R2018-66 Banking ServicesRESOLUTION 2018-66
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
NORTH PALM BEACH, FLORIDA, ACCEPTING THE PROPOSAL
SUBMITTED BY TD BANK, N.A. FOR BANKING SERVICES AND
AUTHORIZING THE VILLAGE MANAGER TO EXECUTE ALL DOCUMENTS
NECESSARY TO EFFECTUATE SUCH SERVICES; PROVIDING FOR
CONFLICTS; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, on May 11, 2018, the Village advertised a Request for Proposals for Banking Services
("RFP"); and
WHEREAS, the Village received eight proposals in response to the RFP; and
WHEREAS, the Village's Evaluation Committee reviewed the proposals, and after presentations by
the top three firms, the Committee recommended accepting the proposal submitted by TD Bank,
N.A.; and
WHEREAS, the Village Council determines that the adoption of this Resolution is in the best
interests of the residents and citizens of the Village of North Palm Beach.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE VILLAGE
OF NORTH PALM BEACH, FLORIDA as follows:
Section 1. The foregoing recitals are ratified as true and incorporated herein.
Section 2. The Village Council accepts the proposal from TD Bank, N.A. to provide banking
services to the Village and authorizes the Village Manager to execute all agreements necessary to
effectuate such services, including, but not limited to, the Cash Management Master Agreement
attached hereto and incorporated herein by reference.
Section 3. All resolutions or parts of resolutions in conflict with this Resolution are hereby
repealed to the extent of such conflict.
Section 4. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED THIS 9TH DAY OF AU
(Village ,Scat)
ATTEST:
A
VILLAGE CLEM,'
CASH MANAGEMENT MASTER AGREEMENT
Customer: VILLAGE OF NORTH PALM BEACH
Date: August 9"', 2018
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:
I . TD eTreasury Services (Appendix I)............................................................................0
2. TD ACH Origination Services (Appendix II)...............................................................®
3. TD Wire Transfer Services (Appendix III)...................................................................®
4. TD Sweep Services (Appendix IV)..............................................................................❑
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) .................................................... El
12. TD Check Imaging Services (Appendix XII)............................................................... F1
13. TD Zero Balance Account Services (Appendix XIII) ..................................................
14. TD Currency Services (Appendix XIV).......................................................................❑
15. TD EscrowDirect Services (Appendix XV)................................................................. ❑
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) ......................................................... El
20. TD Healthcare Remittance Management Services (Appendix XX) ............................. ❑
21. TD Data Transmission Services (Appendix XXI)........................................................ID
22. TD ACH Positive Pay Services (Appendix XXII).......................................................
23. TD Currency Services for Smartsafe (Appendix XXIII).............................................. El
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24. TD Electronic Bill Payment Presentment & Payment Services (Appendix XXIV) ..... ❑
25. TD Integrated Payables Processing Services (Appendix XXV).................................. El
26. TD Electronic Lockbox (Bill Payment Aggregation) Services (Appendix XXVI)...... ❑
27. TD Paymode-X Services (Appendix XXVII)..............................................................❑
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 is by and between Bank and Customer. This Cash Mangement Master Agreement
shall be and is hereby incorporated by reference into and forms part of the "Contract" between the parties, the terms of which
include: (1) the Request for Proposal for Banking Services for the Village of North Palm Beach, Florida, dated [] (the "RFP"); (2)
TD Bank's Proposal for Banking Services prepared for the Village of North Palm Beach, Florida, dated June 14, 2018 (the
"Proposal"); and (3) this Agreement, along with the parties' Corporate Payment Notification Services Agreement and the ACH
Credit Pre -Funding / Delayed Debit Settlement Agreement (hereinafter, collectively, the "Banking Agreements"). The parties
agree that any ambiguity, conflict or inconsistency in the foregoing documents that together constitue the Contract shall be
resolved in the following order: (1) the Banking Agreements; (2) the Proposal; and (3) the RFP.
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.
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, P.INs,
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 Bink, 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 Internet 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" 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 Internet -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 Except for the Service Fees (as further
defined in Section 4.2 of this Agreement) and scope of
included Services applicable to the Term of the Contract as
further described in Section 14 of this Agreement, 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 the
Contract, 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; provided,
however, 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
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made, or purported to be made, by an Authorized
Representative and in accordance with the terms of this
Agreement.
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
term 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 terms and provisions of this Agreement
shall govern, but only to the extent reasonably necessary to
resolve such conflict.
4.2 During the Term of the Agreement, as
described in Section 14, Customer agrees to compensate
Bank for all Accounts and Services that Bank provides
pursuant to this Agreement, any Appendices, and the
Contract, in accordance with the Pricing Proforma as set
forth in the Proposal (the "Service Fees"). Any fees and
charges associated with Accounts or Servies that are not
specified in the Contract shall be governed by Bank's
standard schedule of fees and charges applicable to
Accounts or Services generally. 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.
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 During the Term of the Agreement, as
described in Section 14, Bank may not amend Service
Fee(s) associated with those Services provided by Bank in
accordance with the Contract, unless by mutual written
agreement of the parties. Bank acknowledges and agrees
that the fees reflected in the Pricing Proforma, as set forth
in the Proposal, shall control and be in effect for the Term
of this Agreement. Notwithstanding the foregoing, Bank
may charge or amend Service Fee(s) associated with new
or additional Services that Customer may request that are
not included Services under the Contract.
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
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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.
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
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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 by the Customer 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
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 correct 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 ESTABLISII
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
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exercise the required standard of care under the
Uniform Commercial Code.
11. 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 (40)
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 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 and shall
terminate three (3) years from the date of this Agreement
(the "Initial Term"). The parties may renew the Contract by
mutual written agreement for an additional one (1) year
term (the "Renewal Term"). 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
as described in Section 14.1 unless and 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
7 Of S8 0218
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
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.
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 funds 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
8 of 58 0218
Federal Reserve System, operating circulars issued by a
Federal Reserve Bank or 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, WITI4OUT
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 Notwithstanding the foregoing, if any
legal action or other proceeding is brought for the
enforcement of this Contract, or because of an alleged
dispute, breach, default or misrepresentation in connection
with any provisions of this Contract, Bank agrees to be
responsible for court costs and all expenses (including
taxes) even if not taxable as court awarded costs (including,
without limitation, all such fees, costs and expenses incident
to appeals) up to $50,000 should the Customer prevail.
Nothing in this preceding sentence shall require Bank to pay
Customer's legal and related fees' until Bank in its sole
discretion has exhausted all options for appeal.
15.8 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 the Contract and any
amendments hereto, all other documents incorporated by
reference therein, constitute the complete and exclusive
statement of the agreement between them with respect to
the Services, and supersede any prior oral or written
9 rf58 0218
understandings, representations, and agreements between
the parties relating to the Services.
21. Amendments. Except for the Service Fees (as
further defined in Section 4.2 of this Agreement) and scope
of included Services applicable to the Term of the Contract,
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, in any Appendix or the
Contract, if Bank believes 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
10 of 58 0218
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.
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 Engaging 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
hird-PartyService 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.
11 of 58 0218
IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement, including all applicable Appendices, to be
executed by an Authorized Representative.
VILLAGE OF NORTH PALM BEACH
(Customer)
501 US Highway One
North Palm Beach, FL 33408
(Addr ter.,._. �-.— -.
B
(Signature of Authorized Representative)
Print Name:
Title: V/ L -&A6 6 '"
Governmental
TD BANK, NA
B 2A
(Signature of AuthorizedRepresentative)
Print Name: 90L -t Vl At,tS
Title: VI
('e I ee— S I A -t
12 gf58 0218
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 34 is hereby added
immediately after Section 33:
34. 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.
(b)
(a) If Customer is a Governmental Unit of the type
included in (A) above, Customer and the individual
signing below represent, warrant and agree: (i) that
this Agreement has been duly executed by the (c)
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 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.
If Customer is a Governmental Unit of the type
included in (B) above, Customer and the individual
signing below represent, warrant 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 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; and
(v) that this Agreement is the valid and binding
obligation of Customer, enforceable against
Customer in accordance with its terms.
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
HCH 4818-2426-3481 v.1 13,,f58 0518
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.
HCIt 4818-3426-3481 v.1 14 of58 0518
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
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-time.
2.3.3 Book Transfers. Book
Transfers allows Customer to make intra -Bank fund
transfers between Customer's checking, savings and loan
Accounts.
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
HCB 4816-8874-0154 v.1 15 of 58 1016
(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
Boole 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 Internet
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 Internet 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 Internet
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.
2.4 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.
HCl! 4816-8874-0154 v.1 16 of 58 1016
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
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.
G. Access Devices; Security Procedures.
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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 Internet -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, Internet 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
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
HO 4816-8874-0154 v.1 18 of 58 1016
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.
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.
HO 4816-8874-0154 e 1 19 of 58 1016
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.
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.
HO 4816-8874-0154 v.1 20 of 58 1016
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.
HOI 4816-8874-0154 v.1 21 Of 58 1016
7_71_ -
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 Ori ig nator, 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 Rales,
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 Rawles and acknowledges receipt of a
copy. (The NACHA Rules may be obtained at NACHA's
website at www.NACI-1A.ora 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 gelated 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")
HC 4814-6754-1549 22 of 58 022016
and the U.S. Department of the Treasury's Financial
Crimes Enforcement Network ("FinCEN").
