifying "payment in full"
(or similar statements) are negotiated, that could adversely
affect Customer's ability to collect any balance owed on the
related liability. Customer understands and agrees that
Bank makes no representation or warranty that it will apply
an endorsement intended to preserve Customer's rights to
collect the full amount owed or that any endorsement that
applies to a Lockbox Item will in fact preserve Customer's
HC 4814-6754-1549 Page 37 oj54 0420
right to collect the full amount owed. Customer assumes all
risks of negotiation of such items.
(b) Bank's receipt of Customer's
mail hereunder shall not make Bank a bailee of the
Lockbox Items. With respect to the Lockbox Items that are
deposited and become part of the balance in Customer's
Designated Account, Bank and Customer will have a
debtor -creditor relationship as normally exists between a
depository bank and its depositors. If Customer is a
governmental entity, Customer agrees that, in performing
the Services, Bank is not acting as an agent for the
collection of taxes.
3.3 Remittance Transaction Processing.
3.3.1 Transactions processed as
part of the Services are comprised of two separate
documents: the remittance coupon, stub or invoice
(hereinafter "Coupon(s)") and the drawer's payment. High-
speed image -enabled devices capture Customer's retail
remittance documents, including checks and Coupons.
Transactions are captured using image -enabled capture
devices that collect both financial and non-financial
information. The actual document capture requirements are
set forth in the Services' Setup Form(s).
3.3.2 Bank will process
transactions with (i) one payment and one Coupon, (ii)
multiple payments and/or multiple Coupons, and (iii) one or
more payments and no Coupon, as specified in the Services'
Setup Form(s). Bank will process remittance transactions as
set forth in the Services' Setup Form(s).
3.3.3 To accomplish high-speed
automated processing, Bank does not examine checks
(including, without limitation, any inspection for missing
signatures, dates, payees, or endorsements) except as the
parties may otherwise be described in the Services' Setup
Form(s). Customer agrees that Bank does not assume any
responsibility or liability for its failure to discover and
forward to Customer items bearing restrictive legends or
endorsements (e.g., "paid in full," "final payment" or words
of similar meaning). Bank will use a standard endorsement
that will be considered Customer's payee endorsement.
3.3.4 Transaction totals are
captured and balanced against individual check totals
generated and with the Coupon (if applicable) supplied by
Customer's client. Full check MICR line capture is
supported during the capture process. Once balanced,
transactions are released for deposit processing.
3.3.5 As part of the Services,
wholesale payments will be imaged, and such payments may
be re -associated with the Coupon (if enclosed), to the extent
set forth in the Services' Setup Form(s).
4. Deposit Processing.
4.1 Bank prepares items for deposit into
Customer's Designated Account. These deposited items are
memo posted throughout the Business Day and reflect the
amount of items processed. The credit and collection of
these items are subject to the terms and conditions of the
Account Agreement.
4.2 Bank reserves the right to not process
any item received for deposit if Bank decides not to handle
that item. If Bank makes this decision, Bank will forward
the item to Customer for further handling.
4.3 Transactions processed after Bank's
cut-off time or during a non -Business Day will be credited
on the next Business Day, as set forth in the Services' Setup
Form(s).
5. Insufficient Funds and Returned Items.
5.1 Bank may deduct the amount of an item
deposited to the Designated Account or other Account if
Bank receives notice that the item has not been paid and has
been returned. Returned items are processed in accordance
with the Services' Setup Form(s). Returned items that are
not re -deposited, or that have been returned a second time,
will be debited from the Designated Account or another
Account at Bank, as set forth in the Services' Setup Form(s),
even if Bank could have made a claim for reimbursement on
the item from the bank on which the item was drawn or from
another bank. Bank may charge an item against the
Designated Account or other Account even if the charge
results in an overdraft.
5.2 Bank may incur losses or expenses due
to a delay in returning an unpaid item if the item's
endorsement is obscured by other material on the back of the
item. If an item is issued with material on the back (for
example, a carbon band), Customer agrees to indemnify
Bank against any related losses and expenses, including any
finance charges, legal fees and court costs incurred in Bank's
attempt to receive payment on the item.
6. Remittance Reporting.
6.1 Remittance Package. At the end of
each Business Day on which Customer has Lockbox
activity, Bank may send a remittance package with contents
as selected in the Services' Setup Form(s).
6.2 CD-ROM. Bank may create a CD-
ROM of images of processed checks and remittance detail,
at Customer's request, on a daily, weekly, or monthly basis.
If the documents are unable to be imaged, Bank reserves the
right to forego scanning and forward the original documents
to Customer. Bank has no liability for illegible images
created from a damaged or illegible original document, and
such original document will be forwarded to Customer, if
requested, assuming that such original has not yet been
destroyed.
6.3 Electronic Transmission.
6.3.1 Subject to the terms and
conditions of and in accordance with Bank's Appendix for
Data Transmission Services, remittance data will be
HC 4814-6754-1549 Page 38 oj54 0420
transmitted to Customer electronically at such time(s) as
selected in the Services' Setup Form(s).
6.3.2 Retail Lockbox. As
applicable, the optical character recognition ("OCR") scan
line is captured from a retail remittance Coupon with check
digit validation (when supplied on the Coupon), as outlined
in the Services' Setup Form(s). Bank will provide scan line
requirements for this purpose. Bank may accommodate
additional fields by mutual agreement and designation in the
Services' Setup Form(s). Bank may provide a daily file of
retail payments formatted to interface with Customer's
accounts payable system.
6.3.3 Wholesale Lockbox. As
applicable, information is taken from the wholesale
remittance Coupon together with payment information, as
outlined in the Services' Setup Form(s), to create a data
transmission of receivables information.
6.3.4 Reporting fields will be
determined based on Customer's capture specifications and
available fields or information on the Coupon, as set forth in
the Setup Form(s). All Customer requests for re-
transmission of a failed transmission should occur within
one (1) Business Day of the originally scheduled
transmission.
6.4 Web Access.
6.4.1 As may be made available by
Bank from time to time, Customer may use a Web -based
service to access a variety of reporting options for the
Services ("Web Access"), including reporting of deposits,
images of Lockbox Items, and online review of deposit
details subject to pre -established data entry fields.
Information is available for review by Customer as the
Lockbox Items are processed.
6.4.2 A user guide and procedures
shall be provided to Customer as well as hardware
requirements. Customer agrees not to use Web Access in
connection with any activity other than those permitted by
this Appendix, unless Bank provides prior written approval.
Customer shall use Web Access solely for the purposes
described in this Appendix. When Bank uses Web Access,
Customer accepts the Terms of Use for Web Access, as
posted on Web Access pages from time to time, and all
selected features and functions of the modules on Web
Access.
6.4.3 Bank shall use commercially
reasonable efforts to notify Customer promptly of any
system interruption, and notify Customer in advance of any
update releases or other permitted changes that may
reasonably be expected to affect Customer. Bank may make
available to Customer new service releases and
enhancements from time to time.
6.4.4 Bank offers its general
security system capabilities to protect the integrity of the
account transaction and remittance information. If a
password, PIN, or other security device or identifier is used
in connection with Web Access, Customer is responsible for
the safekeeping of that device or identifier. Customer shall
not disclose the security device or identifier to any
unauthorized individual. Bank will establish for Customer a
log -on ID ("user ID"). Customer will establish a unique
password. Bank recommends that Customer change its
password periodically. Customer agrees to notify Bank
immediately if Customer becomes aware of. (i) any loss or
theft of Customer's user ID and/or password; or (ii) any
unauthorized use of Customer's user ID and/or password.
