HomeMy WebLinkAboutReso 2014-2242RESOLUTION NO. 2014 -
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, AWARDING REQUEST FOR
PROPOSALS (RFP) NO. 14 -04 -02 TO AND AUTHORIZING THE CITY
MANAGER TO NEGOTIATE AND ENTER INTO AN AGREEMENT
WITH TD BANK FOR BANKING SERVICES, PROVIDED SAID
AGREEMENT IS APPROVED AS TO FORM AND LEGAL
SUFFICIENCY BY THE CITY ATTORNEY; AUTHORIZING THE CITY
MANAGER AND CITY ATTORNEY TO DO ALL THINGS NECESSARY
TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City of Sunny Isles Beach, is in need of banking services to handle
operating cash including, but not limited to, deposits, check payments, payroll checks, ACH
processing, wire transfers, and corporate credit cards, and issued Request for Proposals (RFP) No.
14- 04 -02; and
WHEREAS, the City received three (3) responses, and TD Bank was determined to be the
lowest responsible and responsive bidder; and
WHEREAS, TD Bank is qualified, willing and able to provide the desired services on the
terms and conditions set forth herein, and
WHEREAS, the City wishes to award RFP No. 14 -04 -02 to and authorize the City Manager
to negotiate and enter into a five -year agreement with TD Bank for banking services with one (1)
five -year renewal option, provided said agreement is approved as to form and legal sufficiency by the
City Attorney.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Incorporation of Recitals. The recitals set forth in this resolution are incorporated
herein by reference as if fully set forth herein.
Section 2. Award of Bid and Authorization of City Manager. The City Commission hereby
awards RFP No. 14 -14 -02 to and authorizes the City Manager to negotiate and enter into an
Agreement with TD Bank for banking services for a period of five (5) years with one five -year
renewal option, provided said Agreement is approved as to legal form and sufficiency by the City
Attorney.
Section 3. Authorization of City Manager and City Attorney. The City Manager and the City
Attorney are hereby authorized to do all things necessary to effectuate this Resolution.
82014- TD Bank Agmt for Govt Banking Srvs RFP 14 -04 -02 RFP 14 -04 -02 - 1 -
Section 4. Effective Date. This Resolution will become effective upon adoption.
PASSED AND ADOPTED this 19t1i day of June 2014
N rman S. Edelcup, Mayor
ATTEST:
a�
Jane A. Hines, MMC, City Clerk
Approved As to Form and
Moved by: Cz �C.40L -, —
Seconded by: Ak b AD
Vote: S -b
Mayor Edelcup
v/ (Yes)
(No)
Vice Mayor Aelion
�(Yes)
(No)
Commissioner Gatto(Yes)
(No)
Commissioner Levin
V' Yes)
(No)
Commissioner Scholl
(Yes)
(No)
82014- TD Bank Agmt for Govt Banking Srvs RFP 14 -04 -02 RPP 14 -04 -02 - 2 -
/JNNY IS�F
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City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
305.947.0606 City Hall
305.949.3113 Fax
Norman S. Edelcup, Mayor
Isaac Aelion, Vice Mayor
Jeanette Gatto, Commissioner
Jennifer Levin, Commissioner
George "Bud" Scholl, Commissioner
Christopher J. Russo, City Manager
Hans Ottinot, City Attorney
Jane A. Hines, MMC, City Clerk
MEMORANDUM
TO: Mayor Norman J. Edelcup
City Commission
THROUGH: Christopher J. Russo, City Manager
FROM: Audra K. Curts - Whann, Finance Director
Tiffany Neely -Jean, Assistant Finance Director
DATE: June 4, 2014
RE: Banking Services RFP Fact Finding Review
After reviewing the bank proposals from Citibank, TD Bank and SunTrust Bank, we
believe the information review supports the selection of TD Bank for banking services.
Both Citibank and TD Bank were in close consideration during our review process.
SunTrust was not considered a viable option due to higher compensating balances,
higher bank fees and a lower interest earnings rate on excess balances. Please see the
comparison analysis for each financial institution's fees and rates.
The recommendation to select TD Bank over Citibank is based upon the following:
Per the comparison analysis, TD Bank's fees are approximately 36% lower than
Citibank. As a result, TD Bank's compensating balance requirement to offset bank
fees is also lower than Citibank - $2.5 million versus $3.5 million. The primary
reason Citibank's fees are higher than TD Bank appears to be the passthrough of
the FDIC insurance costs to the City as deposit assessment fees at $0.1083 per
$1,000 of compensating balance required. TD and SunTrust do not specifically
label those fees as separate line items, although they may also be passing them
through in some form in their reduced earnings credit interest rates and /or lower
interest rates on excess balances. Research indicates rates for FDIC insurance
may vary from institution to institution, and the FDIC does not prohibit banks from
passing those fees on to their customers. However, the FDIC has stated they do
not wish for banks to show those fees as separate line item costs to customers —
they prefer to have the fees hidden in lower interest rates or higher fees of other
types.
2. While Citibank offers a higher interest rate on excess balances, 0.25% versus
0.20% offered by TD Bank, this is only beneficial to the City if it keeps the majority
of its excess balances (above balances required to pay fees under the earnings
credit arrangements being offered) in a Citibank money market account. The
breakeven point in which both banks produce the same net interest earnings
(gross interest earnings less bank fees) is at $8.5 million. Finance staff have been
investigating other investment vehicles which have the potential to earn more than
0.25 %. This would include a mix of certificates of deposit with short terms (i.e. one
year or less), bonds, money market -type funds and additional treasuries in
accordance with the City's investment policy. It is the intention of the Finance staff
to significantly reduce funds remaining on deposit with our banking institution to
enable the City to obtain a higher earnings yield than was offered by any of the
institutions responding to the RFP.
3. TD Bank has a local presence in South Florida which includes a local branch in
Sunny Isles Beach and a local relationship manager. Citibank does not have a
local presence (New York based), the relationship manager we believe we will be
dealing with is located in Philadelphia, PA, and the closest branch is in Aventura,
FL. Based upon this local presence, we believe the City will have an opportunity
to partner with TD Bank in order to create a relationship better suited to its needs.
4. TD Bank has several local municipalities as clients which shows they have
experience in understanding our City's operations and its complexities. Citibank
was not able to provide any local municipalities as references and based upon
conversations with colleagues, they do not have a significant client base of
municipal governments.
5. TD Bank has several clients that are using Edmunds MCSJ, the new ERP financial
software that the City will be implementing October 1, 2014. They have worked
with the software since 1994 and have created standard TD Bank file specifications
for exporting to the financial system.
6. When comparing the financial strength of the two institutions, both are very large
national institutions with strong financial positions. However, historically, it
appears TD operates at a more conservative level. Citibank required a large
bailout in 2008 from the federal government.
Please let us know if you have any questions.
Services Requested
TD Bank
SunTrust
Fees are wavied (Day's)
90
90
Proximity to Government Center
(miles)
1.5
0.2
3.0
Average Balance to Offset Fees
$3,500,000.00
$2,530,000.00
$3,940,328.06
ECR Rate
0.50%
0.45%
0.50%
Excess Balance NOW & MM Rate
0.25%
0.20%
0.15%
Fees are wavied (Day's)
90
90
Proximity to Government Center (miles)
1.5
0.2
3.0
FDIC Charges
NO FDIC Insurance
No 10% Reserve
Requirement
Deposit Assessment Fee
$0.1083 per $1000
TD Bank will NOT charge
the City of SIB any FDIC
Charges providing the
city an additional cost
savings
Unit Price
Unit Price
Unit Price
FDIC Insurance Charge
$ 37,870,000.00
$0.1083
$379.05
Deposits and Other Credits
86
$0.10
$8.60
$0.41
$35.26
$0.80
$68.80
Items deposited - BB &T
81
$0.10
$8.10
$0.06
$4.86
$0.12
$9.72
Items deposited In State
577
$0.10
$57.70
$0.06
$34.62
$0.12
$69.24
Items Deposited - Other
275
$0.10
$27.50
$0.06
$16.50
$0.12
$33.00
Checks Paid and Other Debits
357
$0.10
$35.70
$0.10
$35.70
$0.19
$67.83
Branch Check Image Access
1
-
-
$0.00
-
-
Coin and Currency Deposited
36528
$0.15
$54.79
$0.00
$0.002
$73.06
Deposit Corrections
0
-
$0.00
$6.00
-
Night Depository Services
50
-
$0.00
$2.00
$100.00
Easy Image Statement
1
-
-
$0.00
-
-
-
Returned Deposit /Cash Item
3
$10.00 1
30.00
$5.50
1 $16.50
$10.00
$30.00
Total
$222.39 $143.44 $451.65
CMOL Outgoing Repetitive Wires
14
$7.00
$98.00
$6.60
$92.40
$9.00
$126.00
CMOL Outgoing Non - Repetitive Wires
0
$7.00
-
$6.60
$10.00
Incoming Wires
1
$7.00
$7.00
$7.15
$7.15
$13.00
$13.00
Total
105.00 $99.55 $139.00
ACH Received Credit
82
$0.10
111111111111F$8.20
$0.12
$9.84
$0.25
$20.50
ACH Received Debit
21
$0.10
$2.10
$0.12
$2.52
$0.19
$3.99
ACH Monthly Maintenance
1
$35.00
$35.00
$27.50
$27.50
$45.00
$45.00
Total ACH Originated Items
citi - 585
TD -2
Suntrust -615
$0.10
$58.50
$0.09
$0.18
$0.14
$86.10
ACH Acct Block Filter Service
1
$10.00
$10.00
$2.75
$2.75
$30.00
$30.00
ACH Acct Block Reports
1
$11.00
$11.00
$3.00
$3.00
CMOL ACH File
Citi Proposing 10
$5.00
$50.00
$8.80
$88.00
$35.00
$350.00
Total
UL - $141.79 $538.59
CD -Rom Maintenance 1
. , ' $19.25 $19.25 $30.00 $30.00
CD -Rom Items 304
$0.05
$15.20
$0.03
$9.12
$0.06
$18.24
CD -Rom Disk 1
$30.00
$30.00
$2.75
$2.75
-
CD -Rom Multiple Acct Fee 2
-
-
$0.00
$0.00
Total
$45.20 $31.12 $48.24
CMOL CD Acct Maintenance
1
$0.00
$0.00
$0.00
$0.00
$20.00
$20.00
CMOL Business Banking
4
-
-
$6.60
$26.40
$12.00
$48.00
CMOL CD Acct Maintenance
1
$0.00
$0.00
$15.00
$15.00
CMOL - CD Loaded Items
84
-
-
$0.00
$0.00
$0.12
$10.08
CMOL Business Banking
1
$80.00
$80.00
$49.50
$49.50
$12.00
$12.00
CMOL BusBank - PD Loaded Items
(Fee for AP acct)
88
-
-
$0.00
$0.00
$0.10
$8.80
CMOL BusBank - PD Loaded Items (No
fee for Op /Payroll /Merch acct)
527
$0.00
$0.00
$0.10
$52.70
CMOL BusBank - Image Retrieved
(Fee for Operating acct)
3
$0.00
$0.00
$0.50
$1.50
RFP No. 14 -04 -02 - Banking Services Page 1 of 3
Services Requested
TD Bank
SunTrust
CMOL BusBank - Image Retrieve No
fee for AP /Payroll /Merch acct)
8
$0.00
$0.00
$0.50 1 $4.00
CMOL BusBank - Stop Pay 6 mth 2 $13.75 $27.50 $15.00 $30.00
Total 0.00 $103.40 $202.08
ZBA + Master
1
$25.00
$25.00
$40.00
$40.00
$50.00
$50.00
ZBA +Sub
2
$10.00
$20.00
$25.00
$50.00
$17.00
$34.00
ZBA + Reporting
3
$0.00
-
-
-
Total
$45.00 $90.00 $84.00
Checks Drawn on Canadian Banks 1 $10.00 $10.00 $0.06 $0.06 $4.00 $4.00
Total
$0.06 $4.00
Positive Pay Maintenance 7
$30.25
$278.00
Remote Deposit Capture
$60.00
$60.00
$52.25
$52.25
$163.50
Armored Car Service
N/A
N/A
N/A
Total
$82.50 $441.50
..
Account Maintenance
Chi Proposing 5 Accounts
TO Proposing4 Amount
Suntrust Proposing 4 Amounts
-
$5.00 25.00 $9.35
..........
$37.40
$20.00
$80.00
Positive Pay File Transmitions
TO Proposing 2
-
$8.25
$16.50
-
-
Positive Pay (per Item)
357
$0.10
$35.70
$0.04
$14.28
$0.03
$10.71
Check Scanner
Citi Free
TO Bank 27.50 per Month
5untrost(9 Options to Buy orRent
'' Free
Free
$27.50
$27.50
Many
Options
Many Options
Digital Express Checks Deposited
Chi Fee - Free ($60.00 per month
Maintenace)
TD$0.03paritemat933
$0.00
$0.00
$0.03
$27.99
$0.10
$61.50
Online Transactions over 500
591
$0.00
0
$0.06
$5.46
$0.10
$9.10
Online Additional SecurelD Tokens
3
$3.30
$9.90
Online First 2 SecurelD Tokens
TO -$1.65 for first
suntru :t- 6o.ao rmontn
$1.65
$3.30
$60.00
$60.00
ACH Reversal
Per Transaction
$20.00
$8.25
-
$5.00
-
ACH Item Deletion
Per Transaction
$25.00
$40.00
Deposit Tickets
Citi Proposing 56
TDFf F
5 untrust Free
$0.35
$19.60
$0.00
$0.00
File Transmission (ACH Direct)
Per File
$25.50
$0.00
$0.00
$0.00
ACH Fraud Control
5untrustProposing4Amounts
$30.00
$120.00
Delete or Reverese ACH Batch
Citi Only
$35.00
-
-
ACH Filter
Citi Only
$3.50
-
Stop Payment Request Online
$15.00
$80.30
N/A
$142.33
$15.00
-
$341.31
Total for Transactions
$546.56
$374.79
$511.54
Total Per Month
$1,310.741
$834.19
$2,25037
2
$15,728.88
$10,010.28
$27,004.39
RFP No. 14 -04 -02 - Banking Services Page 2 of 3
Services Requested I I CitiBank I TD Bank I SunTrust
BALANCE SCENARIOS
Scenario 1 - All funds kept in bank
Total Balance in bank
$ 37,870,000.00
CitiBank
TD Bank
SunTrust
Average Balance to Offset Fees
$3,500,000.00
$2,530,000.00
$3,940,328.06
Actual Balance Required
$3,145,775.00
$2,224,506.00
$5,400,878.00
ECR Rate
0.50%
0.45%
0.50%
Excess Balance NOW & MM Rate
0.25%
0.20%
0.15%
Excess Balance NOW & MM Accts
$34,370 000,00
$35,3404000.00
$33,929,671.94
Annual ECR Interest to pay fees
Annual Interest Earnings
rt
Net Annual Interest Earnings
Net Annual Interest Earnings - Citibank overTD Bank $15,245.00
Effective Interest Rate 0.040%
Scenario 2 - Breakeven at $8.5 million kept in bank
Total Balance in bank
$ 8,465,300.00
CitiBank
TD Bank
SunTrust
Average Balance to Offset Fees
$3,500,000.00
$2,530,000.00
$3,940,328.06
Actual Balance Required
$3,145,775.00
$2,345,094.00
$5,390,798.00
ECR Rate
0.50%
0.45%
0.50%
Excess Balance NOW & MM Rate
0.25%
0.20%
0.15%
Excess Balance NOW & MM Accts
$4,965,300.00
$5,935,300.00
$4,524,971.94
Annual ECR Interest to pay fees
- •'
Annual Interest Earnings
•�`
Net Annual Interest Earnings
Net Annual Interest Earnings - Citibank over TD Bank $0.00
Effective Interest Rate 0.000%
Scenario 3 - $20 million kept in bank
Total Balance in bank
$ 20,000,000.00
CitiBank
ank`
*SunTrust
Average Balance to Offset Fees
$3,500,000.00
$21530,000.00
$3,940,328.06
Actual Balance Required
$3,145,775.00
$2,345,094.00
$5,390,798.00
ECR Rate
0.50%
0.45%
0.50%
Excess Balance NOW & MM Rate
0.25%
0.20%
0.15%
Excess Balance NOW & MM Accts
$16,5
$17,470,000.00
$16,059,671.94
Annual ECR Interest to pay fees
- •'
Annual Interest Earnings
Net Annual Interest Earnings
Net Annual Interest Earnings - Citibank over TD Bank $5,767.35
Effective Interest Rate 0.029%
RFP No. 14 -04 -02 - Banking Services Page 3 of 3
CITY OF SUNNY ISLES BEACH AGREEMENT
WITH TD BANK FOR BANKING SERVICES
CONTRACT NO. X314• o66
THIS CONTRACTUAL AGREEMENT (hereinafter referred to as the "Agreement ")
is made in duplicate, this /`�� day of (,� 2014, by and between the CITY
OF SUNNY ISLES BEACH, Florida, (hWeinaftler referred to as "City "), and TD BANK, N.A.
a corporation authorized to do business in the State of Florida (hereinafter referred to as "Bank ")
whose Federal I.D. # is 01-01-3-7-770
RECITALS
WHEREAS, the City issued Request for Proposals No. 14 -04 -02 ( "RFP ") for banking
services to handle operating cash including, but not limited to, deposits, check payments, payroll
checks. ACH processing and wire transfers ( "Services "); and
WHEREAS, the Bank responded to the RFP by submitting a proposal and
"Supplemental Certification" in response thereto (together, the "Proposal "), including but not
limited to the Bank's Cash Management Master Agreement ( "CMMA ") and associated service
appendices, (together. the " Bank Forms of Agreement "); and
WHEREAS, the Bank was selected by the City as the lowest responsible and responsive
bidder in response to the RFP; and
WHEREAS, the Bank shall provide the Services to the City as set forth and delineated in
the RFP, the Bank's Proposal and the Bank Forms of Agreement copies of which are attached
hereto as Exhibits and incorporated herein by reference.