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 finds 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.
HC 4814-6754-1549 23 of 58 022016
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 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.
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 International ACE 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 ACE 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 ACE 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 ACE 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 ACE Operator through which Bank processes the IAT
Entry, the terms of which Bank communicates to Customer
XC 4814-6754-1549
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 governed by Foreign Country
Rules. Customer assumes the risk of rejection of its Entries
according to Foreign Country Rules, Bank and the ACE
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. ACE 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 Rales 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 ACE 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
24 of 58 022016
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.
7. 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.
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 1-866-475-7262, 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 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., To the extent that signature comparison is to
be used as part of any applicable Security Procedures, Bank
shall be deemed to have complied with that part of such
Security Procedures if it compares the signature
accompanying a file of Entries (or request) with the
signature of an Authorized Representative of Customer
and, on the basis of such comparison, believes the signature
to be that of such Authorized Representative.
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.
HC 4814-6754-1549 25 of 58 022016
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.
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.
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 for any reason whatsoever, it
shall be the responsibility of Customer to remake and
resubmit such Entry or 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, 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.
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
HC 4814-6754-1549 26 of 58 022016
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 phone or
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, 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.
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. If Customer receives
notice that any such pre -notification has been rejected by
an RDFI, Customer will not initiate any related Entry until
the cause for rejection is resolved as provided in the
NACHA Rules. If Customer receives notice that an RDFI
will not receive Entries without having first received a copy
of the authorization signed by its customer, Customer will
not initiate any Entry to such customer(s) until it has
provided the RDFI with such authorization within the time
limits provided 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.ustrCs. ovg /orae.) 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 furnish 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
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.
HC 4814-6754-1549 27 Of 58 022016
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 (defined 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 RDFr 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;
(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
HC 4814-6754-1549 28 of 58 022016
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"). Upon the effective
date of the changes to the NACHA Rules enabling the same-
day processing of certain ACH payments (the "SDA
Rule"), 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
HC 4814-6754-1549 29 of 58 022016
intended 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 $25,000 or less transaction
limit per SDA Entry, as large -dollar transactions (over
$25,000) are not eligible for same-day processing under 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
HC 4814-6754-1549 30 of 58 022016
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 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 terms 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.
HC 4814-6754-1549 31 of J8 022016
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
fiords from specific Account(s) with Bank to other accounts
(the "Recipient Account(s)") 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, from Customer's designated Account.
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,
funds transfer system, clearing house, intermediary or
HC11 4811-7512-8896 v.I
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 fiords 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
32 of 58 0117
correspondent facility and the recipient bank. Future -dated
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 finds 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 finds. If Customer asks Bank to
HO 4811-7512-8896 v.1 33 of 58 0117
recover finds 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
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 transferred,
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.
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
HCA 4811-7512-8896 v.I 34 of 58 0117
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 Uniform Commercial Code, Bank shall be
entitled to rely upon the members 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 WIRE 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.
HO 4811-7512-8896 v.1 35 of 58 0117
APPENDIX V
TD POSITIVE PAY SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Positive
Pay Services (the "Services") made available to Customer by Bank. All capitalized terms used herein without definition shall
have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly provided in this
Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master Agreement, this
Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. In
the event of inconsistency between a provision of this Appendix and the Uniform Commercial Code ("U.C.C.," as further defined
below), the parties intend to modify the effect of the applicable U.C.C. provisions to the maximum extent permitted by law.
TERMS AND CONDITIONS
1. Definitions.
1.1 Statutory Definitions. Unless
otherwise defined in this Appendix, words or phrases shall
have the meanings set forth in the U.C.C. in effect from
time to time under the laws of the State specified in the
governing law provision of the parties' Cash Management
Master Agreement.
1.2 Definitions.
"Authorized Account" means the Account(s) of
Customer, maintained at Bank, to which the Services
described herein will apply.
"Available Funds" means funds on deposit in an
Authorized Account and available for withdrawal pursuant
to Federal Reserve Board Regulation CC and Bank's
applicable funds availability schedule and policies.
"Check Issue File" means a record describing
checks drawn by Customer on an Authorized Account and
provided by Customer to Bank in accordance with Section
2.2.
"Exception Check" means a Presented Check or a
Systematic Override Check (described in Section 2.2.2
below) that does not match data included in a Check Issue
File.
"Exception Check Report means a record
describing Exception Checks which is provided by Bank to
Customer in accordance with Section 2.3.
"Pay Decision(s)" means the instructions of
Customer to Bank instructing Bank to pay an Exception
Check.
"Presented Check" means a check, substitute
check, or electronically -presented check drawn on an
Authorized Account and presented to Bank for payment
through the check collection system or over-the-counter at
one of Bank's branch teller stations.
"Return Decision(s)" means the instructions of
Customer to Bank instructing Bank not to pay an Exception
Check.
"U.C.C." means the Uniform Commercial Code
as in effect under the laws of the State specified in the
parties' Cash Management Master Agreement, as it may be
amended from time to time.
2. Services.
2.1 Description.
2.1.1 The Services described in this
Appendix will provide Customer with a means to either
affirmatively approve the payment of a particular check
upon presentment or to object to its payment. Customer
acknowledges that the Services have been identified by
Bank as reducing the risk of fraudulent items being paid
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
agrees and acknowledges that Customer may significantly
reduce the possibility that fraudulent items will post to
Customer's Account(s).
2.1.2 Customer acknowledges and
agrees that the Services apply only to magnetic ink
character recognition (MICR) encoded paper checks and
documents. Therefore, the Services and this Appendix shall
not apply to any electronic funds transfer (EFT),
Automated Clearing House (ACH) transaction, or check
that has been converted to an ACH transaction that does not
contain a serial number. Accordingly, this Appendix shall
have no effect with respect to any such transactions on
Bank or Customer's respective rights, obligations, duties or
responsibilities under any other agreement between the
parties or applicable law or regulation.
2.2 Check Issue File.
2.2.1 Customer shall submit a
Check Issue File to Bank. The Check Issue File shall
accurately state the check number and the exact amount of
each check drawn on each Authorized Account since the
last Check Issue File was submitted (and the payee name, if
Customer elects to receive payee verification services
HCl! 4836-1579-3465 v.1 36 of 58 1117
described below). Each Check Issue File shall also identify
any checks that have been cancelled by Customer prior to
issuance.
2.2.2 Payee Verification Services.
If Customer elects to receive payee verification services in
conjunction with the Services, the following additional
terms shall also apply. Bank's payee verification services
require the payee name to match against Customer's Check
Issue File at a minimum threshold or matching score. The
payee name in the Check Issue File will be electronically
compared to the payee name on Presented Checks. Other
information related to the payee name may also be
electronically compared as part of the automated
verification process to establish a matching score. Such
comparisons that result in a minimum threshold or
matching score will be deemed to be a matching check.
Customer is responsible for complying with the payee
verification services' check specifications as specified by
Bank from time to time in order to ensure the highest level
of performance from the payee verification services. If
Customer is unable or unwilling to comply with the payee
verification services' check specifications as specified by
Bank, Bank may, in its sole and exclusive discretion: (a)
terminate or suspend Customer's use of the payee
verification services as provided in the Cash Management
Master Agreement, or (b) at Customer's request, re-
configure the software associated with the payee
verification services to systematically process Presented
Checks in reliance solely on the payee name provided by
Customer to Bank in the Check Issue File and without
regard to any other information related to the payee name
that may appear on the Presented Checks (hereinafter
"Systematic Override Checks"). Any Presented Check or
Systematic Override Check that does not result in a
minimum threshold or matching score shall be deemed an
Exception Check and reported as such in accordance with
the terms of this Appendix. Except as may otherwise be
provided in this Appendix and in the Cash Management
Master Agreement, Bank shall have no liability for
Systematic Override Checks.
2.2.3 Customer shall send the
Check Issue File to Bank in the format and medium, by the
deadline(s), at scheduled day(s), at the place(s) specified by
Bank and agreed to by Customer, as set forth in Services'
Setup Form(s). The deadline for transmissions of the
Check Issue File to Bank shall be set forth in the Services'
Setup Form(s).
2.3 Payment of Presented Checks and
Reporting of Exception Checks.
2.3.1 Bank shall compare each
Presented Check by check number, check amount and
payee name (if Customer elects to receive payee
verification services) against each Check Issue File
received by Bank. Bank may satisfy its obligation
hereunder by comparing check number, amount and payee
name (if applicable) set forth in Substitute Checks, checks
presented over-the-counter at one of Bank's teller stations
and/or electronic presentment of checks. On each Business
Day, Bank:
(a) may pay and charge to the
Authorized Account each Presented Check that matches, by
check number, amount and payee name (if applicable), a
check shown in any Check Issue File;
(b) may pay and charge to the
Authorized Account all Systematic Override Checks that
match, by check number, amount and payee name (if
applicable and as described herein), a check shown on any
Check Issue File; and
(c) shall provide to Customer an
Exception Check Report that indicates whether Bank has
received any Exception Checks and, if so, provide the
image of the Exception Check(s) by the deadline set forth
in the Services' Setup Form(s) via the Bank Internet
System. Customer must provide check payment approval or
return instructions to Bank on each Exception Check
reported by the deadline set forth in the Services' Setup
Form(s) via the Bank Internet System ("Pay or Return
Decisions").
