HomeMy WebLinkAboutReso 2009-1489
RESOLUTION NO. 2009 - ~'l
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
SUNNY ISLES BEACH, FLORIDA, APPROVING AGREEMENTS FOR
GOVERNMENT BANKING SERVICES WITH BANK OF AMERICA,
N.A., ATTACHED HERETO AS EXHIBIT "A", UNDER THE VILLAGE
OF WELLINGTON, FLORIDA'S INVITATION TO NEGOTIATE #023-
08/JWV; AUTHORIZING THE MAYOR TO EXECUTE SAID
AGREEMENTS; AUTHORIZING THE CITY MANAGER 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 government banking services; and
WHEREAS, the Bank of America, N.A., a national banking association, provided a proposal
for these services; and
WHEREAS, the City wishes to enter into Agreements for Government Banking Services
with Bank of America, N.A., attached hereto as Exhibit "A", under the Village of Wellington,
Florida's Invitation to Negotiate #023-08/JWV for Banking Services awarded to Bank of America,
N.A. in December 2008.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of Agreements. The City Commission hereby approves the Agreements for
Government Banking Services with Bank of America, N.A., attached hereto as Exhibit "A", under
the Village of Wellington, Florida's Invitation to Negotiate #023-08/JWV.
Section 2.
Authorization of Mavor. The Mayor is hereby authorized to execute said Agreements.
Section 3. Authorization of City Manager. The City Manager is hereby authorized to do all
things necessary to effectuate this Resolution.
Section 4.
Effective Date. This Resolution will become effective upon adoption.
PASSED AND ADOPTED this 15th day of October 2009.
R2009- Bank of America Agmt for Govt Banking Srvs - I -
ATTEST:
~A.~
)ane A. Hines, CMC, City Clerk
,
. .<It: .. .
Approved As to Form and
Legal fl' e c .
Vote: 5-0
Mayor Edelcup
Vice Mayor Thaler
Commissioner Brezin
Commissioner Goodman
Commissioner Scholl
Moved by:
Seconded by:
~(Yes)
v" (Yes)
~(Yes)
~(Yes)
----1L- (Yes)
V\(J). ~., ~~G-Je.
C~~~~Z.IIJ
_(No)
_(No)
_(No)
_(No)
_(No)
R2009- Bank of America Agmt for Govt Banking Srvs - 2 -
.I
Bank of America. Higher Standards
AUTHORIZATION AND AGREEMENT FOR TREASURY SERVICES
I am an authorized representative of the organization specified below (the "Client"). The Client has received Bank of America's Treasury Services
Terms and Conditions Booklet (the "Booklet") in the form and with the content posted on the website of Bank of America and agrees to adhere to
the Booklet and any applicable User Documentation from Bank of America ("Bank"). The Servires covered by the Booklet and the banks providing
Services are listed on the accompanying List of Banks and Servires, which we may change from time to time. Capitalized tenns used in this
Authorization and Agreement form, not otherwise defined, have the meanings given to them in the Booklet.
After I sign below on behalf of the Client, the Client may from time to time request the Bank to provide any of the Services described in the
Booklet. The Client may begin to use any such Selvice onre Bank has approved such use and has rereived all required and properly executed forms
and the Client has successfully completed any testing or training requirements. The Booklet supersedes other agreements between the Client and
the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services.
I warrant that the Client has taken all action required by its organizational or constituent documents to authorize me to execute and deliver on
behalf of the Client this Authorization and Agreement form and any other documents the Bank may require with respect to a Service. I am authorized
to enter into all transactions contemplated by the provision of Services to the Client. These may include, but are not limited to, giving the Bank
instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of the Client.
Guiliines fur compIetian:
If Client is a.: Who DlUllt sign:
corporation ....................................................... any autJlorized officer
limited liability company.............................. all members, or any authorized officer"
partnership (general or limited) ................any general partner'
limited liability partnership ........................the managing partner"
sole proprietorship ......................................the sole proprietor
governmental entity ........................................the Treasurer"
* Includes any individual authorized under Client's charter or organizational or constituent documents. The
legal name of any member, managing member, manager or general partner who is signing and who is not an
individual must appear in the signature block. Note that in most CJBeB the Client must aJso romplete the
CeItifimtion form which follows.
tf.
[Pri? Name of Authorized Representative]
[Print Title of Authorized Representative (include the legal name of
any member, managing member, manager or general partner who is
signing and who is not an individual)]
The following addresses may be used for giving notires in connection
with this Booklet except as you or we provide the other different
addresses to be used in conjunction with your accounts or particular
Services.
Address for Client Notices: ..1
I '6010 CoU.~.150 I\v, \Jt
~u.J,J'f (<.~., p,~A-tM. F=L- "!>"!.I (,0
A'T'T~' Do",,, ~
Telephone: <>')~) 1''2-' (11 ~
Fax: ()O~ ~f'l. ~ll~
AD-AG-0455B (2004-2)
Dated
[Signature of Authorized Representative, if two are required by Client)
[Print Name of Authorized Representative]
[Print Title of Authorized Representative (include the legal name of
any member, managing member, manager or general partner who is
signing and who is not an individual)]
Address(es) for Bank Notices:
Bank of America, N.A.
Documentation Management (CA4.706-04-07)
P.O. Box 27128
Concord, CA 94527-9904
Fax No.: (925) 675.7131
and, if filled in; the following:
Telephone: ( )
Fax: ()
AUTHORIZATION AND AGREEMENT CERTIFICATION
I certify that each signature appearing on the previous page for Client is the true signature of a person authorized to execute the fonn on behalf of
Client, and I further certify that I have full authority to execute this certification. The Bank is entitled to rely upon this certification until written
notice of its revocation is delivered to the Bank.
Guidelines for completion: This Certification should not be silOled bv the individual who silOled the Authorization and Alrreement.
If Client is a:
Who must sign:
corporation ....................................................any authorized officer
limited liability company ............................any member or authorized officer
limited liability partnership .......................anypartner
partnership (general or limited) ..............any general partner
sole proprietorship ......................................no signature required
governmental entity the entity's counsel, or any other individual
as pelmitted by . the entity's organizational documents
The legal name of any member, managing member, manager or general partner who is signing and who is not an individual must appear in the
signature block.
Note: If Client is not a U.S. based entity, it is not required to complete this certification, but must provide authorizing
certificates or mandates.
Dated
(~~~AMEr
'Signature of ertifying Representative]
T~np A HineR. CMC. City Clerk
[Print Name of Certifying Representative]
I' t"
[Print Title of Certifying Representative (include the legal name of any
member, ma.naging member, manager or general partner who is signi~g
and who is not a.n individual)]
AD-AG-0455B (2004-2)
2
TREASURY SERVICES DELEGATION OF AUTHORITY FORM
This fonn is optional and is to be used when you wish to delegate authority to sign various authorization folmS to someone
other than the person who signed the Authorization and Agreement fonn in the front of this Booklet.
By signing below, you authorize the incumbent of the specified position listed in Section A or each person listed in section B
below, acting alone, to execute documents that we may request, and any amendments or renewals thereof, pertaining to the use
of Services, including but not limited to designating one or more persons (which may include himself or herself) authorized to
initiate, amend, cancel, confirm or verify the authenticity of instructions to us for Services, whether given orally, electronically or
by facsimile instructions, and to revoke any authorization granted to any such person, as he or she deems appropriate. The signer
of this fonn has the same authority described above for each Service with us, unless otherwise specified. We are entitled to rely
upon this delegation until written notice of its revocation is received by us.
Guidelines for Completion: Fill out either section A or section B, or both, depending on your needs.
. To delegate authority to any person holding a specific title, fill out section A.
. To delegate authority to specific individuals by name, fill out section B.
For each name or title, indicate "All" in the "Service" column if the person or title has authority to sign documents for all
Services which you receive from us. Otherwise, indicate specific Services for which the person or title has authority. For each
name or title, indicate the entity or entities for which the person or title has authority to sign documents.
A. TO DELEGATE AUl'HORI'I'Y TO ANY PERSON HOLDING SPECIFlC POSITIONS
Title
Service
Entity
(\-<"1 ~ I\.N I\<SE.\Z f\LL L \\''( ()~ SIJI'iNI( ISL\:.S 'bCACH
\:\N'A~ lE.. \) \ RfLiU\L ~LL C\\'''l m: S\JMMIl/ \SLfs 1)t.~L\-\
B. TO DELEGATE AUl'HORI'I'Y TO SPECIFlC INDIVIDUALS
Name
Service
Entity
Specimen Signature
CLIENT AUTHORIZATION
Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury Services
fonn must sign this Treasury Services Delegation of Authority form. C' t f S lIB h
1 Y 0 unny s es eac,
Dated
(Print Title (include the legal name of any member,
managing member, manager or general partner who is
signing and who is not an individual)]
AD-AG-0455B (2004-2)
3
TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................................... 6
TREASURY SERVICES ......................................................................................................................... 7
ACCOUNT RECONCILEMENT ................................................................................................................7
AUTOMATED CLEARING HOUSE (ACH)............................................................................................7
AUTOMATED CLEARING HOUSE (ACH) BLOCKS AND FILTERS ..........................................10
AUTOMATED CLEARING HOUSE (ACH) CUSTOMER. INITIATED PA YMENTS.................11
CASHP A Y~ ...................................................................................................................................................11
CHECK ISSUANCE....................................................................................................................................12
CHECK TRUNCATION .............................................................................................................................13
CLIENT. PRINTED DRAFI'S................................................................................................................... 14
COIN AND CURRENCY ORDERS .........................................................................................................15
COLLECI'ION LETIERS ..........................................................................................................................15
COMMERCIAL AND CORPORATE CARD..........................................................................................16
COMMERCIAL DEPOSITS ......................................................................................................................21
COMMERCIAL PREPAID CARD ..........................................................................................................22
CONTROLLED BALANCE ACCOUNTS .............................................................................................. 23
CONTROLLED DISBURSEMENT ........................................................................................................ 24
DISBURSEMENT IMAGE ......................................................................................................................26
ELECTRONIC BILL PA YMENT CONSOLIDATION .........................................................................26
ELECTRONIC DATA INTERCHANGE (EDI) .................................................................................... 27
ELECTRONIC FOREIGN EXCHANGE................................................................................................ 28
INFORMATION REPORTING................................................................................................................ 30
LOCKBOX .....................................................................................................................................................31
ONLINE STOP PAYMENT ...................................................................................................................... 32
POSITIVE P A Y............................................................................................................................................33
RECLEAR ....................................................................................................................................................35
RE.PRESENTMENT CHECK (RCK).................................................................................................... 35
TAX PA YMENTS........................................................................................................................................36
WIRE TRANSFER AND INTERNATIONAL ELECI'RONIC FUNDS TRANSFERS................ 39
ELECl'RONIC TRADE SERVICES ....................................................................................................43
ADVISED STANDBY LETIERS OF CREDIT.....................................................................................43
COLLECTIONS...........................................................................................................................................44
EXPORT LETIERS OF CREDIT ............................................................................................................44
INFORMA TION REPORTING................................................................................................................ 47
OPEN ACCOUNT .......................................................................................................................................47
STANDBY AND IMPORT LETIERS OF CREDIT.............................................................................48
SUPPLEMENTAL LIMITATION OF LIABILITIES AND INDEMNIFICATION FOR ALL
ELECTRONIC TRADE SERVICES .......................................................................................................50
GENERAL PROVISIONS .....................................................................................................................52
AD-AG-0455B (2004-2)
4
CHANGES TO A SERVICE......................................................................................................................52
COMMUNICATIONS ................................................................................................................................52
CONFIDENTIALI'IY .................................................................................................................................52
CURRENCY EXCHANGE RATES.........................................................................................................54
FACSIMILE SIGNATURES .................................................................................................................... 56
GENERAL MA TIERS .............................................................................................................................. 56
GOVERNING LA W....................................................................................................................................57
LIMITATION OF LIABILITIES ..............................................................................................................58
OVERDRAFTS............................................................................................................................................ 59
PAYMENT FOR SERVICES ....................................................................................................................59
PROTECfION FROM THIRD PARTIES.............................................................................................. 60
REPRESENTATIONS AND WARRANTIES ...................................................................................... 60
RESOLUTION OF DISPUTES ................................................................................................................ 60
SOF'IW ARE LICENSE ..............................................................................................................................61
TERMINA TION..........................................................................................................................................65
GLOSSARY OF TERMS........................................................................................................................67
@2006 by Bank of America. Corpora.tion
All rights reserved. None of the enclosed material may
be reproduced or published without permission.
AD-AG-0455B (2004-2)
5
-
INTRODUCTION
AD-AG-0455B (2004-2)
Thank you for choosing the Bank of America Corporation group of financial institutions
for your worldwide treasury management business needs. We appreciate the opportunity to
serve you. If you have any questions about our extensive array of treasmy services
(including the locations where each service is available) or about this Booklet, please
contact your treasury services representative.
CapitaJized terms used in this Booklet are defmed in the Glossary. The terms "we", "us"
and "our" refer to each of the Bank of America Corporation subsidiary banks which
provide you a particular Service under the terms of this Booklet. The terms "you" and "your"
refer to each Client identified on the Authorization and Agreement for 'IreasUlY Services.
This Booklet contains the terms and conditions under which we provide you world~de
treasury selvices. It is used in conjunction with the Account Agreement which covers
account terms and conditions. Please read this Booklet carefully and keep it for your
records.
By signing and returning the Authorization and Agreement fOlm in the front of this
Booklet, you agree to the General Provisions section of this Booklet (which contains terms
and conditions applicable to all Services), except that you agree to the Software License
Section of the General Provisions only to the extent we provide you Software in connection
with one or more Services. You also agree to those portions of the Treasury Services and
Electronic 'Irade Selvices sections of this Booklet which contain the specific terms and
conditions that relate to the Services we provide to you. If you would like an additional
Service, it will be covered by the terms and conditions of this Booklet once we have
approved your use of the Service. You may begin using the Service when we have received all
required and properly executed forms and you have successfully completed any testing or
training requirements.
Whenever you use any of the Services covered by this Booklet, you agree to be bound by
these terms and conditions, as amended from time to time, and to follow the procedures in
the applicable Materials.
6
TREASURY SERVICES
We offer a wide variety of treasury services. Each Service has many features and options.
Your treasury selvices representative will be happy to describe these to you and to
recommend those that will best meet your needs.
A List of Banks and Services is enclosed with this Booklet. This list includes the names of
each Bank of America Corporation subsidiary bank offering Services under this Booklet
and the names under which we currently offel' those Services. Please contact your
treasury services representative at any time if you wish to receive an updated list.
ACCOUNT RECONCILEMENT
Our Account Reconcilement Services will help you reconcile and manage the credit
and debit activity in your accounts. Detailed information regarding such Services is
available in the applicable User Documentation.
Your use of an Account Reconcilement Service does not affect any of your obligations,
which are described in the applicable Account Agreement, to discover and report with
respect to your accounts (including joint accounts where permitted): (i) unauthorized
signatures, alterations or endorsements on checks and (ii) unauthorized Requests
and other discrepancies. Your use of this Service or our receipt of information
associated with this Service does not increase our duty with respect to accounts or the
payment of checks.
AUTOMATED CLEARING HOUSE (ACH)
This section applies only to ACH Services within the United States of America and
does not apply to cross-border ACH transactions and other International Electronic
Funds Transfers which are covered by the "Wire Transfers and International
Electronic Funds Transfers" section in this Booklet.
Our ACH Services allow you to transfer funds to or from your accounts by initiating
Entries which may be sent through the ACH system or processed directly to accounts
with us.
We may send Entries to any ACH processor selected by us or directly to another bank.
Each ACH Service is described in the applicable User Documentation. You authorize
us to issue Depository Transfer Checks (DTCs), as instructed by you or as reasonably
determined by us to be appropriate. The capitalized ACH terms appearing in italics
below are defined in the NACHA Rules.