Within established security procedures, Bank will be
responsible for: (i) restricting Web Access to valid user
IDs/passwords, (ii) restricting access to customer
information only to valid user IDs/passwords assigned to
such user, and (iii) properly acting upon instructions and
communications associated with a valid user ID/password
assigned to a specific user. Bank may provide optional
security features to include such features as passwords that
expire at pre -established time periods or restrict log -on user
ID to certain times in the day. Bank may cancel any user
ID/password if Bank has reason to suspect improper use.
Prior to cancellation, Bank shall confer with Customer,
unless in Bank's reasonable opinion it would be
impracticable or imprudent to do so.
7. Retail Lockbox Remittance Document Testing.
Customer and Bank understand and agree that the Services
are dependent on the successful testing and pre -approval by
Bank of Customer's remittance documents. Customer
agrees that it will not change, in any respect, any remittance
document or its contents without thirty (30) days' minimum
prior written notification to Bank, and subsequent
acceptance, testing, and approval by Bank. Bank reserves
the right to test Customer's remittance documents from time
to time to assess poor quality Coupons that may require
manual processing by Bank. All custom, non-standard
assessment, testing and review, and any required custom
handling, may be subject to additional Bank fees.
8. Liability. Remittance processing is a highly
automated service, and Bank uses commercially reasonable
efforts to process items. The liability of Bank under this
Appendix shall in all cases be subject to the provisions of the
Cash Management Master Agreement and the Account
Agreement.
9. Termination of this Appendix. In the event that
Customer terminates the Services, Bank may forward mail
from a closed Lockbox to the address designated by
Customer, in writing, for a period of ninety (90) calendar
days. Bank charges apply and are payable in advance of
Bank providing such forwarding service. If Customer does
not select forwarding service, mail will be returned to
sender. Customer understands that PO Box numbers may
not be transferable, as the PO Box may be issued within
Bank's unique zip code, and, therefore, must be retired.
10. 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
HC 4814-6754-1549 Page 39 of 54 0420
available from Bank. This Appendix replaces and supersedes time as a different or amended Appendix is accepted in
all prior agreements on file with respect to the Services and writing by Bank or the Cash Management Master Agreement
shall remain in full force and effect until termination or such is terminated.
HC 4814-6754-1549 Page 40 oj54 0420
11'_J_L_I_7
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
1. Services. The Services provide Customer with an
Intemet-based system designed to expedite check depositing
services by enabling Customer to use check conversion
technology to submit to Bank, for deposit to Customer's
Account(s), electronic check images and associated
information ("Check Images") in lieu of the original checks
from which such Check Images were obtained. These
Services are provided in accordance with the Check Clearing
for the 21' Century Act ("Check 21 ").
2. Hardware Requirements.
2.1 In order to use the Services, Customer
must utilize certain Bank -approved image/scanner hardware
(the "Hardware"). Customer must either (a) have or obtain
the Hardware, as approved by Bank ("Customer
Hardware"), or (b) utilize Hardware provided by Bank
("Bank Hardware"). Customer must also have a Computer
as outlined in the Cash Management Master Agreement, as
Bank may specify and approve from time to time.
2.2 If Customer elects option (a), Customer
Hardware, Customer is solely responsible for the purchase,
maintenance, performance and adequacy of Customer
Hardware. Bank makes no representations or warranties
concerning, and has no responsibility or liability for,
Customer Hardware or its use with the Services. Bank shall
have no liability or responsibility whatsoever for errors,
including but not limited to processing or transmission
errors, resulting from any Check Images transmitted by
Customer using Customer Hardware.
2.3 If Customer elects option (b), Bank
Hardware, Customer agrees as follows:
(i) Bank will retain ownership of
Bank Hardware provided by Bank for use with the Services.
(ii) Customer will not use Bank
Hardware in connection with any remote check deposit
service offered by any other financial institution other than
Bank.
(iii) Customer acknowledges that
Bank did not manufacture Bank Hardware and has provided
the same to Customer on an "AS IS" basis, and wan -ants only
that, upon delivery, Bank Hardware will conform to Bank's
then current applicable standards for use of the Services.
Bank Hardware is provided to Customer with a standard
manufacturer's warranty. Customer shall thereafter be
responsible for purchasing any and all additional
manufacturer warranty period(s) beyond the standard
warranty, as may be made available by the manufacturer, for
complying with all manufacturer recommendations for
preventive maintenance, or for repairing or replacing Bank
Hardware.
(iv) Customer shall bear the entire
risk of loss, theft, damage or destruction of Bank Hardware
from the date of receipt until return shipment to a Bank
branch or shipped postage -paid to Bank. Such loss, damage
or destruction of Bank Hardware shall not relieve Customer
of the obligation to make payments or to comply with any
other obligation under this Appendix.
(v) Upon termination of this
Appendix by either party for any reason, Customer shall
return Bank Hardware in the same condition as when
originally provided to Customer, except for ordinary wear
and tear resulting from proper use. Bank Hardware shall be
packed for proper return shipment to such place as Bank
shall specify. In the event Bank Hardware has not been
returned within fifteen (15) Business Days of termination of
this Appendix, Customer shall make payment to Bank in an
amount equivalent to the depreciated value for Bank
Hardware. Where agreed to by Bank in its sole discretion,
Customer may purchase Bank Hardware from Bank, subject
to the terms and conditions of Bank's bill of sale or similar
agreement.
3. Check Images; Image Replacement
Documents.
3.1 Customer may use the Services to
deposit original paper checks using the Hardware to scan,
capture and submit Check Images to Bank through the
Services' Internet site ("Services Site"). Eligible items for
deposit include original checks that Customer has received
for payment or deposit, and obligations of financial
institutions (travelers' checks, cashier checks, official
checks, and money orders).
3.1.1 The following check types are not eligible for use
with and may not be processed using the Services:
(i) Checks drawn on banking institutions outside the
U.S. or in currencies other than U.S. Dollars;
(ii) Irregular checks (e.g., where the numerical and
written amounts are different);
HC#4813-6071-1503 v.1 41 oj54 0520
(iii) Previously -returned checks;
(iv) Checks payable to or in cash;
(v) Checks exceeding any Customer transaction or
file limits as Bank may establish from time to time; and
(vi) Checks that are postdated or more than six (6)
months old.
3.1.2 The following check types are
restricted for use with and may only be processed using the
Services with prior approval by Bank (as further described
below):
(i) Checks payable to a third party (rather than to
Customer) (hereinafter "Third Party Checks"); and
(ii) Remotely -created checks (or remotely created
payment orders deposited into or cleared through the check
clearing system) (hereinafter, collectively referred to simply
as `remotely -created checks" unless otherwise expressly
specified).
Notwithstanding the foregoing, under no circumstances may
Customer use the Services to deposit any check types that
Customer is banned or prohibited from using or accepting
under applicable law, including, by way of example only, the
use or acceptance by sellers and telemarketers of remotely
created payment orders (which include remotely -created
checks) as defined and described in the Federal Trade
Commission's Telemarketing Sales Rule.