2.3.2 Bank shall not pay any
Presented Check for which Bank has received from
Customer a stop payment request consistent with the terms
and conditions of the parties' eTreasury Services Appendix
or the Account Agreement.
2.4 Payment and Dishonor of Exception
Checks. Except as provided in Section 2.4.4 below, Bank
will pay or return Exception Checks in accordance with
Customer's Pay or Return Decisions.
2.4.1 Pay Decisions. Bank shall
finally pay and charge to the Authorized Account, to the
extent there are sufficient Available Funds in the
Authorized Account, any Exception Check that Customer
directs Bank to pay.
2.4.2 Return Requests. Bank
shall return to the depositary bank any Exception Check
drawn on an Authorized Account that Customer directs
Bank to return.
2.4.3 Default Options. If
Customer fails to provide Pay or Return Decisions to Bank
in accordance with these requirements, Exception Checks
will be handled in accordance with the default option as set
forth in the Services' Setup Form(s) for each Authorized
Account, in accordance with the following:
(a) Return Default. Where
Customer has agreed to the return default option, Bank
shall return to the depositary bank any Exception Check
drawn on that Authorized Account.
(b) Pay Default. Where
Customer has agreed to the pay default option, Bank may
finally pay and charge to the Authorized Account any
Exception Check drawn on that Authorized Account.
2.4.4 Checks Presented for
Payment at Bank Teller Stations.
2.4.4.1 Notwithstanding
anything in this Appendix to the contrary, Bank may, in its
sole and absolute discretion, return to the person presenting
HCH 4836-1579-3465 v.1 37 oJ58 1117
a check drawn on an Authorized Account for payment
over-the-counter at one of Bank's teller stations any such
check that does not appear on a Check Issue File (i.e., an
Exception Check). Customer acknowledges and agrees that
Bank shall have no obligation to inform Customer that any
such check has been presented for payment at a Bank teller
station. Bank shall have no liability to Customer for
wrongful dishonor with respect to any such check.
2.4.4.2 If a check drawn on
an Authorized Account is presented for payment over-the-
counter during such time the Bank is experiencing an
interruption or failure of communications or data
processing facilities or systems, emergency conditions, or
any other difficulties beyond the control of Bank, then,
notwithstanding any other provision of this Appendix,
Customer authorizes Bank to pay the Presented Check,
even if the Presented Check is an Exception Check.
Additionally, Bank shall have no obligation to notify
Customer of any such Presented Check.
2.5 Customer and Bank
Communications.
2.5.1 Customer or Bank, at its
discretion, may each submit to the other party a revision of
any communication provided for under this Appendix (e.g.,
the revision of Check Issue Files, Exception Check
Reports, Pay Decisions, Return Decisions). The revised
communication must (i) be sent in its entirety and not in the
form of a partial amendment to the communication
originally sent, (ii) identify the original communication,
and (iii) be sent in the format and medium, by the
deadline(s), and at the places) established by the receiving
party. A properly submitted revised communication serves
to revoke the original communication.
2.5.2 Bank shall use only Check
Issue Files that comply with Section 2.2 and have not been
revoked in accordance with Section 2.5.1 in the preparation
of Exception Check Reports under this Appendix.
2.5.3 Customer shall use only
Exception Check Reports that comply with Section 2.3 and
have not been revoked in accordance with Section 2.5.1 in
the preparation of Pay Decisions and Return Decisions.
Bank shall not be obligated to comply with any Pay
Decision or Return Decision received in a format or
medium, after a deadline, or at a place not permitted under
this Appendix and Services' Setup Form(s), but may
instead treat such a Pay Decision or Return Decision in
accordance with the default option agreed to by Customer
in the Services' Setup Form(s).
2.5.4 Bank is not responsible for
detecting any Customer error contained in any Check Issue
File, Pay Decision or Return Decision sent by Customer to
Bank.
2.6 Submission of Data Prior to
Implementation of Services. Customer shall submit to
Bank a current, reconciled list of all outstanding checks
issued on each Authorized Account one (1) week prior to
the implementation of the Services hereunder. Depending
on the frequency with which Customer issues checks, Bank
reserves the right to require Customer to submit one or
more additional such lists so that all outstanding, unpaid
checks issued on any Authorized Account have been
reported to Bank prior to the implementation of the
Services.
3. Remedies.
3.1 U.C.C. Liability. To the extent
applicable, the liability provisions of U.C.C. Articles 3 and
4 shall govern this Appendix, except as modified below.
To the extent permitted by U.C.C. Articles 3 and 4, 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 limitation, any
provisions thereof that exclude or limit warranties made by,
damages payable by or remedies available from Bank.
3.2 Wrongful Honor. It shall constitute
wrongful honor by Bank if Bank pays an Exception Check
listed in a timely, Exception Check Report unless: (i)
Customer issued a Pay Decision, or (ii) Customer agreed to
the pay default option and did not issue a Return Decision
by the deadline set forth in the Services' Setup Form(s). In
the event that there is wrongful honor, the following shall
apply:
3.2.1 Bank shall be liable to
Customer for the lesser of the amount of the wrongfully
paid Exception Check or Customer's actual damages
resulting from Bank's payment of the Exception Check.
3.2.2 Bank expressly waives any
right it may have to assert that Customer is liable for the
amount of the wrongfully honored Exception Check on the
grounds that the Exception Check was properly payable
under U.C.C. Section 4-401.
3.2.3 Bank retains the right to
assert Customer's failure to exercise reasonable care under
U.C.C. Sections 3-406 and 4-406.
3.2.4 Bank retains the right to
assert the defense that Customer has sustained no actual
damages because Bank's honor of the Exception Check
discharged for value an indebtedness of Customer.
3.3 Wrongful Dishonor. Except as
provided below, it shall constitute wrongful dishonor by
Bank if Bank dishonors an Exception Check: (i) that Bank
has been ordered to pay pursuant to a Pay Decision, or (ii)
for which Customer has not issued a Return Decision under
the pay default option by the deadline set forth in the
Services' Setup Form(s).
3.3.1 Bank's liability for wrongful
dishonor of an Exception Check shall be limited to the
damages for wrongful dishonor recoverable under U.C.C.
Articles 3 and 4.
3.3.2 Notwithstanding Section
3.3.1, Bank shall have no liability to Customer for wrongful
dishonor when Bank, acting in good faith, returns an
Exception Check:
(a) that it reasonably believed was not
properly payable; or
HO 4836-1579-3465 i� 1 38 of 58 1117
(b) if there are insufficient Available
Funds on deposit in the Authorized Account; or
(c) if required to do so by the service
of legal process on Bank or the instructions of regulatory or
government authorities or courts.
3.4 Rightful Payment and Dishonor.
Except as provided in Section 3.5, the following shall
apply:
3.4.1 If Bank honors an Exception
Check in accordance with the pay default option agreed to
Customer or in accordance with a Pay Decision issued by
Customer, such honor shall be rightful, and Customer
waives any right it may have to assert that the Exception
Check was not properly payable under U.C.C. section 4-
401.
3.4.2 If Bank dishonors an
Exception Check in accordance with the return default
option agreed to by Customer or in accordance with a
Return Decision issued by Customer, the dishonor shall be
rightful, and Customer waives any right it may have to
assert that the dishonor was wrongful under the U.C.C.
section 4-402.
3.4.3 Customer agrees that Bank
exercises ordinary care whenever it rightfully pays or
returns an Exception Check consistent with the provisions
of this Appendix.
3.5 Faulty Information. Subject to the
terms and conditions of the Cash Management Master
Agreement, Bank shall be liable for losses, other than
incidental or consequential damages, proximately caused
by its honor of a check that was not properly payable, or its
dishonor of a check that was properly payable, if the honor
or dishonor occurred because Bank, in accordance with the
provisions of Section 2 of this Appendix:
(a) should have shown the check on an
Exception Check Report but failed to do so due to Bank
error, unless Bank provided Customer with timely
information that disclosed the error; or
(b) showed the check on an Exception Check
Report but referenced the wrong check number due to Bank
error, unless Bank provided Customer with timely
information that disclosed the error.
3.6 Assignment. To the extent that
Customer suffers a loss under this Appendix, Bank assigns
to Customer any claim that Bank would have against a
depositary or collecting bank to recover the loss, including
any claim of breach of warranty under U.C.C. Sections 4-
207, 4-208, and 4-209.
4. Stop Payment and Return Decisions. The
Services will not be used as a substitute for Bank's stop
payment services. Customer will follow Bank's standard
stop payment procedures if it desires to return a check that
matches the data included in a Check Issue File or other
check that was validly issued. Nothing in this Appendix
will limit Customer's right to stop payment on any check
that matches the data included in a Check Issue File or
other check, or Bank's right to return any check that
matches the data included in a Check Issue File or other
check that Customer has authorized Bank to pay in
accordance with this Appendix if Bank determines in its
sole discretion that the check is not properly payable for
any reason (without Bank's agreeing to, or being required
to, make such determination in any circumstance) or that
there are insufficient collected or Available Funds in the
Authorized Account to pay it.