COMPLIANCE WITH NACHA RULES AND LAWS
You agree to comply with the NACHA Rules for all Entries, whether or not an Entry is
sent through the ACH network. You act as Originator and we act as Originating
Depository Financial Institution (ODFI) with respect to Entries. You will deliver
Entries to us as provided in the User Documentation and the NACHA Rules. The
NACHA Rules govern if they conflict with this Booklet, except that the file
specification requirements in the User Documentation govern if they conflict with the
NACHA Rules.
AD-AG-0455B (2004-2)
7
Where a preauthorized debit Entry from a consumer's account varies in amount from the
Pl'evious debit EntlY, you will comply with the notice requirements set forth in the NACHA
Rules, the Electronic Funds Transfer Act and Regulation E of the Board of Governors of the
Federal Reserve System, as applicable.
AUTHORIZED PERSONS
Before using an ACH Service, you give us a written list, in a form acceptable to us, of the
persons authorized by you to verify the authenticity of Entries and ReversaljDeletion
Requests in accordance with the Security Procedure and to petform certain other duties in
connection with such Service.
SECURITY PROCEDURE
You agree to use the Security Procedure, if any, when you deliver Entries or ReversaljDeletion
Requests to us. The purpose of the Security Procedure is to verify the authenticity of Entries
and Reversal;Deletion Requests delivered to us in your name and not to detect any errors in
the transmission or content of Entries. Each time you use a Service, you represent and
warrant that, in view of your requirements, the Security Procedure is a satisfactory method of
verifying the authenticity of Entries and ReversaljDeletion Requests. You agree we may act on
any Entries or Reversal;Deletion Requests after we have verified its authenticity through use
of the Security Procedure.
WARRANTIES
Each time you use an ACH Service, (0 you warrant that you have obtained appropriate
authorization from each Receiver and that Entries conform to such authorization and comply
with the NACHA Rules, and (ii) you make the same warranties to us as we make under
Section 2.2 (or any successor section) of the NACHA Rules.
PAYMENT WITH RESPEGr TO ENTRIES
We generally debit your account on the settlement date for credit Entries (including debit
Reversals), unless you are prefunding your Entries. Prefunding means that you are
required to pay for all credit Entries before the settlement date as we may specify. We may, at
our discretion, without prior notice to you, require prefunding before we process your credit
Entries. We are not obligated to process any credit Entries, even if we have done so in the
past, without having first been paid by you, but, if we do, the amount is immediately due and
payable without notice or demand.
You will pay us for the amount of any returned debit Entties (including rejected debit
Entries), any adjustment Entries or any returned DTCs, which we have previously credited to
your account. Such amounts shall be immediately due and payable. You agree that we do
not need to send a separate notice of debit Entries or DTCs which have been retumed unpaid
You may request reports containing information regarding returned debit Entries and DTCs.
AcrING ON ENTRIES
We send Entries to the ACH processor for settlement on the Effective Entry Date shown
on the Entries, if we receive the Entries by the applicable processing deadlines specified in the
User Documentation for the ACH Service being used. We may treat Entries that we receive for
processing after a deadline as if received on the next Business Day. Entries will be deemed
received by us when we receive the complete fIle at the location specified in the User
Documentation.
AD-AG-04S5B (2004-2)
8
REJEcrION OF ENTRIES
We may reject any Entry that does not comply with the requirements of this Booklet or the
applicable User Documentation, including any ACH processing limits described in the User
Documentation, or that we are unable to verify through use of the Security
Procedure. We may also reject any Entry that may be returned for any reason under the
NACHA Ru1es or if you have breached your payment obligations for any ACH SeIvice we
provide to you.
Notice of rejection will be given to you by telephone, by electronic means, by facsimile or by
mail within the time period specified in the User Documentation and will be effective when
given. We are not liable for the rejection of any Entry and are not obligated to pay you interest
for the period before you receive the notice of rejection. If an Entry is rejected for any reason, it
is your responsibility to correct the Entry you intend to resubmit.
REVERSAL OR DELETION
We have no obligation to cancel or amend any Entry after we have received it. If you send us a
Reversal/Deletion Request and we are able to verify the authenticity of the Reversal/Deletion
Request using the Security Procedure, we will make a reasonable effort to act on your
Reversal/Deletion Request. We will not be liable to you if such Reversal/Deletion Request is
not effected. You agree to indemnify us in connection with any such Reversal/Deletion
Request as provided in UCC 4A. Your obligations under this provision will survive the
termination of any ACH SeIvice.
PROVISIONAL PAYMENTS
You agree to be bound by the provision of the NACHA Rules providing that payment of a
credit Entry by the Receiving Depository Financial Institution (RDFI) to the Receiver is
provisional until the RDFI receives final settlement for the Entry. If final settlement is not
received, the RDFI is entitled to a refund from the Receiver of the amount credited. This
means that the Receiver will not have been paid.
Our payment of any debit Entry, returned credit Entry or credit Reversal is provisional until
we receive final settlement for the Entry or Reversal. If final settlement is not received, we
are entitled to a refund and we may charge your account for the amount previously credited.
We may delay the availability of any amount credited for a debit Entry or credit Reversal if
we believe that there may not be sufficient funds in your account to cover any chargeback or
return of the Entry or Reversal.
INCONSISTENCY OF NAME AND NUMBER
An RDFl can make payment to a Receiver based solely on the account number, even if the
name in the Entry differs from the name on the account. We will send an Entry to an
RDFI based solely on the bank identifying number you provide, even if you provide us with a
different RDFI name.
AD-AG-0455B (2004-2)
9
NarICE OF ACCOUNT STATEMENT DISCREPANCIES
Information concerning Entries will be reflected in your account statements and, in some
cases, in the form of written or electronic advices or reports that are produced by one of our
Information Reporting Services. You must send us written notice, with a statement of
relevant facts, within 14 days after you receive the first notice or statement indicating a
discrepancy between our records and yours. If you fail to give the required notice, we will not
be liable for any loss of interest or for compensation for any other loss or cost relating
to an unauthorized or erroneous debit to your account or any other discrepancy reflected in
the notice or account statement. You must notify us promptly by telephone or other
electronic means approved by us for such purpose, and confirm such notice in writing, of
information concerning an unauthorized or erroneous debit to your account if you learn
about or discover it from any source other than a statement, advice or report from us.
AUTOMATED CLEARING HOUSE (ACH) BLOCKS AND FILTERS
This section applies only to ACH Blocks and Filters Services for Entries received in the
United States of America.
With the ACH Blocks and Filters Services, you provide us with the authorization criteria for
Entries you desire to receive for debit or credit to your account. We will automatically return
any Entry which does not meet your authorization criteria.
We may also return an Entry that would be returned for any reason under the NACHA Rules.
The ACH Blocks and Filters Services do not apply to transactions between you and us, and we
may pay Entries which you have authorized us to originate against your account (e.g., loan or
credit card payments), whether or not you have included these in your authorization criteria.
We may also pay any Entries, reversals or adjustments which we are required to accept under
the NACHA Rules, operating circulars or any other applicable rule, guideline or regulation.
You provide authorization criteria in a manner and form acceptable to us. In your
authorization criteria you may specify a maximum amount for authorized Entries, in which
case you must specify the amount in dollars and cents.
You agree to comply with the NACHA Rules for all Entries. Under the NACHA Rules, credit
Entries are provisional and may be revoked prior to final settlement. If the credit Entry is
revoked before final settlement and final settlement is not received, we may charge your
account for any amount previously credited to your account. The person who originated the
credit Entry is considered not to have paid you. If this happens, we do not send a separate
notice.
If an ACH Blocks and Filters Service is terminated for any reason, we will no longer be
obligated to monitor Entries against your authorization criteria and will receive and accept
or return Entries to your account in accordance with our normal procedures. You still have
the right to return Entries in accordance with the NACHA Rules.
AD-AG-0455B (2004-2)
10
AUTOMATED CLEARING HOUSE (ACH) CUSTOMER-INITIATED PAYMENI'S
Our ACH Customer-Initiated Payments service allows your consumer or business
customers to pay you for goods or services by using your website. Your customers can
authorize payments to you through commands on your website or by touch-tone or voice
commands on the telephone. Detailed information regarding this Service is available in the
applicable User Documentation.
Payments will be made by creation of an ACH Entry to credit your account with us and will be
subject to the provisions of our Automated Clearing House Services. You act as the
Originator, your customer acts as the Receiver and we act as the ODFI with respect to the
Entries. You walTant that you have obtained appropriate authorization from each Receiver
and that Entries conform to such authorization and comply with the NACHA Rules. You
also make to us the same warranties as we make with respect to Entries under the
NACHA Rules.
CASHP AYQO
Our CashPaY@ Service allows you to pay your employees and other payees by directly
depositing payments to their CashPay accounts. Your payees can immediately access their
money through A TMs and point of sale (POS) terminals.
CASHPAY FUNDING OPTIONS
You may fund the CashPay accounts in one of two ways: by initiating Entries tJu'ough the
Automated Clearing House (ACH) system or, upon our approval, by instructing us to transfer
funds from a deposit account you maintain with us. (ACH Services are governed by the ACH
section of this Booklet.)
If you choose to pay by the transfer of funds from your account with us, we will debit your
account following receipt of your payment instructions in a mutually agreed-upon format and
method. You must have sufficient Collected and Available Funds in your account to cover the
transfer amount. In the event that sufficient funds are not available at the time of
settlement, you agree that we may take steps to protect ourselves, including refusing to
fund CashPay accounts and terminating the CashPay Service (which will not affect
funds previously transferred to CashPay accounts), without incurring any liability to you
or your payees.
CERTIFICATION OF ENROLLMENT INFORMATION
You must provide us information for each payee who wishes to open a CashPay account.
Each time you provide us with such information or initiate a transfer of funds to a
CashPay account, you certify that the following statements are true and accurate as of such
date:
· The payee is entitled to receive payments issued by you, and is otherwise qualified to
participate in the CashPay program.
· All information provided by you about the payee is correct, including but not
limited to the payee's date of birth, address, and social security number or
other identifying information contained in another fonn of identification issued
by a governmental entity.
AD-AG-0455B (2004-2) 11
. If the payee is to receive wage payments through a CashPay account, the payee is
legally employable in the United States of America.
· You have provided the payee the explanatory CashPa.v Service information that we
have provided to you for that purpose, and the payee has authorized the transfer of
wages to the CashPay account.
· The payee has not cancelled the authorization to transfer the wages to the CashPay
account.
You agree to notify us promptly of any changes to the payee enrollment information you have
provided to us for this Service.
ADDITIONAL LIMITATION OF IJABllJTY
As a general rule, A TMs cannot dispense cash in increments other than $5, $10 or $20. This
means that your payees may not be able to withdraw at an ATM all funds paid by you to the
payees' CashPay accounts. We will wire the difference to any payee who requests such
payment; however, we will not be responsible if your payees or others assert a claim
against us due to this inability to withdraw all funds at an ATM.
PROMarIONAL MATERIALS
We will provide you with a CashPay agreement and other explanatory documentation for
you to give your payees. You must obtain our prior written consent if you elect to promote
the CashPay selvice using materials (in any format) other than the documentation we
provide to you for that purpose.
CHECK ISSUANCE
With our Check Issuance Services, you may request us to create checks on your behalf that are
drawn on either (i) accounts maintained by you with us or another bank or (il) accounts
designated and owned by us.
AUTHORIZED PERSONS
Before using a Check Issuance Service, you give us a written list, in a form acceptable to us, of
the persons authorized by you to perform certain duties in connection with such Service.
SECURITY PROCEDURE
You agree to use the Security Procedure when you deliver Check Issuance Requests or
electronically transmit Stop Payment Requests to us. The purpose of the Security
Procedure is to verify the authenticity of Check Issuance Requests and Stop Payment Requests
delivered to us in your name and not to detect any errors in the transmission or content of
these messages. Each time you use a Check Issuance Service, you represent and warrant that,
in view of your requirements, the Security Procedure is a satisfactory method of verifying the
authenticity of Check Issuance Requests and such Stop Payment Requests. You agree we may
act on any Check Issuance Request and any electronically transmitted Stop Payment Request
the authenticity of which we have verified through use of the Security Procedure.
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STOP PAYMENT REQUESTS
Generally, you may send us a Stop Payment Request with respect to a check drawn on an
account designated and owned by us only if the check is lost, stolen or destroyed. In such
case, you must complete and provide us with a declaration of loss and indemnity agreement
reasonably acceptable to us. If you wish to stop payment on a check drawn on an account
you maintain with us, you must make your request as provided in the applicable
Account Agreement.
YOUR RESPONSffiILITIES
You must create and transmit to us a Check Issuance Request for each check you want us to
issue on your behalf. You must make certain that each Check Issuance Request conforms in
form and substance to the requirements, including cutoff times on a Business Day,
described in the applicable User Documentation.
You must retransmit any Check Issuance Request or other message initially transmitted to
us through a Service if you have not received an acknowledgment message from us within the
time period specified in the applicable User Documentation.
In the case of checks drawn on accounts designated and owned by us, you must ensure that
Collected and Available Funds, sufficient to cover the total of all checks issued, are on
deposit in your accounts. We will debit your account to cover such checks when we receive
your Check Issuance Request. In the case of checks drawn on accounts designated and owned
by you, you will be governed by the applicable Account Agreement.
CHECK TRUNCATION
With our Check Truncation Service, we store copies of your canceled checks on microfilm or
other media and destroy the checks. You do not receive your canceled checks. We will provide a
copy of any check that you request for up to seven years from the date the check was paid
against your account. To request a copy, you must provide us with sufficient information for
us to identify the item, including the Magnetic Ink Character Recognition (MICR) serial
number, account number, exact amount (dollars and cents) of the check, statement reference
number, if any, and posting date. We may also ask you for additional identifying
information.
Special services such as microfilin or review of dates, dollar amounts, serial numbers or
signatures may not be available in connection with the Service.
Notwithstanding the Limitation of Liabilities section of this Booklet, if we are unable to
provide a copy of a check as requested by you under a Service, our liability will be limited to
your actual damages but will not, in any event, exceed the amount of the check.
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CLIENT-PRINTED DRAFl'S
With our Client-Printed Drafts Services, you use your computer (using Software we provide or
by accessing our treasury management website) to print drafts (which may include drafts
denominated in a CUlTency other than the currency in which the relevant account is
denominated) drawn on either (i) accounts maintained by you with us or another bank or
(ii) accounts designated and owned by us.
AUTHORIZED PERSONS
Before using a Client-Printed Drafts Service, you give us a written list, in a form
acceptable to us, of the persons authorized by you to perform certain duties in connection
with such Service.
SECURITY PROCEDURE
You agree to use the Security Procedure when you deliver P~ent Advices or electronically
transmit Stop Payment Requests to us. The purpose of the Security Procedure is to
verify the authenticity of Payment Advices and Stop Payment Requests delivered to us in your
name and not to detect any en'ors in the transmission or content of these messages. Each
time you use a Client- Printed Drafts Service, you represent and warrant that, in view of your
requirements, the Security Procedure is a satisfactory method of verifying the authenticity of
Payment Advices and such Stop Payment Requests. You agree we may act on any Payment
Advice or electronically transmitted Stop Payment Request the authenticity of which
we have verified through use of the Security Procedure.
STOP PAYMENT REQUESTS
Generally, you may send us a Stop Payment Request with respect to a draft drawn on an
account designated and owned by us only if the draft is lost, stolen or destroyed. In such
case, you must complete and provide us with a declaration of loss and indemnity agreement
reasonably acceptable to us. If you wish to stop payment on a draft drawn on an account you
maintain with us, you must make your request as provided in your Account Agreement.
YOUR RESPONSffiILITIES
You must verify the contents of each shipment of blank draft stock and sign and return to
us the receipt accompanying each shipment or notify us of any discrepancy. You must notify
us immediately if any draft stock is lost or stolen. You will be liable for any damages
arising out of the loss 01' theft of any draft stock received by you.
You must create and transmit to us a Payment Advice for each draft you issue using a
Service. You must make certain that each draft, Payment Advice and electronically
transmitted Stop Payment Request conforms in form and substance to the requirements,
including cutoff times on a Business Day, described in the applicable User
Documentation.