NOW THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the City
and Bank hereby covenant and agree as follows:
1. RECITALS. The Recitals set forth above are hereby incorporated into this Agreement
and made a part hereof for reference.
2. SERVICES. The Services performed by Bank shall consist of the following:
(a) Each of the specific requirements, terms and conditions set forth in the RFP (attached
hereto as Exhibit C), which is hereby incorporated by reference in its entirety;
(b) Each of the services, terms and conditions set forth in the Proposal (attached hereto as
Exhibit B) as well as the Bank Forms of Agreement (attached hereto as Exhibit C)
and hereby incorporated by reference in their entirety; and
(c) Unless the context requires otherwise, all references to "this Agreement" and use of
the terms "herein ", "hereby', "hereto ", "hereunder" and the like shall be deemed to
include this Agreement, the Proposal, the Bank Forms of Agreement, the RFP and
any other related documents (collectively, the "Contract Documents ") ; and
(d) Any inconsistency between any of the Contract Documents shall be resolved in the
following descending order of priority:
City gfSunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947 -0606 phone (305) 949-3113 Fax
1. First, this Agreement;
2. Second, the Bank Forms of Agreement (including the CMMA, the Business
Deposit Account Agreement and the ACH Block & Filter Agreement, all
attached hereto as Exhibit A);
3. Third, the Proposal (attached hereto as Exhibit B);
4. Fourth, the RFP (attached hereto as Exhibit C); and
Fifth, any other relevant documents.
3. TERM. The term of this Agreement shall have an initial term of five (5) years with an
effective start date of July 1, 2014. Thereafter, the parties may extend the term of this
Agreement for an additional five (5) year renewal term, by mutual written consent at any time
prior to the expiration of the initial term of this Agreement. In the event the services are
scheduled to end because of the expiration of the existing initial term or renewal term, the Bank
shall continue to provide the services to the City, upon the City's request, for an extended period
not to exceed ninety (90) days. The Bank shall be compensated for services during this
extension period at the rate(s) in effect when the City invokes this extension clause.
4. TERMINATION AND REMEDIES FOR BREACH.
A. If, through any cause within reasonable control, the Bank shall fail to fulfill in a
timely manner or otherwise violate any of the covenants, agreements or
stipulations material to this Agreement, the RFP, or the Proposal, as well as the
Bank Forms of Agreement, City shall have the right to terminate the Services then
remaining to be performed. Prior to the exercise of its option to terminate for
cause, the City shall notify the Bank of its violation of the particular terms or
conditions alleged to have been violated and grant Bank ten (10) days to cure such
default. If the default remains uncured after ten (10) days the City may terminate
this Agreement.
(i.) In the event of termination for cause, (a) all finished and unfinished
documents, data and other work product prepared by Bank shall be delivered
to the City, subject to the Bank's right to retain copies of documents, data and
other work product in accordance with Bank record retention policies and
procedures as well as applicable laws and regulations relating to the retention
of records, (b) and the City shall compensate the Bank for all Services
satisfactorily performed prior to the date of termination.
B. Termination for Convenience of City. The City may, for its convenience and
without cause terminate the Services then remaining to be performed at any time
by giving Bank ten (10) days written notice. The terms of subparagraph A(i) above
shall be applicable hereunder.
C. Termination for Insolvency. The City also reserves the right to terminate the
remaining Services to be performed in the event of the Bank's failure and
appointment of the FDIC as receiver under federal receivership law.
2
City of Sunny Lyles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947 -0606 phone (305) 949-3113 Fax
5. COMPENSATION. For the Services authorized in the RFP and the Proposal, the City
agrees to maintain monies on deposit with the Bank in a special cash management compensation
account, in an amount which will be at least enough to cover all of the appropriate charges for
the Services, per the Proposal's pricing section. In accordance with the Bank's Proposal, as set
forth in Exhibit B, attached hereto and incorporated herein by reference, Bank will provide the
City with an account analysis statement and will automatically credit the designated account
monthly with any interest earned, or debit the designated account monthly for any fees incurred.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Bank hereby represents and warrants to the City that it has full power and authority to
enter into this Agreement and fully perform its obligations hereunder without the need for any
further corporate or governmental consents or approvals, and that the persons executing this
Agreement are authorized to execute and deliver it. Assuming the due authorization, execution,
delivery, legality and enforceability hereby by or against the City when executed and delivered
by the parties, this Agreement will constitute a valid and binding agreement of the Bank,
enforceable against it in accordance with its terms, subject only to the application of general
principles of equity and limitations arising from bankruptcy, insolvency, moratorium and other
similar laws affecting the rights of creditors generally. Bank shall at all times during the term of
this Agreement and during the term of any renewal or extension of this Agreement be a member
of the Federal Deposit Insurance Corporation and authorized by the Office of the Comptroller of
the Currency to operate as a national banking association.
(b) The Bank has not employed or retained any person employed by the City to solicit or
secure this Agreement and it has not offered to pay, paid, or agreed to pay any person employed
by the City any fee, commission percentage, brokerage fee, or gift of any kind contingent upon
or resulting from the award of this Agreement.
(c) The Bank is aware of the conflict of interest laws of the Ordinances and regulations of the
City of Sunny Isles Beach, Miami -Dade County, and the State of Florida, and covenants that the
Bank will fully comply in all material respects with the terms of said laws.
(d) At the request of the Bank, the City agrees to cause its designated officials or their
designees to execute such signature cards and other signature and identification verification
documents as the Bank deems reasonably necessary for purposes of establishing appropriate
security measures in connection with the Services to be provided hereunder.
7. ASSIGNMENT AND PERFORMANCE. Neither this Agreement nor any right or
interest herein shall be assigned, transferred or encumbered without the written consent of the
other party. City may terminate this Agreement, effective immediately, if there is any
assignment, or attempted assignment, transfer, or encumbrance, by Bank of this Agreement or
any right or interest herein without City's written consent. Notwithstanding the foregoing, for
purposes of this Agreement, the City acknowledges and agrees that the acquisition of all or
substantially all of Bank's assets by another institution shall not be deemed an assignment, nor
shall the transfer of this Agreement or any of Bank's rights or obligations hereunder to an
affiliate be considered an assignment. Additionally, for any subcontracting or assignment for
3
City of Sunny Lyles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947 -0606 phone (305) 949-3 1 13 Fax
which Bank must otherwise obtain the City's consent, such consent shall not be unreasonably
withheld.
8. INSPECTION RIGHTS AND RETENTION OF RECORDS. City shall have the
right, at reasonable times and upon reasonable request, during the term of this Agreement and for
three (3) years thereafter, to inspect the books, records, and accounts of Bank that pertain to the
Services performed under this Agreement. Bank shall keep such book, records and accounts as
may be necessary in order to record complete and correct entries related to Services performed
under this Agreement, as required by applicable law. All books, records, and accounts of Bank
related to this Agreement shall be kept in written or electronic form, or in a form capable of
conversion into written form within a reasonable time, and upon reasonable request to do so,
Bank, as applicable, shall make same available at no cost to City in written or electronic form.
Review and inspection of Bank records by the City may be made available subject to Bank
policy and to applicable federal laws and regulations, and those of the City of Sunny Isles Beach
and the State of Florida that may otherwise restrict or prohibit access to Bank's financial and
banking records by third parties.
Bank shall preserve and make available, at reasonable times for examination and inspection by
City, all financial records, supporting documents, statistical records, and any other documents
pertinent to this Agreement for the required retention period of the Florida Public Records Act,
Chapter 119, Florida Statutes, as may be amended from time to time, if applicable, or, if the
Florida Public Records Act is not applicable. for a period of seven (7) years from the date of the
banking transaction, or as otherwise required by Bank's policies and applicable federal, City of
Sunny Isles Beach and State of Florida laws and regulations related to the retention of such
records. If the Florida Public Records Act is applicable to Bank's records, Bank shall comply
with all requirements thereof. Any incomplete or incorrect entry in such books, records, and
accounts shall be a basis for City's disallowance and recovery of any payment upon such entry.
9. INSURANCE. Bank shall, at its sole cost and expense, during the period of Services
performed under this Agreement, procure the insurance coverage amounts required by the RFP
and as otherwise required by applicable banking rules and regulations under applicable federal
and state law.
10. INDEMNIFICATION. Bank shall indemnify and hold harmless the City, its agents
and employees from or on account of any losses, costs and damages incurred by third parties,
including reasonable attorney's fees and the actual costs of defense resulting from any act or
omission of gross negligence, willful misconduct or bad faith by the Bank or its subcontractors,
agents, servants or employees.
Subject to the limitations of Section 768.28 of the Florida Statutes, as applicable and as may be
amended from time to tirne, the City shall indemnify and hold harmless the Bank, its directors.
officers, employees, and agents from or on account of any losses, costs and damages incurred by
third parties, including reasonable attorney's fees and the costs of defense, resulting from any
actions or omission of the Bank taken or omitted to be taken at the request of the City, its
employees or agents, or otherwise arising out of any negligent act or omission or failure to
exercise reasonable care by the City, its employees or agents. Subject to the aforesaid limitation,
4
City of Sunny Lsles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947 -0606 phone (305) 949-3113 Fax
the City further agrees to indemnify and hold harmless the Bank, its agents or employees against
any claims or liability arising from or based upon the violation of any federal, state, county, or
city laws, by -laws, ordinances, or regulations by the City, its agents, servants or employees.
H. LIMITATION OF LIABILITY. Notwithstanding any other terms or provisions of
this Agreement, including the preceding Section 10, neither the City nor the Bank shall in any
event be liable to the other for any amount in excess of actual losses plus costs and reasonable
attorney's fees sustained by the injured party, and in no event shall either the City or the Bank
ever be liable hereunder or in any action in tort arising out of the Services or relationships to be
provided or established hereunder for any indirect, special, incidental, punitive or consequential
loss or damage of any kind, including lost profits or opportunities or damage to reputation,
arising therefrom whether or not advised of the possibility hereof.
12. NOTICES. All notices and other communications required or permitted to be given
under this Agreement by either party to the other shall be sent (except as otherwise provided
herein) in accordance with the Bank Forms of Agreement. as applicable. Notice given under the
Bank Forms of Agreement may be addressed to such party as follows:
If to the City:
Christopher J. Russo
With a copy to:
City Manager
Hans Ottinot
City of Sunny Isles Beach
City Attorney
18070 Collins Avenue
City of Sunny Isles Beach
Fourth Floor
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
Fourth Floor
Tel: (305) 792 -1701
Sunny Isles Beach, Florida 33160
Tel: (305) 792 -1702
If to the Bank:
Pamela Ramkalawan
With a copy to:
Vice President
Einar Anderson
Government Banking
Senior Vice President & Senior
5900 N. Andrews Ave.
Counsel
Second Floor
P.O. Box 9540
Fort Lauderdale, FL 33309
Portland, ME 04112-9540
Tel: (954) 233 -2064
Tel: (207) 535 -3801
13. CHANGES /AMENDMENTS.
(a) The City may, from time to time, request changes in the scope of set-vices of the Bank to
be performed hereunder. Such changes, which are mutually agreed upon by and between
the City and the Bank, may be incorporated into this Agreement via written amendments
to this Agreement.
(b) The fees and charges set forth for the Services to be provided to the City will begin on the
effective date of this Agreement, and shall not be increased for a period of five (5) years
City gfSunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947 -0606 phone (305) 949-3113 Fax
after commencement of the term of this Agreement. For any renewal term beyond the
initial five (5) year period, fees and charges may be renegotiated between the parties.
(c) The Bank may amend the Bank Forms of Agreement where such amendments apply to
all or substantially all of the Bank's Cash Management Services customers, except to the
extent that any such amendments contravene any provisions of this Agreement or the
provisions of the Bank Forms of Agreement that the parties previously amended,
customized or otherwise specially - negotiated. Bank may provide notice to the City of
such amendments in accordance with the provisions of the Bank Forms of Agreement.
The City may terminate this Agreement or the Bank Forms of Agreement, including any
associated Appendix(ces), immediately upon its receipt of notice of an amendment that is
not acceptable to the City.
14. EQUAL EMPLOYMENT OPPORTUNITY; NON- DISCRIMINATION.
The Bank will not discriminate against any employee or an applicant for employment because of
race, color, religion, sex, national origin, marital status, or handicap. The Bank shall take
affirmative action to ensure that applicants are employed and that employees are treated fairly
during employment without regard to race, color, religion, sex, national origin, marital status, or
handicap.
Such action shall include, but not be limited to, the following: Employment, upgrading,
demotions or transfers, recruitment or recruitment advertising; layoff or terminations; rates of
pay or other forms of compensation; selection for training including apprenticeship; and
participation in recreational and educational activities.
The Bank shall keep such records and submit such reports concerning racial and ethnic origin of
applicants for employment and employees as the Secretary of Labor of the United States
requires. The Bank agrees to comply with such rules, regulations and guidelines as the Secretary
may issue to implement these requirements. Each party respectively shall comply with all
applicable laws, ordinances and codes of Federal, State and local governments applicable to that
Party.
15. MATERIALITY AND WAIVER OF BREACH. City and Bank agree that each
requirement, duty and obligation set forth herein was bargained for at arms - length, is agreed to
by the parties, that each is substantial and important to the formation of this Agreement and that
each is, therefore, a material term hereof. City's failure to enforce any provision of this
Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A
waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any
subsequent breach and shall not be construed to be a modification of the terms of this
Agreement.
16. SEVERANCE. In the event any provision of this Agreement is found to be void and
unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement
shall nevertheless be binding upon the parties with the same effect as though the void or
unenforceable provisions had been severed and deleted.
6
City of Sunny Isles Beach 18070 Collins Avenue, Sunny Isles Beach, Florida 33160
(305) 947 -0606 phone (305) 949-3 1 13 Fax
17. GOVERNING LAW. This Agreement shall be construed and enforced in accordance
with federal law and, to the extent not preempted or inconsistent therewith, by the laws of the
State of Florida.
18, JURISDICTION. The Parties hereto agree that the state or federal courts located in the
State of Florida shall have the exclusive jurisdiction over the parties and the subject matter of
any litigation between the parties arising hereunder. Venue for any lawsuit brought by one party
against the other party or otherwise arising out of this Agreement, and for any other legal
proceeding except as otherwise required by law, shall be in Miami -Dade County. Florida, and,
in the event of federal jurisdiction, in the Southern District of Florida. The Bank and City each
agree that neither the Bank nor the City shall: (a) seek a jury trial in any lawsuit, proceeding,
counterclaim, or any other action based upon, or arising out of, the Agreement or any account or
the dealings between the Bank and City, or (b) seek to consolidate any such action with another
in which a jury trial cannot be or has not been waived.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in triplicate on the
day and year first written above.
Print Name
ATTEST:
B Q.r.�
Jane A. Hines. MMC, City Clerk
T.D. BANK, N.A.
Signature of Corp. rep.
Print name and title of Corp. rep.
CITY OF SUNNY ISLES BEACH
BY:
Orman S. Edelcup. Mayor
APPROVE "S TO FORM
AND LE:G7 %UFFICIENCY
199
ttinot City Attorney
EXHIBIT A:
1:ft-Till
CASH MANAGEMENT MASTER AGREEMENT
Customer: CITY OF SUNNY ISLES BEACH
Date of Agreement:
'I'D 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 obtain from Bank, and Bank desires to provide to Customer, those services
that have been checked below:
1. 'FD eTreasury Services (Appendix 1) ............................................ ...............................
2. I'D AC11 Origination Services (Appendix II) ............................... ...............................
3. 'I'I) Wire Transfer Services (Appendix III) ................................... ...............................
4. TD Sweep Services (Appendix IV) ............................................... ............................... ❑
5. 'I'D positive Pay Services (Appendix V) ....................................... ...............................
AFTER REVIEW OF SECTION 10 HEREIN,
CUSTOMER DECLINES POSITIVE PAY SERVICES ❑
* ** [Customer must accept or decline the Positive Pay Services
6.