5. Governing Law. Except where expressly
required by contrary provisions. of the U.C.C., any claim,
controversy or dispute arising under or related to this
Appendix shall be governed by and interpreted in
accordance with the governing law provision of the parties'
Cash Management Master Agreement.
6. 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 parties'
Cash Management Master Agreement is terminated. In the
event of termination, all sums owed to Bank hereunder
shall be immediately due and payable.
HCM 4836-1579-3465 v.1 39 of 58 1117
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 Internet -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
warrants 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;
HC11 4823-6071-2503 v.1 40 of J8 0617
(ii) Irregular checks (e.g., where the numerical and
written amounts are different);
(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.
HO 4823-6071-2503 v.1 41 of58 0617
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
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
HCt 4823-6071-2503 v.1 42 of 58 0617
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 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 funds.
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
HCR 4823-6071-2503 v.1 43 of 58 0617
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 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
HCH 4823-607/-2503 v.1 44 of 58 0617
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. 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
HCt 4823-6071-2503 v.]
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
45 of 58 0617
faith deem necessary or reasonable during or after the term
of this Appendix, Customer's compliance with the terms of
this Appendix, including but not limited to Customer's use
of the Services, its Computer and security infrastructure,
and the books and records of Customer related to: (i)
Customer's activities hereunder and/or (ii) conformance
with Customer's obligations hereunder. In addition, Bank
reserves the right, in its sole and exclusive discretion, to
require Customer to implement additional internal controls
at Customer location(s) where use of the Services occurs
and to request information from Customer relative to
Customer's security infrastructure. Any review, inspection
or audit to be performed by or for Bank pursuant to this
Section 10 shall be conducted only during normal business
hours, using reasonable, care not to cause damage and not to
interrupt the normal business operations of Customer.
11. Survival. The provisions of Section 9, as well as
Customer's obligation to produce the original of, or a
Sufficient Copy of, any item accepted within any deposit
upon Bank's request in accordance with Section 4 hereof,
and Customer's liability for breach of any representation
and/or warranty made in Sections 3, 4 and 5 hereof shall
survive termination of this Appendix and/or the Cash
Management Master Agreement.
12. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank
under this Appendix shall in all cases be subject to the
provisions of the Cash Management Master Agreement,
including, without limitation, any provisions thereof that
exclude or limit warranties made by, damages payable by
or remedies available from Bank. This Appendix replaces
and supersedes all prior agreements on file with respect to
the Services and shall remain in full force and effect until
termination or such time as a different or amended
Appendix is accepted in writing by Bank or the Cash
Management Master Agreement is terminated.
HO 4823-607/-2503 v. 1 46 of 58 0617
APPENDIX IX
TD ACCOUNT RECONCILEMENT SERVICES - FULL
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Account
Reconcilement Services — Full (the "Services") made available to Customer by Bank. All capitalized terms used herein without
definition shall have the meanings given to them in the Cash Management Master Agreement. Except as otherwise expressly
provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash Management Master
Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve
such conflict.
TERMS AND CONDITIONS
1. Services. The Services described in this
Appendix will assist Customer in reconciling and managing
the check and deposit activity in Customer's designated
checking 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 Customer shall have its checks
prepared in accordance with Bank specifications, and will
supply Bank with twenty-five (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 shall send a file to Bank
containing information regarding checks that have been
issued by Customer ("Check Issue File") in the format and
medium, by the scheduled day(s) and to the place(s)
specified by Bank and agreed to by Customer as set forth in
the Services' Setup Form(s). The Check _Issue File shall
include check issue date, check issue amount, payee, stop
payments, and voided or cancelled checks, if applicable.
2.3 Prior to implementation of the Services,
Customer shall submit to Bank a current, reconciled list of
all outstanding checks issued on each Authorized Account
one (1) week prior to the implementation of the Services
hereunder. Depending on the frequency with which
Customer issues checks, Bank reserves the right to require
Customer to submit one or more additional lists so that all
outstanding, unpaid checks issued on any Authorized
Account have been reported to Bank prior to the
implementation of the Services hereunder.
2.4 Customer will send to Bank a test file
in the format and medium as identified in the Services'
Setup Form(s) to ensure the readability of the Check Issue
File on Bank's equipment.
2.5 Customer agrees to receive its paid
check data ("Paid. Check Data") from Bank in the specified
format and medium, on the scheduled day(s) and at the
place(s) specified by Bank and as set forth in the Services'
Setup Form(s).
2.6 Prior to receiving a file from Bank
containing Customer's Paid Check Data, Customer will be
provided with 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.
2.7 Bank shall compare each of Customer's
paid checks by check number and amount against each
Check Issue File received by Bank. Bank does not, and
shall not be obligated to, compare any other data (such as
payee names) on a presented check with a Check Issue File,
even if a Check Issue File contains such other data. Bank
may satisfy its obligation hereunder by comparing check
numbers and amounts received in Substitute Checks (as
defined in the Cash Management Master Agreement)
and/or via electronic presentment of checks.
3. Statement of Transactions. Within five (5)
Business Days following the scheduled date for
reconcilement, as set forth in the Services' Setup Form(s),
or receipt of the final Check Issue File for the current
reconcilement period as set forth in the Services' Setup
Form(s), Bank will provide a fully reconciled report
including a listing in check number sequence of all
outstanding paid, issued, voided, stopped and cancelled
items from the statement schedule. 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. Bank's liability under this
Appendix shall in all cases be subject to the provisions of
the Cash Management Master Agreement, including,
HC11 4828-2182-3799 n 1 0118
without limitation, any provisions thereof that exclude or termination or such time as a different or amended Full
limit warranties made by, damages payable by or remedies Reconcilement Services Appendix is accepted in writing by
available from Bank. This Appendix replaces and Bank or the Cash Management Master Agreement is
supersedes all prior agreements on file with respect to the terminated.
Services and shall remain in full force and effect until
Remainder of page intentionally left blank.
HO 4828-2181-3799 v..1 0118
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 -Accounts) 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-Account(s) or
any third parry 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. 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.
49 of 58
(WI040745.11 1116
APPENDIX XXI
TD DATA TRANSMISSION SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to TD Data
Transmission Services made available to Customer by Bank or Bank's third -party service provider. All capitalized terms used
herein without definition shall have the meanings given to them in the Cash Management Master Agreement. Except as
otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Cash
Management Master Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent
necessary to resolve such conflict.
TERMS AND CONDITIONS
1. Services. The Data Transmission Services (the
"Services") provide Customer with the ability to exchange
information files with Bank's (or its third -party service
provider's) information systems for a variety of needs and
functions. This Service allows Customer to send and/or
receive its Bank files using File Transfer Protocol ("FTP"),
Hypertext Transfer Protocol Secure ("Secure Web"),
Secure File Transfer Protocol ("SFTP"), SWIFT
Transmission, or via such other method as the parties may
agree upon from time to time, as may be set forth in a
Services' Setup Form(s), and as further described below.
2. FTP Transmission.
2.1 This method of data transmission
permits Customer to deliver and/or receive encrypted files
to a Bank -maintained FTP server. Bank will create a drop -
box directory on the server where Customer may upload
and deliver data files. To send data to Bank, Customer will
either push the data files to Bank's directory, or Customer
will give Bank a unique user name, password and Customer
service address, and Bank will deliver the file. For data
Bank sends Customer, Customer will pull the data files
from its outbound directory on the server.
2.2 The technical requirements for FTP
over the Internet include an Internet connection, FTP client
capabilities, and Pretty Good Privacy ("PGP") or
equivalent software for file encryption and decryption.
2.3 Files for transmission by FTP must be
encrypted using PGP Version 4.0 or higher. PGP provides
encryption technology including encryption, decryption,
key management, encrypted email, digital signatures, key
generation, certified keys and key revocation. Bank will
generate a public key/private key pair for Customer. The
public part of the key will be sent to Customer via
Customer's assigned mailbox on Bank's transmission
platform. The private part of the key will be securely kept
within Bank. Customer will also generate a key pair for
files that it sends to Bank. The public part of this key pair
will be sent to Bank, also via the mailbox, while only
Customer will know the private key.
2.4 To begin transmission by FTP, Bank
will establish Customer's access to Bank's FTP server.
Bank will provide Customer with the domain name
required for the FTP connection. Customer will be
provided a User ID and password that is unique to
Customer and will be required each time Customer wishes
to connect to Bank's transmission platform to send or
receive files. PGP public keys for encryption will be
exchanged. Bank and Customer will perform, to their
mutual satisfaction, connectivity testing between platforms
and encryption testing on transmitted files prior to
Customer's use of the Service via FTP transmission.
Secure Web Transmission.
3.1 This method of data transmission
permits Customer to deliver and/or receive files using an
Internet connection, User ID and password. Bank will
provide Customer with the domain name of a website that
will display a web page with Customer's root directory.
Customer can upload data files to this directory by clicking
the Browse button and selecting the file from Customer's
local network. Data files sent by Bank will be displayed in
Customer's outbound directory and may be downloaded by
Customer to its local network.
3.2 The technical requirements for Secure
Web include an Internet connection and browser supporting
128 -bit Secure Sockets Layer ("SSL") encryption.