You must retransmit any Payment Advice, electronically transmitted Stop Payment Request
or other message initially transmitted to us through a Service if you have not received an
acknowledgment message from us within the time period specified in the applicable User
Documentation.
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OUR RESPONSIBILITIES
When we receive the Payment Advice, we will transfer funds from your account with us to the
bank account on which the draft is drawn.
We will provide you with blank draft stock and with the necessary Software and/or access to
our treasury management website.
PAYMENT WITH RESPEar TO DRAFI'S
You agree you will not issue any drafts using a Service which would cause your
applicable account balance, according to your records, to be exceeded. If your records and
ours disagree regarding the account balance, our records will control for purposes of these
Services. You must ensure that Collected and Available Funds, sufficient to cover the total of
all drafts issued, are on deposit in your account each Business Day before the time stated in
the applicable User Documentation.
COIN AND CURRENCY ORDERS
Our Coin and Currency Order Services allow you to place orders for coin and currency with our
cash vaults and, where available, to exchange paper currency for rolled coins and currency
at certain banking centers or our automated business centers.
Before using a Coin and Currency Order Service, you give us a written list at our request, in a
form acceptable to us, of the persons authorized by you to place coin and currency orders
and to perform certain other duties in connection with a Service.
If you pick up your coin and currency order from one of our cash vaults, you must
contract separately with an armored carrier service that is acceptable to us to provide for the
transportation of cash orders. Armored carriers are your agents.
You authorize us to act upon any request for coin or currency made in accordance with this
Booklet and the procedures described in the applicable User Documentation.
In connection with any coin and currency you order from our cash vaults using a Service, you
au thorize us to debit your account on the day the coin and currency order is released to your
authorized agent or to the depository facility you and we have agreed upon. Each time you use
a Coin and Currency Order Service, you represent and warrant with each
coin and currency order that you have sufficient Collected and Available Funds in your
account which, when added to funds that are available under a line of credit, are
sufficient to cover your coin and currency order. We have no obligation to release a coin and
currency order unless there are sufficient Collected and Available Funds in the designated
account and available under a line of credit to pay for such order at the time scheduled for
release of the cash to you or your agent.
COLLEcrION LE'ITERS
Our Collection Letter Services allow you to forward us drafts, checks and travelers checks (as
used in this section, "items") drawn on Canadian banks and denominated in U.s. dollars
or drawn in specified foreign currencies (as described in the applicable User
Documentation) for collection.
AD-AG-0455B (2004-2)
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You must prepare and forward a transmittal letter, in a form acceptable to us, along with
those items you want us to process for collection in accordance with the applicable User
Documentation. You agree that you will only request collection on items which are drawn on
Canadian Banks in U.S. dollars or foreign currency items drawn in currencies specified in the
applicable User Documentation.
We will send each item you forward to us for collection to the bank on which such item was
drawn or to an appropriate correspondent bank. We will credit your account for each item on
the Business Day on which we receive payment for each such item at our then-prevailing buy
rate for the applicable currency. We will deduct all selVice fees and charges, plus any
correspondent bank fees and charges, from the amount of any payment credited to
your account for such items.
We will send you a written advice showing the applicable buying rate and fees and charges for
each item we process as a collection item through use of a Collection Letter Service.
COMMERCIAL AND CORPORATE CARD
Our Commercial and Corporate Card SelVices allow you to open Card Accounts for your
business purposes, as described below. With our Commercial Card SelVices, which are
designed principally for medium-sized companies, you may obtain a single Card for
managing purchases, travel and fleet spending. With our Corporate Card SelVices, which are
designed for large companies, you may obtain separate purchasing, travel or fleet Cards or a
Card combining all three functions. Accounts payable payment functionality is also available.
Detailed information regarding such selVices is available in the applicable User
Documentation.
OUR OBLIGATIONS
We will open Card Accounts upon your request which Cardholders or you may use to conduct
Transactions for your business. We will assume that all Transactions made on a Card Account
are authorized by you until we receive and have had a reasonable period of time to act upon
written notice from you that the Cardholder is no longer authorized to use the Card,
Convenience Checks or the Card Account. Pursuant to your instructions, each Card Account
we open shall have one or more of the following features:
. travel and entertainment
. purchasing
. accounts payable payment
. fleet/automotive
We may also provide Convenience Checks on your request with respect to your Card Accounts.
We can also establish a Card Account for which we assign only a Card Account number, but we
do not issue a Card or Convenience Checks. If you so request, we will provide to the
Cardholder, at the address you or the Cardholder specifies, a monthly billing statement
reflecting the use of the relevant Card Account. We may deny authorization of any
Transaction if we suspect fraudulent activity or Unauthorized Use or for any other reason.
Notwithstanding anything to the contrary in the "Limitations of Liability" section of this
Booklet, we will not be liable for any failure to authorize a Transaction.
AD-AG-0455B (2004-2)
16
YOUR OBLIGATIONS
You shall use each Card Account solely for your business purposes.
You shall pay for each Transaction, regardless of its purpose or whether you signed a sales
draft or received a receipt, in addition to our fees and charges.
You represent and warrant to us that each Cardholder is a current employee or agent of your
company. You will promptly furnish such financial and other information as we request for
the purpose of reviewing your abili~ to petform your obligations to us. You represent and
warrant to us that all such information about your employees, agents, or your company is
accurate, sufficiently complete to give us accurate knowledge of your financial condition and
in compliance with all applicable rules, regulations and laws.
You and each Cardholder will check to ensure that the information embossed on each new
Card or printed on each Convenience Check is correct, and you will contact us immediately if
there is an error.
CHARGE LIMITS
We will give you one total charge limit for all your Card Accounts. We will also assign an
individual charge limit for each Card Account. We may increase or decrease the total charge
limit or any individual limit at our discretion. You agree not to incur obligations which would
cause the total charge limit for all your Card Accounts to be exceeded If you do exceed this
limit, or if any Cardholder's individual charge limit is exceeded, we may deem the entire
balance owing to be immediately due and payable, and/or we may refuse any
Transactions on all Card Accounts 01' the individual Card Account until a payment is made to
reduce the balance below the total charge limit or the individual charge limit.
TRANSAcrIONS IN OTHER CURRENCIES
MasterCard@ or Visa@will convert to U.s. Dollars any charge made in a cun-ency other than
U.S. Dollars at a rate detennined under MasterCard or Visa regulations, as applicable. The
conversion rate may be different than the rate in effect on the date of the Transaction. We
will post to the Card Account the converted U.S. Dollar amounts.
DISPUrES WITH MERCHANTS AND SUPPLIERS
We will have no liabili~ for goods or services purchased with, or for a merchant's or
supplier's failure to honor purchases made with, a Card Account, Convenience Check or Card.
You agree to make a good fai th effort to resolve any dispute with a merchant or a supplier
arising from a Transaction. In a dispute with a merchant or supplier, we will be subrogated
to your rights and each Cardholder's rights against the merchant or supplier and you will
assign (and cause the Cardholder to assign) to us the right to assert a billing error against
the merchant or supplier. You will, and will cause the Cardholder to, do whatever is necessalj'
to enable us to exercise those rights. We may reverse from any Card Account any
Transactions relating to the dispute.
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A merchant or supplier may seek prior authorization from us before completing a
Transaction. If you advise us in writing that you desire to restrict Transactions to merchants
falling within certain categories we designate in our User Documentation, we will take
reasonable steps to prevent authorization of Transactions from other types of merchants.
We, however, will not be liable to you if merchants or suppliers nonetheless accept a Card,
Convenience Check or Card Account for other types of Transactions, or if au thorization for a
Transaction is not given.
CONVENIENCE CHECKS
If we provide Convenience Checks with regard to a Card Account, they may not be used to
make payment on the Card Account. We may pay a Convenience Check and post its amount to
the Card Account regardless of any restriction on payment, including a Convenience Check
that is post-dated, that states it is void after a certain date or that states a maximum or
minimum amount for which it may be written. Once paid, Convenience Checks will not be
returned to you or the Cardholder.
If you wish to stop payment on a Convenience Check, you must call us at the customer service
number shown on your billing statement and provide such information as we request or is
required under the relevant User Documentation. We will stop payment if we receive your
request on or before the Business Day before the Business Day on which we would otherwise
pay the Convenience Check. The date on which we would pay a Convenience Check may be
prior to the date it would post to your Card Account. A stop payment order will remain in
effect for up to six months.
CARDLESS ACCOUNTS; ACCOUNTS NOT IN NAME OF INDIVIDUAL
If you use our Corporate Card Services, we may, at your request, establish a Card Account for
which no Card is issued or establish a Card Account with a designation which is not an
actual individual, including, without limitation, designation of a vehicle identification
number, license number, department name or "Authorized Representative" on the Card
Account. Notwithstanding any other term in this Booklet, you agree to be solely
responsible for the use of any such Card Account, including, without limitation, any
Unauthorized Use, and you agree not to make any claim or request related to any
Unauthorized Use of such a Card Account.
PAYMENT OF CARD ACCOUNTS; SECURITY INTEREST
We will provide to the Card Administrator, or other person you designate in writing to us, a
monthly billing statement which will identify each Transaction posted during the billing
cycle and the date of the Transaction. Unless otherwise determined by us, the official billing
statement will be in paper, not electronic, form. The billing statement will also list any
applicable fees and charges for the Services. If you have requested a Card Account for travel
and entertainment Transactions, we will provide an additional copy of the monthly billing
statement covering such use of the relevant Commercial Card to the appropriate Cardholder
at the address which you or the Cardholder provides to us.
You will pay to us the total amount shown as due on each billing statement on or before the
due date shown on the statement. If you do not make a payment in full by the specified due
date, in addition to our other rights, we may assess a late fee and finance charge as set forth
in our schedule of fees and charges. You have no right to defer any payment due on any Card
Account.
AD-AG-0455B (2004-2)
18
Unless otherwise agreed by us, payments must be made using an ACH selvice. As specified by
you, we may initiate ACH debits to any deposit account at any financial institution. All
payments must include the complete Card Account number in order to be processed and for
you to be credited with making payment. If you arrange for direct payment by Cardholders,
such an arrangement will not change your responsibilities under this Booklet, including your
obligation for payment.
You grant to us a security interest and contractual right of setoff in and to all deposits
now or subsequently maintained with us or any of our affIliates or Subsidiaries. In
connection with that grant, you authorize us to enter into a master contl'Ol agreement with
our affiliates authorizing, upon the occurrence and continuance of any default, the
disposition of any such deposits to satisfy all liabilities incurred in connection with these
Services, without your further consent. The grant of this security interest shall survive
termination of these Services.
LObT OR STOLEN CARDS; UNAUTHORIZED USE
In the event of a possible loss or theft of a Card, Convenience Check or Card Account or
possible Unauthorized Use, you will give us notice by telephone or telefax to the numbers set
forth in the User Documentation You agree to give us this notice as soon as practicable but
in any event within 24 hours after discovery of the known or suspected loss or theft or
Unauthorized Use. If notice as provided in this paragraph is given within the first 24 hours
and you assist us in investigating facts and circumstances relating to the loss, theft or
possible Unauthorized Use, including without limitation obtaining an affidavit or similar
written, signed statement from the Cardholder, then you will not be liable for Transactions
resulting from UnauthOlized Use. If we have issued fewer than ten Card Accounts to you, your
liability for Transactions by a person who does not have actual, implied or apparent authority
to use the Card or Convenience Check and whose use does not result in a direct or indirect
benefit to you will not exceed $50 on each Card.
IJCENSE TO USE YOUR MARKS
Upon your request, we may place your trademark, tradename, service mark and/or designs
("Company's Marks") on the Cards and collateral materials. You will provide the graphics to
us in sufficient time to allow for review and approval by us and, if necessary, the respective
card association. You grant to us a non-exclusive license to use, during the term of the
Services, Company's Marks on the Cards and on other materials related to the Card
Accounts. Your indemnity under the "Protection from Third Parties" section of this Booklet
covers any claim that the use of any Company Marks infringes the intellectual
property right of any third party.
EXTENSION OF CORPORATE CARD SERVICES TO AFFILIATES
Upon your request and submission of a Participant Account form, we may approve one or
more affiliates of which you are majority owner for participation in the Corporate Card
Services. Each participating affiliate will have the same rights and obligations as you
except that no separate charge limit will be assigned. Your charge limit will apply to
Transactions on all Card Accounts, including those of your participating afftliates.
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You may terminate an affiliate's participation by giving us written notice and a reasonable
time to act on such notice. If an approved participant is, or will no longer
be, majority-owned by you, you agree to notify us immediately, and we may immediately
terminate the Card Accounts of such participant.
SU!REMENrALG<JlJERNUII}IAW ANDRE.'DUJJ.IDNOFDlSPUIE'3~
Notwithstanding anything to the contrary in the Governing Law provision in the General
Provisions section of this Booklet, the Commercial and Corporate Card Selvices are governed
by the laws respecting national banking associations and, to the extent not covered by those
laws, by the laws of the State of Delaware, without reference to that state's principles of
conflicts ofJaw, regardless of where you reside or where a Cardholder uses a Card Account.
Notwithstanding anything to the contrary in the Resolution of Disputes provision in the
General Provisions section of this Booklet, you agree to submit to the personal jurisdiction
of any state or federal court in Delaware and to binding arbitration in Delaware with
respect to disputes regal'ding the Commercial and Corporate Card Services.
ADDITIONAL TERMINATION PROVISIONS
We may immediately terminate these Services if there occurs (i) a termination event set forth
in the "Termination" section of this Booklet with respect to you, a participating affiliate or a
guarantor of obligations under any Card Account, (ii) a change in your ownership, if you are
a privately-held entity, in excess of 50% or (Hi) any of the following with respect to you, a
participating affiliate or a guarantor of obligations under any Card Account:
· the failure to payor perform any obligation, liability or indebtedness to us or any of
our affiliates or subsidiaries, whether under this Booklet or any other agreement, as
and when due (whether upon demand, at maturity or by acceleration);
· the failure to payor perform any other obligation, liability or indebtedness to any
other party;
· death (if an individual) or resignation or withdrawal of any partner or material owner
(of a privately-held entity);
· merger or consolidation with or into another entity;
· the determination by us that any representation or wan"anty made to any of our
affiliates or subsidiaries in any agreement is or was, when it was made, untrue or
materially misleading;
· the failure to timely deliver such financial statements, including tax retul11s, other
statements of condition or other information, as we shall request from time to
time;
· the entry of a judgment which we deem to be of a material nature;
AD-AG-0455B (2004-2) 20
. the seizure or forfeiture of, or the issuance of any writ of possession, garnishment or
attachment, or any turnover order for any property;
. the determination by us that we are insecure for any reason;
· the determination by us that any such person fails to meet credit criteria initially
used by us to approve the Card Services; or
. the failure to comply with any law or regulation controlling its operation.
Upon any termination of the Card Services, (i) the entire balance outstanding on all Card
Accounts shall, at our option, become immediately due and payable and (ii) you will
immediately destroy, and will instruct all Cardholders to immediately destroy, all Cards and
Convenience Checks. Your responsibility to pay for all Transactions regarding each Card
Account will continue until a reasonable period of time after you notify us to close the Card
Account or until you pay for all Transactions entered into before we close the Card Account to
future use, whichever occurs later. After termination, you and all Cardholders will make no
new Transactions on any Card Account. If, however, such Transactions are made, you will be
liable for each of them.
COMMERCIAL DEPOSITS
With our Commercial Deposits Services, you may make deposits of coin and currency, checks
and other payment instruments at one of our designated banking centers (which may include
an automated business center), depository facilities (which may include a night depository
facility), processing centers or cash vaults. If these deposits are delivered by you or your
agent before the cutoff time specified in the applicable User Documentation, we will give you
same-day provisional credit for such deposits, subject to later verification by us and our
availability schedule. Banking center deposits that are immediately verified are covered
under your Account Agreement.
YOUR RESPONSmILITIES
You agree to prepare all deposits accurately and in good faith and to follow the procedures
for preparation, packaging and delivery of deposits as provided in the applicable User
Documentation.