TD Controlled Disbursement Services (Appendix VI) .................. ...............................
7.
'I'I) I,ockbox Services (Appendix VII) .......................................... ...............................
❑
8.
TD Digital Express Services (Appendix VIII) ............................... ..............................®
9.
'I'D Account Reconcilement Services - Full (Appendix IX) .......... ...............................
10.
TD Account Reconcilement Services — Partial (Appendix X) .................................
I... ❑
l I .
TD Deposit Reconcilement Services (Appendix XI) .................... ...............................
❑
12.
TD Check Imaging Services (Appendix XII) ................................ ...............................
13.
'I'D 'Zero Balance Account Services (Appendix XIII) ................... ...............................
14.
TD Currency Services (Appendix XIV) ........................................ ...............................
15.
TD l:scroM)irect Services (Appendix XV) .................................. ...............................
❑
16.
'I'D BA12 File Transmission Services (Appendix XVI) ................ ...............................
❑
17.
TD Data Exchange Services (Appendix XVII) ............................. ...............................
❑
{1'1913/9'.7? 1 ,fr2 0'13
18.
'I'D AC11 Third Party Sender Services (Appendix XVlll) ............. ...............................
❑
19.
TD Image Cash Letter Services (Appendix XIX) ......................... ...............................
❑
20.
TD I Iealthcare Remittance Management Services (Appendix XX ) .............................
❑
21.
'I'D Data Transmission Services (Appendix XXI) ......................... ...............................
22.
TD ACl I Positive Pay Services (Appendix XX11) ........................ ...............................
23.
TD Currency Services for Smartsate (Appendix XXIII) ............... ...............................
❑
24.
Reserved (Appendix XXIV) ............................................... ........................................
❑
25.
Reserved (Appendix XXV) ........................................................... ..............................❑
The "Cash Management Service(s) - or "Service(s) - shall hereafter mean the cash management service(s) identified above and
provided by Bank (and /or Bank's third -party service providers) to Customer pursuant to this Agreement, the Appendices.
including Amended Appendices, as defined below. exhibits. Setup Form(s), and any service guides or manuals made available to
Customer by Bank.
Agreement
This Cash Management Master Agreement (this "Agreement') is by and between Bank and Customer. This Agreement is
incorporated by reference into that certain "Contract' between the parties, the terms of which include: ( I ) City of Sunny Isles
Beach Agreement With TD Bank for Banking Services ( "City's Form of Agreement') dated on or about the date of this
Agreement: (2) Customers Request for Proposals No. 14 -04 -02 (the "RFP" ): and (3) Bank's response to the RFP. Solutions
Prepared for City of Sunny Isles Beach, dated May 15. 2014 (the "Proposal -. hereinafter, collectively, the "Contract"). The
parties agree that any ambiguity, conflict or inconsistency in the loregoing documents that together constitute the Contract shall
be resolved in the order of precedence provided in Section 2(d) of'the City's Form of Agreement.
Bank agrees to provide to Customer and Customer agrees to use certain Cash Management Services (as dclined above) offered
by Bank. Bank and Customer agree that the Crash Management Services will be governed by the terms ol'the Contract. as well as
this Agreement. which include the rules and procedures applicable to each of the Services (collectively. the "Rules "). which are
contained in the Appendices to this Agreement, and are hereby incorporated in and made a part of this Agreement. This
Agreement shall be effective when signed by both parties.
The following terms and conditions arc applicable to all Cash Management Services provided to Customer hereunder.
1. Definitions. Capitalized terms used in this
Agreement and in any Appendix, unless otherwise defined
herein or therein, shall have the meanings set forth below:
"Access Devices" means collectively all security.
identification and authentication mechanisms, including,
without limitation, security codes or tokens, PINS.
electronic identities or signatures. encryption keys and /or
individual passwords associated with or necessary for
Customer's access to and use of any Cash Management
Services.
"Account - means an Account, as such term is
defined in the Account Agreement, used in connection with
any Cash Management Services.
".Account Agreement- means the Business
Deposit Account Agreement issued by Bank and governing
Customer's deposit relationship with Bank, as the same
may be amended from time to time.
'.1(/iliale(s)" means. with respect to any party.
any company controlled by. under the control of. or under
common control with such party.
"'I mended 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 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.
f uthorized Representative " means a person
designated by Customer as an individual authorized to act
on behalf of Customer and /or authorized to access and use
(IV1913697J; 2 Of62 0 -13
the Services. as evidenced by certified copies of resolutions
from Customer's board of directors or other governing
body. if any. or other certificate or evidence of authority
satisfactory to Bank, including, without limitation, any
Customer enrollment or Setup Form(s) completed by
Customer.
"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 c'treasury
Services.
"Bank Internet Svstem Appendix" means the
agreement issued by Bank and governing Customer's use
of the Bank Internet System.
"Business Dav" has the meaning given to it in
the Account Agreement.
"Calendar Day" has the meaning given to it in
the Account Agreement.
"Primary , Iccount" 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 far the 21" Centw-i
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
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 Services will be
denied 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 Servicc(s) by reviewing the relevant Service's
Setup Form(s), as applicable, or by calling Cash
Management Customer Care at 1 -866- 475 -7262, or by
contacting Customer's Cash Management Sales
Representative. Instructions received after a cut -off time or
on a day other than a Business Day may 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 Initial "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. where such amendments
apply to all or substantially all of the Bank's Cash
Management Services customers, 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 required for security of Bank or Customer funds.
Bank may immediately initiate changes to any procedures
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 arc 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 individuals) executing this Agreement has /have been
authorized by all necessary Customer action to sign such
agreements and 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. Mach 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
tr4'191369'J/ 3 ,(62 0613
information related to any Account(s) to which the
Authorized Representative has access and (iii) engage in
any transaction relating to any Account(s) to which the
Authorized Representative has access.
3.2 Bank may unconditionally rely on the
validity and accuracy of any communication or transaction
made, or purported to be made. by an Authorized
Representative.
3.3 Customcr 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 and government purposes.
Customer shall not use the Services for or on behalf of any
third party. Customer shall take all reasonable measures
and exercise reasonable precautions to ensure that
Customer officers. employees and Authorized
Representatives do not use the Services for personal, family
or household purposes, or any other purpose not
contemplated by this Agreement.
3.6 Customer and Bank shall comply with
(i) all applicable laws, regulations, rules and orders: (ii) the
Account Agreement: (iii) all applicable National
Automated Clearing Ilouse Association ( "NACI IA") rules.
regulations. and policies (iv) the Uniform Commercial
Code: (v) Office of Foreign Asset Control ("OFAC ")
sanctions: and (vi) all applicable laws, regulations and
orders administered by FinCFN (collectively (i) through
(vi), "Compliance haws ").
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 Initial Term of this
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 pro forma
provided in Bank's proposal ( "the Pricing Pro Forma').
incorporated by reference in the Contract, that applies to
the Services (the "Service Fees "). Any fees and charges
associated with Accounts or Services that are not specified
in the Contract or which are assessed after the conclusion
of the Initial Tenn, as described in Section 14, shall be
governed by Bank's standard schedule of fees and charges
applicable to Accounts or Services generally. unless the
parties otherwise mutually agree in writing. By signing
below, Customer acknowledges receipt of the Account
Agreement and acceptance of the Service Fees. and agrees
to be bound by their terms, as those terms may be amended
from time to time.
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 by Customer with Bank. Bank may charge a
service charge for Account research requested by Customer
in accordance with the Pricing Pro Forma or as otherwise
set forth in Bank's published schedule of charges for such
research.
4.4 During the Initial Term of this
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 indicated in the
pricing Pro Forma shall control and be in effect for the
Initial Term of the Agreement. Notwithstanding the
foregoing. Bank may charge or amend Service Fee(s)
associated with new or additional Services that Customer
may request that arc not included - Scrviccs under the
Contract.
5. Customer Identification Program. 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. 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. Customer
agrees that all such software is and shall remain the sole
property of Bank and /or the vendor of such software.
Customer agrees to comply with all of the terms and
conditions of all such license agreements and other
documents to which Customer agrees to be bound. Unless
otherwise agreed in writing between Bank and Customcr.
Customer shall be responsible for the payment of all costs
j{r'1'J13l,9:J; J o(62 0613
of software, 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 Subject to the provisions of Section
768.28 of the Florida Statutes, as applicable and as the
same may be amended from time to time. 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 in 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, all software and
necessary telephone lines. 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 SSI,
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.
Customer is responsible for installing and maintaining
appropriate virus protection software on Customer's
Computer. Bank is not responsible for any errors or
failures caused by any malfunction of the Computer or any
Computer virus or related problems that may be associated
with access to or use of the Services 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
Customers connection to the Internet or any browser
software.
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 Customers 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.
Customer Information; 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 the authenticity of any signatures
purporting to be of Customer or an Authorized
Representative. Customer agrees promptly to notify Bank
of any changes to any information or authorizations
provided to Bank in connection with the Services, and
further agrees to promptly execute any new or additional
documentation Bank reasonably deems necessary, from
time to time in order to continue to provide the Services to
Customer.
9.2 Customer agrees that it shall be solely
responsible for ensuring compliance with any 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 it result of a breach of security procedures if
Bank has substantially 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 the
,14'1913697. l? 5 nj62
0613
individual purporting to have signed such notice or other
writing. 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)
provided to Bank by Customer. 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 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
Banks option. record telephone conversations regarding
instructions received from an Authorized Representative.
9.4 Any security procedures maintained by
Bank arc not intended to detect errors in the content of-an
instruction received from Customer or Customer's agent or
vendor. Any errors in an instruction from Customer.
Customer's Authorized Representative. agent or vendor
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 commercially reasonable 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, including.
without limitation, retaining competent forensic experts. to
determine the scope of and data or transactions affected by
any Data Breaches. and immediately providing all such
information to Bank.
9.6 BANK'S SECURITY PROCEDURES
ARE STRICTLY CONFIDENTIAL AND SHOULD BE
DISCLOSED ONLY TO THOSE INDIVIDUALS WHO
ARE REQUIRED TO KNOW THEM. II' A SECURITY
PROCEDURE INVOLVES THE USE OF ACCESS
DEVICES, TIIE CUSTOMER SITALL BE
RESPONSIBLE TO SAFEGUARD T HEISE ACCESS
DEVICES AND MAKE THEM AVAILABLE ONLY TO
DF,SIGNATED INDIVIDUALS. CUSTOMER HAS THE
SOLE RESPONSIBILITY TO INSTRUCT THOSE
INDIVIDUALS THAT THEY MUST NOT DISCLOSE
OR OTI11-RWISL MAKE AVAILABLE TO
UNAU fI IORIZED PERSONS IT I SECURITY
PROCEDURE OR ACCESS DEVICES TO ANYONE.
CUSTOMER HAS TILE SOLE RESPONSIBILITY TO
FSTABLISII AND MAINTAIN PROCEDURES TO
ASSURE '['HE CONFIDENTIALITY OF ANY
PROTECTED ACCESS TO TLIE SECURITY
PROC'I:DURE.
10. Fraud Detection / Deterrence; Positive Pay.
Bank offers certain products and services such as Positive
Pay (with or without payee validation). ACI I positive Pay.
and Account blocks and filters that are designed to detect
and /or deter check, automated clearing house ("ACI I ") 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 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.
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 (10)
Calendar Days (or such longer period as may be required
by applicable law) after Bank has made available to
Customer any report, statement or other material containing
or reflecting the error, including an Account analysis
statement or on -line Account access. Except to the extent
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.
(11'191369 %J1 6 of 6,' n /13
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. 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
AgreemenL 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 suhjecl. 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.
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 Banks
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, or otherwise
in accordance with the Contract, and shall terminate five
(5) years thereafter ( "the Initial Term"). The parties may
renew this Agreement by mutual written agreement for an
additional five (5) year term (the "Extended 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 ten (10) Calendar Days prior written
notice to the other, provided that Customer may terminate
this Agreement or any Appendix immediately upon its
receipt of notice from Bank of a change in or amendment
of the provisions of this Agreement, the Services or any
Appendix that is not acceptable to Customer, in accordance
with Section 21 of this Agreement. 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).
Upon notification of termination prior to the end of the
Initial Term or an Extended Term. Bank will continue to
provide access to the Service(s) that are subject to
termination for a period not to exceed ninety (90) Calendar
Days to enable Customer to transition to another financial
institution. During the 90 -day transition period, the Service
Fees in effect at the time of notice of termination will
remain unchanged.
14.3 If an Appendix is terminated in
accordance with this Agreement. Customer must contact
Cash Management Customer Care 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:
hoxacver. Bank is not under any obligation to do so. Bank
will not be liable if it chooses to make any payment or
transfer or to perform any other Services that Customer has
previously authorized or subsequently authorizes after an
Appendix had terminated.
14.4 Notwithstanding the foregoing or
otherwise contained in the Contract. Bank may, without
prior notice, terminate this Agreement and terminate or
suspend any Scrvice(s) provided to Customer pursuant
hereto (i) if Customer or Bank closes any Account
established in connection with the Service, (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 it material breach, default in the performance or
observance of any term, or breach of any representation or
1" - of 6 Z 0613
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. (v) i1
there has been a seizure, attachment. or garnishment of
Customer's Accounts, assets or properties, (vi) if Bank
believes immediate action is required 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 ofany termination hereunder, all fees due
Bank under this Agreement as of the time of termination
shall become immediately due and payable.
Notwithstanding any termination, this Agreement shall
remain in full force and effect with respect to all
transactions initiated prior to such termination.
14.5 Notwithstanding any provision to the
contrary. the City may terminate this Agreement with or
without cause upon ten (10) days written notice to Bank. In
the event of such termination. the City will only be
responsible for payment of services satisfactorily
performed up to the effective date of termination. In the
event of termination the City shall not he responsible for
payment of the then remaining unexpired term.
15, Limitation of Liability; Disclaimer of
Warranties.
15.1 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 born 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
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 SGT
FORTH IN THIS AGREEMENT, CUSTOMER
EXPRESSLY AGREES THAT USE OF THE SERVICES
IS AT CUSTOMER'S SOLF, RISK. AND 'fl IF SERVICE
IS PROVIDED "AS IS." AND BANK AND ITS
SERVICE PROVIDERS AND AGENTS DO NOT
jW1913697. ]} N n/ 6' 0613
MAKE. AND EXPRESSLY DISCLAIM ANY.
WARRANTIES. EITIIER EXPRESSED OR IMPLIF,D,
WITH RESPECT TO THE SERVICES, INCLUDING
WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OI' MERCHANTABILITY. FITNESS
FOR A PARTICULAR PURPOSE. TITLE. OR NON -
INF'RINGENIF.NT OF INTELLECTUAL PROPERTY
RIGHTS, OR THAT THE. SERVICES WILL BE
UNINTERRUI'fED OR ERROR FREE. WITHOUT
BREACHES OF SECURITY OR WITHOUT DELAYS.
IN 'I'IIOSE STATES THAT DO NOT ALLOW T111'
OR LIMITATION OF LIABILITY. THE
LIABILITY OF BANK AND ITS SERVICE PROVIDERS
AND AGENTS IS LIMITED TO THE FULLEST
POSSIBLE FXTF.NT PFRMITTF.D BY LAW.
15.7 The provisions of this Section 15 shall
survive termination of this Agreement.
16. Indemnification.
16.1 In addition to but no in lieu of any
indemnification provision otherwise contained in the
Contract. subject to the provisions of Section 768.28 of the
Florida Statutes. as applicable and as the same may be
amended from time to time, and except as otherwisc
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 tees 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 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 (other than an action initiated by Customer
directly against Bank) or initiates under this Agreement,
including any interplcader 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.
Nothing in this paragraph is. or shall be deemed to be. a
waiver of sovereign immunity by Customer.
16.2 Notwithstanding the foregoing. Bank
shall have no right to be indemnified hereunder for losses
resulting from its own gross negligence or willful
misconduct as finally determined by a court of competent
jurisdiction. or as otherwise limited or prohibited by
applicable law, including, without limitation, Section
768.28 of the Florida Statutes. as applicable and as the
same may be amended from time to time.
16.3 The provisions of this Section 16 shall
survive termination of this Agreement.
17. Lawyer Trust Accounts. This Section 17
applies to law firms that have established lawyer trust
accounts. including but not limited to IOLfA. IOTA and
IOLA Accounts (collectively. "Lawyer Trust Accounts ").
in the State of New Jersey and as may, be applicable under
other States' laws. In the event that Customer is a law firm
in the State of New Jersey or such other State(s) as may be
applicable, and Customer's clients' funds arc held in
Lawyer Trust Account(s). Customer agrees and shall ensure
that only lawyers that are Authorized Representatives of
Customer may initiate debits from such Lawyer Trust
Account(s). Such debit transfers may include, but are not
limited to. wire. ACII and book transfers through the Bank
Internet System or through such other Services as may be
made available by Bank from time to time.