3.3 Files for transmission through Secure
Web are encrypted using SSL. SSL is an open protocol for
securing data communication across computer networks
that provides a secure channel for data transmission
through its encryption capabilities. SSL allows for the
transfer of digitally -signed certificates for authentication
procedures and provides message integrity to protect
against data being altered en route. Bank and Customer will
perform, to their mutual satisfaction, connectivity testing
between platforms and encryption testing on transmitted
files prior to Customer's use of the Service via Secure
Web.
HO 4846-4388-3572 v.l Page 50 of 58 0716
4. Secure FTP (SFTP) Transmission.
4.1 This method of data transmission
permits Customer to deliver to and/or receive files from a
Bank -maintained SFTP server. Files transfers through
SFTP communications are encrypted using Secure Shell
("SSH"). SSH is an open protocol for securing data
communication across computer networks providing a
secure channel for data transmission. The encryption used
by SSH is intended to provide confidentiality and integrity
of data over an unsecured network, such as the Internet.
SSH uses public -key cryptography to authenticate the
remote computer and allow the remote computer to
authenticate the user, if necessary.
4.2 Customer has the option to push files to
Bank's SFTP server or have Bank pull Customer's files.
For Customer push, Bank will create a drop -box directory
on the SFTP server and provide Customer with a user
name, password, and URL/domain name. Customer must
provide an external IP address of the location sending files
so that Customer's IP address can be added to access
control lists within Bank's firewalls. For Bank to pull
Customer's files, Bank will need a user name, password,
URL/domain name, and directory from Customer so that
Bank can pull files from Customer's SFTP servers. Bank
and Customer will perform, to their mutual satisfaction,
connectivity testing between platforms prior to Customer's
use of the Services.
4.3 Customer also has the option for Bank
to push Customer files (recommended by Bank) or
Customer can pull the files from Bank's SFTP server. For
Bank to push Customer's file, Bank needs Customer's
URL/domain name, unique user name, password, and
directory. For Customer to pull files from Bank's SFTP
server, Customer must provide the external IP address of
the location pulling the files so that Customer's IP address
can be added to access control lists within Bank's firewalls.
If Customer chooses to pull files from Bank's SFTP server,
then files must be PGP encrypted, since files will reside on
an SFTP server within Bank's DMZ. Bank will need
Customer's public PGP key so that Bank can encrypt files.
Bank and Customer will perform, to their mutual
satisfaction, connectivity testing between platforms and
encryption testing (if necessary) on transmitted files prior
to Customer's use of the Services.
4.4 Customer will need an FTP client
capable of using the SSH protocol. If Customer decides to
pull files from Bank, Customer will need an
application/utility capable of creating a PGP key pair and
decrypting PGP files.
5. Secure Software.
5.1 This method of data transmission involves
the use of a Java® -based program that serves as a secure
access channel through which information may be
exchanged between Customer's Computer and Bank. This
software is provided by Bank and must be installed on a
Customer's Computer or network. Secure Software
facilitates the secure transfer of files both to and from
Customer's network location.
5.2 The technical requirements for Secure
Software include an Internet connection.
5.3 Files for transmission through Secure
Software are encrypted using SSL. SSL is an open protocol
for securing data communication across computer networks
that provides a secure channel for data transmission
through its encryption capabilities. SSL allows for the
transfer of digitally -signed certificates for authentication
procedures and provides message integrity to protect
against data being altered en route. Bank and Customer will
perform, to their mutual satisfaction, connectivity testing
between platforms and encryption testing on transmitted
files prior to Customer's use of the Services via Secure
Software.
6. SWIFT Transmission.
6.1 This method of transmission provides
Customer with the ability to use Society of Worldwide
Interbank Financial Telecommunications operating as
S.W.I.F.T. SCRL, Limited Liability Cooperative Society
("SWIFT") messaging services as described in this Section
to engage in certain electronic communications with Bank
(hereinafter the "SWIFT Services"). With the SWIFT
Services, Customer may: (1) transmit certain SWIFT
messages and documents to Bank and receive certain
SWIFT messages and documents from Bank and other
financial institutions, using SWIFT FIN and/or SWIFTNet
FileAct, the latter of which is a file transfer service that
allows the transmission of messages and documents over
the SWIFT network in all formats agreed upon by Bank,
and (2) transmit and receive SWIFT Instructions (as further
described below) from Bank and other financial institutions
in connection with certain Cash Management Services as
agreed by the parties from time to time. Bank is a
participating depository financial institution in SWIFT.
6.2 SWIFT Rules. The "SWIFT Rules" are
the documents and other publications as amended by
SWIFT from time to time that Customer may access at
www.swift.com, whether in paper or electronic format,
providing specific terms and conditions and other details
relating to the provision and use of the SWIFT Services,
including without limitation the SWIFT Contractual
Arrangements; the SWIFT General Terms and Conditions;
the SWIFT Service Bureau Policy and the SWIFT Data
Retrieval Policy; the SWIFT MA-CUG, SCORE and
TRCO Service Descriptions and any other SWIFT Service
Descriptions applicable to the SWIFT Services; and the
SWIFT On-line Support Service information. This
Appendix, the SWIFT Services provided hereunder and the
rights and obligations of the parties hereto shall be subject
to the SWIFT Rules, as they may be amended from time to
time. The parties agree to comply with the SWIFT Rules
and to be aware of and comply with changes or updates to
the SWIFT Rules.
6.3 SWIFT Instructions.
6.3.1 Bank may honor and act
upon any authenticated SWIFT message, communication or
instruction, including any Payment Order (hereinafter a
"SWIFT Instruction") received in Customer's name or
under any SWIFT Business Identifier Code (BIC) that: (1)
HCA 4846-4388-3572 i� I Page 51 of 58 0716
is unique to Customer, (2) is owned by a parent company or
other affiliate of Customer, or (3) is owned by an unrelated
third party and/or that is otherwise operating by agreement
with Customer as Customer's agent for purposes of
Customer's use of the SWIFT Services. Each such BIC(s)
shall be identified by or through Customer in the Services'
Setup Form(s) (hereinafter, collectively, "Customer's
BIC(s)"). Customer acknowledges that the Services' Setup
Form(s) shall also set out the key features and requirements
that shall apply to Customer's use of the SWIFT Services,
which. may include but are not limited to the following:
i. the SWIFT messaging services to be
used to transmit SWIFT Instructions to Bank (e.g., SWIFT
FIN and/or SWIFTNet FileAct);
ii. the SWIFT message types and file
formats that are supported by Bank under the SWIFT
Services, including the types of Payment Orders that
Customer may transmit;
iii. the technical parameters associated
with and required for SWIFTNet FileAct (e.g., file transfer
mode options and file transfer fields, etc.);
iv. the type of information that Bank shall
provide in conjunction with any SWIFT message sent by
Bank to Customer within the SWIFT Services, including
any account status or other information made available by
Bank;
V. the Customer Account(s) to be used in
connection with the SWIFT Services; and
vi. the SWIFT access model (e.g.,
SCORE, MA-CUG, etc.) and connectivity (e.g., direct
access, Alliance Lite, member, service bureau, etc.)
associated with Customer's use of the SWIFT Services.
6.3.2 SWIFT Instructions made in
accordance with this Appendix and the SWIFT Rules shall
be deemed to have been given by an individual authorized
to act on behalf of Customer. Bank will act in reliance on
the accuracy and completeness of the SWIFT Instruction
received by Bank in Customer's name or. via Customer's
BIC(s). Customer shall ensure that any SWIFT Instruction
sent to Bank fully and accurately reflects the advice,
request, instruction or communication intended to be
provided to Bank by Customer and is duly authorized.
Customer irrevocably authorizes Bank to (a) treat as
accurate, authentic and properly authorized, rely upon and
implement any SWIFT Instruction received by Bank which
originates (or appears to originate) from Customer
(including, in the case of a Payment Order, debiting the
Account as specified in the SWIFT Instruction), and (b) to
process each such SWIFT Instruction as described in this
Section 6.
6.3.3 Notwithstanding the
foregoing, Bank is not obligated to act on a SWIFT
Instruction or treat a SWIFT Instruction as accurate,
authentic or authorized, if:
the SWIFT Instruction does not meet the
requirements of the SWIFT Rules or
otherwise appears not to have been
prepared or sent in accordance with this
Section;
• Bank considers that the execution of that
SWIFT Instruction may place Bank in
breach of any law or regulation; or
Bank reasonably suspects that the
SWIFT Instruction received by Bank (a)
may not fully and accurately reflect an
advice, request, instruction or
communication that Customer intended
to give to Bank; or (b) may not have
been given in accordance with
Customer's authorization procedures.
Except to the extent prevented by applicable law or
regulation, Bank shall notify Customer if, under this
Section 6.3, it does not act on a SWIFT Instruction.
6.4 Secure Communications Channel.
6.4.1 SWIFT offers SWIFT
messaging services as a secure communications channel.
SWIFT has established procedures and requirements for
controlling access to SWIFT messaging services (each, an
"Access Control") that may include, without limitation,
access codes, message authentication codes, secure card
readers, digital signatures, and hardware security modules.
In addition, SWIFT authenticates certain messages based
on SWIFT message type prior to accepting them for routing
as SWIFT Instructions (each, an "Authenticated Message").