For deposits made to an automated business center, you will automatically be provided a
receipt. In all other cases, in order to receive a receipt of deposit, you must provide a
duplicate deposit slip in addition to the number of original deposit slips required by us to
process the deposit. We will stamp this duplicate deposit slip and return it to you. In all
cases, deposits are subject to later verification by us.
If you use an armored carrier to transport your deposits, you must contract separately with
an armored carrier service that is acceptable to us. For deposits made to one of our cash
vaults, we may require that you use an armored carrier. Armored carriers are your agents.
AD-AG-0455B (2004-2)
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OUR RESPONSIBllJTIES
We receive your deposit and issue provisional cl'edit to your account for the amount you
declare on the deposit slip. The declal'ed amount is subject to later verification by us.
If we find an error when we verify your deposit, we will debit or credit the amount of the error
to the deposit account listed on the deposit slip, unless you and we have agreed otherwise
in wl'iting; provided, however, we l'eserve the right to set a standard arljustment
amount (which we may change from time to time), in which case we will not make a correction
to a deposit when the error is less than our current arljustment amount.
We give you same.day provisional credit for deposits delivered before the cutoff time on a
Business Day. For deposits delivered after the cutoff time or on a non-Business Day, we give
you provisional credit on the next Business Day.
COMMERCIAL PREPAID CARD
Our Commercial Prepaid Card Services enable you to distribute Commercial Prepaid
Cards to your employees and others that permit them access to a predetermined amount of
funds. Commercial Prepaid Cards may be used to withdraw cash at any ATM displaying any of
the logos displayed on the Commercial Prepaid Card and to make purchases at any
merchant displaying the Visa logo. Detailed information regarding such sel'vices is available
in the applicable User Documentation.
OUR OBIJGATIONS
We will issue Commercial Prepaid Cards to you on your request after you have provided us
such information regarding the Commercial Prepaid Card as we may require at that time.
Before we issue each Commercial Prepaid Card, we will debit funds from a deposit account
you maintain with us for the value amount of the Commercial Prepaid Card issued.
We will mail the Commercial Prepaid Cards to the address or addresses you provide us,
together with a copy of the agreement between us and the Cardholder, our privacy policy for
consumers (if applicable) and instructions for activating the Commercial Prepaid Card.
We will deduct the amount of each Transaction, which may include fees added by the A TM
owner or the applicable network, from the value amount with respect to the Commercial
Prepaid Cal'd. We will also deduct applicable Cardholder fees.
You may l'equest us to add value to previously issued Commel'cial Prepaid Cards by providing
such information as we may require at that time. Upon receipt of your request and the
required information, we will debit your deposit account with us for the amount to be added
to the existing Commercial Prepaid Cards.
If there are insufficient Collected and Available Funds in your account, we have no obligation
to issue or activate any Commercial Prepaid Card or to add value to any existing Commercial
Prepaid Card.
AD-AG-0455B (2004-2)
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COMMERCIAL PREPAID CARD CREATION
All Commercial Prepaid Cards shall identify us as the issuer and shall include such other
names and trademarks as we require. If you elect to customize the Commercial Prepaid
Cards, you will be responsible for any additional costs in the design or production of the
Commercial Prepaid Cards. You will provide graphics, promotional material and wording to us
for review and approval and you must comply with all the rules of Visa USA, Ine. and other
systems or organizations, as applicable. You will allow us to use your artwork on the
Commercial Prepaid Cards, provided that you shall have first reviewed and approved such
use. You will indemnify and hold us harmless from any and all liabilities, claims, costs,
expenses and damages of any nature (including Legal Expenses) arising from any claim that
the artwork you supplied infringes the intellectual property rights of any third party.
COMMERCIAL PREPAID CARD ACTIVATION
Each Cardholder will be instructed to call a toll-free (in the U.S.A.) number and use an
interactive voice response system to authenticate the Cardholder by using a number unique
to the Cardholder in order to activate the Commercial Prepaid Carel. During this call, the
Cardholder will receive their PIN, if applicable. The Cardholder can change the PIN at that
time to any four digit number. Once the call is successfully completed, the Commercial
Prepaid Card will be activated. You will be responsible for infonning each Cardholder of any
other restrictions you may impose on the use of the Commercial Prepaid Card, and we will
not have any responsibility for enforcing those restrictions.
COMMERCIAL PREPAID CARD USAGE
We may refuse to issue or add value to any Commercial Prepaid Card if we believe the
Commercial Prepaid Card will or may be used in violation, or may cause us to be in violation,
of any law or regulation, or any l1lle of any payment system.
We will use reasonable efforts to prevent any overdraft with respect to a Commercial Prepaid
Card or any unauthorized use of a Commercial Prepaid Card, but cannot ensure we will be
able to do so. You will reimburse us for the amount of any overdraft or for the amount of any
loss resulting from such unauthorized use.
The value amount on any Commercial Prepaid Card does not constitute a deposit account, is
not insured by the Federal Deposit Insurance Corporation or any other government agency,
and does not acCl1le interest for your benefit or the benefit of the Cardholder.
CONTROLLED BALANCE ACCOUNTS
Our Controlled Balance Accounts Services let you control the transfer of funds between
accounts with us. These Services may be restlicted to certain account types.
Transfers you make from a u.S.-domiciled money market account using these Services are
considered preauthorized transfers, are counted toward the number of transactions you are
legally pennitted each month, and may not be made to a checking account with an overdraft
credit facility.
AD-AG-0455B (2004-2)
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You may instl1lct us to make either date-related (where available) or balance-related (where
available) transfers as described below. Once you instruct us to transfer funds between
accounts, transfers begin on a mutually agreeable date or, for accounts domiciled in
the United States of America, either immediately or on the date you specify.
With a date-related transfer, funds can be transfelTed in either direction between certain
types of accounts on the date and in the amount you specify. Both interstate and
intrastate funds transfers are permitted as long as you meet the requirements for the
account type(s), transfer date and account location(s). If the transfer date you specify is a
non-Business Day, we make the transfer on the next Business Day.
With a balance-related transfer, you may have funds transferred to an account when the
balance falls below a certain amount, or from an account, when the balance rises above a
certain amount, or both. We transfer the amount required to meet the account balance you
specify.
You may elect to have funds transfen'ed to or from accounts of another company /
organization using a Service. You agree that for each such account, the company/
organization will provide us with its written authorization, in a form acceptable to us, for
such transfers. However, you do not need to provide us such written authorization if (i) the
other company's accounts are domiciled in the United States of America and (ii) you
represent and wan-ant that such other company is a U.S. SubsidialY and that it has
authorized us to transfer funds between its accounts and your accounts.
CONTROLLED DISBURSEMENT
Our Controlled Disbursement Selvices provide information to you each Business Day so that
you can fund the total amount of i) controlled disbursement checks presented that Business
Day and (ii) where the option is available, controlled disbursement ACH debits and any other
electronic debits to which we agree and which are posted that Business Day.
ACCOUNTS
We make the Controlled Disbursement Selvices available through multiple Controlled
Disbursement Points in different Palts of the United States of America. These Points al'e
identified on the List of Banks and Services. Subject to our approval in each case, you may use
such Service through one or more of those Points. For each Controlled Disbursement Point
you use, you maintain one or more Deposit Accounts with us.
For certain Controlled Disbursement Points, as more fully described in the applicable User
Documentation, you may (i) draw checks bearing those respective Points' routing numbers
directly on a Deposit Account and (ii) where the option is available, initiate or authorize
third parties to initiate ACH debits and, subject to special agreement, other electronic
debits to the Deposit Account. (For electronic debits to a Deposit Account, you must use the
appropriate funds transfer Service approved by us.)
For a certain other Controlled Disbursement Point, we authorize you to draw checks on
accounts we maintain at such Point, then we debit yom' Deposit Account(s) in the
amount(s) of the checks which al'C paid. With these Services, you have no account or
contractual relationship with such Controlled Disbursement Point. You will not access our
accounts maintained at such Point in any other manner, including but not limited to
automatic debit an'angements cleared through an automated clearing house network or
through wire transfers.
AD-AG-0455B (2004-2)
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On each Business Day, we will inform you by the time specified in the applicable User
Documentation of the total amount of debits presented for payment that day at or through
a Controlled Disbursement Point and any other amounts required to be deposited in
the corresponding Deposit Account(s) to cover such debits. On each such Business Day, prior
to the time stated in the applicable User Documentation, you must ensure that sufficient
Collected and Available Funds are on deposit in the Deposit Account(s) to cover such
amounts. If we attempt to post a debit to a Deposit Account for the amount due and
determine there are insufficient funds in the Deposit Account, we may dishonor or instruct
the pertinent Controlled Disbursement Point to dishonor some or all of the checks then
pending payment and/or, as appropriate, return or reject any electronic debit pending
settlement. We may, however, in our sole discretion, allow an overdraft so some or all of such
checks or electronic debits will be paid or settled. If we do so, we are not obligated to allow
any such overdraft in the future.
If, for any reason, we fail to provide you timely notice of the required funding amount for a
Deposit Accoun~ and if you fund such Deposit Account according to the procedures (including
funding amount and time) described in the applicable User Documentation, we will post to
the Deposit Account, or instruct the Controlled Disbursement Point to post to your
account, all checks presented for payment, and electronic debits received for settlement, that
day. If the required funding amount nonetheless exceeds the amount funded by you and you
have insufficient funds in the Deposit Account to cover the required amount, we will overdraw
the Deposit Account and advance funds to cover the excess.
If we advance our own funds, repayment is immediately due and payable, and you will repay
us on or before the next Business Day along with interest on such funds as specified
in our schedule of charges for business account services or as otherwise agreed. If you
do not, we may dishonor, or instruct the Controlled Disbursement Point to dishonor, some or
all of the checks then pending final payment and/or, as appropriate, return or reject any
electronic debit pending settlement even if the Deposit Account has sufficient Collected and
Available Funds to cover such debits.
We may require you to maintain a specified minimum amount in any Deposit Account for
which we permit you to use automated clearing house transfers to fund that Account.
If you use facsimile signatures on checks drawn on an account at a Controlled Disbursement
Point, your use of such signatures is subject to the Facsimile Signatures section of this
Booklet.
STOP PAYMENTS
You may request stop payments on checks drawn under a Controlled Disbursement
Service by following the procedures specified in the applicable User Documentation or
applicable Account Agreement. Also, you may use an Online Stop Payment Service, which
is subject to the Online Stop Payment section of this Booklet. If you use telephone, mail 01'
facsimile transmission to request a stop payment, you agree that your stop payment request
is subject to the tenns described in the Account Agreement for requesting stops by
telephone or mail.
AD-AG-04558 (2004-2)
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If some, but not all, of the information in your stop payment request matches a check which
has been presented for payment (for example, the Magnetic Ink Character Recognition
(MICR) serial numbers match and the dollar amounts do not match), we may contact you to
request a decision on whether or not to pay the check If any such suspect check is not to be
paid, you must promptly instruct us not to pay, or to direct a Controlled Disbursement Point
not to pay, the suspect check If you do not, the suspect check may be paid.
DISBURSEMENT IMAGE
Our Disbursement Image Services will make available to you digital images of checks and
drafts paid against specified accounts. Such images may be made available to you by online
transmission or hyCO-ROMs containing images you may access using image CD. ROM
Software.
Check and draft images will be made available to you at such times as you request and we
agree. If an image of a check or draft is missing or is illegible, we will provide you a
microfilm copy upon your request. Your request must include the account number, the check
serial number, the exact amount (dollars and cents) of the payment and the date the
payment was made. We may assess a fee for copies provided to you. We will not be liable for
failure to provide copies by a given time or for failure to provide copies we are not
reasonably able to provide.
Notwithstanding the Limitation of Liabilities section of this Booklet, we will not be liable for
damages arising under any Disbursement Image Service in excess of the amount of the
check, draft or miscellaneous debit giving rise to your damage claim. Any such claim must
include the account number, the check serial number, the exact amount (dollars and cents)
of the payment, the date the payment was made, the name of the payee, a detailed
explanation of how the claimed loss occurred and the name, address and phone number
of the payee to whom you cannot prove payment was made.
Notwithstanding the Termination section of this Booklet, in the case of a Disbursement
Image Service using CD.ROMs, termination of such Service upon 30 days notice may not be
effective earlier than the first day of the statement period immediately following the
statement period during which such notice is given.
ELECTRONIC BILL PAYMENT CONSOLIDATION
Our Electronic Bill Payment Consolidation Service consolidates, reformats and delivers
remittance information and other data related to payments received from Bill Payment
Service Providers for credit to your account. Detailed infOlmation regarding the Service is
available in the applicable User Documentation.
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You agree that you will authorize Bill Payment Service Providers to deliver payments,
remittance information and other related data to us for us to provide this Service to YOlL
You may also elect to have information of another company/organization reported through
this Service. If you do so, you agree that you and the other company/ organization
will authOlize the Bill Payment Service Providers to deliver payments, remittance information
and other related data to us for us to provide this Service to you.
Remittance information and other data related to payments will be delivered to you in a
mutually acceptable form and manner.
If you are unable to post any payments to your customers' accounts, you must promptly
return such payments to us. You shall pay us inunediately for the amount of any returned
payments which we previously credited to your account.
ELECl'RONIC DATA INTERCHANGE (ED!)
Our ED! Services allow you to disburse funds and/or deliver payment-related information
to your receivers, electronically or by paper, by sending payment requests or payment-
related information to us as desclibed in the applicable User Documentation. These Services
also allow you to access payments-related and remittance-related information in mutually
acceptable formats received from your receivers or customers and, where available, to
match specified receivables and payables against payments.
For the web-based remittance advice delivery service, you are responsible for enrollment of
your receivers on the service. Duling enrollment you will review and verify the accuracy of all
enrollment information provided by your receivers on the specified website. Upon completion
of enrollment, you authorize us to deliver the confidential passwords and identifiers to your
enrolled receiver to access the specified web site. Your receiver must keep such passwords
and identifiers confidential. We will be fully protected in relying on the correct user
identification codes and passwords.
SENDING PAYMENTS AND RELATED INFORMATION
When you wish to pay your receivers, you transmit a data file to us, containing
instructions for your payments, in the format and by the cutoff times specified in the
applicable User Documentation. When we receive a file from you under an ED! Service, we
perform certain edits on the data, translate it into the appropliate format and/or medium
and send the data to the payment system specified by you, except that we may use any
means of transmission, funds transfer system, clearing house or intelmediary bank we
reasonably select.. On the specified dates, we issue your payments in the required formats.
You control the content of any payment-related information you send to us and are solely
responsible for the accuracy of such information. You are solely responsible for storage of
all data relating to such information so that it can be made available to individual receivers
upon request..
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For the web-based remittance advice delivery selvice, we act as an intermedialY to make data
and information available to or from you or your enrolled trading partners
reasonably promptly after receipt of such information. We make the information available to
your enrolled receivers on the specified website within one Business Day of receipt. The
information will be available on the specified website for the time periods specified in the
applicable User Documentation. We will not alter the content of any information that we
receive from you or the trading partner. We are not responsible for the accuracy of any of
the information that we receive.
Payment requests originated via the EDI Services will be subject to the terms and conditions
for the underlying payment Services (Check Issuance, ACH and/or Wire Transfer and
International Electronic Funds Transfer) as described in their respective sections of this
Booklet.
RECEIVING REMl'ITANCE INFORMATION
Remittance information can be delivered to you in a mutually acceptable form and manner
and will be covered under the Information Reporting section of this Booklet.
ELECfRONIC FOREIGN EXCHANGE
Our Electronic Foreign Exchange SelVice allows you to initiate FX Requests over the intel1let or
by telephone. By accessing our website, you can request that we provide an FX Transaction
quotation, and by accepting our quotation you can electronically enter into FX Transactions,
all in accordance with the instructions provided in the applicable User Documentation.
AUTHORIZED PERSONS
Before using an Electronic Foreign Exchange Service, you give us, by completing the
applicable Application, a written list of the persons authorized by you, including the
Security Administrators, to perform certain duties in connection with the Electronic Foreign
Exchange Service.