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
Irom 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, and all other documents incorporated
by reference therein. constitute the complete and exclusive
(1' 191319 %. /; 9 u /IrJ,
06/3
statement of' the agreement between them with respect to
the Services. and supersede any prior oral or written
understandings. representations, and agreements between
the parties relating to the Services.
21. Amendments. Bank may, at any lime, amend
this Agreement. the Services or Appendices in its sole
discretion and from time to time where such amendments
apply to all or substantially all of the Bank's Cash
Management Services customers. except to the extent that
any such amendments contravene any provisions of this
Agreement or the provisions of the Contract that the parties
previously amended, customized or otherwise specially -
negotiated. Bank may provide notice to Customer of such
amendments in accordance with the provisions of the
Contract. Customer may terminate this Agreement.
including any associated Appcndix(ces). immediately upon
its receipt of notice of an amendment that is not acceptable
to Customer. Except as expressly provided otherwise in
this Agreement. any such changes generally will be
effective immediately upon 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
the Contract. this Agreement or in any Appendix, if Bank
believes immediate action is required for security of Bank
or Customer funds. Bank may immediately initiate changes
to any security procedures and provide prompt subsequent
notice thereof 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 not
assign any of its rights or delegate any of its responsibilities
in whole or in part without notice to or consent from
Customer. Notwithstanding the foregoing. for the purposes
of this Agreement. Customer acknowledges and agrees that
the acquisition of all or substantially all of Bank's assets by
another institution shall not be deemed an assignment. nor
shall the transfer of this Agreement or any of Bank's rights
or obligations hereunder to an affiliate be considered an
assignment. Additionally, for any subcontracting or
assignment for which Bank must otherwise obtain the
Customer's consent, such consent shall not be unreasonably
withheld. 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. INTENTIONALLY OMITTED
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. 13ANK AND CUSTOMER
FAC11 AGREE THAT NEITHER BANK NOR
CUSTOMER SHALL (1) SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING. COUNTERCLAIM. OR
ANY OTHER ACTION BASED UPON, OR ARISING
OUT OF, TI IIS AGRFF,MENI' OR ANY ACCOUNT OR
THE DEALINGS OF THE RELATIONSHIP BETWEEN
BANK AND CUSTOMER. OR (11) SEEK 1-0
CONSOLIDATE ANY SUCII ACTION WITH
ANOTHER IN WHICH A JURY TRIAL, CANNOT BE
OR IIAS NOT BEEN WAIVED. THE PROVISIONS OF
THIS SECTION SHALL, BE SUBJECT TO NO
jW1913697 . 1,1 10 of6, 0613
EXCEPTIONS. NEITHER BANK NOR CUSCOMF,R
HAS AGRF,IiD WITH OR REPRESENTED TO THE
OTHER THAT THE PROVISIONS OF THIS SECTION
WILL NOT BF FULLY ENFORCED IN ALL
INST'ANC'ES. BANK AND CUSTOMER EACH
ACKNOWLEDGE THAT THIS WAIVER HAS BEEN
KNOWINGLY AND VOLUNTARILY MADE. The
provisions of this Section 28 shall survive termination of
this Agreement.
29. Beneficiaries. This Agreement is for the benefit
only of the undersigned parties hereto and is not intended to
and shall not be construed as granting any rights to or
otherwise benefiting any other person.
30. Recording of Communications. Customer and
Bank agree that all telephone conversations or data
transmissions between them or their agents made in
connection Nvith this Agreement may be recorded and
retained by either party by use of any reasonable means.
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. 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.
IN WITNESS WHEREOF, Customer and Bank have duly caused this Agreement, including all applicable Appendices, to be
executed by an Authorized Representative.
CITY OF SUNNY ISLES BEACH
(Customer)
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(A ddress) Q�
(Signaitu e of Authorized Representative)
Print Name:C 1 y, \>t -i k r 3, R\1-55i3
Title: C tj h %K.(Z—
TD BANK, N.A.
By: ?Q-M .
(Signature)
Print Name: -�.Mg gL
Title: y'tctZ eve
({i7913G971 1, 11 1!6' 06 /3
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. All capitalized terms used herein
without definition shall have the meanings given to them in the Cash Management Master Agreement. Bank and Customer agree
that. notwithstanding anything to the contrary contained in the Agreement, the tullowing terms and provisions shall apply to the
Agreement:
TERMS AND CONDITIONS
I. 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 he 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.
school district or school administrative unit of any
nature. water district, sewer district. sanitary
district, housing authority. hospital district,
municipal electric district, county or other political
subdivision. government agency, bureau.
department or other instrumentality, or quasi -
governmental corporation or entity defined by
applicable law, and (B) any state government or
any agency, department. bureau, office or other
instrumentality thereof.
(a) If Customer is a Governmental Unit of the type
included in (A) above. Customer and the individual
signing below represent. warrant and agree: (i) that
this Agreement has been duly executed by the
Treasurer. Finance Director, or other financial
officer authorized by law to make disbursements
of governmental Funds and enter into banking
agreements: (ii) that this Agreement has been
duly authorized by a vote of the governing body
of Customer that was dulv called and noticed. at
which the necessary majority voted to authorize
this Agreement, as evidenced by the certification
of the Secretary of the governing body and
provided with this Agreement: (iii) that only
persons authorized to disburse municipal funds
from any Account will be enrolled as Authorizcd
Users having access to wire transfer. ACH or
Account transfer functions: (iv) that if this
Agreement remains in effect for more than one
hudget 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.
(h) If Customer is a Governmental Unit of the type
included in (13) above, Customer and the individual
signing below represent. warrant and agree: (i) that
this Agreement has been duly executed by a
financial officer authorized by law to make
disbursements of governmental funds and enter into
banking agreements on behalf of Customer: (ii) that
this Agreement has been duly authorized by a
senior 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 ACI1 or wire transfer 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.
(c) For a Customer of the type included in either (A) or
(B) above. Customer and the individual signing
below further represent, warrant and agree: (i) that
upon Bank's request_ Customer shall provide
li' 1913 ?//.1; 12 #62 0909
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 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 Contract, 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 or
Contract is terminated.
Remainder of page intentionally left blank.
,'W 19 /3711. 1,1 / 3 0162 0909
: FT1I
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 (or "eTrcasury"). 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 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 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 employec(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.
"Appendix" means this eTrcasury Services
Appendix, including all procedures. Setup Form(s).
exhibits. schedules, documents and agreements referenced
herein, each as may be amended from time to time.
"Authorised User" means any person Customer's
Administrator designates as being authorized to access or
use any of the Set-vices 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.
"Pa vment" means a transfer of funds to or from
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, 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. return
deposited items and expired stopped items through this
feature. This information may be viewed upon
implementation of the Services, and 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.
1 W2099711. 6, N nj62 112011
2.3.3 Book Transfers. Book
Transfers allows Customer to make intra -bank fund
transfers between Customer's checking, savings and loan
Accounts. Transfers may be made as one -time or
recurring. same -day or in the future. Book Transfers may
also be initiated from (i) onc- Account -to- one - Account, (ii)
one- Account -to- many - Accounts. or (iii) from man -
Accounls-to- one - Account. Recurring 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 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. 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 sufficient available funds in the Account from
which funds are to be transferred to cover the amount of the
transfer. For future or recurring transactions, Customer will
need to have sufficient available funds on the day the
transaction is to occur. The number of transfers from
interest bearing checking and savings Accounts are subject
to the terms of the Account Agreement and federal
regulations. Transfers that Customer transmits by Bank's
cut -off time as set firrth 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 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.
2.3.3.1 Future -Dated
Book Transfer. In conjunction with Book Transfers. a
request to transfer funds between Customer's Accounts
may be initiated and approved for a future date. The future
transfer date may be scheduled for such date in advance as
may be permitted from time to time by Bank and as set
firth 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 transfers will be initiated on the Business Dad
requested by Customer, not on the dale Customer entered
the transaction using the Services.
2.3.4 Stop Payment. Stop
payments of checks drawn on Customer's Account(s) arc
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 he
responsible for resulting losses. All other information must
be reasonably accurate. Requests entered on the current day
may not he effective until one (1) Business Day after
receipt, and after Bank has had a reasonable time to act on
the request. Requests made on a non - Business Day or on
Saturday. Sunday or federal holidays are entered on the
next Business Dav but may not be effective until the second
(2nd) Business Day after receipt. Stop payments 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, Customer shall
not have the right to stop payment on or recall any payment
order or transfer request given hereunder after it has been
transmitted to Bank. Only stop payment orders initiated or
recalled through the flank 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
sell- 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 onc -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 or modules related to the Services 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 and wire drawdowns are subject to the terms and
conditions of the Wire Transfer Services Appendix. Once
approved by Bank for use by Customer. this Service allows
Customer to transfer funds electronically, typically from
Customer's Account(s) to other account(s) with Bank or to
accounts) at other banks. Except for future -dated transfers.
domestic or foreign wire transfers entered through the
I J{ '(nvY 7 l l.(,p 15 of i. 112011
Services will be processed on the Business Day they arc
received, and at currency exchange rates disclosed within
the Services, as applicable, provided that they arc received
in accordance with Bank's cut -off time(s) for lorcign wires
and for domestic wires, as set forth in the Wire Transfer
Services Appendix.
2.4.2 ACH Originations. ACII
originations arc subject to the terms and conditions of the
Automated Clearing Ilouse (ACII) Origination Appendix.
the Third -Party Sender Services Appendix or the ACII
Third Party Service Provider Agreement, as applicable.
Once approved by Bank for use by Customer, this Service
allows Customer to initiate and approve AC11 transactions
that Customer desires Bank to enter into the ACH network
on Customer's behalf Except for future -dated transactions.
AC11 transactions entered through the Services will be
processed (but not settled) on the Business Day they are
received, provided that they are received in accordance
with Bank's cut -off time, as set forth in the Automated
Clearing I louse (ACII) Origination Appendix or the Third -
party Sender Services Appendix. as applicable.
2.4.3 File Transfers. Filc
transfers is a method for Customer and Bank to send and
receive reports and files (including. but not limited to.
ACII, 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 tiles
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 the Services. however.
during any special or other scheduled maintenance periods
or interruption or delay due to causes beyond Bank's
control. These hours of access are subject to change
without notice.
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.
S. 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 l'or
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. 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 tJsers 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 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 C'ustomer's
Authorized User(s).
5.4 Whenever any Authorized User leaves
Customer's employ or Customer otherwise revokes the
authority of any Authorized User to access or use the
Services, the Administrator(s) are solely responsible for de-
activating such Authorized User's Access Devices.
Customer shall notify Bank in writing whenever a sole
Customer Administrator leaves Customer's employ or
Customer otherwise revokes a sole Administrator's
authority to access or use the Services.
6. Access Devices; Security Procedures.
6.1 Upon successful enrollment. Customer
can access the Services from Bank's designated website by
using Customer's Computer or. as may be permitted by
Bank from time to time in its sole discretion and in
accordance with Bank's terms and conditions for such
access, using mobile or other 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). Bank will
16 of 62 112011
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 Bank
Internet System or more frequently.
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. 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 tune to time and in his or her sole
discretion.
6.3 Customer acknowledges that, in
addition to the above individual passwords, access to the
Services includes, as part of the Access Devices, a risk -
based authentication security procedure at log -in for
Customer. including Customer's Administrator and
Authorized Users. This additional security procedure
involves an additional credential for cacti user that is in
addition to Login IDs and individual password security
(hereinafter " Fnhanced Log -in Security "). With Enhanced
Log -in Security, additional information regarding each
Authorized Uscr'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
cacti Authorized User by combining a number of key
identification points, such as 11' 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. An additional security procedure incorporates use
of a physical security device or token ("Token ") for certain
transactional functionality associated with ACT
transactions and wire transfers. A Token will be issued to
any Authorized Uscr(s), for example, for use in initiating
and /or approving ACFI transactions and wire transfers.
Notwithstanding the foregoing, Bank reserves the right to
incorporate the use of Tokcns for certain other functionality
from time to time, in its sole discretion, including by way
of example only and not by way of limitation, the use of
Tokens with certain administrative functionality and for the
creation of ACII and wire templates. Physical security of
each "Token is Customer's sole responsibility. With the
Token, cacti Authorized User will receive a PIN number
that the Authorized User must keep in a secure place. When
an Authorized User leaves Customer's employ, his or her
Login 11) must be deleted and. if a Token had been issued
to such Authorized User, Bank must be promptly notified
so that Bank may deactivate such Authorized User's
Token. Any additional Authorized User requiring a Token
must be authorized. in writing by Customer to Bank, for
Token creation or rc- creation and deployment. It-
applicable. ices may be assessed for additional Tokens.
6.4 Customer further acknowledges and
agrees that all wire transfers and ACII transactions initiated
through the Services incorporate "dual control" or
separation of duties. With this additional security feature.
one Authorized User will be permitted to create. edit.
cancel. delete and restore ACT batches or wire transfer
orders under his /her unique Login ID. password and Token:
a second dillerenl Authorized User with his /her own unique
Login ID. password and Token will be required to approve.
release or delete ACII 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 Cash Management Customer Care
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. 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, arc a commercially reasonable
method for the purpose of verifying whether any Payment.
transfer or other use of the Services was initiated by
Customer. Customer also agrees that any election
Customer may make to change or waive any optional
security procedures recommended by Bank is at
Customer's risk and that any loss resulting in whole or in
part from such change or waiver will be Customer's
responsibility. Customer further acknowledges and agrees
that the Access Devices are not intended, and that it is
commercially reasonable that the Access Devices are not
intended. to detect any errors relating to or arising out of a
Payment. transfer or any other use of the Services.
6.8 If Customer has reason to believe that
any Access Devices have been lost, stolen or used (or may
be used) or that a Payment or other use of the Services has
been or may be made with any Access Devices without
Customer's permission. Customer must contact its
Administrator and Bank. In no event will Bank be liable
I'm- any unauthorized transaction(s) that occurs with any
Access Devices.
112ol l
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 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 Customer maintains with Bank, if
necessary), in accordance %vith the Cash Management
Master Agreement and the Account Agreement.
8. Electronic Statements.
8.1 As an eTrcasury 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. 11' Customer currently receives it
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.
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 Customers Computer sufficient to
support access to a PDP tile.
8.4 At Customer's request. Bank will send
Customer a paper copy of Customers 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 Agreement
or Customers 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 Icature 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 this
Appendix.
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,
about debit or credit transactions cleared, and payment
status for ACI I 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 this Appendix. Each alert has different options
available, and Customer will be asked to select from among
these options upon activation of Customer's alerts service.
9.2 Voluntary Alerts.
9.2.1 Electronic alerts will be sent
to the email address Customer has provided as Customer's
primary email address for the Services or via the Services
secure messaging service. 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 he 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.
,'H_2099, 11 6; 1.e ,f62 112011
9.2.3 Alerts are not encrypted and
will never include Customer's Access Devices or full
Account number(s). Ilowever, 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 ernail 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. 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 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.
1 L Security. 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 also agrees to comply with
any operating. security and recognition 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 acknowledges that there can be no guarantee of
secure transmissions over the Internet and that the Services'
security procedures are reasonable. 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. 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.
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 Contract. including. without limitation,
any provisions thereof that exclude or limit warranties
made by, damages payable by or remedies available from
Bank. Hiis 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 Contract or Cash Management
Master Agreement is terminated.
Remainder of page intentionally left blank.
1 W2099 71 /.6; 11),#62 112011
APPENDIX II
TD ACH ORIGINATION SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and the parties' Bank Internet
System Agreement, as applicable. This Appendix applies to all automated clearing house ( "ACH") Services made available to
Customer. in Customer's capacity as an Originator, by Bank. as an Originating Depository Financial Institution ( "ODFI" ). All
capitalized terns 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. F,xccpt 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 Ilouse Association's ("NACIIA ")
Operating Rules and Operating Guidelines (collectively the
" NACHA Rides ").
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 ACII 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 N4CH.4 Rules. Customer
specifically adopts and makes to Bank all representations
and warranties of an Originator under the NACIIA Rides,
including that Customer will not initiate Entries in violation
of the laws of the United States. Customer has access to a
copy of the A' "W11.4 Rules and acknowledges receipt of a
copy. (The N.401A Rules may be obtained at NACIiA's
website at www.NACHA.ora or by contacting NACHA
directly at 703 -561- 1100.) Customer agrees to subscribe to
receive revisions to the NACHA Rules directly from
NACIIA.
2.2 Customer will maintain a checking
Account ( "Settlement Account') at Bank with available
balances sufficient to offset any Entries submitted and against
which any reiccted 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
20 „(e2
Customer relating to pre - funding of such Fntrics, including as
otherwise set forth in this Appendix.
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 NACIL4
Rides. or the Security Procedures. or (iv) otherwise
constitutes an agreement betriveen Bank and Customer
regardless of whatever practices and procedures Bank and
Customer may use.