This authentication may include confirming that the sender
and recipient of the message have exchanged bilateral keys
(`BKE"), entered into a r6lationship management
application ("RMA") agreement, or taken other steps to
secure the transmission of SWIFT Instructions between
them as SWIFT requires from time to time (each, an
"Authentication Procedure"). Collectively, the Access
Controls and Authentication Procedures shall be referred to
herein as the "SWIFT Security Procedures."
6.4.2 Bank and Customer rely on
SWIFT's Access Controls and, in the case of an
Authenticated Message, the Authentication Procedures, .if
any, that SWIFT requires to secure the transmission of
Customer's SWIFT Instructions. Bank does not undertake
and will have no obligation to Customer to separately
authenticate any SWIFT Instruction that Bank receives in
Customer's name or under Customer's BIC, whether or not
Customer actually issued the SWIFT Instruction. Bank
may, at Bank's sole election and option, contact Customer
with respect to any SWIFT Instruction that Bank receives
in Customer's name or under Customer's BIC, but Bank's
election to contact Customer with respect to one or more
SWIFT Instruction will not obligate Bank to contact
Customer with respect to subsequent SWIFT Instructions
that Bank receives in Customer's name or under
Customer's BIC.
6.5 Customer Representations and
Warranties. Customer represents and warrants with respect
to itself and the Customer's BIC(s) identified by or through
Customer in the Services' Setup Form(s) that it:
HC8 4846-4388-3572 u I Page 52 or58 0716
• is registered with SWIFT as either a "Member
Administered Closed 'User Group" and/or
"Closed User Group" and/or "SCORE
(Standardized Corporate Environment)" member;
is in compliance with applicable SWIFT Rules;
• is not in violation of any federal, state or local
laws with respect to the SWIFT Services;
• is a duly incorporated and validly existing legal
entity;
• is in good standing financially and in compliance
with all laws and regulations applicable to
Customer; and
• is subject to regular audits in accordance with
internationally recognized accounting standards
by independent auditors.
6.6 Third -Party Service Providers: Third
Party -Service Provider Activities.
6.6.1 Customer may appoint a third
party, whether a SWIFT registered user/member, SWIFT
authorized service bureau or other third party, to send or
receive SWIFT Instructions, perform other functions and/or
otherwise act as Customer's agent for purposes of the
SWIFT Services provided hereunder (a "Third -Party
Service Provider"), as shall be set forth in the Services'
Setup Form(s). In such event, Customer agrees that the
Third -Party Service Provider shall have all the powers of
Customer in relation to the SWIFT Services. Customer
unconditionally authorizes Bank to deal directly with the
Third -Party Service Provider in connection with all matters
relating to the SWIFT Services, including, without
limitation, the receiving and sending of SWIFT Instructions
(including Payment Orders), and any testing to be
completed with respect to the SWIFT Services. All SWIFT
Instructions received by Bank from Third -Party Service
Provider 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. For the
avoidance of doubt, Customer shall ensure the Third -Party
Service Provider complies with the relevant provisions of
this Appendix. Notice of any termination of Third -Party
Service Provider's authority to receive and send SWIFT
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. Notwithstanding the foregoing,
Customer agrees that Bank retains the right to reject any
such Third -Party Service Provider and thus any associated
SWIFT Instructions initiated by Customer's Third -Party
Service Provider in Bank's sole discretion.
6.6.2 Subject to Bank's prior
approval and in its sole and exclusive discretion, Customer
may be permitted to use the SWIFT Services provided
hereunder on behalf of and in conjunction with Accounts
that belong to Customer's clients, as well as on Customer's
own behalf. Customer shall provide an appropriate letter of
authority and/or execute any such other agreement(s) or
documents as deemed necessary or appropriate by Bank
prior to the initiation or continuation by Customer of the
SWIFT Services in the capacity of a third -party service
provider. Customer agrees that Bank retains the right to
reject any request by Customer to engage in such activities
as well as any SWIFT Instructions by Customer in such
capacity, in Bank's sole discretion. In the event Bank
approves Customer's use of the SWIFT Services as a third -
party 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 engage in SWIFT
Instructions with respect to its Accounts through use of the
SWIFT 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"
herein 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 SWIFT Services;
(c) all of the provisions set forth
herein will apply to the 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 the
SWIFT Services 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 the
SWIFT Services; and
(e) Customer shall be liable for
all monetary, confidentiality and other obligations to Bank
hereunder as they relate to Customer's use of the SWIFT
Services for itself as well as each such Customer client.
Customer agrees to notify Bank immediately if Customer's
authority with respect to Customer's client(s) is revoked or
changed.
6.7 Customer Direction and Indemnity.
6.7.1 In the event that the BIC(s)
identified by or through Customer in the Services' Setup
Form(s) are owned by a parent company or other affiliate
of Customer, or are owned by an unrelated third party
and/or such third party is otherwise operating by agreement
with Customer as Customer's Third -Party Service Provider
for purposes of the SWIFT Services, Bank is prepared to
act on a SWIFT Instruction from Customer's SWIFT
BIC(s) only upon receipt of the indemnity provided in this
Section 6. This indemnity shall be in addition to and not in
lieu of an additional indemnity provided by Customer in
the Cash Management Master Agreement.
6.7.2 Bank is authorized to accept
and honor any files and/or SWIFT Instructions sent from
any of Customer's SWIFT BIC(s) without making any
inquiry as to the validity or sufficiency of the SWIFT
Instructions and to consider the SWIFT Instructions of like
HCl! 4846-4388.3572 v. / Page 53 of 58 0716
force and effect as written orders made in accordance with
the signing authorities held by Bank from time to time for
the operation of Customer's Account(s) with Bank.
6.7.3 Without limiting the scope of
Section 6.7.2, Bank is authorized to disclose information
about Customer, its Accounts and banking relationship with
Bank, including any changes to such information, in
response to and as directed in the SWIFT Instructions as
required to process the same.
6.7.4 Bank shall not be liable for
any loss or damage incurred by Customer, or any third
party arising from or in any way related to Bank acting
upon or refusing to act upon any SWIFT Instructions from
Customer's BIC(s), unless due to the gross negligence or
willful misconduct of Bank. Notwithstanding the foregoing,
in no event shall Bank be liable for any indirect, special or
inconsequential damages incurred by Customer or any third
party arising from or in any way related to Bank acting
upon or refusing to act upon any SWIFT Instructions.
6.7.5 Customer hereby agrees to
indemnify and hold Bank harmless from and against any
losses, liabilities, claims, damages, fees, or expenses
whatsoever that Bank may suffer, incur or be under or that
may be brought against Bank, pursuant to, in connection
with, or in any way related to Bank acting upon, delaying
in acting upon or refusing to act upon any SWIFT
Instructions from Customer's BIC(s).
6.8 Termination of SWIFT Services. In
addition to but not in lieu of the provisions of the Cash
Management Master Agreement, the SWIFT Services shall
terminate automatically in the event that:
• either party loses user status as defined in the
SWIFT General Terms and Conditions of the By-
laws;
• SWIFT has ceased to provide, and not resumed
providing, any of the SWIFT messaging services;
• SWIFT, in exercise of its rights under the SWIFT
Rules, has required either party to terminate the
SWIFT Services; or
• Bank has ceased to provide the Cash
Management Services.
6.9 Suspension of SWIFT Services. In
addition to but not in lieu of the provisions of the Cash
Management Master Agreement, either party may suspend
the use of the SWIFT Services for such period(s) as it
considers appropriate in its absolute discretion by notice to
the other party if: (a) suspension is necessary for the
purposes of (routine or emergency) maintenance; (b) for
security or technical reasons, including a suspension of the
SWIFT messaging services by SWIFT, use of the SWIFT
messaging services is impossible or cannot be achieved
without unreasonable cost to Bank or Customer; (c)
suspension is required by SWIFT or the SWIFT Rules; or
(d) suspension is necessary to avoid or reduce any material
damage or disadvantage to either party.
Security Procedures.
7.1 Customer agrees that the security
procedures set forth or incorporated by reference in this
Appendix (including without limitation the SWIFT Security
Procedures), the Cash Management Master Agreement and/or
associated documents provided by Bank, including without
limitation the Services' Setup Form(s), are a commercially
reasonable method of providing security against unauthorized
access to or interception of transmissions between Customer
and Bank (hereinafter collectively the "Security Procedures").
Any transmission by Customer shall be deemed authorized if
transmitted in accordance with the Security Procedures. Bank
may, from time to time, modify the Security Procedures. Such
modifications shall become effective upon receipt of notice by
Customer or such later date as may be stated in the Bank's
notice to Customer. If Customer fails to object to such
change, it shall be deemed to agree to such change.
7.2 With respect to SWIFT in particular,
Customer further acknowledges that the SWIFT Security
Procedures are the only security procedures offered for
SWIFT Instructions that Customer transmits through the
SWIFT Services. Customer has solely determined that the
SWIFT Security Procedures best meet Customer's
requirements with regard to the size, type and frequency of
the SWIFT Instructions issued by Customer to Bank using
the SWIFT Services and that the SWIFT Security
Procedures are a commercially reasonable method of
providing security against unauthorized access to or
interception of transmissions between Customer and Bank.