SECURI'IY PROCEDURE
You agree to use the Security Procedure, if any, when you send us FX Requests. The purpose of
the Security Procedure is to verify the authenticity ofFX Requests delivered to us in your
name and not to detect errors in the transmission or content of the FX Requests. Each
time you use an Electronic Foreign Exchange SeIVice, you represent and warrant that, in view
of your requirements, the Security Procedure is a satisfactory method of verifying the
authenticity ofFX Requests.
You agree that we may act on FX Requests, even if they are unauthorized, ifwe act in good
faith and comply with the applicable Security Procedure and any written agreement with you
restricting our action on FX Requests. In such cases, we may enforce or retain your payment
to us for such FX Requests; provided, however, we may not enforce or retain payment if
you prove that the unauthorized FX Requests were not caused by a person (i) entrusted at
any time to act for you with respect to FX Requests or the applicable Security
Procedure, (ii) who obtained access to your premises, computer equipment or
transmitting facilities or (iii) who obtained, from a source controlled by you, information
(such as keys and passwords) which facilitated breach of the applicable Security Procedure.
AD-AG-0455B (2004-2)
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EFFECTIVENESS OF FX TRANSACTIONS
You deliver FX Requests to us through the Service and we send you a quotation that you can
accept electronically. You must follow all system instl1lctions, procedures and warnings
delivered to you on the website provided for the Service. Once we receive your acceptance of
our quote, we send you our deal acknowledgment in accordance with the applicable User
Documentation, and the FX Transaction will be binding and effective. The FX Transaction is
not completed until we send this acknowledgment. You are responsible for contacting us
outside the Service if you have not received our electronic acknowledgment within the time
specified in the applicable User Documentation (or in the absence of such specification
within a reasonable time). We will book FX Transactions at our New York office.
Notwithstanding anything to the contrary in this Booklet, we reserve the right to withdraw the
Service or terminate your access to the Service at any time without notice.
ACCOUNT DEBITS
You must have Collected and Available Funds in your account which, when added to funds
which may be made available under a line of credit, are sufficient to cover your FX Requests.
You may initiate an FX Request only if the offsetting debit to your account, including the
available line of credit., will not cause you to exceed the account balance according to your
records. If your records and ours disagree regarding the account balance, our records will
control for purposes of our processing the FX Request.
Unless you have available funds under a line of credit with us, you are obligated to pay us the
amount of any FX Request once we receive your FX Request. We will debit the account you
specify for the amount of your payment before we process your FX Request. If, for any
Business Day, we receive more than one FX Request and/or other items payable from
your account., we may debit your account for such FX Requests and items in any sequence we
determine in our sole discretion.
If you have available funds under a line of credit with us, we will debit your specified account
for the amount of your payment on the settlement date of the FX Transaction. Prior to the
settlement date, you can request a change to the specified settlement account for the
FX Transaction by using the website for the Service. We will not be obligated to implement
such a change, and the change will not be effective until we have had a reasonable
opportunity to review and act upon your request.
REJECTION OF FX REQUESTS
We may reject any FX Request which does not comply with the requirements of this
Booklet or the applicable User Documentation, including any processing limits described in
such User Documentation, or which we have been unable to verify through use of the Security
Procedure. We also may reject any FX Request which exceeds the Collected and Available
Funds (including funds made available under a line of credit) on deposit with us in the
applicable account. Notice of rejection is given to you by telephone, by electronic means, by
facsimile or, in event such notice cannot be given by any of those means, by mail. Notices of
rejection will be effective when given.
AD-AG-0455B (2004-2)
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CONFmMATIONS AND SETTLEMENTS
You agree that FX Transactions effected through the Selvice are automatically confirmed and
do not require any further confirmation. Foreign exchange transactions effected by a method
other than the Service may also be confirmed on the website for the Service in accordance
with the User Documentation. Your electronic confirmation of each such foreign exchange
transaction shall have the same effect as if you had received a written confirmation from us
and had reviewed, manually signed and returned the signed confirmation to us.
INTERRUPITON OF COMMUNICATIONS
In the event of a service interlUption involving the Service, you may effect FX Transactions,
confirm FX Transactions, and specify settlement instl1lctions by contacting one of our
trading rooms or operations centers by telephone as designated in the applicable User
Documentation.
INFORMATION REPORTING
Our Information Reporting Services make certain account, transaction and related
information available to help you control and manage your accounts and in connection with
any questions raised by you via such Services. This may include information generated from
other Services you use. You may have information reported directly to you or, with certain of
our Information Reporting Services, reported at your direction to another financial
institution or other entity. Detailed information regarding an Information Reporting
Service is available in the applicable User Documentation.
ACCOUNTS OF OTHER COMPANIES/ORGANIZATIONS
You may elect to have accounts of another company/organization reported to you with any of
our Information Reporting Selvices. You agree that., for each such account, the
company/organization wi)] provide us with its written authorization, in a form acceptable to
us, for us to make that company's account information available to you. However, you do not
need to provide us such written authorization if the other company is a U.S. Subsidiary and
its accounts are domiciled in the United States of America. In that case, you represent and
warrant that such other company is a U.S. Subsidiary and that it has authorized us to make
its account information available to you.
ACCOUNTS AT OTHER BANKS
You may also elect to have your accounts, or accounts of another company/organization,
maintained at another financial institution reported through certain of our Information
Reporting Services. If you do so, you agree that you and the other company/organization
will authorize the other financial institution to make the reporting information available to
us and to take all other actions necessary for us to provide Information Reporting Services
to you.
AD-AG-0455B (2004-2)
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THIRD-PARTY INFORMATION
If you gain, through your use of one or more Services, access to any information relating
to any person other than us, you or any of your Subsidiaries which have authorized your
receipt of such information, you agree that you will treat such third-party information as
strictly confidential and you shall not disclose it to any person outside your company or to
any persons within your company except those who have a need to know. Further, you
shall ensure that adequate measures have been taken to prevent the unauthorized use of
any such third. party information. You agree that you will not use any such third-party
information for your own purposes other than in a communication to us relating to the
Service.
LOCKBOX
Our Lockbox Services involve the processing of checks and other payment instruments, such
as drafts, that are received at a Lockbox Address or by special arrangement with us,
excluding without limitation the processing of cash, stock certificates and tangible
valuables. With a Lockbox Service, you instruct your customers to mail checks and other
payment instruments you want to have processed under a Service to the Lockbox
Address. We are not liable to you for losses you suffer if anything other than checks or other
payment instl1lments are sent to the Lockbox Address. We and/or our agents will have
unrestricted and exclusive access to the mail sent to the Lockbox Address.
If we receive any mail containing your lockbox number at our lockbox operations location
(instead of the Lockbox Address), we may handle the mail as if it had been received at the
Lockbox Address.
PROCESSING
We will handle checks received at the Lockbox Address according to the applicable Account
Agl'eement, applicable User Documentation and our availability schedule, as if the checks
were delivered by you to us for deposit to your designated account, except as modified by this
Booklet.
We will open the envelopes picked up from the Lockbox Address and remove the
contents. Checks and other documents contained in the envelopes will be inspected and
handled in the manner specified in the set-up documents for the applicable Lockbox
Address. We capture and report information related to the lockbox processing, where
available, if you have specified this option in the set-up documents. As appropriate, we will
endorse all checks we process on your behalf and deposit them in the account you designate
for the applicable Service.
lfwe process an unsigned check as instructed in the set-up documents, and the check is paid,
but the account owner does not authorize payment, you agree to indemnify us, the drawee
bank (which may include us) and any intervening collecting bank for any liability or expense
incurred by us or such other bank due to the payment and collection of the check.
AD-AG-0455B (2004-2)
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,
If this option is available and if you instmct us not to process a check bearing a handwritten
or typed notation "Payment in Full" or words of similar import on the face of the check, you
understand that we have adopted procedures designed to detect checks bearing such
notations; however, we will not be liable to you for losses you suffer if we fail to detect checks
bearing such notations.
Unless we agree otherwise, each Business Day we will prepare and send remittance materials
(images via internet, electronic file and/or paper packages) relating to the Lockbox Address
to you at the address you specify for that Lockbox Address. The material will include, but is
not limited to, any checks not processed in accordance with the set-up documents plus
information regarding the deposit for the day. For the wholesale Lockbox Service, the
package will also include invoices and other materials received at the Lockbox Address.
ACCEPl'ABLE PAYEES
For the Lockbox Address, you will provide to us the names of Acceptable Payees. We will
process a check only if it is made payable to an Acceptable Payee and if the check is
otherwise processable. In some jurisdictions outside the United States, an Acceptable Payee
is limited to you and limited variations of your name. In all other jurisdictions, including the
United States, you warrant that each Acceptable Payee is either you or your affiliate. If an
Acceptable Payee is your affiliate, then you also warrant that such Acceptable Payee
has authorized checks payable to it to be credited to the account you designate for a Lockbox
Service. We may require written authorization from any such Acceptable Payee. We may
treat as an Acceptable Payee any variation of any Acceptable Payee's name that we deem to
be reasonable.
ONLINE STOP PAYMENT
Our Online Stop Payment Services allow you to electronically place or cancel a Stop Payment
Request. This is in addition to your ability to make stop payment requests in person, by
telephone or in writing as described in your Account Agreement.
A Stop Payment Request will not be effective until we review our records for the time peJiod
specified in the applicable User Documentation, determine that the check has not been paid
during that period and respond to you with an online status of your request of "accepted"
(rather than "rejected" or "pending").
A Stop Payment Request terminates at the end of the period designated in the applicable
User Documentation, unless the Stop Payment Request is renewed or canceled earlier. A Stop
Payment Request is canceled automatically when the account on which the check is drawn is
closed or transferred.
REQUE~G STOP PAYMENTS
You will include in each Stop Payment Request the Magnetic Ink
Character Recognition (MICR) serial number and exact amount (dollars
and cents) of the check for which payment is being stopped and the account
number on which the check is drawn. You understand and agree that we
can only stop a check that shows exactly the same MICR serial number and
amount as that included in the related Stop Payment Request since our computer system
identifies a check on the basis of the MICR serial number and the exact amount of the check.
AD-AG-0455B (2004-2)
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You will review your account statements prior to transmitting any Stop Payment Request.
You will not transmit any Stop Payment Request relating to a check that has been shown to
be paid on such statements.
In some cases, we may pay a check even if a Stop Payment Request is in effect. For example, if
one of our branches (or banking centers) or affiliates becomes a "holder in due course" of
the check that you asked us to stop, we may still pay the check.
The procedures for placing and acknowledging Stop Payment Requests are described in the
applicable User Documentation.
If you use any Online Stop Payment Services with respect to an account connected to a
Controlled Disbursement Service, you must follow the procedures in this section rather than
the Stop Payment procedul'es in the Controlled Disbursement Services section.
POSITIVE PAY
Our Positive Pay Services allow you to identify exception items, to request photocopies and/or
electronic images of exception items and to instl1lct us whether to payor return those items.
In many locations, if you send us an issue file, YOUl' information may be made available at
the teller line. This is called ''Teller Positive Pay", which helps identify fraudulent checks that
are presented for payment at many of our banking centers. With Teller Positive Pay, the
decision whether to pay such an item may be made by us at the teller line.
On each Business Day, we provide you a report of checks presented to us for payment on the
plioI' Business Day and which we have identified as exceptions based on information you
have provided to us and as more fully described in the applicable User
Documentation. Exceptions are determined by comparing checks presented to us (either by
other depository institutions or, where applicable, for cashing at one of our banking centers)
with lists of checks issued or canceled by you which you transmit electronically to us each
Business Day by the time specified in the applicable User Documentation. Alternatively,
where available, you may choose an option under which we l'eport all checks presented for
payment, in which case we will treat all such checks as exception items.
On the same day we report exception items to you, you must notify us, by the deadline
specified in the applicable User Documentation, which checks you want us to payor which to
dishonor and return. If you fail to notify us by the deadline, we will handle the exception
items in accordance with the prescribed default procedure (which you may choose where the
choice is available). Where required, you will indicate which checks you want us to return,
having been deemed by you to be fraudulent. Our deadlines, default procedures and
procedures for acknowledging pay and return requests are desclibed in the applicable User
Documentation. In order to assist you in making your decision whether we should payor
return exception items, you may request a copy of any exception item.
AD-AG-0455B (2004-2)
33
AUTHORIZED PERSONS
Before using a Positive Pay Service, you give us a written list, in a form acceptable to us, of
the persons authorized by you to perform certain duties in connection with such Service.
ONLINE OPTION
You may access the daily reports of exception items via one of our online systems. Using
that system, you must then notify us which exception items to payor which to return.
You may request photocopies of exception items, which we will fax to you, as more fully
described in the applicable User Documentation. Where available, you may al'range to
receive and display electronic images of exception items.
MANUAL OPTION
We provide you a report of exception items. You must then notify us which items to payor
which to return.
ACKNOWLEDGMENTS
You authorize us to return checks or to pay checks in accordance with your instl11ctions
and the default procedure in the applicable User Documentation. We will have no liability
for payment of a check which is unauthorized or fraudulent if (i) the check is included in a
report of exception items, (ii) you have not selected a return default for exception items
and (iii) you do not give us timely instl1lctions to return the check.
You acknowledge that our Positive Pay Services do not preclude our standard check
processing procedures, which may cause a check to be dishonored even if your
instructions or the default procedure do not otherwise require us to return such check.
You acknowledge that, if you have our Teller Positive Pay Service, the decision whether to
payor not pay an item may be made by us at a banking center.
If you decline to use a Teller Positive Pay Service offered by us or fail to meet your
applicable issue file deadlines in the User Documentation, you also acknowledge that., as
between you and us, you will bear the full loss on checks which are drawn on your
accounts with us and paid by us in good faith if the checks are counterfeits or bear
unauthorized alterations to the amounts or unauthorized maker signatures, even if such
checks would otherwise be exception items.
You acknowledge that our Positive Pay Services are intended to be used to identify and
return checks which you suspect in good faith are fraudulent. They are not intended to be
used as a substitute for stop payment orders on checks which are not suspected in good
faith to be fraudulent. If we suspect or deem, in our sole discretion, that you are using
these Services contrary to those intentions, we may require you to provide evidence that
checks we return pursuant to your instl1lctions or the return default, if applicable, were in
fact fraudulent. In addition, we may hold you liable for losses we sustain on checks which
we are requested to return under these Services and which you do not reasonably
establish as fraudulent checks.
AD-AG-0455B (2004-2)
34
We will use reasonable efforts under the circumstances to respond promptly to proper
requests for copies of exception items if image items are unavailable, but you acknowledge
that our failure to provide copies does not extend the deadlines by which you must notify
us of your pay/no-pay decisions.
RECLEAR
Our Reclear Service resubmits a check or other payment instl1lment to the financial
institution on which it was drawn if the check or payment instrument has been returned to
us unpaid with the notation "refer to maker", "nonsufficient funds" or "uncollected
funds". Generally, we will not notify you that such an item has been returned to us unpaid
before we rec1ear it. If a recleared item is returned to us a second time, we will charge your
account for the total amount of the check or payment instrument. We generally total your
returned items each day, debit your account for the total amount and then send the
returned checks and payment instructions to you. The items we send to you serve as your
notice of the nonpayments.
RE-PRESENTMENT CHECK (RCK)
Our RCK Services allow you to collect eligible RCK checks that have been returned for
insufficient or uncollected funds, using the ACH Services within the United States of
America, as described in the applicable User Documentation. The creation of the RCK
Entries on your behalf by us using the ACH Services will be subject to the terms and
conditions of the ACH Service section of this Booklet, including but not limited to the
Security Procedures requirements described in that section. The capitalized ACH terms
appearing in italics below are defined in the NACHA Rules.
YOUR RESPONSmILlTIES
You authorize us to create RCK Entries on your behalf as provided in the User
Documentation and the NACHA Rules. You are deemed to be the Originator under the
NACHA Rules, and on each day you use a Service, you represent and warrant that (i) you
have obtained all necessary authorizations from the Receiver prior to the initiation of any
corresponding ACH Entry for a RCK and (ii) you accept as Originator all liability
corresponding to the representations and wll.lTanties we as ODFI make under the NACHA
Rules regarding RCK.