2.5 Customer is responsible for all tariffs.
duties or taxes (excluding U.S. federal. state and local taxation
of the income of Bank) that may be imposed by any
government or governmental agency in connection with any
payment order executed pursuant to this Appendix, including
without limitation any international tariffs, duties or taxes
related to international ACH Entries as further described in
Section 6 below.
2.6 Customer shall be liable for all fines
including without limitation any international fines related to
international ACH Entries as further described in Section 6
below, that may be incurred by Bank that are attributable to
Customers failure to comply with (i) the NAC11,4 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 ("OFAU )
and the U.S. Department of the Treasury's Financial
Crimes Fnforcement Network ("FinCFN ").
3. Risk Exposure Limits.
3.1 Bank will establish for Customer. in
Bank's sole and exclusive discretion, a transactional
"Credit Exposure Limit" and it "Debit Exposure Limit"
( "Exposure Limits) "). Each Exposure Limit will be
established as an aggregate limit over multiple Settlement
Dates with other not -yct- settled transactions issued by
Customer through any ACII application with Bank. The
Exposure Limits arc based on Customer's financial
condition and anticipated or historical lcvel(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 Banks 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 ACII transactions. Bank
may reject or suspend processing of any Entry instructions
if such Entry exceeds Customer's Exposure
Limit(s). Bank shall use commercially reasonable efforts
to notify Customer of such rejection or suspension. 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), subject
to there being sufficient available funds in the Settlement
Account for the total amount of all credit Entries submitted
to Bank for processing. In such event. Bank will reduce
available funds in the Settlement Account equal to the total
amount of the ACI I credit Entries on the Business Day that
Bank begins processing Customer's ACII file. and
Customer's Settlement Account will be debited at the end
of the effective Settlement Date of the file.
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 Isom 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
21 „ /a2
the Bank Internet System Appendix and its related security
procedures when initiating Fntrics as described therein.
4.1.2 Direct Electronic
Transmission. Customer may transmit a NACI IA- 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 ACII file that contains ACII
Addenda which conform to the %ACHA 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 ACII network. Bank will, upon
Customer's request, forward Addenda information to
Customer within two (2) Business Days of Bank's receipt
of such information.
4.3 Corporate Payment Notification.
Should Customer receive Addenda information or
remittance details through the ACH network. Bank will,
upon Customer's request, provide translated FDI data via a
direct transmission tile, as described in or as otherwise
permitted by Bank's Appendix for Data Transmission
Services, online through the Bank Internet System, or via
other mutually- agreed method, each Business Day upon
receipt of the 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 NACI IA 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 Board of Governors of the Federal
Reserve System (or any successor entity who administers
Regulation E) (hereinafter "Regulation E ") and the Federal
Electronic Funds Transfer Act..
5.3 Customer acknowledges the right of a
consumer Receiver of an unauthorized debit Entry. as
applicable and as described in the .V,4C'HA Rules, to obtain a
refund of the funds debited from Receiver's account by
such Receiver sending a written notice to Receiver's
Depository Financial Institution within fifteen (15)
Calendar Days atter the Receiver's Depository Financial
Institution sends or makes available to the Receiver
information pertaining to that debit Entry. Customer also
acknowledges the right of a corporate Receiver of a debit
Entry, as applicable and as described in the NACHA Rides.
to obtain a refund of the funds debited from such
Receiver's account by such Receiver sending a notice to
Receiver's Receiving Depository Financial Institution
( "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.
pill)+, 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.
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 outside of the territorial borders of the United
States, which is processed through the domestic ACH
network. pursuant to the NO-11A Rules. including the rules
pertaining to International ACT I Transactions. The NACII.4
Rules establish SEC Code "IAT- for all International ACT]
Transactions. Customer agrees to be bound by the NACHA
Rules and all other applicable OFAC and FinCEN rules and
regulations associated with IAT Entries. Customer
acknowledges that IAT F,ntrics require additional
mandatory information, according to new formatting
requirements. in the computer record for such Entries
within an ACII batch file. Customer expressly agrees to
identify and properly initiate all IAT Entries.
6.2 Customer acknowledges and agrees
that the processing, settlement and /or availability of such
Entries may be delayed or suspended in the event that Bank
determines that enhanced scrutiny or verification of such
Entries is necessary under the NACHA Rules and /or
applicable U.S. law. Customer acknowledges that Bank
shall have no liability for such delay. Customer further
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 rules and requirements of the
national payment system of the receiving foreign country.
Customer assumes the risk of rejection of its Entries
according to the rules of the national payment system of the
of 62
receiving foreign country. Customer expressly
acknowledges and agrees that Outbound IAT Entries, once
transmitted, are irrevocable and are subject to the national
payments system of the receiving foreign country:
furthermore, the time frames for return of an Entry are
determined by the payment system rules of the foreign
country and may exceed the sixty (60) day return window
defined by the U J.S. AC11 system and the NACHA Rules. To
the extent not otherwise prohibited by law, in connection
with IAT Entries, Customer assumes the risk of all
fluctuations in foreign exchange rates or availability.
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 arc 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 and maintaining procedures to safeguard against
unauthorized transmissions. 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 (tic 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: Cash Management Customer Care, 6000 Atrium
Way, Mt. Laurel, New Jersey. 08054. The occurrence of
unauthorized access will not affect any transfers Bank makes
in good truth prior lo, 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 F.ntry (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 ofany applicable Security Procedures. I3ank
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 Fntry (or a request for
cancellation or amendment of an Entry) received by Bank
was transmitted or authorized by Customer. Customer shall
be obligated to pay the amount of the Entry as provided
herein, whether or not Bank complied with the Security
Procedures and whether or not that Entry was erroneous in
any respect or that error would have been detected if Bank
had complied with the Security Procedures.
9. Recording and Use of Communications.
Customer and Bank agree that all telephone conversations
or data transmissions between them or their agents made in
connection with this Appendix may be electronically
recorded and retained by either party, by use of any
reasonable means.
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 A; I CIIA Rules as in effect from time to time, and pursuant
to this Appendix. Bank will transmit such Entries as an ODFI
to the ACI I Operator by the deadline of the ACI I Operator.
provided such Entries are received by Bank prior to 8:00 p.m.
Eastern Time (FT-) and the ACI I 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,
An Entry must have an E1Tective Entry Date of at least two
(2) Business Days but no more than such period of time after
the Business Day such Entry is received by Bank as the
Services permit. Such Entries may also recur as frequently as
quarterly. If the Settlement 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 EtTcetive Entry Date as the Services
permit. Subject to the provisions of Section 768.28 of the
Florida Statutes. as applicable and as the same may be
amended from time to time. 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. F'T
on the delivery date. subject to the provisions of Section
768.28 of the Florida Statutes, as applicable and as the
same may be amended from time to time. 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 11' any of the requirements of this
Section 10 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.
I1. 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 F.ntn %'). Bank
will credit or debit the Receiver's account in the amount of
such Entry on the Settlement Date, provided the
requirements set forth herein are otherwise met. If those
requirements are not met. Bank will use reasonable efforts
to 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 rV,4CM Rules.
12. Returned or Rejected Entries.
12.1 In the event any Entry is returned or
rejected by the ACI I 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 F.ntry or othernise resolve the returned Entry in
accordance with the NA ('11.4 Rules.
12.2 Bank shall remake such Entry in any
case where rejection by the AC'll 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 F,ntrn.
12.3 Bank may reject any Entry which does
not comply with the requirements of Section 5, Transmittal of
fairies by Customer. or Section 7. Securiry Procedures. Bank
may also reject any Entry which contains a future Settlement
Date that exceeds the limits set forth within the Services.
Bank may reicct an On -Us Entry for any reason for which an
Entry may be returned under the NAC/lA Rules. Bank may
reject any Entry if Customer has failed to comply with its
Settlement Account balance obligations under Section 2.
Customer Obligations. If Customer has authorized an ACI
file containing individual payment orders and the
applicable Account has insufficient funds. Bank reserves
the right to reject the entire tile. Notices of'rcjection 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.
13. Cancellation or Amendment by Customer.
Customer shall have no right to cancel or amend any Entry
or file after its receipt by Bank. However, if such request
complies with the Security Procedures applicable to the
cancellation of data. Bank shall use reasonable efforts to act
on a request by Customer for cancellation of an Entry prior
to transmitting it to the ACII 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
initialing 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 Rides,
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 allcctcd
Receiver that an Entry or file has been made which is at
variance with the authorization or is otherwise erroneous.
Customer indemnities 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 ACI I 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 kAtries br
Customer. Bank shall have no obligation to re- transmit a
returned Entry to the ACH Operator if Bank complied with
24 of /,'
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 b} Bank related to Entries
transmitted by Customer within two (2) Business Days
alter 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 six (6) Business Days prior to
initiating an authorized Entry to a particular account in a
format and medium approved by the NACHA Rides.
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 slated 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 Rides. 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 six (6)
Business Days.
18. Participant Authorization for Entries.
18.1 To the extent required by the ;%ACILI
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 he in a form that complies with (i) all requirements of
the NACHA Rules and (ii) all applicable federal and state
laws and regulations, as the same may be amended from
time to time. including, without limitation, any applicable
requirements of Regulation E. the Federal Electronic Funds
'transfer Act_ and sanctions enforced by OFAC. Customer
shall obtain and maintain current information regarding
OFAC enforced sanctions. (This information may be
obtained directly from the OFAC Compliance Hotline at
(800) 540 -OFAC or by visiting the OFAC website at
www.ustreas.Vov /ofac.) Each Entry will be made according
to such authorization and shall comply with the N110H.9
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 NAClIA Ruler.
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 NACH.I
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 Rides.
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.
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 dcfault
under any other agreement for credit that Customer or any
of Customer's Affiliates has with Bank or any Affiliate of
Batik. Customer further acknowledges and agrees to
execute and deliver any further documents and instruments
as Bank may require to effectuate the cross- dcfault
contemplated hereby.
21. Third -Party Service Provider. Subject to
Batik'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. Subject to the provisions
of Section 768.28 of the Florida Statutes. as applicable and
as the same may be amended from time to time, Customer
,, /62
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 anv
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
front time to lima 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.
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 F,ffcctive Entry Date
shown on such Entry:
(ii) Such authorization is operative at the
time of transmittal or crediting or debiting by Bank as
provided herein:
(iii) Entries transmitted to Bank by
Customer are limited as set forth in Sections 3 and 5:
(iv) Customer shall perform its obligations
under this Appendix in accordance with the laws of the
United States and all other applicable laws, regulations and
orders, including, but not limited to, the transaction
screening and sanctions laws. regulations and orders
administered by OFAC: laws. regulations and orders
administered by FinCEN: and any state laws, regulations or
orders applicable to the providers of ACH payment
services:
(v) Customer shall be bound by and
comply with the provisions of the NACHA Rules (among
other provisions of the NACHA Rules) that make payments
of an Entry by the RDFI to the Receiver provisional until
receipt by the RDFI of final settlement for such Entry:
(vi) Customer specifically acknowledges
that it has received notice of the rule regarding provisional
payment and of the fact that, if such settlement is not
received, the RDFI shall be entitled to a refund from the
Receivcr 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
agency outside the U.S. as an IAT in accordance with the
N.1C l[,I Rules. (b) provide data necessary to accompany
the transaction in compliance with the Bank Secrecy Acts
" "travel Rule." (c) screen the IA F prior to transmitting any
tile(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 suhiect to all other
requirements of U.S. law, the N.f( -IL,1 Rules, OFAC and
FinCEN. as well as the laws and payment system rules of a
non -U.S. receiving destination:
(viii) with respect to Cacti Internet- initiated
("WEB ") ACH Entry that Customer may he 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)
commercially reasonable security technology that at a
minimum is equivalent to 128 -bit encryption technology.
and (b) where required by the N /W11.4 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:
(ix) with respect to each Telephonc-
Initiated ("TEL") Entry that Customer may he 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 arc valid:
(x) with respect to each Accounts
Receivable ("ARC") Entry that Customcr may be permitted
by Bank to initiate, (a) the amount of the Entry, the routing
number, the account number and the check serial number
arc in accordance with the source document. (b) Customer
will retain a reproducible, legible image, microfilm or copy
of the front of the Receivers 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 securcly 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
ll�l
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 docmnent unless the
ARC F,ntry 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 N.IC77:1 Rules for 130C
Entries. (c) the amount of the Entry, the routing number,
the account number and the check serial number arc 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 I30C
Entry for two (2) years from the Settlement Date of the
BOC Entry, (e) Customer has employed commercially
reasonable procedures to securcly store (1) all source
documents until destruction and (2) all banking information
relating to BOC Entries, and (t) 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 130C
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 Customcr and (b) has not been provided to the Receiver
for use in any prior POP Entry: and
(siii) 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. (t) 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.
Subject to the provisions of Section 768.28 of the Florida
Statutes. as applicable and as the same may be amended
Irom time to time. 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
indeninifv 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, ACII Operator or
transmission or communications facility, any Receiver or
RDFI.
23. 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 flank for an On -Us
Entry) on the basis of the account number, even if it
identities a person different firom 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.
24. Banks Unable to Accept ACH Transactions. If
Customer submits an Entry to Bank relating to an RDFI
which is riot a participant in an ACH network or submits an
Entry which has a same -day settlement, then (i) Bank may
reject such Entry and use reasonable efforts to notil,
Customer of such rejection or (ii) if Bank does not reject
such Entry, upon receiving a return transaction related to
the Entry fi•om the ACH Operator. Bank may offset the
Settlement Account and notily Customer of such
transaction.
25. Notices, Instructions, Etc.
25.1 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.
25.2 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.
26. 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 docmmcnts or any
record, including, without limitation, Customer's
responsibilities to retain all items. source documents and
records of authorization, in accordance with the NAC114
Rules.
27. Data Breaches.
27.1 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
-of 6'
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
ACII Data.
27.2 Customer agrees that it will promptly
investigate any suspected Data Breaches and monitor its
systems regularly for unauthorized intrusions.
27.3 Customer will provide timely and
accurate notification to Bank by calling 1- 866 -475 -7262
with regard to any Data Breaches when known or
reasonably suspected by Customer. including but not
limited to, Data Breaches to Consumer -bevel 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.
28. Audit. Bank has the right to periodically audit
Customer's compliance with the N.-ICHA Rules. U.S. law
and Bank policies, including, but not limited to. this
Appendix.
29. 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.
30. Termination. The parties may terminate this
Appendix in accordance with the terms and conditions of
the parties' Cash Management Master Agreement or the
Contract. In addition, if Customer breaches the N,4CH4
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 survive
termination of this Appendix. including without limitation
Sections 2. 5. 10. 12, 13. 14, 18. 20. 21, 22, 26. 31. 32 and
33.
31. 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.
32. 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
suhiect 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 d -A of the Uniform
Commercial Code, as varied by this Appendix.
33. 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 Contract. 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 Contract or
Cash Management Master Agreement is terminated.
Remainder of page intentionally lelt blank.
N „r 62
C:F71
APPENDIX III
TD WIRE TRANSFER SERVICES
This Appendix is incorporated by reference into the parties' Crash Management Master Agreement, and the parties' Bank Internet
System Agreement. and applies to all TD Wire Transfer Services ("Services ") made available to Customer by Bank via the Bank
Internet System. All capitalized terms used herein without definition shall have the meanings given to them in the Cash
Management Master Agreement or the Bank Internet System Agreement. as applicable. To the extent that this Appendix is
inconsistent with the provisions of the Cash Management Master Agreement. or with the terms and conditions of the Bank
Internet System Agreement, this Appendix and any amendment hereto from time to time shall control. but only to the extent
necessary to resolve such conflict.
TERMS AND CONDITIONS
Description of the Services.
1.1 The Services described in this
Appendix provide Customer with the capability to transfer
funds from specific Account(s) 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.
12 Prior to Customer's use ol'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.
2. Execution of Wire Transfers.
2.1 13) 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 Fedwirc
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
correspondent bank that Bank reasonably selects to transfer
funds from time to time.
2.3 Each wire transfer must include the
following information in addition to any information which
Bank may require for proper identification and security
purposes: (i) account number from which the funds are to
be withdrawn, (ii) amount to be transferred, (iii)
C'ustomer's address, (iv) name and ABA routing number of
the payee's bank, and (v) account name, address and
account number of the payee. 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 Translers are the sole and exclusive
responsibility of Customer. Subject to the provisions of'
Section 768.28 of the Florida Statutes, as applicable and as
the same may be amended fi-om time to time. 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 -oll' 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 property authenticated.
Cut -off times may be established and changed by Bank
Irom time to time. Instructions for wire transfers received
after such cut -off times may be treated by [lank 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 [lank'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
/W 4852 -OR02 -:554 'v n%62 0614
Business Day if that day is also a Business Day for Bank's
correspondent facility and the recipient bank. l"uture -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 it Business Day. and an international
wire transfer of U.S. currency initiated and approved by
Bank's cut -off time fir 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 being 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 deftults in the
transfer of any messages in connection with such a foreign
wire transfer by any means of transmission. If the wire
transfer is of currency other than that of the country to
which it is being transferred. it shall be payable in the
currency of the country of the recipient financial institution.
unless the payee arranges otherwise. If the wire transfer is
received by Bank prior to any cut -off time established from
time to time. the currency exchange shall be made at the
rate quoted by Bank at the time of the wire transfer.