Customer acknowledges that it is bound by the terms and
conditions of each SWIFT Instruction, including any
request to cancel or amend a SWIFT Instruction, whether
or not authorized by Customer, that Bank receives in
Customer's name or under Customer's BIC(s)through the
SWIFT Services and in accordance with the SWIFT
Security Procedures.
7.3 Nothing in this Appendix shall be
deemed a representation or warranty by Bank that FTP,
Secure Web, SFTP or SWIFT communications are secure.
Rather, after review of the alternatives, Customer has selected
a communication method that it believes best suits its needs.
7.4 Bank and/or SWIFT (as applicable) may,
from time to time, propose different, 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 and/or SWIFT believes immediate
action is required for the security of Bank, SWIFT or
Customer funds or data, Bank and/or SWIFT may initiate
additional security procedures immediately and provide
prompt subsequent notice thereof to Customer.
7.5 Customer hereby acknowledges that the
Security Procedures are neither designed nor intended to
detect errors in the content or verify the contents of a
transmission between the parties. Accordingly, any errors
contained in a transmission from Customer shall be
Customer's responsibility. Except as otherwise expressly
provided in the parties' Cash Management Master Agreement
or other Appendix between the parties, no security procedure
HO 4846-4388-3572 v. l Page 54 of 58 0716
for the detection of any such Customer error has been agreed
upon between Bank and Customer.
7.6 Customer is strictly responsible for
establishing and maintaining procedures to safeguard
against, detect and mitigate unauthorized access to or
interception of transmissions. Customer covenants that no
employee or other individual under Customer's control will
be allowed to initiate transmissions in the absence of proper
authority, supervision and safeguards, and agrees to take
reasonable steps to maintain the confidentiality of the
Security Procedures and any passwords, codes, security
devices and related instructions provided by Bank in
connection with any Security Procedure utilized by Bank,
SWIFT and/or Customer. If Customer believes or suspects
that any such password, code, security device, Security
Procedure, information or instructions have been disclosed
to or accessed by unauthorized persons, Customer agrees to
notify Bank immediately followed by written confirmation
as provided in the Services' Setup Form(s).
7.7 Customer shall retain data files for five
(5) Business Days following the date of their transmittal by
Customer as provided herein, and shall provide such data
files to Bank upon request.
8. 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 Data
Transmission 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
parties' Cash Management Master Agreement is
terminated.
Remainder of page intentionally left blank.
HC11 4846-4388-3572 v.1 Page 55 of 58 0716
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"), and/or an order or request for the withdrawal of
money from an Authorized Account (a "Credit Entry"), as
also defined in the NACHA Rules.
"A CH A uthorizations " 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, RCK, 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
HO 4834-4780-6014 v.1 56 of 58 1216
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
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 ACI -I
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.
HC114834-4780-6014 v.I 57 of 58 1216
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 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 Lof 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 ACII Authorizations
currently on record with regard to the Authorized
Account(s) as of the date of this Appendix.
Remainder of page intentionally left blank.
HC8 4834-4780-6014 v.1 58 of 58 1216
ATTACHMENT TO
APPENDIX II - ACH ORIGINATION SERVICES AND
APPENDIX XVIII - ACH THIRD PARTY SENDER SERVICES
ACH CREDIT PRE -FUNDING / DELAYED DEBIT SETTLEMENT
Customer: VILLAGE OF NORTH PALM BEACH
Effective Date of Attachment: August 9, 2018
Date of ACH Origination Appendix: August 9, 2018
This Attachment supplements either (a) Appendix II -
Automated Clearing House Origination Services or (b)
Appendix XVIII — Automated Clearing House Third
Party Sender Services, which has been entered into by
the parties (hereinafter, the "Appendix"), and applies
to all Automated Clearing House Services made
available by Bank to Customer. All capitalized terms
used herein without definition shall have the meanings
given to them in the Appendix.
By signing this Attachment, Customer agrees to be
bound by the terms and conditions of this Attachment.
This Attachment becomes effective when this
Attachment has been executed without modification
by Customer. Bank will provide use of features
described in this Attachment when Customer has
satisfactorily completed Bank's implementation,
testing and training requirements, if any, in connection
with the use of these features. Customer may not
modify any portion of this Attachment without Bank's
prior written consent and agreement, and any attempt
by Customer to do otherwise shall render Customer's
Attachment null and void.
Notwithstanding anything to the contrary contained in
the applicable Appendix, the following terms and
conditions shall apply to the applicable Appendix:
TERMS AND CONDITIONS
1. ❑ Settlement of Credit Entries
(applicable if box checked).
1.1 Bank requires, as a condition of
initiating any ACH credit Entry, that Customer
irrevocably provides available funds in the Settlement
Account for the total amount of all ACH credit Entries
submitted to Bank for processing, in accordance with
the selection below (hereinafter, Customer's "Funding
Obligation"):
HCA 4831-4370-3341
Internal] oft
1.2 Customer shall satisfy its Funding
Obligation by irrevocably providing available finds in
the Settlement Account for the total amount of all
credit Entries submitted to Bank prior to Customer's
submission of the credit Entries. Bank will place a
hold on funds in the Settlement Account equal to the
total amount of the ACH credit Entries on the
Business Day that Bank begins processing Customer's
ACH file, and Customer's Settlement Account will be
debited at the end of the Business Day, simultaneously
with removal of the hold on funds in the Settlement
Account.
1.3 Customer may satisfy its Funding
Obligation by maintaining a sufficient balance of
available funds in the Settlement Account. Customer
authorizes Bank to deduct from Customer's Settlement
Account the amount necessary to satisfy Customer's
Funding Obligation.
1.4 Bank is under no obligation to
contact Customer if insufficient funds exist in
Customer's Settlement Account. However, if
contacted, Customer agrees to immediately deposit
collected funds into the Settlement Account in the
form of a cash deposit, wire transfer, intra -bank fund
transfer or loan advance to cover the Funding
Obligation. Should Bank elect to release a file against
insufficient collected funds, it is under no obligation to
release subsequent files for which insufficient
collected funds may exist.
1.5 If Customer fails or refuses to
satisfy its Funding Obligation, Bank may, at its sole
discretion, refuse to process credit Entries submitted
by Customer to Bank. If such credit Entries are not
processed, Bank will request authorization from
0316
Customer to delete the ACH file. Customer may only
re-initiate the Entries if Customer first satisfies the
Funding Obligation by providing available funds in
the Settlement Account.
2. ❑ Settlement of Debit Entries (applicable
if box is checked).
2.1 Customer agrees to the settlement
of debit Entries in accordance with the following
terms.
2.2 Bank reserves the right to delay
crediting Customer's Settlement Account with
available fiords up to two (2) Business Days after the
Settlement Date of the debit Entry.
2.3 In the event a debit Entry is
rejected or returned by an RDFI in accordance with
the NACHA Rules and after Bank has permitted
Customer to withdraw immediately available funds in
the amount thereof, Customer will, immediately upon
Bank's demand, reimburse Bank with available funds
in the amount thereof.
2.4 Customer acknowledges and agrees
that:
(a) in accordance with the NACHA
Rules, consumer debit Entries, such as PPD and
PPD+, may be returned up to sixty (60) Calendar Days
after Settlement Date, or such longer period as may be
provided by the federal Electronic Funds Transfer Act,
as implemented by Consumer Financial Protection
Bureau Regulation E; and
(b) other Entries, such as International
ACH Transactions (IAT), may exceed the sixty (60)
day return window defined by the U.S. ACH system,
the NACHA Rules, and the laws and payment system
rules of the receiving country.
3. Effectiveness. Customer agrees to all of the
terms and conditions of this Attachment. The liability
of Bank under this Attachment shall in all cases be
subject to the provisions of the Cash Management
Master Agreement and the Appendix, including,
without limitation, any provisions thereof that exclude
or limit warranties made by, damages payable by or
remedies available from Bank. This Attachment
replaces and supersedes all prior agreements on file
with respect to the terms described herein and shall
remain in full force and effect until termination or
such time as a different or amended Attachment is
provided or accepted in writing by Bank or the Cash
Management Master Agreement or Appendix is
terminated.
IN WITNESS WHEREOF, Customer has duly caused this Attachment to be executed by an Authorized
Representative.
VILLAGE OF NORTH PALM BEACH
(Customer)
501 US Highway One
North Palm Beach, FL 33408
(Add }
By:
(Signature of Authorized Representative)
Print Name: P✓'r&�Vet
Title:
H08 4831-4370-3341
Interna12 of 2
0316
■ r
TD CORPORATE PAYMENT NOTIFICATION SERVICES
AGREEMENT
This TD Corporate Payment Notification Services Agreement (this "Agreement") is by and between TD Bank, N.A. ("Bank")
and the customer identified below ("Customer"). Bank and Customer agree that the TD Corporate Payment Notification Services
(the "Services", as described below) provided to Customer by Bank prior to or as of the date of this Agreement will be governed
by the terms of this Agreement and any amendment hereto from time to time with respect to the Services, and by the terms and
conditions of the parties' agreement (hereinafter the "Account Agreement") governing the underlying deposit account(s) in
Customer's name at Bank that are associated with the Services (hereinafter the "Account(s)"). The parties further agree that the
terms of the Account Agreement are expressly incorporated herein by reference. All capitalized terms used herein without
definition shall have the meanings given to them in the Account Agreement or the National Automated Clearing House
Association's ("NACHA") Operating Rules and Operating Guidelines which govern the ACH system (the "NACHA Rules"), as
may be amended form time to time. Except as otherwise expressly provided in this Agreement, to the extent that this Agreement
is inconsistent with the provisions of the Account Agreement, this Agreement and any amendment hereto from time to time shall
control, but only to the extent necessary to resolve such conflict.