3.2 Third Party Checks. Customer shall
request approval from Bank prior to any use of the Services
to process Third Party Checks, which permission Bank may
grant or refuse in its sole and exclusive discretion. Such use
of the Services and the scope of permitted Third Party
Checks may be limited or restricted by Bank in its sole and
exclusive discretion, including without limitation to those
Third Party Checks that have been properly endorsed over to
Customer as further described below.
3.2.1 If approved to use the Services to process Third
Party Checks, Customer shall make the following additional
representations and warranties upon each delivery to Bank
of an Electronic File (as defined below) containing Third
Party Checks:
(i) All endorsement(s) on the original Third Party
Checks are legible, genuine and accurate;
Customer has instituted procedures to ensure that each
original Third Party Check was authorized by the drawer in
the amount stated on the original Third Party Check and to
the payee(s) stated on the original Third Party Check;
Each Third Party Check contains all endorsements applied
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;
Customer is authorized to enforce each Third Party Check
that is transmitted to Bank using the Services, and Customer
is authorized to obtain payment of and each Third Party
Check is properly payable to and enforceable by Customer;
Consistent with the terms of this Appendix as well as the
Account Agreement, if a Third Party Check is returned,
Customer owes Bank the amount of the Third Party Check,
regardless of when the Third Party Check is returned. Bank
may withdraw funds from Customer's Account to pay the
amount owed to Bank, and if there are insufficient funds in
Customer's Account, Customer will owe the remaining
balance; and
Except where otherwise provided, all other provisions of this
Appendix shall apply to Third Party Checks and to
Customer's use of the Services in conjunction with Third
Party Checks.
3.3 Remotely -Created Checks. A remotely -created
check, unlike a typical check or draft, is not created by the
paying or drawer bank and does not contain the signature of
the account -holder (or a signature purporting to be the
signature of the account -holder). In place of a signature, the
check generally has a statement that the account -holder
authorized the check or has the account -holder's name typed
or printed on the signature line. Customer shall request
approval from Bank prior to any use of the Services to
process remotely -created checks, which permission Bank
may grant or refuse in its sole and exclusive discretion. Such
use of the Services and the scope of permitted remotely -
created checks may be limited or restricted by Bank in its
sole and exclusive discretion, and/or by applicable law.
3.3.1 If approved to use the
Services to process remotely -created checks, Customer shall
be deemed to make the following additional representations
and warranties upon each delivery to Bank of an Electronic
File containing remotely -created checks:
(i) Customer has received
express and verifiable authorization to create the check in the
amount and to the payee that appears on the check;
(ii) Customer will maintain proof
of the authorization for at least two (2) years from the date
of the authorization, and supply Bank with such proof, if
Bank requests it, within five (5) Business Days of the
request; and
(iii) Consistent with the terms of
this Appendix as well as the Account Agreement, if a
remotely -created check is returned, Customer owes Bank the
amount of the check, regardless of when the check is
returned. Bank may withdraw funds from Customer's
Account to pay the amount owed to Bank, and if there are
insufficient funds in Customer's Account, Customer will
owe the remaining balance.
(iv) All other provisions of this Appendix shall apply
to remotely -created checks and to Customer's use of the
Services in conjunction with remotely -created checks.
3.3.2 Customer agrees to operate in
accordance with applicable laws and regulations regarding
remotely -created checks, including but not limited to,
Regulation CC and applicable warranties, the Uniform
Commercial Code and applicable warranties, the Bank
HC# 4813-607/-1503 v.1 42 oj54 0520
Secrecy Act, USA Patriot Act, and the Federal Trade
Commission Telemarketing Sales Rule, as the same may be
amended from time to time. Without limiting the foregoing,
Customer represents, warrants and covenants that it will not
use the Services to deposit any check types that Customer is
banned or prohibited from using or accepting under
applicable law.
3.4 If at any time Bank believes that
Customer's use of the Services to deposit Third Party
Checks and/or remotely -created checks may create a risk of
financial loss or otherwise result in unacceptable exposure
to Bank, including but not limited to unacceptable rates of
returned items, or may be subject to or otherwise involve
irregular, unauthorized, fraudulent or illegal activity, Bank
may, at its sole discretion, immediately and without prior
notice to Customer, suspend or terminate Customer's use of
the Services, and/or Customer's use in conjunction with
Third Party Checks and/or remotely -created checks, in
addition to but not in lieu of all other rights and remedies
available to Bank under this Appendix and the Agreement.
3.5 Customer shall enter check information into the
Services Site, imaging the front and the back of each paper
check and capturing the information contained in the MICR
line of the paper check. Customer shall review each Check
Image for clarity to ensure that the item is legible and can be
reproduced as an Image Replacement Document ("IRD(s)"
or "Substitute Check(s)'). Using the Services, an electronic
file will be created ("Electronic File") that contains
electronic information relating to and converted from the
paper checks that have otherwise been truncated or removed
from the forward collection and payment process (each an
"Electronic Item"). To ensure accuracy, Customer shall
balance the dollar total of each deposit to the sum of the
Electronic Items prior to transmitting the Electronic File to
Bank.
3.6 Customer authorizes and agrees that Bank may, in
conjunction with and via the Services, add the image of an
endorsement, an electronic endorsement or a "virtual
endorsement" for Customer to the Check Image of any check
or item deposited under the terms of this Appendix, and that
such endorsement shall be legally enforceable against
Customer even though the endorsement did not appear and
was not placed on the original paper check or item. In the
event Bank does supply a virtual or similar endorsement,
Bank may instruct Customer not to otherwise endorse the
check or item so as to minimize any conflict with the
legibility of the virtual endorsement.
3.7 Customer shall determine that the Electronic File
has been received based on the confirmation page of the
Services Site. Bank will indicate acceptance of the
transactions and any transactions rejected by the Services on
the Services Site. Customer shall process any rejected
transactions as paper checks through the normal paper check
deposit process.
3.8 Customer shall enter the dollar amount
of a paper check(s), along with any other optional
information that Customer would like retained by the
Services Site. The Services Site provides for reports and
exporting of the information that has been entered.
3.9 Bank shall electronically deliver to
Customer, through the Services Site, a confirmation of
receipt for each deposit submitted, and the deposit shall be
considered received by Bank when such confirmation is
delivered to Customer. Deposits received via the Service by
9:00 p.m. Eastern Time on any Business Day or at any time
on any Calendar Day that is not a Business Day will be
posted to Customer's Account on the same Business Day,
with next Business Day availability of deposits based on
Bank's Account Agreement. Bank reserves the right to
reject any single Check Image or group of Check Images for
any reason, before or after delivery of confirmation of
receipt.
3.10 Customer acknowledges and agrees that
in the event any deposited item converted to a Check Image
is returned for any reason (for example, non -sufficient
funds), Bank may return the item to Customer by delivery of
either a Substitute Check or the Check Image, including all
return information. Return items will be handled in the same
manner as check deposits in accordance with the Account
Agreement.
4. Customer Responsibilities and Obligations.
4.1 Customer represents, warrants and
covenants that after truncation of an original check,
Customer shall safeguard the Electronic Items and original
checks identified in any Electronic File previously sent to
Bank in order to ensure that such original checks and
Electronic Items: (i) shall not be submitted for deposit with
Bank or any other financial institution, except in accordance
with the terms and conditions of this Appendix related to un-
processable Electronic Items and (ii) shall not be transferred
for value to any other person or other entity. As an additional
security control, Customer shall ensure that the front of each
original check is properly marked with wording or other
marking in order to reflect that the deposit has been sent for
processing.