You shall pay us for the amount of any returned debit Entries (including rejected debit
Entries) or any adjustment Entries accepted by us and which we have previously credited to
your account. Such amounts shall be immediately due and pa&able by you to us. Returned
debit Entries appear on your reports to the extent agreed by you and us, and you agree that
we do not need to send a separate notice of debit Entries which are returned unpaid.
AD-AG-0455B (2004-2)
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COMPLIANCE WITH NACHA RCK RULES AND LAWS
You agree to comply with the NACHA Rilles for all Entries whether or not an Ently is sent
through the ACH network. You act as an Originator and we act as an ODFI with respect to
Entries. The NACHA Rules govern if they conflict with this Booklet, except that the file
specification requirements in the User Documentation govern if they conflict with the
NACHA Rules.
Each time you use an RCK Service (i) you warrant that you have obtained the appropriate
authorization from each Receiver and the Entries conform to the authorization and
comply with the NACHA Rilles and (ii) you make the same warranties to us as we make under
Section 2.2 or any successor section of the NACHA Rules.
TAX PAYMENTS
Our Tax Payment Services allow you to instruct us, using a touchtone telephone or our
Software on your computer, to pay any of your taxes which are reported or filed using the tax
forms as more fully described and specified in the applicable User Documentation. Based on
your Tax Payment Instructions, we prepare and remit your tax deposits. Each of these
Services is described in the applicable User Documentation.
SECURI'IY PROCEDURE
You agree to use the Security Procedure, if any, when you deliver Tax Payment
Instructions and, as provided in the applicable User Documentation, cancellation
requests to us. The purpose of the Security Procedure is to verify the authenticity of Tax
Payment Instructions or cancellation l'equests and not to detect en'ors in the transmission or
content of these messages. You represent and warrant each time you use a Tax Payment
Service that., in view of your requirements, the Security Procedure is a satisfactory method of
verifying the authenticity of these messages. You agree we may act on any Tax Payment
Instructions or, as provided in the applicable User Documentation, cancellation
requests, the authenticity of which we have verified through the use of the Security
Procedure.
CUTOFF TIMES
You must comply with the deadlines specified in the applicable User Documentation for
initiation of Tax Payment Instructions. If a Service allows you to send instl1lctions to us
after the cutoff time, or on a non-Business Day, we may treat these instl1lctions as if we
received them on the next Business Day.
COMMUNICATION EXPENSE AND RISK
Transmission of Tax Payment Instl1lctions to us will be at your expense, except that we
may provide a toll-free number telephone selvice. If that service is disl1lpted for any reason,
you have the responsibility and risk of using alternative means of communicating Tax
Payment Instructions to us accurately and in time for us to perform any Tax Payment Service.
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REQUIRED INFORMATION
You will furnish us with all required information and authorizations at the times, in the
manner and with the content specified in the applicable User Documentation.
TAX FORMS AND REMl'ITANCES
After we have received complete Tax Payment Instl1lctions from you, we prepare the
related tax forms (which may be on a magnetic tape or by electronic transmission as
authorized by the Internal Revenue Service or other tax authority, as applicable) for
submission to the appropriate tax authority.
If permitted by the input method, you may specify a settlement date in accordance with the
User Documentation. If you use a touchtone phone as your input method, you may request a
specified settlement date by caIling the designated customer representative for the
applicable Tax Payment Service.
For purposes of these Services, settlement date means the date you specify that the taxing
authority's account is to be credited. If you do not specify a settlement date, we will pay the
amount you specify on or before the tax due date. If you specify the settlement date,
payment will be made on the settlement date.
ACCOUNT DEBITS
If you do not specify a settlement date, we debit your account for any tax payment on the
Business Day of transmission. If you specify a settlement date, we genel'ally debit your
account on the settlement date unless you are prefunding your tax payments. Prefunding
means that you pay for all tax payments by such time before the settlement date as we may
specify. At our discretion, we may at any time without notice debit your account on the
Business Day that Tax Payment Instructions are transmitted to us (or on any other later
date). If we debit the funds on the transmission date (or any other date before the payment
date), we hold the funds as a deposit liability to you, and not as tl1lst funds, until the
date when we remit the funds to the appropriate tax authority. We will not pay you interest
on the funds.
We reserve the right to debit your account and to make a tax payment on your behalf earlier
than the tax due date if the information in your Tax Payment Instruction is unclear or
inadequate to permit us to determine the later due date under the applicable Tax Payment
Selvice or ifwe otherWise reasonably decide that any delay in the payment of the tax may
expose you to liability for a tax penalty. In such case we will not be liable to you for any lost
use of funds.
REJECTION OF INSTRUCTIONS
We may reject your instlUctions during or immediately after transmission to us if they do
not comply with the requirements of this Booklet or the applicable User Documentation or
which we have been unable to verify through use of the Security Procedure. You will be
informed of any such rejection only as specified in the applicable User Documentation, and
no other notice of rejection will be provided.
In addition, we may decline to perform any Tax Payment Service or to report any tax, file any
tax form, or pay any related tax for you, even if we have received instl1lctions to do so, if the
tax payment and our related service fees and charges exceed the Collected and Available
Funds on deposit in your account or your ACH processing limit. If we reject a Tax Payment
Instruction for that reason, we will promptly notify you by telephone or facsimile
transmission in which case we will not be liable to you for the tax payment., any interest on
the amount of your tax liability, or for any tax penalty imposed on you in connection with the
tax liability. You agree these means of communication are a reasonable means of notifying
you.
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CANCELLATION
Subject to the provisions in the User Documentation, you may cancel a Tax Payment
Instruction prior to disconnection of the telephone call in the case of an instruction initiated
by touchtone telephone or prior to transmission to us of an instruction initiated through
your computer.
Thereafter, a Tax Payment Instl1lction may be canceled only if:
. The tax payment has not been remitted, credited or otherwise made available to a tax
authority;
. A request to cancel provides sufficient information for us to effect the request; and
. The request is received by us by telephone or, at the option of either you or us, in
writing (including facsimile transmissions) in time (but in no event later than the
deadline specified in the applicable User Documentation) to afford us a l'easonable
opportunity to effect the request.
OVERPAYMENTS
If we make an ovcrpcwment of your tax liability due to our en'or, we will recredit your account
for the amount of the overpayment, and you agree to take such actions as we reasonably
request to obtain a refund of the overpayment and to arrange for payment of such refund to
us. In any event, you agree to repay us for any overpayment upon the earlier of (i) your
recovery of such overpayment or (ii) the application of the related tax credit to another of
your tax payment obligations.
RECORDS AND NOTICE OF ERRORS
We will provide you with statements and confirmations containing information about
your tax payments in accordance with and subject to the applicable User Documentation.
Nothing in this Booklet relieves you of any duty imposed by law or contract regarding the
maintaining of records or from employing adequate audit, account and review practices
customarily followed by similar businesses. You will promptly review for accuracy all records,
information and statements delivered from time to time to you by us.
You must send us written notice, with a statement of relevant facts, within 14 days after you
receive the first notice or statement indicating a discrepancy between our records and yours.
If you fail to give the required notice, we will not be liable for any loss of interest or for any
compensation for any other loss or cost relating to an unauthOlized or erroneous debit to
your account or because of any other discrepancy in the notice or account statement. You
must notify us promptly by telephone, confirmed in writing, if you learn or discover from
any source other than a notice or statement from us of information concerning an
unauthorized or erroneous debit to your account.
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SUPPLEMENTAL LIMITATION OF IJABILITIES
For each Tax Payment Service, this section supplements the Limitation of Liabilities
section of this Booklet
If any Tax Payment Service is interlUpted for any reason and you are unable to complete
transmission of your Tax Payment Instruction to us, you will not be relieved of your obligation
to make any tax payment otherwise contemplated to be made by such SelVice. We will not
incur any liability if you fail to make any required tax payment by other means in the event
of such interl1lption.
WIRE TRANSFER AND INTERNATIONAL ELECTRONIC FUNDS TRANSFERS
This section applies to our U.S. domestic and worldwide wire and intemal funds transfer
services and to ow' International Electronic Funds Transfer Services outside the United
States of America. It does not apply to ACH Services within the United States of America,
which are covered in the "Automated Clearing House (ACH)" section of this Booklet.
Wire Transfer and Intemational Electronic Funds Transfer SeIVices permit you to transfer
funds electronically and, as appropriate, to transmit related messages as more fully
described in the applicable User Documentation. These transfers are typically from your
accounts with us to other accounts at our bank, at our affiliated banks or at other eligible
banks. These transfers may also include transfers to your accounts with us from your
accounts at other banks. These transfers may be made according to a specific request from
you or according to your standing instructions (which may include daily sweeps from
your accounts at our affiliated banks to your account with us). They also may be low-value
batch payments made according to multiple requests within a single electronic data me for
transfers to or from your accounts.
MULTIBANK
The Multibank Service permits you to relay through us your instructions to another bank to
wire transfer funds from one of your accounts held at that other bank. Where feasible, we
will reformat your instructions for SWIFT and relay it by SWIFT to the appropliate bank,
subject to the Business Day schedules for us, SWIFT and the paying bank. Otherwise, we will
use whatever means or medium we deem appropriate, including use of third-party facilities,
to relay your instl1lctions to another bank.
Before using the Multibank Service, you must provide us with the account number and bank
name for each account to be debited using this Service. You also must provide the bank
holding the debit account with express, written authorization (with a copy to us where
requested) to act on instructions we send to it under this Service. You agree that we may rely
on that authorization until we have had a reasonable opportunity to act on notice that it has
been revoked.
Multibank instructions are not payment orders to us, and we have no obligation to execute,
transmit or accept any payment orders made to us under the Multibank Service.
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We reformat and transmit your payment order to another bank, and we have no duty to do
so if your request is defective, incomplete, erroneous or inconsistent with the terms of this
Booklet. We may act on your Multibank instructions as we reasonably consider appropriate
notwithstanding any error, omission, defect or lack of clarity in its terms and even if the
instructions appear to duplicate other Multibank requests. You agree that your
indemnity of us, as set forth in the "Protection From Third Parties" section of this Booklet.,
applies to any claims by another bank based on our sending a Multibank instl1lction
containing any error, omission, defect or lack of clarity.
If you wish to cancel or amend a payment order set forth in a Multibank instl1lction, you
must contact the bank to which the payment order is directed and act in accordance with its
procedures.
Reports on Multibank instmctions which we have processed will be included in an
Information Reporting Service which you have arranged to use.
COMPLIANCE WITH RULES AND LAWS
You agree to comply with all applicable payment system rules, including the national
payment system rules and any other applicable laws and regulations of the receiving country
of your transaction. You also agree to comply with the authorization and notice
requirements applicable to any Request to debit another person's account.
AUTHORIZED PERSONS
Before using a Wire Transfer or International Electronic Funds Transfer Selvice, you give
us a written list., in a form acceptable to us, of the persons authorized by you to perform
certain duties in connection with such Service.
SECURITY PROCEDURE
You agree to use a Service in accordance with the relevant Security Procedure, if any. The
purpose of the Security Procedure is to verify the authenticity of Requests delivered to us in
your name and not to detect errors in the transmission or content of Requests. You represent
and warrant each time you use a Wire Tl'ansfer or International Electronic Funds
Transfer Service that, in view of your requirements, the Security Procedure is a satisfactory
method of verifying the authenticity of Requests.
You agree that we may act on Requests, even if they are unauthorized, ifwe act in good faith
and comply with the applicable Security Procedure and any written agreement with you
restricting our action on Requests. In such cases, we may enforce or retain your payment to
us for such Requests; provided, however, we may not enforce or retain payment if you prove
that the unauthorized Requests were not caused by a person (i) entrusted at any time to act
for you with respect to Requests or the applicable Security Procedure, (ii) who obtained
access to your premises, computer equipment or transmitting facilities or (iii) who obtained,
from a source controlled by you, information (such as keys and passwords) which facilitated
breach of the applicable Security Procedure.
ACCOUNr DEBITS
You must have Collected and Available Funds in your account which,
when added to funds which may be made available under a line of credit,
are sufficient to cover your Requests. You may initiate a Request only if the offsetting
debit to your account., including the available line of credit., will not cause you to exceed the
account balance according to your records. If your records and ours disagree regarding the
account balance, our records will control for purposes of our processing the Request.
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You are obligated to pay us the amount of any Request once we act on, other than to reject,
your Request. At our discretion, we may at any time without notice require payment
before we process your Request. Even if we have done so in the past., we are not obligated to
process any Request without having first been paid by you, but, if we do, the amount is
immediately due and payable without notice or demand.
Prior to initiating any wire transfer Request to debit an account of a third party, you must
provide us with documents, in a form acceptable to us, evidencing the third party's
authorization.
You will pay us for the amount of any returned or rejected debit transactions, or any
adjustments, which we previously credited to your account.
If, for any Business Day, we receive more than one Request and/or other items payable from
your account., we may debit your account for such Requests and items in any sequence we
determine in our sole discretion.
ACTING ON REQUESTS
We will use any means of transmission, funds transfer system, clearing house or
intermediary bank we reasonably select to transfer funds.
After we receive a Request by the applicable processing deadline (as specified in the
applicable User Documentation), but no later than the value date stated in your Request (if
such date is not earlier than the day such Request is received), we will act upon such Request
by making applicable accounting entries or by transmitting payment instl1lctions to the
applicable bank or other party. If applicable, our acting on your Request will also be subject
to the business day schedule of any of our banking centers or affiliates holding an
account to be debited or credited under a Service. We may treat Requests we receive after a
deadline as ifwe received them on the next Business Day. International Electronic Funds
Transfers will be deemed received by us when we receive the complete electronic data file at
the location specified in the applicable User Documentation.
REJECTION OF REQUESTS
We may reject any Request which does not comply with the requirements of this Booklet
or the applicable User Documentation, including any processing limits described in such
User Documentation, or which we have been unable to verify through use of the Security
Procedure. We also may reject any Request which exceeds the Collected and Available
Funds (including funds made available under a line of credit) on deposit with us in the
applicable account. We may also reject any Request if it may be returned for any reason under
the applicable national payment system rules of the receiving country of your transacti.on.
Notice of rejection is given to you by telephone, by electronic means, by facsimile or by mail.
Notices of rejection will be effective when given.
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CANCELLATION OR AMENDMENT
We have no obligation to cancel or amend Requests after we receive them or to cancel or
amend any particular funds transfer requested by a standing instl1lction which is in effect. If
you send us a Request instructing us to cancel or amend a prior Request and we are able to
verify the authenticity of the cancellation or amendment Request using the Secul'ity
Procedure, we will make a reasonable effOlt to act on that Request., but we will not be liable if
it is not effected. You agree to indemnify us against and hold us harmless from any and all
liabilities, claims, costs, expenses and damages of any nature, including Legal
Expenses, we incur in connection with your Request to amend or cancel. Your obligations
under this provision will survive termination of these Wire Transfer and International
Electronic Funds Transfer Services.
PROVISIONAL PAYMENTS
Payment by us for any transaction we credit to your account is provisional until we receive
final settlement for the transaction. If final settlement is not received, we are entitled to a
refund and we may charge your account for the amount credited. We may delay the
availability of any amount credited for a transaction if we believe that there may not be
sufficient funds in your account to cover chargeback or return of the transaction.
INCONSISTENCY OF NAME AND NUMBER
A beneficiary's bank (including us when we are the beneficiary's bank) may make
payment to a beneficiary based solely on the account or other identifying number. We or an
intermedialY bank may send a Request to an intermediary bank or beneficiary's bank based
solely on the bank identifying number. We, any intermediary bank and any beneficiary's
banks may do so even if the Requests include names inconsistent with the account or other
identifying number as long as the inconsistency is not known by us or such other bank.
Neither we nor any other bank has a duty to determine whether a Request contains an
inconsistent name and number.