By signing this Agreement, Customer agrees to be bound by the terms and conditions of this Agreement, as the same may be
amended from time to time as further described below. This Agreement becomes effective with respect to the Services when this
Agreement has been executed without modification by Customer. Bank will provide use of the Services 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 Services. Customer may not modify any portion of 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.
® New Services' Set -Up ❑ Existing Services' Customer
❑ Change Delivery Method ❑ Add Account(s)
Customer Name:,-t�,ofox>I
'It Bcl
Address:oY
ixtvuyg Qlt
City, State, Zip:j
the Itr7 eaeh-iEL 34p
Contact Name:
Contact Phone:
Original Bank ABA' Account Number
1 ABA number from check / item.
I of 4
HC# 4814-5583-9294 v.1 1216
Remittance Details Delivery Method:
® Add ❑ Delete
® TD eTreasury
(Note: Requires Customer's execution of TD eTreasury Services Appendix and associated cash
management documents)
❑ Add ❑ Delete
❑ Secure Email (list all email addresses):
❑ Add ❑ Delete
❑ Facsimile
❑ Facsimile Number (one only):
❑ Add ❑ Delete
❑ File Transmission
(Note: Requires Customer's execution of TD Data Transmission Services Appendix and associated cash
management documents)
INTERNAL USE ONLY
(File name to be completed by Transmission Croup only.)
File Name:
(Naming convention for file name allows four (4) characters to identify the Customer.)
Date:
TERMS AND CONDITIONS
Implementer:
1. Services. The Services described in this
Agreement allow Customer to receive detailed reports for
Received Debit Entries and Received Credit Entries
("Reports"). The information included in the Reports
includes batch, Entry and Addenda Record information.
The Reports display all SEC Codes unless otherwise
indicated by Bank from time to time.
2. Definitions. The following terms (and others
used herein) are all defined in the NACHA Rules: ACH,
Entry, Received Debit Entry, Received Credit Entry, SEC
Codes, Addenda Record.
3. Operations.
3.1 Reports Options. Customer must select
a Remittance Details Delivery Method option above as
offered by Bank for the Services from time to time.
3.2 Reports and File Output. The Reports
that are made available to Customer are generally in "human
readable format," except for Reports that are requested to be
transmitted via TD's Data Transmission Services in
NACHA or other formats. Bank will report the following
SEC Codes: CCD, CCD+, CIE, CTX, PPD and PPD+, and
will include information of both the NACHA six record
(Entry Detail Record) and the seven record(s) (Addenda
Record(s)). Incoming International ACH (IATs) are not
delivered in human readable format, unless delivered via
TD's Data Transmission Services (which transmission
method includes all SEC Codes). IAT's are manually
delivered, unless otherwise indicated by Bank from time to
time.
3.3 Reports Transmission. Bank shall use
commercially reasonable efforts to make the Reports
available to Customer on each Business Day on which any
Received Debit Entries or Received Credit Entries are
received by Bank. Customer Reports are delivered on a daily
basis. Customized options to have the Reports made
available on a weekly or monthly basis, or as otherwise
specified by Customer, may be agreed to by Bank in its sole
discretion. Non -daily Reports contain cumulative
information for the period covered in the Report. Reports
will be made available to Customer through the designated
channel offered by Bank and selected by Customer from
2 of 4
HC# 4814-5583-9294 v.1
1216
time to time. Bank may change any such offered channel at
any time.
3.4 This Agreement is Bank's record of
Customer's instructions regarding the Services. If the
information that Customer has provided above is incorrect in
any category, Customer must advise Bank immediately, as
Bank is NOT responsible for providing or not providing the
Reports unless Customer's instructions are accurately
described in this Agreement.
3.5 Bank shall be bound only to exercise
ordinary care in providing the Reports as set forth herein.
3.6 Bank shall have a reasonable time after
receipt of Customer's request to implement this Agreement
or any changes hereto or to Customer's instructions.
4. Service Fees. Customer agrees to compensate
Bank for the Services in accordance with the applicable fee
schedules or written agreements between Bank and
Customer in effect from time to time that apply to the
Service. Customer authorizes Bank to charge Customer's
Account for and amend all charges and fees applicable to
the Services in accordance with the terms of the Account
Agreement.
5. Limitation of Liability; Disclaimer of
Warranties.
5.1 Except as otherwise expressly
prohibited or limited by law, the liability of Bank in
connection with the Services shall in all cases be limited in
accordance with the terms of the Account Agreement.
5.2 EXCEPT AS OTHERWISE SET
FORTH IN THIS AGREEMENT, CUSTOMER
EXPRESSLY AGREES THAT USE OF THE SERVICES
IS AT CUSTOMER'S SOLE RISK, THAT THE
SERVICES ARE PROVIDED "AS IS," AND THAT
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.
6. Indemnification. Except as otherwise expressly
prohibited or limited by law, Customer agrees to indemnify
and hold Bank harmless from any and all claims, liabilities,
losses, damages, costs and expenses (including its
reasonable attorneys' fees) that Bank may incur or that may
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HC# 4814-5583-9294 v. I
be asserted by any person or entity against Bank, in
accordance with the terms of the Account Agreement,
arising out of any action at any time taken or omitted to be
taken by (i) Customer under or in connection with this
Agreement, including, but not limited to, Customer's
failure to observe and perform properly each and every
obligation in accordance with this Agreement; or (ii) Bank
in reliance upon any instructions given or purporting to
have been given under this Agreement by Customer to
Bank, or any information or order which Customer
provides to Bank.
Term and Termination.
7.1 Except as otherwise expressly set forth
herein, this Agreement shall continue in effect until
terminated by either party with thirty (30) days' prior
written notice.
7.2 Notwithstanding the foregoing, Bank
may, without prior notice, terminate this Agreement and/or
terminate or suspend the Services as follows: (i) if
Customer or Bank closes any deposit account established in
connection with the Services that is necessary for the
ongoing use of the Services or necessary for Bank to charge
associated service fees, (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 the 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 deposit accounts, assets or
properties; (vi) if Bank believes immediate action is
necessary for the security of Bank or Customer funds, or
(vii) if Bank reasonably believes that the continued
provision of the Services in accordance with the terms of
this Agreement 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.
7.3 Any termination of this Agreement,
whether initiated by Customer or Bank, will not affect any
of Customer's or Bank's rights and obligations under this
Agreement which have arisen before the effective date of
termination of this Agreement. In addition, the provisions
of this Agreement relating to Customer's and Bank's
liability, Customer's indemnification of Bank, and the
disclaimer of warranties shall survive the termination of
this Agreement.
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8. Documentation. The parties acknowledge and
agree that all documents evidencing, relating to or arising
from the parties' relationship may be scanned or otherwise
imaged or 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 proceeding
including, without limitation, trials and arbitrations,
relating to or arising under this Agreement.
9. 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 from operating normally.
10. Facsimile or Other Signature. The parties
acknowledge and agree that this Agreement and any
amendments hereto may be executed and delivered by
facsimile or other electronic form acceptable to Bank, and
that a facsimile or electronic signature shall be treated as
and have the same force and effect as an original signature,
subject to applicable law. Notwithstanding the foregoing,
Bank may, in its sole and exclusive discretion, also require
Customer to deliver this Agreement and any amendments
with an original signature for its records.
11. Recording of Communications. Customer and
Bank agree that all telephone conversations between them
or their agents made in connection with the Services or this
Agreement may be recorded and retained by either party by
use of any reasonable means, subject to and in accordance
with any additional requirements of applicable law.
12. Entire Agreement; Changes to the Services
and this Agreement. Bank and Customer acknowledge
and agree that this Agreement and any amendments hereto,
the Account Agreement, and all other documents
incorporated by reference therein, 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. Bank may
change the Services and this Agreement in accordance with
the terms of the Account Agreement. Any such change
will generally be effective in accordance with the notice to
Customer. Customer will be deemed to have accepted any
changes to the Services and this Agreement if Customer
accesses or uses the Services on or after the date on which
the change became effective. Customer will remain
obligated under this Agreement, including without
limitation, being obligated to pay all amounts owing under
this Agreement, even if Bank amends this Agreement.
13. Governing Law; Conflicts. 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 Florida, or if Customer is a government or other
public entity, by the laws of the jurisdiction pursuant to
which Customer was incorporated or otherwise organized.
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.
IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement to be executed by an authorized
representative.
Village of North Palm Beach
(Customer)
501 US Highway One
North Palm Beach FL 33408
d ress)
B
(Signature of Authorized Representative)
Print Name: • 4/f'
Title: V111-1-19": A141V1qCEP__
Date of Agreement: August 91h, 2018
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HC# 4814-5583-9294 v.I
TD Bank, NA
B
(Signature ofAuthorizedRepresentative)
Print Name: Ricxt W &*o,5
Title: Y P( -e Pre-sliotf
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