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 beneficiary will
receive credit for funds.
4.4 Customer understands and
acknowledges that ifthe named beneficiary does not match
the account at the receiving bank, there is it risk the
beneficiary may not receive the wired funds. If the transfer
is not received or credited in a timely manner. Bank will
follow normal and customary procedures to complete the
wire transfer. determine the location of the wired funds
and /or return the funds to Customer. If Bank is unable to
determine that the funds have been credited to the
beneficiary'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 xvire transfers arc 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 tansfcr(s) directed to or through persons,
entities or countries restricted by government regulation or
prior Bank experience with particular countries. Subject to
the provisions of Section 768.28 of the Florida Statutes. as
applicable and as the same may be amended from time to
time. and to the extent not otherwise prohibited by law. in
connection with any international wire transfer(s) involving
a transfer to or from anv country outside of the U.S.,
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 beneficiary.
5. Cancellation and Amendment of a Wire. An
Authorized Representative may request that Bank attempt
to cancel or amend a wire transfer previously received from
Customer. If it 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 C'ustomer'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
Customers wire transfer request. Bank will attempt to have
the wire transfer returned. Notwithstanding the foregoing.
Bank shall have no liabilitv 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. Customer agrees to
indemnity 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.
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 arc returned
due to incorrect information furnished by Customer.
Customer is required to fully complete beneficiary name.
and address. as beneficiary bank may elect to return an
otherwise valid wire transfer for incomplete 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 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 reicction or return. Bank
shall have no further obligation to act upon a wire transfer.
nor shall Bank have any liability to Customer due to
rejection by another person in the wire transfer process. or
the fact that notice was not given or was not given at an
earlier time. or within any specified time of receipt.
acceptance. execution or payment of any wire transfer.
7. Security Procedure.
{71 4S- 5 <- ONO2 -23 ?l 30 ,/ 62 0614
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 riot 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 enhanced procedures, it will be liable for any losses that
would have been prevented by such procedures.
Notwithstanding anything else contained in this Appendix. it'
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
Secw-ity Procedure is neither designed nor intended to detect
errors in the content or verity 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 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 am, 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:
Cash Management Customer Care, 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. Inconsistency of Receiving Beneficiary Name
and Account Number. Customer acknowledges and
agrees that, in accordance with Article 4A of the Uniform
Commercial Code, Bank shall be entitled to rely upon the
numbers supplied by Customer to identify banks.
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.
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
f'or such notice in accordance with the Cash Management
Master Agreement.
Ill. 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
H( 4852 -(0802 -2554 3 /of62 06 /J
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
veri fication.
12.3 Bank may electronically record an },
telephone conversations between Bank personnel and
Customer.
12.4 Wire transfer transactions arc 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 Contract. 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 it different or amended Appendix is accepted in
writing by Bank or the Contract or Cash Management
Master Agreement is terminated.
Remainder of' page intentionally, left blank.
1 /(';' 4852- 0.1'02 -1554 32,462 0614
�T,
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. "). the parties
intend to modify the effect of the applicable U.C.C. provisions to the maximum extent permitted by law.
TERMS AND CONDITIONS
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 Irorn
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.
".4whorired :Iccount' means the Aecount(s) of
Customer, maintained at Bank. to which the positive pay
services described herein and rendered by Bank will apply.
,I vailable 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 bN Custorer to Bank in accordance with Section
"Exception (,heck" means a Presented Check or a
Systematic Override Check 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.
" Pav Decision(s)" means the instructions of
Customer to Bank instructing Bank to pay an F,'xccption
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.
" Refurn Decision(.)" means the instructions of
Customer to Bank instructing Bank not to pay an Exception
Check.
"I %.CC." 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.
11 Description. 'I he positive pay service
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 positive pay, is a
service that has been identified by Bank as reducing the
risk of fraudulent items being paid against Customer's
Account(s) when such Service is adopted and properly
utilized by Customer. By conforming to the terms and
conditions of this Appendix. Customer agrees and
acknowledges that it may significantly reduce the chance
that fraudulent items will post to Customer's Account(s).
2.2 Check Issue File.
2.2.1 Customer shall submit a
Check Issue File to Bank. The Check Issue Pile shall
accurately stale 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).
Each Check Issue File shall also identify any checks that
have been cancelled by Customer prior to issuance.
2.2.2 If Customer elects to receive
payee verification services, the following additional terms
shall also apply. Bank "s payee verification services require
the payee name to match against Customer's Check Issue
Pile at a minimum threshold or matching score. The payee
name in the Check Issue t=ile 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.
111'/ 9 13 780 3; 33 n( 6 ] of, 11
Customer is responsible for complying with the payee
verification services' check specifications as specificd 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 ]'resented
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 oft 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 Vomits). The deadline for transmissions of the
Check Issue File to Bank shall he set forth in the Services'
Setup Form(s).
2.3 Payment of Presented Checks and
Reporting of Exception Checks. 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 Banking
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 Checks) 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 ").
2.4 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 selected 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 selected 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. Notwithstanding
anything in this Appendix to the contrary, Bank may. in its
sole and absolute discretion. return to the person presenting
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.
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.
2.5 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. The
revised communication must (i) be sent in its entirety and
not in the forth 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 place(s) 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 onhV
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 it lormat or
medium, alter 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 selected 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 (I) 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 to 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) CUStomel' selected
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:
12.1 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
amomit 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 flank'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
(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 selected
by 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 selected 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:
j {r'l4 13 7.50.3; ?5 of 62 06I I
(a) should have shown the check on an
Exception Check Report but failed to do so: or
(b) showed the check on an Exception Check
Report but referenced the wrong check number. 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. 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.
5. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank
under this Appendix shall in all cases be subject to the
provisions of the Contract. including. without limitation.
any provisions thereof that exclude or limit warranties
made by. damages payable to 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 or the Contract is terminated. In the event of
termination. all sums owed to Bank hereunder shall be
immediatelY due and payable.
Remainder of page intentionally left blank.
,'W/9137SO. 3; 36 ,f62 06 /I
C�7'7
APPENDIX VI
TD CONTROLLED DISBURSEMENT SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD
Controlled Disbursement 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. Defined Terms. Capitalized terms used herein
shall have the following meanings:
"Controlled Disbursement itccount" means a
checking Account established by Customer for the purpose
of obtaining the Services described in this Appendix.
" 1 11ndhW account" means a checking Account
designated by Customer in the Services' Setup Form(s) that
will fund all checks presented for payment from the
Controlled Disbursement Account, as described below.
2. Services. The Services provide check
presentment information to Customer each Business Day
intended to permit Customer to use the Funding Account to
fund the total amount of checks presented for payment
from the Controlled Disbursement Account for that
Business Day. The Services will be provided to Customer
in accordance with the selections. designations.
authorizations and other instructions set forth in the
Services' Setup Form(s).
3. Controlled Disbursement Account. Customer
agrees to open and maintain a Controlled Disbursement
Account at Bank. which Account will be subject to and
governed by such terms and conditions relating to such
Account as Bank may issue from time to time. Customer
agrees to comply with all requirements established by Bank
from time to time with respect to the handling of Controlled
Disbursement Accounts, including, but not limited to, all
specifications for printing checks to be paid from the
Controlled Disbursement Account. Customer agrees to
complete and sign all documents required by Bank in order
to establish the Controlled Disbursement Account and /or to
provide the Services to Customer. IJpon termination of the
Services for any reason, Customer authorizes Bank to close
the Controlled Disbursement Account. subject to any
written agreement between Customer and Bank with
respect to the handling of checks presented for payment
after the Controlled Disbursement Account is closed.
4. Controlled Disbursements. 'Twice each
Banking Day. Bank will notify Customer of all checks
presented for payment from the Controlled Disbursement
Account via Bank's Internet Banking System. This check
information is provided by the Federal Reserve Bank and
its accuracy is not guaranteed by Bank. Bank will transfer
into the Controlled Disbursement Account from the
Funding Account such amounts as may be required in order
to pay all checks presented and identified in the notification
to Customer. Customer authorizes Bank to execute such
funds transfers from the Funding Account as may be
required in order to pay all such checks, including all
checks presented for payment from the Controlled
Disbursement Account after termination of the Service.
S. Sufficient Balances. Customer agrees to
maintain sufficient collected balances in the Funding
Account to pay all amounts required to be transferred by
Bank to the Controlled Disbursement Account to pay all
checks presented for payment and drawn on the Controlled
Disbursement Account, and all debits thereto, including
checks presented for payment after termination of the
Service. In the event there are not sufficient collected
funds in the Funding Account to pay all checks so
presented. checks may be paid in the order determined by
Bank, in its sole discretion.
6. Overdrafts. Checks presented for payment or
other debits to the Controlled Disbursement Account may
be returned unpaid in any order if there are not sufficient
collected funds in the Controlled Disbursement Account to
cover the debits. If there are insufficient funds in the
Controlled Disbursement Account to cover checks or other
debits, Bank may, in its sole discretion, make transfers into
the Controlled Disbursement Account to pay checks or
other debits presented for payment, even if' such transfers
will result in the creation of an overdraft in the Funding
Account, but Bank shall not be obligated to make such
transfers if Customer fails to maintain sufficient collected
balances in the Funding Account to avoid the creation of an
overdraft. The transfer of funds by Bank on one occasion
to pay checks presented for payment shall not obligate
Bank to transfer funds to pay checks presented for payment
on any other occasion.
7. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank
,'W1913789 1,1 3 - "f r,2 0909
under this Appendix shall in all cases be subject to the
provisions of the Contract, including. without limitation.
any provisions thereof that exclude or limit warranties
made by. damages payable to 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 Contract or Cash Management
Master Agreement is terminated.
Remainder of page intentionally left blank.
(11'19/3789. /j 3N n /6? 009
APPENDIX VIII
TD DIGITAL EXPRESS SERVICES
This Appendix is incorporated by reference into the parties' Crash Management Master Agreement and applies to all TD Digital
Express Services (the "Servicc(s) ") 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").
Hardware Requirements.
2.1 In order to use the Services. Customer
must utilize certain Bank - approved image /scanner
hardware (the "I lardware "). Customer must either (a) have
or obtain the Hardware, as approved by Bank ("Customer
Hardware "), or (b) utilize Hardware provided by Bank
( "Bank I Iardware "). Customer must also have a Computer
as outlined in the Cash Management Master Agreement. as
Bank may spccify and approve from time to time.
2.2 It-Customer elects option (a). Customer
I lardware. 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 }lardware.
2.3 It' Customer elects option (b), Bank
Ilardware. Customer agrees as follows:
(i) Bank will retain ownership of
Bank Ilardware provided by I3ank for use with the
Services.
(ii) Customer will not use Bank
Hardware in connection with any remote check deposit
service otTered 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 I lardware 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 Ilardware.
(iv) Customer shall bear the entire
risk of loss. theft damage or destruction of Bank 1 Iardware
from the date of receipt until return shipment to a Bank
branch or shipped postage -paid to Bank. Such loss. damage
or destruction ol'Bank I Iardware 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 Ilardware in the same condition as when
originally provided to Customer. except for ordinary wear
and tear resulting from proper use. Bank I lardware shall be
packed for proper return shipment to such place as Bank
shall spccify. In the event Bank Hardware has not been
returned within fifteen (15) days of termination of this
Appendix. Customer shall make payment to Bank in an
amount equivalent to Bank's replacement cost for Bank
1 lardware.
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). The following check types.
however. are not eligible for use with and may not be
processed using the Services:
(i) Checks payable to a third party (rather than to
Customer):
I ( -: 4833-0113-025- 39 ,(62 0912
(ii) Remotely - created checks:
(iii) Checks drawn on banking institutions outside the
U.S. or in currencies other than U.S. Dollars:
(iv) Irregular checks (e.g.. where the numerical and
written amounts are different):
(v) Previously- returned checks:
(vi) Checks payable to or in cash:
(vii) Checks exceeding any Customer transaction or
file limits as Bank may establish from time to time: and
(viii) Checks that are postdated or more than six (6)
months old.
3.2 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
can be reproduced as an Image Replacement Document
("110)(s)" or "Substitute Check(s) "). Using the Services.
an electronic file will be created ("Electronic Filc ") that
contains electronic information relating to and converted
from the paper checks that have otherwise been truncated
or removed from the firrward 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 Pile to Bank. 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 rejected transactions on the
Services Site. Customer shall process any rejected
transactions as paper checks through the normal paper
check deposit process.
3.3 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.
3.4 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 Timc 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 Banks 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.
3.5 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 alter 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 suhrnitted 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.
Customer shall ensure that each original check is properly
marked with the wording which states that the deposit has
been sent for processing (" Electronically Presented").
4.2 Upon receipt of any transmitted
Electronic File, Bank shall be the lawful owner of such
F,Icct•onic 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 sixty (60) 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 it request is
made within the retention period provided above, or
Substitute Check or Sufficient Copy thereof, for each
Electronic Item created by Customer. The term "Sufficient
Copy' means a copy of an original check that accurately
represents all of the information on the front and back of
the original check as of 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 anv time
an Electronic File under this Appendix or otherwise use the
Application 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 dosed by Customer. Bank will send a request for
payment to Customer, and Customer agrees to paN Bank
within a commercially reasonable period of time.
4.7 Customer agrees to have controls in
Place to ensure that the Services. including the I lardwarc
and checks processed through the Hardware, are properly
I/C 4833- 0113 -0 ^5- 40 ,,f62 0912
safeguarded and stored in accordance with the timeframc
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 consequential 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 1 I 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 rc- submitted by Customer using the
Services. Customer may only use the Services to rc- 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 FR13 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 Ilectronic Item:
the check:
(i) the amount of the check.
(ii) the payee of the check:
(iii) the signature of the payor of
(iv) the date ofthe 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 lime 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:
0) the American Bankers
Association routing transit number ("R'I'N" ).
(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. Customer shall
endorse cacti original check prior to truncation.
5.5 Customer is entitled to enforce the
original check. or Customer is authorized to obtain
payment of the original check on behalf of a person who is
either entitled to enforce the original check or is authorized
to obtain payment on behalf of a person entitled to enforce
the original check.
5.6 Customer will submit Financial and /or
other additional information to Bank upon request in order
I'm- 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.
I/C 4b33- 0113 -025- 41 o162 0912
5.8 Both Customer and the clients with
whom it does business arc reputable and are not using Bank
as a conduit for money laundering or other illicit proposes.
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.
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
dclined 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 sell' 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 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
Uscr(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 Uscr(s) must change his
or her individual password from time to time for security
purposes, as prompted by the Services Site, or more
frequently.
8.2 Customer acknowledges that
Administrator(s) will, and Customer authorizes
Administrator(s) to, select other Administrators and
Authorized Users by issuing to any person an individual
password. Customer further acknowledges that
Administrator(s) may, and Customer authorizes
Administrator(s) to, change or de- activate the individual
password and /or any individual password from time to time
and in his or her sole discretion.
8.3 Customer acknowledges that. in
addition to the above individual passwords, access to the
Services includes, as part of the Access Devices, a multi -
factor authentication security procedure at log -in for
Customer. including Administrator(s) and Authorized
Users. 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
I/C 4833-011 3-025- 42 of 62 091
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 1, Jsers) 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, 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 propose of
verifying whether any Payment, transfer or other use of the
Services was initiated by Customer. Customer agrees to be
responsible for any transmission Bank receives through the
Services that is processed by Bank in accordance with the
security procedures, even if such transmission is not
authorized by Customer, including any fraudulent
transmission by Customer's employees or agents. Customer
agrees that any election Customer may make to change or
waive any optional security procedures recommended by
Bank is at Customer's risk and that any loss resulting in
whole or in part from such change or waiver will be
Customer's responsibility account. 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.
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 Payment, 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 anv 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' Contract. 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.
i I':
(i) Bank receives actual notice or has
reason to believe that Customer has filed or commenced a
petition or proceeding for relief under any bankruptcy or
similar law:
(ii) The ownership of funds involving a
Check Image or Customer's authorized representative's
authority to transmit a Check Image is in question:
(iii) Bank suspects a breach of the security
procedures:
(iv) Bank suspects that Customer's Account
has been used for illegal or fraudulent purposes: or
(v) Bank reasonably believes that a Check
Image is prohibited by federal law or regulation, or
otherwise so provided in the Appendix.
Further. Bank will not be liable to Customer for any
unauthorized actions or fraud initiated or caused by
Customer or its employees or agents. Bank will also be
excused from failing to transmit or delay in transmitting a
Check Image if' such transmittal would result in it
exceeding any limitation imposed on it by any
governmental or regulatory body.