4.2 Upon receipt of any transmitted
Electronic File, Bank shall be the lawful owner of such
Electronic File and each Electronic Item with respect to
original checks imaged in that Electronic File. Customer
shall retain all original checks truncated pursuant to this
Appendix for a period of thirty (30) Calendar Days in a
manner that is mutually agreed upon between the parties
hereto. However, for accounting, auditing and other legal
purposes, Customer may keep electronic records regarding
its receipt and deposit of such checks, provided such internal
electronic records cannot be used to generate duplicate
Electronic Files for purposes of depositing and presenting
such checks for payment.
4.3 Customer shall deliver promptly to
Bank, upon its request, the original check if a request is made
within the retention period provided above, or Substitute
Check or Sufficient Copy thereof, for each Electronic Item
created by Customer. The term "Sufficient Copy" means a
copy of an original check that accurately represents all of the
information on the front and back of the original check as of
HC# 4823-6071-2503 v.1 43 of 54 0520
the time the original check was truncated or is otherwise
sufficient to determine whether or not a claim is valid.
4.4 Customer shall not create at any time an
Electronic File under this Appendix or otherwise use the
Services to capture or maintain tax identification numbers or
non-public personal information of any third -party from
whom Customer has received an original check for payment
or deposit or which Customer has selected for truncation.
4.5 Customer agrees to abide by all federal
and state laws, and rules and regulations applicable to
banking transactions.
4.6 If Bank receives a returned item for a
check deposited by Customer after Customer has terminated
this Appendix, then Customer agrees that Bank may debit
Customer's Account, or if such Account has been closed by
Customer, Bank will send a request for payment to
Customer, and Customer agrees to pay Bank within a
commercially reasonable period of time.
4.7 Customer agrees to have controls in
place to ensure that the Services, including the Hardware and
checks processed through the Hardware, are properly
safeguarded and stored in accordance with the timeframe set
forth in Section 4.2 above and in a secure location, under
effective control, in order to safeguard against unauthorized
access and use. Customer shall ensure that all such checks
are thereafter destroyed by a cross -shredder, and/or pulped
or otherwise destroyed in such a manner that does not permit
recovery, reconstruction or future use of the checks.
Customer agrees that it will not simply throw out such paper
checks with other classes of records or with miscellaneous
trash. Customer agrees to be responsible for all damages
resulting from lack of proper controls over processed checks.
4.8 Customer shall notify Bank of any
interruptions in, delay or unavailability of, or errors caused
by the Services immediately upon discovery thereof.
Notwithstanding the foregoing, in the case of any error
caused by the Services and subject to Section 11 of the
parties' Cash Management Master Agreement, Customer
shall provide such notice within thirty (30) Calendar Days of
the date of the earliest notice to Customer which reflects the
error. Failure of Customer to provide such notice to Bank
shall relieve Bank of any liability or responsibility for such
error, omission or discrepancy.
5. Customer Warranties, Covenants. Customer
makes the following representations, warranties and
covenants as of the effective date of this Appendix and upon
each delivery of an Electronic File to Bank:
5.1 An Electronic File may include an
electronic representation of a Substitute Check. Customer
shall redeposit a returned original check or a returned
Electronic Item by delivering the same to any Bank branch
location. A returned original check or returned Electronic
Item may not be re -submitted by Customer using the
Services. Customer may only use the Services to re -submit
an IRD or Substitute Check that has been returned to
Customer for non -sufficient fimds.
5.2 With respect to each Electronic Item in
any Electronic File delivered to Bank, the Electronic Item
accurately represents all of the information on the front and
back of the original check as of the time that the original
check was created by the payor; contains all required and
valid endorsements; replicates the MICR line of the original
check; and meets all FRB standards of and technical
requirements for sending Electronic Items to any as set forth
in the applicable FRB operating circular, or as established by
the American National Standards Institute ("ANSI") or any
other regulatory agency, clearing house or association.
Specifically, each Electronic Item of each original check
shall be of such quality that the following information can
clearly be read and understood by sight review of such
Electronic Item:
(i) the amount of the check;
(ii) the payee of the check;
(iii) the signature of the payor of the check;
(iv) the date of the check;
(v) the check number;
(vi) the information identifying
the payor and the paying bank that is preprinted on the check,
including the MICR line; and
(vii) all other information placed
on the original check prior to the time an image of the
original check is captured, such as any required
identification written on the front of the check and any
endorsements applied to the back of the check.
5.3 Customer shall also ensure that the
following information is captured from the MICR line of
each original check:
(i) the American Bankers
Association routing transit number ("RTN");
(ii) the number of the account on
which the check is drawn;
(iii) when encoded, the amount of
the check; and
(iv) when encoded, the auxiliary
on -us field (serial number) and the process control field of
the check.
5.4 The Electronic Item bears all
endorsements, if any, applied by previous parties that
handled the check in any form (including the original check,
as Substitute Check, or another paper or electronic
representation of such original check or Substitute Check)
for transfer, forward collection or return.
5.5 Customer is entitled to enforce the
original check, or Customer is authorized to obtain payment
of the original check on behalf of a person who is either
entitled to enforce the original check or is authorized to
obtain payment on behalf of a person entitled to enforce the
original check.
5.6 Customer will submit financial and/or
other additional information to Bank upon request in order
for Bank to establish or amend Customer's deposit and file
limits as further described in Section 6 and as established by
HC# 4823-6071-2503 v.1 44 oj54 0520
Bank and communicated to Customer, or to otherwise
monitor or audit Customer's use of the Services and
compliance with this Appendix. Customer will also notify
Bank of any change in transaction volumes or financial
condition that may have an effect on this Appendix or
Customer's use of the Services.
5.7 Customer shall also request permission from Bank
in advance of any change in locations at which the Services
are used or change in the physical location or address of any
Hardware from its original Bank -approved location or
address, which permission Bank may grant or refuse in its
sole and exclusive discretion. In addition to but not in lieu
of the foregoing, Customer shall request advance permission
from Bank prior to using the Services and/or any Hardware
outside the continental United States and/or outside of those
states (including the District of Columbia) in which Bank
operates from time to time. Bank may grant or decline such
request in its sole and exclusive discretion and in
consideration of applicable law.
5.8 Both Customer and the clients with
whom it does business are reputable and are not using Bank
as a conduit for money laundering or other illicit purposes.
5.9 None of Customer's transactions to be
processed by Bank are prohibited by any applicable law,
regulation, order, rule or judgment.
5.10 Customer Electronic Files will not
contain viruses that originate from Customer's Computer, in
accordance with the requirements of Section 7 of the Cash
Management Master Agreement.
5.11 None of Customer's employees are a
national of a designated blocked country or "Specially
Designated National", "Blocked Entity", "Specially
Designated Terrorist", "Specially Designated Narcotics
Trafficker", or "Foreign Terrorist Organizations" as defined
by the United States Office of Foreign Assets Control.
5.12 Customer is responsible for
implementing operational controls and risk -monitoring
processes, as well as conducting periodic self -assessments of
the security of the Services and its processes and practices
with regard to use of the Services.
6. Deposit and File Limits. Customer's use of the
Services is limited as more particularly described in the
Services' Setup Form(s), and as the parties may otherwise
agree from time to time. Such limits may include but are not
limited to, e.g., maximum total daily dollar amounts;
maximum per item dollar amounts; maximum percentage of
monthly transactions returned; and maximum number of
items to be deposited per day.