NOTICE OF ACCOUNT STATEMENT DISCREPANCIES
Information concerning payments made pursuant to your Requests will be reflected in
your account statements and, in some cases, in written or electronic advices and reports
produced through one of our Information Reporting Services. You must send us notice, in
writing or by electronic means approved by us for such purpose, with a statement of relevant
facts, promptly after you receive the first notice or statement indicating a discrepancy
between our records and yours. If you fail to give the required notice within 14 days, we will
not be liable for any loss of interest or for any compensation for any other loss or cost
relating to an unauthorized or erroneous debit to your account or because of any other
discrepancy in the notice or account statement. You must notify us promptly by telephone,
confirmed in writing, if you learn or discover from any source other than a statement,
advice or report from us of information concerning an unauthorized or erroneous
debit to your account.
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ELECTRONIC TRADE SERVICES
Our Electronic Trade Services allow you to (i) initiate collections; (ii) instruct us to advise
you of our receipt or confirmation, or the payment, of Export Letters of Credit and
Advised Standby Letters of Credit received by us and naming you as beneficiary; (iii) request
full or partial transfers of youI' Export Letters of Credit or full transfers of your Advised
Standby Letters of Credit; (iv) prepare documents in connection with your Export Letters of
Credit; (v) access reports on letter of credit transactions, open account transactions,
collections and banker's acceptances; (vi) initiate open account transactions; (vii)
instruct us to advise you of our receipt of purchase orders received by us and naming you as
the supplier; and (viii) instruct us to issue standby and import letters of credit and
guarantees. Detailed information regarding each Service is found in the applicable User
Documentation.
ADVISED STANDBY LETI'ERS OF CREDIT
Our Advised Standby Letters of Credit Service allows us to advise you by electronic
transmission of (i) our receipt of any standby letter of credit naming you as beneficiary; (ii)
the status of any documents or payments with regard to any Standby Advised Letter of
Credit; (iii) our confirmation of any such letter of credit; and (iv) any payment made
pursuant to a drawing under any such letter of credit.
You may elect to have standby advised letters of credit of a Subsidiary or other entity
reported to you with our Electronic Trade Letters of Credit Service. You agree that the
Subsidiary or other entity will provide us with a written authorization, in a form acceptable
to us, for us to make that Subsidiary or other entity's information available to you.
Full Transfers. You may request the transfer, without substitution of invoices, of all of
your rights as beneficiary of Advised Standby Letters of Credit by submitting to us, for each
transfer, a request providing the following information:
· Standby Letter of Credit number
· name of issuing bank
. our advice number
· name and address of second beneficiary's advising bank
. name and address of second beneficiary
. date of application
Ifwe approve the transfer, we will place the appropriate endorsement on the Advised Standby
Letter of Credit and send it to the second beneficiary or send the second beneficiaIy a
transferred letter of credit document prepared by us. The second beneficiary will have sole
rights as beneficiary, whether existing now or in the future, including sole rights to agree to
any amendments, including increases or extensions or other changes.
General. The Advised Standby Letter of Credit and the transfer must be subject to UCP or
ISP98, and our rights hereunder are in addition to rights we have under UCP or ISP98, as
applicable.
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You must provide us the original advised Standby Letter of Credit and any existing
amendments. You understand that we may, at our sole discretion, refuse to approve any full
or partial transfer to a second beneficiary. You acknowledge that due to conditions of the
original Advised Standby Letter of Credit., certain proprietary information may be disclosed
to the second beneficiary and/or to the applicant under the original Advised Standby Letter
of Credit. We will have no liability to you in the event of such disclosure and, in such event.,
you will indemnify and hold us harmless from all claims of third parties. You acknowledge
that your rights as beneficiary in the Oliginal Advised Standby Letter of Credit are irrevocably
transferred to the second beneficiary(ies) who shall have sole rights. In that connection, your
approval is not required for us to honor a discrepant presentation made by the second
beneficialY.
For our transfer fee, we may debit your account(s) with us, which you may designate subject
to our reasonable approval. You also agree to pay us on demand any expenses which may be
incurred by us in connection with this transfer.
COLLECTIONS
Our Electronic Trade Collections Service allows you to initiate a collection (as that term is
defined in the Uniform Rules for Collections) by deliveling an instl1lction to a collecting
bank.
The instl1lction will be on a form prescribed by us, but we will not have any responsibility 01'
liability for the terms and conditions of any instruction; you accept all such
responsibility and liability. Each collection will be governed by the UnifOlm Rules for
Collections. You will promptly transmit to us a copy of the completed collection form and,
upon our request., will provide to us copies of the underlying documentation.
You represent and warrant to us as of the date you transmit the instruction fOlm to us that
the collection is not prohibited under the foreign asset control or other regulations of the
United States of America or the applicable laws of any other jurisdictions.
Upon our receipt of any payment of a collection, the amounts received (less related charges,
disbursements and/or expenses) will be paid to you, except that if we are required to return
any such payment received upon the insolvency, bankruptcy or reorganization of the
presenting bank or collecting bank or other third party or for any other reason, you will
repay to us the amount paid by you together with interest thereon from the date we returned
the payment and so notified you at the rate specified by us in our schedule of charges.
Unpaid items and related documents received by us may be returned to you by regular mail
at the address specified in the Authorization and Agreement Certification form which
accompanied this Booklet or such other address as may be notified by you in writing.
EXPORT LE'ITERS OF CREDIT
Our Export Electronic Trade Letters of Credit Service allows you to prepare export documents
using electronic data captured through our electronic advise process and
AD-AG-0455B (2004-2)
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allows us to advise you by electronic transmission of (i) our receipt of any Export Letter of
Credit naming you as beneficiary, including the wording of an Export Letter of Credit so you
can prepare export documents as per the Export Letter of Credit; (ii) the status of any
documents or payments with regard to any Export Letter of Credit; (iji) our confirmation of
any such letter of credit and (iv) any payment made pursuant to a drawing under any such
letter of credit.
You may elect to have export letters of credit of a Subsidiary or other entity reported to you
with our Export Electronic Trade Letters of Credit Selvice. You agree that the Subsidiary or
other entity will provide us with a written authorization, in a form acceptable to us, for us to
make that Subsidiary or other entity's information available to you.
You may prepare shipping documents based on your Export Letter of Credit advised details.
You may then edit and locally print those documents and courier them to us for
presentation.
REQUESTS FOR TRANSFERS
Partial Transfers. You may request the partial transfer, with or without substitution of
invoices, of Export Letters of Credit by submitting to us, for each transfer, a request providing
the following information:
. whether the transfer is with or without substitution of invoices
· Export Letter of Credit number
. name of issuing bank
. our advice number
· name and address of second beneficiary's advising bank
. amount to be transferred
· description of merchandise subject to the transfer
. name and address of second beneficiary
. unit price
. expiration date of transfer Export Letter of Credit
. latest shipment date
· number of days after shipment within which documents must be presented
. insurance percentage (if applicable)
. date of application
If we approve the transfer, we will advise the second beneficiary of the terms and conditions
of the transferred credit by full text teletransmission, mail/airmail or coul'ier (as we deem
appropriate).
With respect to all partial transfers, whether with or without substitution of invoices, you
may refuse to allow us to notify the second beneficiary(ies) of any future amendment(s)
received under the original Export Letter of Credit.
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If you elect transfer with substitution of invoices, then, on our demand, you will deliver to us
within one (1) Business Day your draft, commercial invoice and any other required
documents in compliance with the terms of the original Export Letter of Credit. The draft
and documents are in substitution of those presented by the second beneficiary. When (i)
the documents of the second beneficiary and the substitution documents from the first
beneficialyare determined to comply with the terms of the Export Letter of Credit or, if
determined to be discrepant., are taken up by the issuing bank and (ii) we are in receipt of
funds, we will pay you in accordance with your instl1lctions for the amount of the
difference between yoU!' draft and the draft of the second beneficiary, less any fees due
and payable to us in connection therewith. If you fail, at our demand, to deliver to us your
drafts, invoices and other required documents as stated above, you acknowledge our right
to present invoices and other documents received from the second beneficiary in
accordance with the instructions of the original Export Letter of Credit. You also
understand that we will not pay you the difference between the amount of the draft of the
second beneficiary and the amount authorized to be paid to you under the original Export
Letter of Credit.
Full Transfers. You may request the transfer, withou t substitution of invoices, of all of your
rights as beneficialY of Export Letters of Credit by submitting to us, for each transfer, a
request providing the following information:
. Export Letter of Credit number
. name of issuing bank
. our advice number
· name and address of second beneficiary's advising bank
· name and address of second beneficiary
. date of application
If we approve the transfer, we will place the appropriate endorsement on the EXPOlt Letter of
Credit and send it to the second beneficiary or send the second beneficiary a transferred letter
of credit document prepared by us. The second beneficiary will have sole lights as beneficiary,
whether existing now or in the future, including sole rights to agree to any amendments,
including increases or extensions or other changes.
General. The Export Letter of Credit and the transfer must be subject to UCP and our rights
hereunder are in addition to rights we have under UCP.
You must provide us the original Export Letter of Credit and any existing amendments. You
understand that we may, at our sole discretion, refuse to approve any full or partial tl'ansfer
to a second beneficiary. You acknowledge that due to conditions of the original Export Letter
of Credit., certain proprietaIY information may be disclosed to the second beneficiluy and/or
to the buyer under the original Export Letter of Credit. We will have no liability to you in the
event of such disclosure and, in such event, you will indemnify and hold us harmless from
all claims of third parties. You acknowledge that your rights as beneficiary in the original
Export Letter of Credit (up to the amount shown in your request with respect to partial
transfers) are irrevocably transferred to the second beneficialy(ies) who shall have sole
rights (but only up to the amount shown in your request in the case of a partial transfer). In
that connection, your approval is not required for us to honor a discrepant presentation
made by the second beneficiary.
For our transfer fee, we may debit your account(s) with us, which you may designate subject
to our reasonable approval. You also agree to pay us on demand any expenses which may be
incurred by us in connection with this transfer.
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INFORMATION REPORTING
We will make available to you, subject to the terms of the Information Reporting section of
this Booklet, reports on import, export and standby letter of credit transactions, banker's
acceptances, collections and open account transactions, as more fully described in the
applicable User Documentation.
OPEN ACCOUNT
Our Electronic Trade Open Account Service permits you electronically to (i) inform us of your
purchase order details, instl1lct us on examining import documents for compliance with your
purchase orders and instruct us to pay the presenting party and (ii) receive notification of
open account transactions initiated through electronic means.
Purchase Orders. You will electronically transmit to us, in accordance with applicable User
Documentation, files of purchase orders you have sent to your vendors with instl1lctions to
present documents to us. The electronic files will be in such format(s) and transmitted
through such channel(s) as you have selected and we have approved. If you are not
requesting us to issue an impOlt letter of credit, each transaction will be flagged as an "open
account" payment type.
When we receive import documents, we will review them according to your purchase order
terms. If and as provided by the open account payment type selected by you, we will match
the import documents against the pertinent purchase orders housed on our electronic
database in accordance with the parameters established by you and accepted by us. We will
pay the presenting vendors as provided under the open account payment type selected by you
from the following three types:
· importer matching - you match the import documents against your copy of the
pertinent purchase order and instl1lct us how much to pay to the presenter and when
to pay;
· bank matching. we match the import documents against our electronic file of the
pertinent purchase order, following the parameters established by you; we then
electronically inform you, indicating whether they are compliant 01' non-compliant, and
await your payment instructions; and
· auto-pay - we match the documents as described above, and, if we determine they are
compliant, make payment to the presenter, but only if you have sufficient Collected
and Available Funds in the account you have designated for such purposes; if we
determine that the documents are non-compliant, we make payment only upon your
express instructions.
AD-AG-0455B (2004-2) 47
Notification of Open Acrount T.ransactions. With respect to open account notification letters, we
will notify you electronically of (i) Oul' receipt of such notices naming you as vendor and (ii)
any payments made pursuant to drawings under such open account transactions. We will
notify your vendors by Trade Direct., fax, courier or mail as instructed by you.
STANDBY AND IMPORT LE'ITERS OF CREDIT
Our Electronic Trade Letters of Credit SelVice allows you to request us, by electronic or fax
transmission, to issue an import or standby letter of credit or a guarantee. Each letter of
credit or guarantee which we agree to issue will be for your account or the account of another
entity you designate. Each commercial letter of credit we issue will be subject to the UCP
and, when applicable, the eUCP, and each standby letter of credit we issue will be subject to
the ISP98. As a condition to our agreement to issue a letter of credit or guarantee, we may
require you at any time to make with us a cash deposit., which may not accl1le interest or
earnings credit., and to grant us a security interest in the underlying goods and documents
of title and/or any other property or accounts as we reasonably determine as security for
your obligations to us. A letter of credit may be issued by any of our authorized offices
within or outside the United States of America. A guarantee may be issued by any of our
authorized offices outside the United States of America.
YOUR RESPONSIBILITIES
You represent and warrant to us as of the date of issuance of each import letter of credit and
each drawing that:
. You or the importer has obtained all import and export licenses, registrations, filings
and approvals required by any governmental authority for the goods and documents
described in the letter of credit.
. The transactions underlying the letter of credit are not prohibited under the foreign
asset control or other regulations of the United States of America or the applicable
laws of any other jurisdiction.
You will obtain, or cause to be obtained, insurance covering fire and other usual risks on all
goods described in each import letter of credit issued by us.
You will reimburse us upon demand all monies paid by us under or in respect of each such
letter of credit or guarantee, including payments on any draft, acceptance, order, instl1lment
or demand drawn or presented under the letter of credit or guarantee. You will pay us on
demand interest on all amounts paid by us or any other drawee under each letter of
credit or guarantee from the date of such payment until we receive reimbursement at a rate
per annum specified in the applicable User Documentation. You will reimburse us in the
currency in which the letter of credit or guarantee is denominated (or, at our option, the
equivalent of the denominated currency amount in U.s. Dollars or the currency of the country
in which the letter of credit or guarantee was issued at the rate of exchange quoted by us in
the city in which the letter of credit or guarantee was issued for the sale of the denominated
currency against U.S. Dollars or such other currency on the date on which the denominated
currency amount is paid by us). Regardless of the expiration of the letter of credit or
guarantee, you will remain liable for all such amounts until we are released from liability to
all persons entitled to draw or demand payment under the letter of credit or guarantee.
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You will pay us Legal Expenses incurred by us in connection with each letter of credit or
guarantee including without limitation our defense of any proceeding initiated by you to
enjoin payment or negotiation by us of a letter of credit or guarantee even if you are awarded
such relief, provided only that we have acted in good faith in defending such action.
If you request the issuance of a letter of credit or guarantee listing one of your
Subsidiaries or another entity as the account party, each such request will be considered a
request by you for the issuance of a letter of credit or guarantee, and you will assume all
liabilities and obligations with respect to such letter of credit or guarantee. You represent
and warrant to us that you will derive substantial economic benefit from each underlying
transaction relating to each request for the issuance of a letter of credit or guarantee
listing your Subsidiary or another person as the account party. Your obligations
under each letter of credit or guarantee will not be released or discharged if:
. We attempt to collect any payment under such letter of credit or guarantee directly
from the Subsidiary or such other entity.
· Any bankmptcy, reorganization, insolvency, receivership, moratorium or other such
action effecting creditors generally is tiled by or against the Subsidiary or such other
entity.
· We receive payment from the Subsidiary or such other entity, but it is subsequently
rescinded or must be returned by us.
OUR RESPONSffiILITIES
Ifwe accept your request., we will issue the import or standby letter of credit as described in
your electronic or fax transmission and pursuant to this Booklet and the UCP (with regard to
import letters of credit) and ISP98 (with regard to standby letters of credit). IT we accept your
request, we will issue the guarantee as described in your electronic or fax transmission and
pursuant to this Booklet.
We will pay each commercial letter of credit pursuant to its terms, this Booklet and the UCP.
We will pay each standby letter of credit pursuant to its terms, this Booklet and the ISP98.
We will pay each guarantee pursuant to its terms and this Booklet.