10. Audit Rights and Site Visits; Internal
Controls. Bank, its accountants, auditors or agents shall
have the right to conduct site visits of Customer, as well as
review, inspect and audit, at Bank's expense and with
reasonable notice, and at any time as Bank may in good
faith deem necessary or reasonable during or after the term
of this Appendix, Customer's compliance with the terms of
this Appendix, including but not limited to Customer's use
of the Services, its Computer and security infrastructure.
and the books and records of Customer related to: (i)
Customer's activities hereunder and /or (ii) conformance
with Customer's obligations hereunder. In addition. Bank
reserves the right, in its sole and exclusive discretion, to
require Customer to 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. 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 Contract, 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
I7(''- M33- 0713 -025- 43, #62 0912
writing by (lank or the Contract or Cash Management
Master Agreement is terminated.
Remainder of page intentionally left blank.
IA' 4833- 0113 -025- 44 n(41 0912
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 — Pull (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 Bank's Business Deposit 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 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 (I ) 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
Pile on Bank's equipment.
2.5 Customer agrees to receive its paid
check data ("Paid Check Data ") from Bank in the specified
lormat 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 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 Pile 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 Pile contains such other data. Bank
may satisfy its obligation hereunder by comparing check
numbers and amounts received in substitute checks and /or
electronic presentment of checks.
3. Statement of Transactions. Within five (5)
Business Days following the scheduled dale 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 forward to the address provided by
Customer 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.
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 Contract, including, without limitation, any provisions
thereof that exclude or limit warranties made by, damages
payable to 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 Full Reconcilement Services Appendix is
111'1913--,V. 1,1 45 ,f62 (11)(19
accepted in x%riting by Bank or the Contract or Cash Management Master Agreement is terminated.
Remainder of page intentionallN left blank.
N "1973 % -R /, 46 n(G2 0909
APPENDIX XII
TD CHECK IMAGING SERVICES
'This Appendix is incorporated by, reference into the parties' Cash Management Master Agreement and applies to all TD Check
Imaging 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 are designed to provide
Customer with images of Customer's paid checks and a file
in portable Document Format (" PDF -) of the Account
statement associated with those checks on an optical
compact disc ("CD "). On a predetermined schedule, or
upon Customer's Account statement cycle, a CD which
contains front -and -back images of all Customer checks
paid during that period will be mailed to Customer. The
CD contains an associated index that is used for the
retrieval of the paid check images. Application software.
sublicensed to Customer by Bank and installed on
C'ustomer's Computer ("Computer Software"), is used to
scan the CD and produce images that match the index
search criteria entered by Customer. flank will include
images of any substitute checks and /or reconstituted
electronic images on the CD. Bank may also provide
Customer with images of Customer's deposited checks
(front and back) and deposit tickets as part of the Services.
subject to Bank's prior approval.
2. Software; Hardware. In addition to but not in
lieu of the terms and conditions contained in the parties'
Cash Management Master Agreement regarding software
and Customer's Computer, the following shall also apply:
11 The Computer Sollware will be
included with each CD mailed to Customer. Customer may
be provided with additional Computer Software, or with
software to be placed on Customer's network ( "Network
Software'). Service is contingent upon the successful
installation of the Computer Software and any Network
Software (collectively. the "Services' Software") by
Customer.
2.2 A user manual will be provided to
Customer which outlines the hardware and Services
Software requirements, as well as specific Customer
instructions for use of the Scrviccs. Customer shall be
solely responsible, at C'ustomer's expense. for obtaining
any and all requisite hardware and software, in addition to
the Scrviccs' Software. for proper utilization of the CD and
for repairing. servicing, and maintaining any and all such
hardware.
2.3 Customer understands and
acknowledges that the Services' Software is not the
property of Customer. Customer acknowledges that
Customer has, and shall have. no right, title, or interest in
or to the Services' Software, except the perpetual license
and right to use the Services' Software for the purposes
described herein. Customer further acknowledges that
Customer has. and shall have, no right to copy. transfer.
alter. modify. reverse compile. reproduce in any manner or
convey in any manner. any part or all of the Services'
Software.
2.4 Bank shall have the right to modify.
correct. enhance or issue replacement Services' Software
from time to time at its sole discretion. Customer shall
immediately update the Services' Software with any
requisite changes upon notice thereof from Bank.
3. CD Issuance.
3.1 Bank will use reasonable efforts to
produce and mail a CD to Customer within rive (5)
Business Days after the end of the Account statement cycle
(the "Cycle Cut -Off Period`). Bank will use reasonable
efforts to produce a replacement CD within five (5)
Business Days of receipt of notice from Customer should
the CD be lost or deficient.
3.2. Maximum Time Period for
Replacement. Customer acknowledges and understands
that Bank may not be able to produce or replace a CD after
one hundred twenty (120) days have elapsed from the end
of the respective Cycle Cut -Off Period.
4. No Warranty. In addition to but not in lieu of
the terms and conditions contained in the parties' Cash
Management Master Agreement regarding disclaimer of
warranties, BANK FURTHER DISCLAIMS ANY
IMPLIED WARRANTY OF DURABILI'T'Y OF THE
IMAGES OF CHECKS IMAGED IN CONNECTION
WITI l THE SERVICES.
5. Effectiveness. Customer agrees to all the terms
and conditions of this Appendix. The liability of Bank
under this Appendix shall in all cases be subject to the
provisions of the Contract. including, without limitation.
any provisions thereof that exclude or limit warranties
made by. damages payable to 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
(W1913S13Jf 4 °n!I' OWN
%Nriting by Bank or the Contract or Cash Management Master Agreement is terminated.
Remainder of page intentionally left blank.
jH79NA'13. l; J.Y n(�_' i)9UY
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
Services.
1.1 Customer will designate a primary
checking Account (the ZBA Parent Account). and one or
more secondary Accounts (the "ZBA Sub- Accounts ").
1.2 Through the Services, Customer
authorizes Bank to transfer funds between the Z13A parent
Account and ZBA Sub - Accounts in order to bring the
respective balances of the ZBA Sub- Account(s) to the pre-
selected target balance(s), as set forth in the Services' Setup
Form(s).
1.3 Customer may select a target balance
for each Sub - Account in the amount of $0 or a pre - defined
collected or ledger balance amount.
1.4 P.ach Z13A Sub- Account's daily
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 daily collected balances only.
1.5 In the event the daily 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
Z13A Parent Account arc applied to Z13A 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 Suh- 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 Z13A 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 party with respect to a transfer into or out of such
ZBA Sub- ACCOUnt(S).
2. 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 Contract. including. without limitation.
any provisions thereof that exclude or limit warranties
made by. damages payable to 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 lorce and effect until termination or such
time as a different or amended Appendix is accepted in
writing by Bank or the Contract or Cash Management
Master Agreement is terminated.
Remainder olpage intentionally left blank.
�W104074s i; P) „#i2
Bank
APPENDIX XIV
TD CURRENCY SERVICES
This Appendix is incorporated by reference into the parties' Cash Management Master Agreement and applies to all TD Currency
Services (the "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
I. Services. The Services described in this
Appendix provide Customer with (1) money room cash and
check deposit processing, as described in further detail
below. including: counting. validating. posting and
adjustments to Customer's Account, and (2) cash
disbursement orders, as described in further detail below,
including: packaging of coin and currency orders and
debiting of Customer's Account.
Money Room Cash and Check Deposits.
2.1 With respect to money room cash and
check deposit services, Customer shall engage and execute
an agreement between Customer and an armored carrier
company ( "Armored Carricr') that is on Bank's approved
list of Armored Carriers. Customer will provide Bank with
a copy ol' Customer's agreement with the Armored Carrier
upon Bank's request. Customer will arrange for the
Armored Carrier to retrieve and transport all U.S. or
Canadian (the latter being subject to Bank's prc- approval
and acceptance in limited geographic areas only) coin and
currency ("Cash Deposits ") and checks ( "Check
Deposits ") (collectively, the "Deposits ") from certain of
Customer's locations. Customer will disclose to Bank its
chosen Armored Carrier. and Bank will designate a [lank
money room processing location (each a "Cash Processing
Center") to which Armored Carrier shall deliver
Customer's Cash Deposits. Customer will infirm Bank of
any requested changes to these arrangements. Customer
will prepare all Deposits in accordance with Bank's
Deposit Preparation Guidelines to ensure accurate and
timely credit. Bank will provide Customer with a copy of
Bank's Deposit Preparation Guidelines.
2.2 The Armored Carrier will transport the
Deposits to Customer's Bank- designated Cash processing
Center. The Cash Processing Center will count all Cash
Deposits and record the total amount of funds to be credited
on Bank's books and records as a Cash Deposit to
Customer's Account(s). To the extent the Deposits include
Check Deposits. Bank shall arrange for transport of those
Check Deposits to a Bank - designated [lank check
processing location (each a "Check Processing Center ").
sn ,f 62
2.3 In accordance with the Bank's Deposit
Preparation Guidelines, Crash Deposits shall be prepared
separately from Check Deposits and bundled separately by
Customer for pick -up by Customer's Armored Carrier and
delivery to Bank's Cash Processing Center.
2.4 Bank will provide Customer with
same -day provisional credit for Cash Deposits received by
the Bank - designated Cash Processing Center in accordance
with the Cash Processing Center's cut -off time of 6:00 pm.
FT. Bank is not responsible if Customer's Armored Carrier
does not deliver to the Bank - designated Cash Processing
Center in time to meet the same -day provisional credit cut -
offtime. Credit may not be issued same -day ifthe Deposits
are not prepared in accordance with Bank's Deposit
Preparation Guidelines. Deposits remain the sole and
exclusive property of Customer until Customer's Armored
Carrier has delivered the Deposits to Bank's Cash
Processing Center. Customer shall bear the entire risk of
loss, theft. damage or destruction of the Deposits upon
Customer's Armored Carrier pick -up of the Deposits until
delivery to Bank's Cash Processing Center.
3. Currency Requisitions.
3.1 Customer may initiate a request I or
Cash (a "Cash Order ") via Bank's Cash Processing
Center's automated touchtone system, or by special
arrangement with Bank only, via Bank's local branch
office(s). Cash Orders via Bank's automated touchtone
system shall be initiated by Customer using its Bank- issued
User ID and personal identification number (" PlN`). The
ordering deadline for Cash Orders on a Business Day for
delivery the following Business Day varies by Cash
Processing Center. Cash Orders must be made by the
designated Cash Processing Center's ordering deadline on a
Business Day for the Armored Carrier's pick -up on the
following Business Day. All Cash Orders must be in
Federal Reserve Standard Lots as set forth in the Cash
Order form provided by Bank to Customer.
3.2 For Cash Orders placed by Customer in
accordance with this Section. Bank will fulfill Customer's
Cash Order and debit Customer's Account on the Business
Day prior to the Business Day for pick -up by Customer's
Armored Carrier. Cash Orders on a Customer Account
with insufficient funds may not be processed, in Bank's
sole and exclusive discretion. Cash remains the sole and
exclusive property of Bank until Customer's Armored
Carrier signs the Bank - designated Cash Proccssing
Center's manifest confirming Customer's Armored
Carrier's pick -up of the Cash Order. Customer shall bear
the entire risk of loss, theft, damage or destruction of the
Cash Order upon Customer's Armored Carrier signing the
Cash Processing Center's manifest confirming the Armored
Carrier's pick -up of the Cash Order.
4. Armored Carrier as Customer's Authorized
Agent. Customer represents and warrants that its Armorcd
Carrier is acting as its duly authorized agent at all times
when interacting with Bank as described in this Appendix.
Customer authorizes Bank to rely upon that authorization
when interacting with Customer's Armored Carrier.
Subject to the provisions of Section 768.28 of the Florida
Statutes, as applicable and as the same may be amended
from time to time, Customer agrees that Bank's reliance on
the foregoing when interacting with Customer's Armored
Carrier shall he deemed reasonable. and further agrees to
defend. indemnify. and hold Bank harmless from any and
all claims, demands. damages. and liabilities (including
reasonable attorneys' fees and expenses) directly or
indirectly arising out of or incurred by reason of the
Armored Carrier interacting with Bank as an agent for
Customer.
5, Disputes Regarding Validity of Instructions,
Deliveries.
5.1 Customer agrees that any and all
disputes, claims, controversies, or causes of action that it
may have now or in the future that arc or may be directly or
indirectly related to either (a) the legitimacy, accuracy. or
timeliness of arrival of any Deposits to the Bank - designated
Cash Processing Center, or (b) the pick -up of Cash Orders
by Customer's Armored Carrier from the Bank - designated
Cash Processing Center, shall be solely and exclusively
between the Armored Carrier and Customer. Customer
agrees that Bank shall be held harmless and excluded from
any and all such matters.
5.2 Customer further agrees that Bank may
make any and all adjustments to amounts deposited to or
withdrawn from Customer's Account(s) iC subsequent to
receipt and /or processing of a Deposit or a Cash Order.
Bank discovers or becomes aware of an error in or
omission Irom such Deposit or Cash Order. The parties
understand and agree. however, that this right of correction
and adjustment shall be at Bank's sole and exclusive
discretion and shall not create any obligation or duty of
Bank to examine. inspect. scrutinize or question any
Deposit or Cash Order it receives from Customer or its
Armored Carrier.
6. Adjustments to Cash Order(s). In the event
Customer believes there is a discrepancy with a delivery of
a Cash Order. Customer must send a written notice of
discrepancy to Bank no later than ten (10) Business Days
after Customer's receipt of the Cash Order. The written
notice shall be on Customer's letterhead, signed by an
Authorized Signer on the Account, and shall describe the
discrepancy and request research and resolution of the
discrepancy. Customer should include originals of any
currency straps involved, and copies of any and all Bank
materials provided with the Cash Order delivery. It'
Customer fails to notify Bank within such time period, and
Bank is required to adjust Customer's Account, Bank will
not pay interest to Customer on the amount of the
adjustment.
7. Adjustments to Check Deposits and Cash
Deposits. Bank shall also have the right to make any and
all adjustments to the amount to be credited to Customer's
Account(s) as a Check Deposit or Cash Deposit if.
subsequent to Bank's receipt and /or processing. Bank
discovers or becomes aware of an error or omission in the
Deposit.
8. Availability of Deposits. Customer understands
and agrees that the availability for withdrawal. including
for the fulfillment of any Cash Ordcr(s), of any deposit of
Cash Deposits or Check Deposits. shall be governed by the
funds availability provisions of this Appendix and the
Account Agreement, as the same may be amended from
time to time.
9. 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 Contract. including. without limitation, any
provisions thereof that exclude or limit warranties made by.
damages payable to 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
Contract or Cash Management Master Agreement is
terminated.
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51 „162
FTM 7
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 tiles using File Transfer Protocol ("FTP ").
Hypertext Transfer Protocol Secure ("Secure Web").
Secure File Transfer Protocol (" SPAT" ), 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).
2. FTP Transmission.
2.1 'Phis method ol' 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 lilts 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 kcy.
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 F "fP transmission.
3. 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 tiles 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
12 &bit Secure Sockets Layer ("SSL ") encryption.
3.3 Files for transmission through Secure
Web arc 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. SSI, 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.
Secure FTP (SFTP) Transmission.
4.1 This method of data transmission
permits Customer to deliver to and /or receive tiles from a
Bank - maintained SFTP server. Files transfers through
SFTP communications are encrypted using Secure Shcll
( "SSII" ). SSH is an open protocol for securing data
communication across computer networks providing a
secure channel for data transmission. The encryption used
by SSII is intended to provide confidentiality and integrity
of data over an unsecured network, such as the Internet.
SSII uses public -key cryptography to authenticate the
1112355763.1; _ ' of 62 0909
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 tiles (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 11' address
can be added to access control lists within Bank's firewalls.
If Customer chooses to pull tiles from Bank's SFTP server.
then files must be PGP encrypted, since tiles will reside on
an SFTP server within Bank's DMZ. Bank will need
Customer's public PGP key so that Bank can encrypt tiles.
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 SSII (Secure Shell) Protocol. It'
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. Security Procedures.
5.1 Customer agrees that the security
procedures set girth or incorporated by reference in this
Appendix, 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 the "Security Procedure "). Any
transmission by Customer shall be deemed authorized if
transmitted in accordance with the Security Procedure. Bank
may, from time to time, modify the Security Procedure. 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.
5.2 Nothing in this Appendix shall be
deemed a representation or warranty by Bank that FTP.
Secure Web or SFTP communications are secure. Rather.
after review of the alternatives. Customer has selected
communication method that it believes best suits its needs.
5.3 Bank 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 believes immediate action is required for security of
Bank or Customer funds or data. Bank may initiate additional
security procedures immediately and provide prompt
subsequent notice thereof to Customer.
5.4 Customer hereby acknowledges that the
Security Procedure is neither designed nor intended to detect
errors in the content or verify the contents of a 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 for the
detection of any such Customer error has been agreed upon
between Bank and Customer.
5.5 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 Procedure and any passwords, codes, security
devices and related instructions provided by Bank in
connection with any Security Procedure utilized by Bank
and /or Customer. 11'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).
5.6 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 flank upon request.