Administrator(s) and Authorized Users.
7.1 Customer may designate
Administrator(s) relative to the Services, as set forth in the
Services' Setup Form(s). Customer is solely responsible for
designating its Administrator(s). Customer agrees to
provide Bank, upon Bank's request, with any certificate or
documentation that is acceptable to Bank specifying the
name of the person who is authorized to be designated as
Administrator(s) from time to time.
7.2 The Administrator(s) may designate
other Administrators and/or Authorized Users. Customer
accepts as its sole responsibility an Administrator's
designation of other Administrators and Authorized Users.
Customer understands that the Administrator(s) will control,
and Customer authorizes the Administrator(s) to control,
access by other Administrator(s) and Authorized Users of
the Services through the issuance of passwords. The
Administrator(s) may add, change or terminate Customer's
Authorized Users from time to time and in his/her sole
discretion. Bank does not control access by any of
Customer's Authorized Users to any of the Services.
7.3 Customer will require each
Administrator and each Authorized User to comply with all
provisions of this Appendix and all other applicable
agreements. Customer acknowledges and agrees that it is
fully responsible for the failure of any Administrator or any
Authorized User to so comply.
7.4 Whenever any Authorized User leaves
Customer's employ or Customer otherwise revokes the
authority of any Authorized User to access or use the
Services, Customer must notify the Administrator
immediately, and the Administrator is solely responsible for
de -activating such Authorized User's password. Whenever
an Administrator leaves Customer's employ or Customer
otherwise revoke an Administrator's authority to access or
use the Services, Customer remains fully responsible for all
use of the passwords and the Services.
8. Security Procedures.
8.1 Upon successful enrollment, Customer
can access the Services via the Services Site, or any website
that Bank may designate from time to time, using the
security procedures as described from time to time. Bank
will provide Customer with an organizational or User ID that
is the electronic identification, in letters and numerals,
assigned to Customer by Bank that will be used for log -in by
Customer's Administrator(s) and Authorized User(s). Bank
will also provide the Administrator(s) initially designated by
Customer with an initial individual password to gain access
to the Services. The Administrator(s) and Authorized
User(s) must change his or her individual password from
time to time for security purposes, as prompted by the
Services Site, or more frequently.
8.2 Customer acknowledges that
Administrator(s) will, and Customer authorizes
Administrator(s) to, select other Administrators and
Authorized Users by issuing to any person an individual
password. Customer further acknowledges that
Administrator(s) may, and Customer authorizes
Administrator(s) to, change or de -activate the individual
password and/or any individual password from time to time
and in his or her sole discretion.
8.3 Customer acknowledges that, in
addition to the above individual passwords, access to the
Services includes, as part of the Access Devices, a multi-
factor authentication security procedure at log -in for
Customer, including Administrator(s) and Authorized Users.
HC# 4813-6071-1503 v.1 45 of 54 0520
This additional security procedure involves an additional
access code and Computer registration that is in addition to
User ID and individual password security (hereinafter
"Enhanced Log -in Security").
8.4 Bank does recommend as a
commercially reasonable security procedure that Customer
implement dual control of the Services, whereby one
Authorized User creates, edits, cancels, deletes and restores
an Electronic File, and a second different Authorized User
reviews the Electronic File prior to it being released.
8.5 Customer accepts as its sole
responsibility the selection, use, protection and maintenance
of confidentiality of, and access to, the Access Devices.
Customer agrees to take reasonable precautions to safeguard
the Access Devices and keep them confidential. Customer
agrees not to reveal the Access Devices to any unauthorized
person. Customer further agrees to notify Bank immediately
if Customer believes that the confidentiality of the Access
Devices has been compromised in any manner.
8.6 The Access Devices identify and
authenticate Customer (including Administrator(s) and
Authorized Users) to Bank when Customer accesses or uses
the Services. Customer authorizes Bank to rely on the
Access Devices to identify Customer when Customer
accesses or uses any of the Services, and as signature
authorization for any transaction, transfer or other use of the
Services. Customer acknowledges and agrees that Bank is
authorized to act on any and all communications or
instructions received using the Access Devices, regardless of
whether the communications or instructions are authorized.
Bank owns the Access Devices, and Customer may not
transfer them to any other person or entity. If this Appendix
is terminated, Customer's access to the Services will be
immediately terminated.
8.7 Customer acknowledges and agrees that
the Access Devices and other security procedures applicable
to Customer's use of the Services are a commercially
reasonable method for the purpose of verifying whether any
transaction, transfer or other use of the Services was initiated
by Customer. Customer agrees to be responsible for any
transmission Bank receives through the Services that is
processed by Bank in accordance with the security
procedures, even if such transmission is not authorized by
Customer, including any fraudulent transmission by
Customer's employees or agents. Customer agrees that any
election Customer may make to change or waive any
optional security procedures recommended by Bank is at
Customer's risk and that any loss resulting in whole or in
part from such change or waiver will be Customer's
responsibility. Customer further acknowledges and agrees
that the Access Devices are not intended, and that it is
commercially reasonable that the Access Devices are not
intended, to detect any errors relating to or arising out of a
transaction, transfer or any other use of the Services.
8.8 If Customer has reason to believe that
any Access Devices have been lost, stolen or used (or may
be used) or that a transaction, transfer or other use of the
Services has been or may be made with any Access Devices
without Customer's permission, Customer must contact its
Administrator. Customer also agrees to provide Bank with
immediate notice of any actual or suspected breach in the
security of or other unauthorized access to the Services
through use of Customer's Computer. Such notice shall
include a description of the incident in general terms; a
description of the type of information or data related thereto
that was the subject of unauthorized access or use; a
description of what Customer has done to protect the
information or data from further unauthorized access; and a
telephone number or other contact information so that Bank
can call for further information or inquiry. In no event will
Bank be liable for any unauthorized transaction(s) that
occurs with any Access Devices.
9. Limitation of Liability. In addition to but not in
lieu of the limitations of liability and related provisions
contained in the parties' Cash Management Master
Agreement, Bank shall have no liability for any error or
delay in performing the Services and shall have no liability
for not affecting a Check Image, if:
(i) Bank receives actual notice or has
reason to believe that Customer has filed or commenced a
petition or proceeding for relief under any bankruptcy or
similar law;
(ii) The ownership of funds involving a
Check Image or Customer's authorized representative's
authority to transmit a Check Image is in question;
(iii) Bank suspects a breach of the security
procedures;
(iv) Bank suspects that Customer's Account
has been used for illegal or fraudulent purposes; or
(v) Bank reasonably believes that a Check
Image is prohibited by federal law or regulation, or
otherwise so provided in the Appendix.
Further, Bank will not be liable to Customer for any
unauthorized actions or fraud initiated or caused by
Customer or its employees or agents. Bank will also be
excused from failing to transmit or delay in transmitting a
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
HC# 4823-6071-2503 v.1 46 oj54 0520
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 Master Agreement
is terminated.
HC# 4823-607/-2503 v. 1 47 oj54 0520
APPENDIX X
TD ACCOUNT RECONCILEMENT SERVICES - PARTIAL
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Account
Reconcilement Services — Partial (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. Services. The Services described in this
Appendix will assist Customer in reconciling and managing
the check activity in Customer's designated demand deposit
account(s) ("Authorized Accounts"). Use of the Services
does not affect any of Customer's obligations, which are
described in the Account Agreement, to discover and report
unauthorized or missing signatures and endorsements, or
alterations on checks drawn on Customer's Accounts.
2. Submission of Data.
2.1 The Services allow Customer to
periodically receive a file and/or report of paid check data to
include paid check date, paid check amount and paid check
serial number, in accordance the Services' Setup Form(s)
("Paid Check Data"). Customer shall have its checks
prepared in accordance with Bank specifications and will
supply Bank with 25 voided checks to be used for testing.
The checks will be tested to ensure the paper stock is of a
minimum weight and is encoded with Bank's ABA (routing
and transit) number, account number and check number to
ensure the readability of the MICR line on Bank's
equipment.
2.2 Customer agrees to receive Paid Check
Data in the specified format and medium, on the scheduled
day(s) and at the place(s) specified by Bank and agreed to by
Customer as set forth in the Services' Setup Form(s).
2.3 Prior to receiving a Paid Check Data
file, Customer will be provided a test file by Bank to ensure
the readability of the Paid Check Data on Customer's
equipment. Customer agrees to report any test file failures.
2.4 In accordance with Customer's Account
schedule, Bank will provide a file of Paid Check Data in
accordance with the Services' Setup Form(s) and a paper
listing of paid checks, stop payments, missing checks, and
paid date. Bank shall report Substitute Checks (as defined
in the Cash Management Master Agreement) on the same
basis as ordinary checks / items.
3. Statement of Transactions. Within three (3)
Business Days following the scheduled date for
reconcilement, as set forth in the Services' Setup Form(s),
Bank will provide a report including a listing of paid checks,
checks that have been identified as stop payments and
checks missing in sequence. Customer shall review the
listing and report any errors as set forth in the Cash
Management Master Agreement between Bank and
Customer. Customer's use of the Services or Bank's receipt
of information associated with the Services does not increase
Bank's duties or obligations with respect to Customer's
Accounts.
4. 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 Partial Reconcilement
Services Appendix is accepted in writing by Bank or the
Cash Management Master Agreement is terminated.
(W1481576.3) 0120
Bank
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. Services. The Services described in this
Appendix permit Customer to maintain a zero or other pre-
selected target balance in certain secondary or sub -accounts
that are associated with a primary commercial checking
account, all as further described below.
1.1 Customer will designate a primary
checking Account (the "ZBA Parent Account"), and one or
more secondary Accounts (the "ZBA Sub -Accounts") to be
associated with the Services, as set forth in the Services'
Setup Form(s).
1.2 Through the Services, Customer
authorizes Bank to transfer funds between the ZBA Parent
Account and ZBA Sub -Accounts in order to bring the
respective balances of the ZBA Sub-Account(s) to the pre-
selected target balance(s), as set forth in the Services' Setup
Form(s).
1.3 Customer may select a target balance for
each Sub -Account in the amount of $0 or a pre -defined
collected or ledger balance amount.
1.4 After posting all debits and credits to the
ZBA Sub -Accounts each Business Day, each ZBA Sub -
Account's balance in excess of the target balance, including
both collected and uncollected balances, will be transferred
automatically to the ZBA Parent Account, unless Customer
elects to transfer collected balances only.
1.5 In the event that, after posting of all
debits and credits to the ZBA Sub -Accounts each Business
Day, the balance in any ZBA Sub -Account is less than the
target balance, sufficient funds from the ZBA Parent
Account will, to the extent available, be transferred to the
ZBA Sub -Account to reach the target balance.
1.6 Bank is under no obligation to transfer
funds to any one or more ZBA Sub -Accounts to the extent
that such transfer(s) would cause an overdraft of collected
balances in the ZBA Parent Account. Bank may, in its sole
discretion, determine the priority in which funds from the
ZBA Parent Account are applied to ZBA Sub-Account(s).
1.7 Customer agrees that Bank is not acting
as a fiduciary with respect to funds in either the ZBA Parent
Account or in any ZBA Sub -Account.
1.8 If any of the ZBA Sub -Accounts are
owned by an Affiliate of Customer, then: (1) Customer
represents and warrants it has all necessary power and
authority to transfer funds into and out of such ZBA Sub-
Account(s), and (2) Customer will indemnify Bank from any
claim by any owner(s) of such ZBA Sub -Accounts) or any
third party with respect to a transfer into or out of such ZBA
Sub-Account(s).
2. Termination; Effectiveness.
2.1 The parties may terminate this
Appendix and/or the Services in accordance with the terms
and conditions of the Cash Management Master Agreement.
This Appendix and associated Services shall automatically
and immediately terminate if the ZBA Parent Account
and/or the ZBA Sub-Account(s) are closed.
2.2 Customer agrees to all the terms and
conditions of this Appendix. Th$ 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 Master Agreement
is terminated.
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(W 1040745. I ) 0820
APPENDIX XVII
TD DATA EXCHANGE SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to TD Data Exchange
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. Services. The Services provide Customer with
financial information and/or data delivery services that allow
Customer to consolidate multi -bank account balance and
related transaction information to one financial institution's
information delivery platform. With the Services, Bank may
send Customer's Account information to another financial
institution (the "Outbound Data Exchange" feature), or Bank
may receive Customer's account information from other
financial institution(s) (the "Inbound Data Exchange"
feature), and report the consolidated information to
Customer via the Bank Internet System and/or other similar
online systems, some of which may also include a single
sign -on feature.
2. Use of Third Parties. The Services involve the
movement of financial information and/or data between
financial institutions using third -party clearing house
arrangements. Financial institutions contract with
participating third parties to send and receive their
customers' account balance and transaction information
and/or data. For purposes of this Appendix, the financial
institution receiving financial information and/or data on
behalf of and at the instruction of its client is considered the
"Lead Bank". The financial institution(s) sending financial
information and/or data to the Lead Bank on behalf of and at
the instruction of its client is considered the "Reporting
Bank".
3. Outbound Data Exchange.
3.1 Bank acts as a "Reporting Bank" when
Bank transmits Customer's designated Accounts) balance
and/or related transaction information (the "Customer -
Designated Outbound Data') to Bank's contracted third -
party clearing house. This third -party clearing house will
arrange for delivery of the Customer -Designated Outbound
Data to the Lead Bank. The Lead Bank will be responsible
for delivery of the Customer -Designated Outbound Data to
Customer.
3.2 Customer authorizes Bank to transmit
the Customer -Designated Outbound Data associated with
the previous Business Day, as set forth in the Services' Setup
Form(s) and approved by Bank.
3.3 Customer will work with the Lead Bank
to facilitate the receipt of the Customer -Designated
Outbound Data from Bank's third -party clearing house.
Customer acknowledges and agrees that the Lead Bank must
be able to receive the Customer-Desigdated Outbound Data
from Bank's third -party clearing house through the standard
file layouts in use by Bank and/or Bank's third -party
clearing house from time to time.
3.4 Bank will transmit the Customer -
Designated Outbound Data associated with the previous
Business Day to facilitate Customer's daily review of
account balance and related transaction information through
the Lead Bank's information delivery system.