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 Contract, including. without limitation, any
provisions thereof that exclude or limit warranties made by.
damages payable to 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 or the Contract is terminated.
/8V2955769. n, 53 ,,162 0909
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({47355'63. l; 54 ,fe,2 0909
1_ ►1
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
Definitions.
"AulhorLed Account" means the Account(s) of
Customer, 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 lrom an Authorized Account (a "Credit F,ntry").
".9CH.,luthorizations" means Customer's written
instructions and authorization criteria provided to Bank in
conjunction with the set -up and implementation of the
Services, including via a separate ACH block and filter
agreement with Bank (hereinafter the " Filtcr Agreement').
and /or otherwise in accordance with the Services as
described in this Appendix, which either prohibits all ACI
Entries or permits only the posting of specified ACH
Entries to an Authorized Account.
"Exception Entrv" means an ACH Entry
(excluding an ARC, BOC. POP. RCK, or XCK SFC
Codes) that does not meet Customer's ACI I Authorizations
previously provided to Bank (and is 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 ("NACIIA ") Operating
Ruler and Operating Guidelines. which govern the ACI I
system.
" Pw Decision(s)" means Customer's 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
automatic default disposition of all ACH Entries that do not
meet Customer's ACH Authorizations, whereby all such
ACI I Entries are scheduled to be returned to the Originator
of the ACH Entry.
2. Services.
2.1 Description.
2. I.1 The Services described in this
Appendix will provide Customer with a means to 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 to 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 F.ntry to Customer's Account through a Pay
Decision.
2.1.2 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.
2.2 Customer Authorizations.
2.2.1 Customer will designate
Authorized Account(s) to be used with the Services via the
Services Setup Form.
2.2.2 As applicable, Customer shall
begin 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 ACII 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 ACI 1 Authorizations from time to time as
set forth herein. Customer shall be responsible for the
accuracy and completeness of all information provided to
nC: 4SJ I - -01 R- 37R' 55,,162 0413
Bank both through the use of the Services and via the
Services' Setup Form.
2.2.3 Customer may submit
additional ACI I Authorizations. make changes to initial or
existing ACII Authorizations, or delete initial or existing
ACM Authorizations related to the Authorized Account(s)
online via the Services. 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 ACII Authorizations to Customer via the
Services. In the event Customer submits a change or
addition to the ACII Authorizations that is incomplete.
contains an error or that cannot otherwise be processed by
Bank. Bank will use commercially reasonable elTorts to
notify Customer on the next Business Day that the
associated ACII 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.
2.2.4 Should Customer fail to fully
and accurately populate or complete all requested fields
associated with the ACI 1 Authorizations, the following will
also apply:
(a) 11' Customer does not insert a
specified maximum dollar amount. then no maximum
dollar amount shall apply with respect to the applicable
ACII Entry(ics) or transaction subject to the ACH
Authorization(s).
(b) 11' Customer does not insert a
specified expiration date, then no expiration date shall
apply to the applicable ACII Entry(ies) or transaction
subject to the ACI I Authorization(s).
2.3 Processing of ACH Entries and
Reporting of Exception Entries. Bank shall electronically
compare each ACI 1 Fntry presented to Bank for settlement
against Customer's Authorized Account(s) on a Business
Day (including those presented by other depository
institutions. ACI 1 Operators or by Bank) with Customer's
ACI I Authorizations. On each Business Day, Bank:
(a) will allow incoming ACII
Entries that match Customer's ACH
Authorizations to post to Customer's
Authorized Account(s): and
(b) will treat as Exception Entries all incoming
ACII Entries that do match Customer's ACII
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 Post 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 prc- established
time each Business Day advising Customer whether or not
there arc any Ixception Entries to be reviewed that
Business Day.
2.4 Payment and Dishonor of Exception
Entries.
2.4.1 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.
2.4.2 Customer may choose to
override the Return Default Disposition of individual
Fxception Entries presented via the Services by providing a
Pay Decision to Bank by the pre - established deadline set
Rorth 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.
2.4.3 Customer may choose not to
or may otherwise fail to review and provide a Post 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.
2.8 Customer and Bank
Communications.
2.8.1 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 Pay Decision as a Return Decision or
otherwise apply the Return Default Disposition to such Pay
Decision.
2.8.2 Bank is not responsible for
detecting any Customer error contained in any ACH Entries
presented. dccisioned, returned or processed, or in any Pay
Decision or Return Decision by Customer.
2.8.3 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
2.3. the Return Default Disposition shall apply in
accordance with Customer's previously established ACH
Authorizations.
2.8.4 Bank shall be bound only to
exercise ordinary care in attempting to post or return ACI I
Entries as described in this Appendix.
3. Remedies.
3.1 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 Contract, including, without limitation, any provisions
thereof that exclude or limit warranties made by, damages
payable to or remedies available from Bank.
3.2 Wrongful Payment /Posting. It shall
constitute wrongful paymcnl/posting by Bank if Bank
HC 4R41-- OIN -3 18" 56 ,f62 0413
pays /posts an Exception Entry for which Customer has
provided a Return Decision by the pre - established deadline
set forth within the Services. In the event that there is
wrongful payment /posting. Bank shall be liable to
Customer fi
_T71 I
ACH BLOCK & FILTER SERVICES
AGREEMENT
['his ACI I Block & Filter Services Agreement (this "Agreement ") is by and between TD Bank. N.A. ("Bank ") and the customer
identified below ("Customer'). This Agreement is incorporated by reference into that certain "Contract' between the parties. the
terms of which include: ( I ) City of Sunny Isles Beach Agreement With TD Bank for Banking Services ( "City's Form of
Agreement') dated on or about the date of this Agreement: (2) Customer's Request for Proposals No. 14 -04 -02 (the " RFP "): and
(3) Bank's response to the RUT. Solutions Prepared for City of Sunny Isles Beach. dated May 15. 2014 (the "Proposal ")
(hercinalter, collectively, the "Contract "). The parties agree that any ambiguity. conflict or inconsistency in the foregoing
documents that together constitute the Contract shall be resolved in the order of precedence provided in Section 2(d) of the City's
Form of Agreement.
Bank and Customer agree that the ACH Block & Filter Services (the "Services ". as described below) provided to Customer by
Bank will be governed by the terms of this Agreement and any amended agreement entered into by Bank and Customer from
time to time with respect to the Services. and by the terms and conditions of the parties' agreement governing the underlying
deposit account(s) in Customers name at Bank (hercinalter "Account(s)") and that are associated with the Services (the
"Account Agreement'). All capitalized terms used herein without definition shall have the meanings given to them in the
Account Agreement or the National Automated Clearing Ilousc Association's ("NACIIA ") Operating Rules and Operating
Guidelines which govern the ACI I system (the "NAC'HA Rules ").
❑ New ❑ Add
Customer /Company Name: Bank (Select one): ❑ 01/91 ❑ 04/94
E102/92 ❑ 11/86
❑ 03/93 ❑ 18/87
Type of Business: Customer /Company Contact:
Treasury Mgmt. Officer: Contact Phone:
BLOCKS
❑ Block All ACH Credits. If checked here, Customer instructs Bank to block ALL incoming ACH credits. if
not checked, Customer instructs Bank to HONOR ONLY the ACH credits identified below.
Account Number(s):
❑ Block All ACH Debits. If checked here, Customer instructs Bank to block ALL incoming ACH debits. If not
checked, Customer instructs Bank to HONOR ONLY the ACH debits identified below.
Account Number(s):
58 gf62
0313
FILTERS — Block all ACH Entries except the following authorized Entries:
(Please use additional sheet if necessan .)
FOR ACH DEB /TS ONLY:
Customer's
Account Number
Originating
Company Name
Originating Company ID
Max Dollar Amount (o
Debit Date (z)
Expiration Date (3)
Recurring tot
(Y)
or
(N)
FOR ACH CREDITS ONLY:
Customer's
Account Number
Originating
Company Name
Originating Company ID
flax Dollar Amount (o
Credit Date
(2)
Expiration Date (3)
Recurring (4)
(Y)
or
(N)
(1) if this field is tell blank or completed with "N /A," no maximum dollar amount shall apply with respect to the
applicable ACH Debit /Credit Entry(ies) or transaction(s).
(2) If this field is left blank or completed with "N /A,° no specific debit /credit date shall apply with respect to the applicable
ACI I Debit /Credit Entry(ies) or transaction(s).
(3) if this field is left blank or completed with "N /A," no expiration date shall apply to the applicable ACH Debit/Credit
E.ntry(ics) or transaction(s).
(4) If this field is left blank or completed with "N /A," the default setting shall be to "Y" with respect to the applicable
ACH Debit /Credit Entry(ies) or transaction(s)
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TERMS AND CONDITIONS
Services.
1.1 The Services described in this
Agreement allow Customer to elect how Bank will handle
incoming Automated Clearing House ("ACII") Entries
presented to Customer's Account(s). Customer may pre-
establish certain ACM payment authorization. which
include several options to filter ACII Entries (hereinafter
collectively referred to as "ACH Authorizations ").
1.2 Customer acknowledges that the
Services do not apply to transactions between Customer
and Bank. including Bank's affiliates and subsidiaries, such
as loan or credit card payments (Bank- Relatcd Entries').
Bank is permitted to pay Bank - Related Entries whether or
not Customer has included them in Customer's ACII
Authorizations as reflected in this Agreement and may do
so until such time as Customer's authorization with respect
to the underlying Bank - Related Fntries is revoked or
otherwise terminates.
2. Operations.
2.1 If Customer checks the box(es) above to
block incoming ACH Debit Entries or ACFI Credit Entries
presented to Customer's Account(s). Customer thereby
instructs Bank to block all incoming ACH Debit Entries or
ACII Credit Entries presented to such Account(s).
2.2 If Customer elects the ACII filter
feature, Customer thereby instructs Bank to permit only
those incoming ACII Entries from the specific Originator
identified by Customer above by the Originating Company
ID number. All other incoming ACH transactions will be
returned to the Originator.
2.3 This Agreement is Bank's record of
Customer's ACII Authorizations and represents Bank's
understanding of Customer's instructions associated with
incoming ACII Entries. If the information that Customer
has provided above is incorrect in any category. Customer
must advise Bank immediately. as Bank is NOT responsible
for blocking or filtering ACH transactions unless Customer's
ACII Authorizations are accurately described in this
Agreement.
2.4 Customer's ACII block instruction(s)
will be accepted subject to the condition that ACII
transactions have not already been posted or are not in the
process of posting, and that Bank will have a reasonable
opportunity, to act on Customer's request before any such
processing.
2.5 Bank shall be bound only to exercise
ordinary care in attempting to block or filter ACII
transactions.
2.6 Bank shall have a reasonable time after
receipt of C'ustomer's request to implement this Agreement
and shall not assume responsibility for stopping ACII
transactions that have already been posted to the Account.
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3. Account Agreement; Service Fees.
3.1 Bank and Customer agree that the
Services and any Account established by Customer in
connection with the Services shall also be governed by the
Account Agreement, including one or more fee schedules
issued by Bank for the Account, and the terms of the
Account Agreement arc incorporated herein by reference. 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.
Customer agrees to compensate Bank for the Services in
accordance with the applicable Ice schedules or written
agreements between Bank and Customer in effect from
time to time that apply to the Services.
3.2 Customer authorizes Bank to charge
Customer's Account for all applicable charges and fees to
the extent that such charges and fees are not offset by
earnings credits or allowances for Customer's ACCOUnt(S).
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.
3.3 Bank may amend fees associated with
the Services and Account(s) in aggregate or individually. at
any time. To the extent that such changes adversely affect
Customer. Bank will use commercially reasonable efforts
to give notice to Customer of such changes, in accordance
with applicable law, or as may otherwise be agreed to by
the parties.
4. Limitation of Liability; Disclaimer of
Warranties.
4.1 Except to the extent required by law.
the liability of Bank in connection with the Services shall in
all cases be limited in accordance with the terms of the
Contract.
4.2 CUSTOMER EXPRESSLY AGRF,F,S
TI US1: OF 111E SERVICES IS AT CUSTOMER'S
SOLE. RISK. AND THE SERVICES ARE PROVIDED
"AS IS." AND BANK AND ITS SERVICE PROVIDERS
AND AGENTS DO NOT MAKE AND EXPRESSLY
DISCLAIM ANY WARRANTIES. EITHER EXPRESSED
OR IMPLIED. WITH RESPECT TO THE SERVICES.
INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY. FITNESS
FOR A PARTICULAR PURPOSE. TITLE, OR NON -
INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS, OR THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE, WITHOUT
BREACHES OF SECURITY OR WITHOUT DELAYS.
IN THOSE STATES THAT DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILI FY. THE
LIABILITY OF BANK AND ITS SERVICE PROVIDERS
AND AGENTS IS LIMITED TO THE FULLEST
POSSIBLE EXTENT PLRMITTF,D I3Y LAW.
5. Indemnification. Sub .jcct to the provisions of
Section 768.28 of the Florida Statutes, as applicable and as
the same may be amended from time to time, and except as
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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 be asserted by any person or entity
against Bank, in accordance with the terms of the Account
Agreement. and that may be incurred by Bank relating to or
arising out of its refusing or accepting payment of ACII
Debit Entries or receipt of' ACH Credit Entries in
accordance with Customer's ACI► Authorizations,
including, without limitation, any claim that the return of
any blocked ACH Entry is improper as against the ACII
Originator or its Originating Depository Financial
Institution. Notwithstanding the foregoing. Bank shall have
no right to be indemnified hereunder for losses resulting
from its own gross negligence or willful misconduct as
finally determined by a court of competent jurisdiction, or
as otherwise limited or prohibited by applicable law.
including. without limitation, Section 768.28 of the Florida
Statutes. as applicable and as the same may be amended
from time to time.
6. Term and Termination.
6.1 This Agreement shall be cfTective when
(i) signed by an Authorized Representative of Customer
and accepted by Bank, and (ii) Customer delivers to Bank
all documents and information reasonably required by
Bank prior to commencing providing the Services.
6.2 Except as otherwise expressly set forth
herein, this Agreement shall continue in effect until
terminated by either party on five (5) days' prior written
notice. Notice for Customer must be provided by an
Authorized Representative. Termination will occur
automatically upon the closure of the Account(s).
6.3 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.
7. 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. tire. 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.
8. Entire Agreement; Changes to the Services
and this Agreement. Bank and Customer acknowledge
and agree that the Contract, 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
01062
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
(including any Amended Agreement) in accordance with
the terms of the Account Agreement. 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.
9. 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.
10. Successors. This Agreement shall be binding
upon and inure to the benefit of' the parties and their
successors and permitted assigns.
11. 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.
12. 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. 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.
13. Notices. All notices required or permitted by this
Agreement (including all documents incorporated herein by
reference) to be given shall be sent by first class mail,
postage prepaid, and addressed to Bank at the address
provided to Customer in writing for that purpose or to
Customer at the address associated with Customer's
Account. All such notices shall be effective upon receipt.
14. Beneficiaries. This Agreement is for the benefit
only of the undersigned parties hereto and is not intended to
and shall not be construed as granting any rights to or
otherwise benefiting any other person.
15. 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
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(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.
16. Recording of Communications. Customer and
Bank agree that all telephone conversations between them
or their agents made in connection with this Agreement
may be recorded and retained by either party by use of any
reasonable means.
17. Facsimile Signature. The parties acknowledge
and agree that this Agreement and any Amended
Agreement 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.
IN WITNESS WHEREOF. Customer and Bank have duly caused this Agreement to be executed by an Authorized
Representative.
(Customer)
Gtrtti ���u►�w� �sles �evfcl� r��
(A ress)
B: 'd,
(Signature Authorized Representative)
Print Name: lat! finer
Title:
Date of Agreement: -71 1 Lf - , 20 I q
TD BANK, N.A.
By: T
(Signature)
Print Name: ToscxQ�a �oc��10,O�1
Title:
62 q /'62
0313
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
(305) 947 -0606 City Hall
(305) 949 -3113 Fax
MEMORANDUM
TO: The Honorable Mayor and City Commission
FROM: Christopher J. Russo, City Manager
DATE: 6/19/2014
RE: Resolution to Approve Banking Services with TD Bank
RECOMMENDATION:
It is recommended that the City Commission approve the attached Resolution
awarding a five -year agreement with TD Bank, with one five -year renewal option
for banking services.
REASONS:
The City requires banking services to handle operating cash which includes, but
is not limited to, deposits, check payments, payroll checks, ACH processing, wire
transfers, and corporate credit cards. The City currently uses BB &T to service
the City's banking needs but the agreement and terms originally negotiated with
BB &T expired April 30, 2014 and they chose not to submit an RFP response.
The City published a Request for Proposal for Banking Services. The three
responding institutions were Citibank, TD Bank and SunTrust Bank. Please see
attachment for comparisons and rationale in the selection and recommendation
of TD Bank.
ATTACHMENTS:
• Recommendation for Banking Services
• Resolution
Agenda Item No. IOA
Date 6/19/2014
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