3.5 Bank is not responsible for the
correctness, accuracy, completeness, redundancy, integrity
or timeliness of the Customer -Designated Outbound Data
delivered to Customer through the Lead Bank's information
delivery system. Bank is not responsible for the acts or
omissions of Customer's Lead Bank or its participating
third -party clearing house(s), as the same may change from
time to time.
3.6 Customer acknowledges and agrees that
use of the Services' Outbound Data Exchange feature
requires that non-public Customer Account and financial
information (including, without limitation, balance and
transaction details) be transmitted by Bank to a specified
third party, for further transmission to Customer's
designated Lead Bank and possibly through third -party
clearing house(s) of the Lead Bank. By selecting the
Services' Outbound Data Exchange feature, Customer
expressly authorizes Bank to disclose such non-public
Customer Account and financial information as necessary in
its performance and delivery of the Services.
4. Inbound Data Exchange.
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4.1 Bank acts as the "Lead Bank" when
Bank receives Customer's previous Business Day's
account(s) balance and/or associated transaction information
relating to Customer's accounts at other financial institutions
("Foreign Account(s)"), from such other financial
institutions (as Reporting Banks) designated by Customer
through designated third -party clearing house(s). All
Foreign Account balance and/or associated transaction
information received by Bank from such Reporting Banks'
designated third -party clearing house(s) (the "Customer -
Designated Inbound Data") shall be delivered by Bank to
Customer through the Bank Internet System.
4.2 The Services' Inbound Data Exchange
feature is an information delivery service only, and Bank
reserves the right to limit the Customer -Designated Inbound
Data provided to Customer to specific fields of information.
4.3 Bank cannot guarantee the delivery,
content or accuracy of Reporting Banks' Customer -
Designated Inbound Data.
4.4 Bank's sole responsibility with respect
to Customer -Designated Inbound Data is to display data
actually received by Bank in a format or file layout
acceptable to Bank. Bank shall have no responsibility or
liability with respect to unavailability of, errors in, or other
aspect of Customer -Designated Inbound Data. In the event
that Foreign Accounts are denominated in currencies other
than U.S. dollars, Customer agrees that reporting under this
Appendix may not accurately reflect the applicable currency
of the Foreign Account, and Customer bears sole
responsibility for properly interpreting Customer -
Designated Inbound Data in foreign currencies.
4.5 Bank requires prior written notice from
Customer of any modification to the Customer -Designated
Inbound Data.
4.6 Customer acknowledges and agrees that
use of the Services' Inbound Data Exchange feature requires
that certain non-public Customer account and financial
information (including, without limitation, balance and
transaction details) be transmitted to Bank from specified
Reporting Banks and the use of third -party clearing house(s)
of Reporting Banks and Bank. By selecting the Services,
Customer expressly authorizes Bank to use such non-public
Customer account and financial information as necessary in
its performance and delivery of the Services via the Bank
Internet System.
4.7 By selecting the Services, Customer
represents and warrants to Bank that it has executed and
delivered to the applicable Reporting Banks all necessary
authorizations for such Reporting Banks to transmit
Customer's non-public account and financial information to
Bank. Bank is not responsible for the acts or omissions of
Customer's Reporting Bank(s) or its participating third -
party clearing house(s), as the same may change from time
to time.
5. 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 Master Agreement
is terminated.
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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
1. Definitions.
"Authorized Account" means Customer's
Account(s) designated by Customer and maintained at Bank
to which the Services will apply.
"ACH Entry" means an order or request for the
transfer of money to an Authorized Account (a "Debit
Entry") as also defined in the NACHA Rules.
"A CH Authorizations" means Customer's written
instructions and authorization criteria provided to Bank in
conjunction with the set-up and implementation of the
Services, including the Services' Setup Form(s) and/or via a
separate ACH block and filter agreement with Bank
(hereinafter the "Filter Agreement"), and/or otherwise in
accordance with the Services as described in this Appendix,
which either prohibits all ACH Entries or permits only the
posting of specified ACH Entries to an Authorized Account.
"Exception Entry" means an ACH Entry
(excluding ARC, BOC, POP, RC& or XCK SEC Codes)
that does not meet Customer's ACH Authorizations
previously provided to Bank (and may also be referred to
within the Services as a "Rejected" Entry), and that is
therefore scheduled to be returned to the Originator of the
ACH Entry.
"NACHA Rules" means the National Automated
Clearing House Association's ("NACHA") Operating Rules
and Operating Guidelines, which govern the ACH system.
"Pay Decision(s)" means Customer's
confirmation instruction to Bank to pay/post an Exception
Entry.
"Return Decision(s)" means Customer's
confirmation instruction to Bank to not pay/post an
Exception Entry but to instead return the ACH Entry to the
Originator.
"Return Default Disposition" means the Services'
automatic default disposition of all ACH Entries that do not
meet Customer's ACH Authorizations, whereby all such
ACH Entries are scheduled to be returned to the Originator
of the ACH Entry.
2. Services.
2.1 The Services described in this
Appendix will provide Customer with a means to: (1) review
ACH Entries received on a particular Customer Account that
are scheduled to be returned to the Originator as an
Exception Entry in accordance with Customer's ACH
Authorizations and the Return Default Disposition; and (2)
confirm the return of the Exception Entry through a Return
Decision, or to override the Return Default Disposition and
instruct Bank to pay/post the Exception Entry to Customer's
Account through a Pay Decision.
2.2 Customer acknowledges that the
Services have been identified by Bank as a service that can
reduce the risk of fraudulent ACH Entries being posted
against Customer's Account(s) when such Services are
adopted and properly utilized by Customer. By conforming
to the terms and conditions of this Appendix, Customer
acknowledges and agrees that it may significantly reduce the
chance that fraudulent ACH Entries will post to Customer's
Account(s) by electronically matching incoming ACH
transactions to ACH Authorizations.
3. Customer Authorizations.
3.1 Customer will designate Authorized
Account(s) to be used with the Services via the Services'
Setup Form(s).
3.2 As applicable, Customer shall begin use
of the Services with either: (a) any ACH Authorizations
initially submitted by Customer to Bank and then established
by Bank on Customer's behalf in conjunction with the set-
up and implementation of the Services, or (b) any existing
ACH Authorizations on Customer's Authorized Account(s)
that have been established via a Filter Agreement. Customer
may add to or modify those initial or existing ACH
Authorizations from time to time as set forth herein.
Customer shall be responsible for the accuracy and
completeness of all information provided to Bank both
through the use of the Services and via the Services' Setup
Form(s).
3.3 Customer may submit additional ACH
Authorizations, make changes to initial or existing ACH
Authorizations, or delete initial or existing ACH
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Authorizations related to the Authorized Account(s) online
via the Services' module of the Bank Internet System. Such
changes shall become effective on the next Business Day
following the day on which the changes were made by
Customer. Each Business Day, Bank will provide an
updated list of successfully processed ACH Authorizations
to Customer via the Services. In the event Customer submits
a change or addition to the ACH Authorizations that is
incomplete, contains an error or that cannot otherwise be
processed by Bank, Bank will use commercially reasonable
efforts to notify Customer on the next Business Day that the
associated ACH Authorization(s) has been rejected. Until
such time as Customer reviews and corrects it, the rejected
ACH Authorization(s) will not appear on the updated list of
successfully processed ACH Authorizations that Customer
receives.
3.4 In the event Customer fails to fully and
accurately populate or complete all requested fields
associated with the ACH Authorizations, the following will
also apply:
(a) If Customer does not insert a
specified maximum dollar amount, then no maximum dollar
amount shall apply with respect to the applicable ACH
Entry(ies) or transaction(s) subject to the ACH
Authorization(s).
(b) If Customer does not insert a
specified expiration date, then no expiration date shall apply
to the applicable ACH Entry(ies) or transaction(s) subject to
the ACH Authorization(s).
4. Processing of ACH Entries and Reporting of
Exception Entries. Bank will electronically compare each
ACH Entry presented to Bank for settlement against
Customer's Authorized Account(s) on a Business Day
(including those presented by other depository institutions,
ACH Operators or by Bank) with Customer's ACH
Authorizations. In accordance with that review, on each
Business Day, Bank will:
(a) allow incoming ACH Entries
that match Customer's ACH Authorizations
to post to Customer's Authorized Account(s);
and
(b) treat as Exception Entries all incoming ACH
Entries that do not match Customer's ACH Authorizations
and will provide to Customer, through the Bank Internet
System, a listing of all Exception Entries that are otherwise
scheduled for Return Default Disposition. Customer must
monitor, review and issue a Pay Decision or Return Decision
on each Exception Entry reported through the Bank Internet
System by the pre -established deadline set forth within the
Services. Customer may also set up alerts to be sent to
Customer by a pre -established time each Business Day
advising Customer whether or not there are any Exception
Entries to be reviewed that Business Day.
5. Payment and Dishonor of Exception Entries.
5.1 Customer may choose to confirm the
Return Default Disposition of individual Exception Entries
presented via the Services by providing a Return Decision to
Bank by the pre -established deadline set forth within the
Services, in which case such Exception Entries will be
automatically returned to the Originator.
5.2 Customer may choose to override the
Return Default Disposition of individual Exception Entries
presented via the Services by providing a Pay Decision to
Bank by the pre -established deadline set forth within the
Services, in which case such Exception Entries will be
paid/posted to Customer's Authorized Account(s) at the end
of the current Business Day.
5.3 Customer may choose not to or may
otherwise fail to review and provide a Pay Decision or a
Return Decision for any Exception Entries by the pre-
established deadline, in which case the Return Default
Disposition will apply and all such Exception Entries will be
automatically returned to the Originator.
6. Customer and Bank Communications.
6.1 Customer shall use the Services' module
of the Bank Internet System to report all Pay Decisions or
Return Decisions. Bank shall not be obligated to comply
with any Pay Decision or Return Decision received in a
format or medium, after a pre -established deadline, or at a
place not permitted under this Appendix or the Services'
Setup Form(s), and may instead treat any such
communication from Customer as a Return Decision or
otherwise apply the Return Default Disposition to such
communication.
6.2 Bank is not responsible for detecting
any Customer error contained in any ACH Entries presented,
decisioned, returned or processed, or in any Pay Decision or
Return Decision by Customer.
6.3 In the event that Bank is unable to
provide Customer with a listing of Exception Entries through
the Bank Internet System for Customer's Pay Decision or
Return Decision as described in Section 4, the Return
Default Disposition shall apply in accordance with
Customer's previously established ACH Authorizations.
6.4 Customer's ACH Authorizations
hereunder will be accepted by Bank subject to the condition
that ACH transactions have not already been posted or are
not otherwise in the process of posting, and that Bank will
have a reasonable opportunity to act on Customer's ACH
Authorizations before any such processing.
6.5 Bank shall have a reasonable time after
receipt of Customer's request to implement the Services and
shall not assume responsibility for stopping ACH
transactions that have already been posted to Customer's
Account(s).
6.6 Bank shall be bound only to exercise
ordinary care in attempting to post or return ACH Entries as
described in this Appendix.
7. Remedies.
7.1 Bank Liability. To the extent permitted
by applicable law, the liability of Bank under this Appendix
shall in all cases be subject to the provisions of the parties'
Cash Management Master Agreement, including, without
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limitation, any provisions thereof that exclude or limit
warranties made by, damages payable by or remedies
available from Bank.
7.2 Wrongful Payment/Posting. It shall
constitute wrongful payment/posting by Bank if Bank
pays/posts an Exception Entry for which Customer has
provided a Return Decision by the pre -established deadline
set forth within the Services and otherwise in accordance
with the other terms of this Appendix. In the event that there
is wrongful payment/posting, Bank shall be liable to
Customer for the lesser of the amount of the wrongfully
paid/posted Exception Entry or Customer's actual damages
resulting from Bank's posting of the Exception Entry,
subject to the terms of the parties' Cash Management Master
Agreement.
7.3 Rightful Payment and Return.
7.3.1 If Bank honors an Exception
Entry in accordance with a Pay Decision by Customer as
described in Section 5.2, such payment/posting shall be
rightful, and Customer waives any right it may have to assert
otherwise.
7.3.2 If Bank returns an Exception
Entry in accordance with a Return Decision by Customer as
described in Section 5.1, or otherwise pursuant to a Return
Default Disposition as described in this Appendix, the return
shall be rightful, and Customer waives any right it may have
to assert otherwise.
7.3.3 Customer agrees that Bank
exercises ordinary care whenever it rightfully pays/posts or
returns an Exception Entry consistent with the provisions of
this Appendix.
8. Other Terms of the Services.
8.1 Customer acknowledges that the
Services do not preclude Bank's standard ACH processing
procedures or the application of the NACHA Rules, which
may cause an ACH Entry to be dishonored even if
Customer's instructions do not otherwise require Bank to
return such ACH Entry.
8.2 Customer acknowledges that the
Services do not apply to transactions between Customer and
Bank, including any Bank affiliates and subsidiaries, such as
loan or credit card payments ("Bank -Related Entries").
Bank is permitted to pay Bank -Related Entries whether or
not Customer has included these in Customer's ACH
Authorizations as reflected in this Appendix and until such
time as Customer's authorization with respect to the
underlying Bank -Related Entries is revoked or otherwise
terminated.
8.3 Customer acknowledges that the
Services are intended to be used to identify and return ACH
Entries which Customer suspects in good faith are
fraudulent, unauthorized or otherwise unwarranted. The
Services are NOT intended to be a substitute for
authorization instructions or to delay Customer's decision on
ACH Entries, including but not limited to stop payment
orders on ACH Entries which are not suspected in good faith
to be unauthorized. If Bank suspects or deems, in Bank's
sole discretion, that Customer is using the Services contrary
to those intentions, Bank may require Customer to provide
evidence that ACH Entries that Bank returns pursuant to
Customer's instructions were in fact unauthorized. In
addition, Bank may hold Customer liable for losses that
Bank sustains on ACH Entries which Bank is requested to
return under the Services and which Customer does not
reasonably establish as unauthorized ACH Entries, including
as under the NACHA Rules.
9. Termination; Effectiveness.
9.1 The parties may terminate this
Appendix and/or the Services in accordance with the terms
and conditions of the Cash Management Master Agreement.
This Appendix and the associated Services shall
automatically terminate in the event the underlying
Authorized Account(s) are closed. In the event of
termination of this Appendix and the associated Services,
Customer's ACH Authorizations in effect as of the date of
termination will remain in effect with respect to Customer's
Authorized Accounts, and all ACH Entries will thereafter be
processed in accordance with such ACH Authorizations.
9.2 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,
except for any existing ACH Authorizations currently on
record with regard to the Authorized Account(s) as of the
date of this Appendix.
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