AD-AG-0455B (2004-2)
49
CHANGE OF LAW OR REGULATION
If, subsequent to the issuance date of a letter of credit or guarantee, we determine that the
introduction of or any change in the interpretation of any law, rule, regulation or guideline
or the request of a central bank or other governmental authority will increase our costs
relative to our providing the Electronic Trade Letters of Credit SeIVice, as set forth below,
then, on demand, you will pay us additional amounts sufficient (as determined by
us) to compensate us for such increased cost. Such increased costs could include: (i)
reserve, deposit, assessment or similar requirements or (ii) increases in capital
adequacy requirements.
DEPOSIT ON TERMINATION EVENT
If there occurs an event which permits us, under the Termination section of this Booklet, to
terminate this Service immediately, you will deposit with us, on demand and as cash secUlity
for your obligations to us, an amount equal to the aggregate undrawn amount of the letters
of credit and guarantees issued by us in the same currency as the letter of credit or
guarantee, or, at our option, its equivalent in U.S. Dollars or the currency of the countJ.y in
which the letter of credit or guarantee was issued. You will not withdraw any amount so
deposited except to the extent such amount exceeds the undrawn and unreimbursed amount
of the letter(s) of credit and guarantees. If the amount deposited by you under this Booklet
for a letter of credit is in a currency different than the currency in which the letter of
credit or guarantee is payable and the amount so deposited becomes less than the
value of the undrawn amount of the letter of credit or guarantee because of any variation
in rates of exchange, you will deposit with us additional amounts in such other currency
so that the total amount deposited by you under this Booklet is not less than the
equivalent value of the undrawn amount of the letter of credit or guarantee, determined
by using the rate of exchange quoted by us on the date of our latest demand.
SUPPLEMENTAL LIMITATION OF LIABILITIES AND INDEMNIFICATION FOR ALL
ELECTRONIC TRADE SERVICES
For each Electronic Trade Service, this section supplements the Limitation of Liability section
of this Booklet.
You have sole responsibility for determining the level of security you require and
assessing the suitability of the security procedures for these SelVices. We have no duty to
investigate the authenticity of any application, instruction or other communication you
provide us using an Electronic Trade Service. Also, we will have no liability to you for acting
upon any application, amendment or other communication purportedly
transmitted by you, even if such application, amendment or message:
. Contains inaccurate or erroneous information.
· Constitutes unauthorized or fraudulent use of an Electronic Trade Service.
· Includes instl1lctions to pay money or otherwise debit or credit any account.
· Relates to the disposition of any money, securities or documents.
· Purports to bind you to any agreement or other arrangement with us or with
other persons or to commit you to any other type of transaction or
arrangement.
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We are authorized, but not obliged, to rely upon and act in accordance with any
application, instl1lction, consent or other communication by fax or other electronic
transmission (including without limitation any transmission by use of our Software or the
Internet) received by us purporting to be a communication on your behalf without inquirY on
our part as to the source of the transmission or the identity of the person purporting to
send such communication. We are also authorized, but not obliged, to rely upon and act in
accordance with any application, instl1lction, consent or other communication by telephone,
purporting to be a communication on your behalf by an authorized person designated by
you.
AD-AG-0455B (2004-2)
51
GENERAL PROVISIONS
CHANGES TO A SERVICE
You may request us at any time to change the processing instmctions for any SeIvice. We are
not obligated to implement any requested changes until we have had a reasonable
opportunity to act upon them. In making changes, we are entitled to rely on requests
purporting to be from you. For certain changes, we may require that your requests be in
writing, in a form and manner acceptable to us, or be from an authorized person you
designate. In addition, certain requests for changes may be subject to our approval.
We may change, add or delete any of the terms and conditions applicable to any or all
Services upon 30 days prior notice to you in writing or by electronic means. Your continued
use of or failure to terminate any Service, after the effective date of the change, will indicate
your agreement to the change.
COMMUNICATIONS
Any written notice or other written communication to be given under the terms of this
Booklet will be addressed to the applicable address specified on the Authorization and
Agreement form you return to us, except as you or we specify otherwise in writing in
conjunction with your accounts or particular Services. Notices are effective upon receipt,
except as otherwise provided in this Booklet or any Materials.
You agree that we may electronically monitor and/or record any telephone communications
with you in those countries which pelmit that practice. If our records about any such
communication are different from yours, our records will govern.
If you choose to use unencrypted electronic mail to initiate payment requests or other
instructions or otherwise communicate with us, your use of such electronic mail with respect
to a Service will be subject to the terms and conditions of this Booklet and will comply with
the applicable User Documentation. In addition, you agree to bear the risk that such
electronic mail may be cOrlUpted, modified, garbled or hacked or its confidentiality may be
breached by a third party and the risk that we will rely on such mail, which appears to be
from you but which is unauthorized, and that such reliance will result in a loss.
CONFIDENTIALITY
OUR OBLIGATION
We acknowledge that information we obtain from you in connection with any Service we
provide to you under the terms of this Booklet may be confidential. We will maintain the
confidentiality of such information in accordance with our normal procedures for
safeguarding customer information and the policy reflected in the Bank of America
Corporation Code of Ethics.
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52
YOUR OBLIGATION
You acknowledge our claim to proprietary rights in the Materials and that the Materials
constitute our "trade secrets" or trade secrets of our licensors or vendors. You understand
that all Materials are confidential and you will:
Safeguard the Materials at all times.
. Establish and maintain procedures to assure the confidentiality of the Materials
and any password 01' code subsequently changed by you.
. Use the Materials only for the purposes for which we provide them.
· Notify us promptly by telephone, confirmed in writing, if any Materials are lost or
their confidentiality is compromised.
You will not, nor will you allow anyone else to, do any of the following without our prior
consent:
. Disclose any Materials to any person or entity, except to your employees and agents
with a need to know the Materials.
. Make any copies, in whole or in part., of any Materials in whatever form or medium
(electronic, printed or otherwise) in which they may exist from time to time, except as
provided in the Software License section.
. Translate, reverse engineer, disassemble or decompile any Software or secUlity
devices.
These confidentiality obligations continue after a Selvice you are using is terminated.
You have sole responsibility for the custody, control and use of all Materials. You agree
that no individual will be allowed to initiate a request or other instl1lction contemplated in
this Booklet or to have access to any Materials without proper supervision and strict
security controls. If a Service requires use of user identification codes or passwords, we
will be fully protected in relying on the correct user identification codes and passwords, as
described in the relevant User Documentation.
GENERAL
This section does not limit either party's ability to disclose information (i) that the other
party has approved by prior writing for disclosure; (ii) that is disclosed to its professional
advisors or auditol's; (iii) that becomes public other than through a breach of these
confidentiality obligations, (iv) that was in its possession or available to it from a third
party prior to its receipt of it in connection with any Service, (v) which is obtained by it
from a third party who is not known by it to be bound by a confidentiality agreement with
respect to that information, (vi) as required or requested by any securities exchange or
regulatolY body to which either party is subject or submits or (vii) as otherwise required to
be disclosed by law or by legal or governmental process.
In addition, you agree (i) that we may disclose to our offices, affiliates, officers, employees
and agents with a need to know any information we obtain about you and (ii) that those
offices, affiliates, officers, employees and agents may disclose such information as
permitted under the immediately preceding paragraph.
AD-AG-0455B (2004-2)
53
You acknowledge and agree that data processing related to Selvices covered by this Booklet
and your associated accounts may take place in countries other than those where you
and your accounts with us are located. You further understand that information
concerning your relationship with us may be available on our electronic data system both for
information management purposes and in order to enable you to benefit from our electronic
banking services. You understand and agree that., as a result., your banking relationship
information may be available to some of our officers outside the country or countries
where you and your accounts are located. You authorize us to transmit your banking
relationship information across national borders, notwithstanding the banking secrecy laws
of any of the countries involved, as necessary or appropriate to provide any Selvices.
It is possible that in providing the Services we will transmit Personal Data. We will only
transmit Personal Data to our locations, to locations of our affiliates or to others in order to
provide the Services. We may contract with others to provide data transmission or storage
seIVices to us. In that case, we will require that they treat Personal Data solely in accordance
with our instructions. You agree to comply with any directions we may give you from time to
time with respect to the Personal Data.
Neither party will use the other's name or refer to the other party directly or indirectly in any
solicitation, marketing material, advertisement, news release or other release to any
publication without receiving the other party's specific prior written approval for each such
use or release, except that we may use your name as a reference in service proposals
if we obtain your prior oral approval for such use.
This section also does not limit our ability or that of our affiliates to access and use
transaction data related to any Service provided to you in connection with the
management of our or their business.
These obligations continue after any Service you are using is terminated.
CURRENCY EXCHANGE RATES
If a Request, an Entry, a check issued under the Check Issuance Services or a draft
created under the Client-Printed Drafts Services involves a currency other than the
currency in which the relevant account is denominated, your funds will be exchanged for
such other currency at a current rate of exchange on or before the transfer or debit date, as
the case may be, in accordance with our normal procedures (including applicable User
Documentation). If we assign a currency exchange rate to your transaction, such exchange
rate will be determined by us based upon market conditions. We consider many factors in
setting our exchange rates, including without limitation exchange rates charged by other
parties, desired rates of return, market risk and credit risk. You acknowledge that exchange
rates for retail and commercial transactions, and for transactions effected after regular
business hours and on weekends, are different from the exchange rates for large inter-bank
transactions effected during the business day, as reported in The Wall Street Journal or
elsewhere. Exchange rates offered by other dealers, or shown at other sources (including
online sources) may be different from our rates. We do not accept any liability if our rates
are different from rates offered or reported by third parties, or offered by us at a different
time, at a different location, for a different transaction amount, or involving a different
payment media (banknotes, check, wire transfer, etc.). Currency exchange rates fluctuate
over time, and you acknowledge and accept the risks of such fluctuations: (i) in the case of
Requests, between the time you initiate a Request and the time the transfer is either
completed or is unwound due to a cancellation, amendment, rejection or return, (ii) in the
case of checks, between the time you request us to create a check and the time we debit your
account to cover such check and/or the time we re-credit your account if the check is stopped
in accordance with the applicable stop payment procedures and (iii) in the case of drafts,
between the time you print a draft, or request us to print a draft, and the time we transfer
funds from your account to cover such draft.
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AD-AG-0455B (2004-2)
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FACSIMILE SIGNATURES
In some countries, businesses use a variety of techniques to produce a facsimile
signature manually or by means of a device or machine (each generally called a facsimile
signature) as a convenient method for signing checks, documents and other items. If you
choose to use a facsimile signature, you must provide us with a specimen of each
facsimile signature.
You are responsible for any withdrawal from your deposit account that bears or
reasonably appears to us to bear YOUI' facsimile signature, regardless of by whom or by what
means the signature was placed on the check. If you choose to use a facsimile signature, you
are responsible even if you have not presented us with a specimen facsimile signature, or if
the size, color or style of the check, or the size, color or style of the facsimile signature is
different from that of the check or facsimile signature you use. We may pay the withdrawal
and debit your account for it.
You agree to compensate us for all losses, claims, damages or expenses, including Legal
Expenses, that result from our payment of a withdrawal beating a facsimile that reasonably
resembles your facsimile signature.
You are responsible for taking security measures and implementing procedures to prevent
the forgery, theft or fraudulent or unauthorized use of your facsimile signature.
GENERAL MATI'ERS
AGREEMENT
Except with respect to a click-wrap online privacy policy to which you agree when you use
a Service through Bank of America Direct~, this Booklet constitutes and represents the
entire agreement between you and us regarding the Services we provide you anywhere in
the world and supersedes and extinguishes all prior agreements, understandings,
representations, warranties and arrangements of any nature (including requests for
proposals and other sales matelial), whether oral or written, between you and us relating
to any such Selvice (including any International Treasury Selvices Terms and Conditions
booklet, but excluding the current Account Agreement). This Booklet will be controlling in
the event of any conflict between it and any relevant User Documentation, any other
document or written or oral statement (including but not limited to any Account
Agreement, except as applicable law requires otherwise), but excluding the click-wrap
online privacy policy noted above. Current User Documentation is available upon request.
This Booklet is binding upon each of your and our respective successors and permitted
assigns. You may with our prior written consent, assign any of your tights or duties described
in this Booklet. This Booklet is not for the benefit of any other person, and no other person
has any right under this Booklet against you or us, and nothing contained in this Booklet
creates any agency, fiduciary, joint venture or partnership relationship between you and us.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRrrrEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
AD-AG-0455B (2004-2)
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GENERAL OBLIGATIONS
We are responsible only for performing the Selvices expressly provided for in this Booklet.
We may contract with an outside vendor in providing any of these Services.
With respect to any Service, we will provide you with assistance by telephone at the numbers
and during the hours specified by us in writing from time to time.
You are responsible for maintaining the security of your data and ensuring that it is
adequately backed-up. We are not responsible for your loss of your data.
ORAL INSTRUCTIONS
Except as otherwise provided in this Booklet with respect to compliance with any applicable
Security Procedure, we may rely on oral instl1lctions from any person who identifies himself
or herself by a name which is included on a written list from you of persons authorized to
give such instructions. You will update this list from time to time as necessary to reflect any
changes in authorized persons. Except as otherwise expressly stated in this Booklet, we are
not required to act on any instruction from any person or to give notices to any person.
SEVERABILITY; NO WAIVER
If any provision of this Booklet or the application of any such provision to any person or set
of circumstances is determined to be invalid, unlawful, void or unenforceable to any extent,
the remainder of this Booklet., and the application of such provision to persons or
circumstances other than those as to which it is determined to be invalid, unlawful, void or
unenforceable, are not impaired or otherwise affected and continue to be valid and
enforceable to the fullest extent permitted by law.
No delay or failure to exercise any light or remedy under this Booklet is deemed to be a
waiver of such right or remedy. No waiver of a single breach or default under this Booklet is a
waiver of any other breach or default. Any waiver under this Booklet must be in writing.
GOVERNING LAW
Except as otherwise expressly provided in this Booklet for a particular Service, with
respect to each Service, this Booklet is governed by and interpreted according to (i) U.S.
federal law and (ii) the law of (A) the state in the United States of America in which the
account (or the principal account., in the case of multiple accounts) associated with such
Service is located or, if there is no such state or no account associated with such Service, (B)
the State of New York, without reference to the principles of conflicts of law of the U.S.
and of such state.
If you are headquartered, or are using a Service, outside the United States of Amelica, and if
requested by us, you must appoint an agent for service of process in England, Hong Kong,
Singapore and/or the United States of America, and you irrevocably agree that any writ.,
summons, order, judgment or other document relating to or in conjunction with any
proceeding, suit or action may be served on you in such jurisdiction.
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~ATIONOFL~BllXITES
ALL SERVICES arHER THAN ELEcrRONIC FUNDS TRANSFER SERVICES
We are liable to you only for actual damages incurred as a direct result of our failure to
exercise re.asonable care in providing a Service.
ELEcrnoNIC FUNDS TRANSFER SERVICES
For Requests and Entries which are subject to UCC 4A, we are liable only for damages
required to be paid under UCC 4A or the Fedwire Regulation, as applicable, except as
otherwise agreed in this Booklet.
For all Requests and Entries not subject to UCC4A and for all other obligations under the
Electronic Funds Transfer Selvices sections, our liability is limited to actual damages, resulting
directly from our willful misconduct or our failure to exercise reasonable care,
not exceeding the following, as applicable: (i) in case of an excessive debit to your account., the
amount of the excess plus compensation equivalent to interest; (ii) in case of payment to an
account not specified by you, the amount of the payment plus compensation equivalent to
interest; (ill) in case of any delay in crediting a debit Entry or DTC to your account, the amount
of compensation equivalent to interest for the period of delay; or (iv) in all other cases, the
actual damages incurred by you. You will use reasonable efforts to assist us in recovering the
amount of any overpayment for which we are liable.
Ifwe are obligated to pay interest compensation, we will pay such compensation or credit
your account, as we detennine, upon your written request. We caJculate compensation for the
relevant period as specified in the Account Agreement or as advised by your customer
services representative.
If you transmit a Request to us by way of a funds-transfer system or other third-party
communications system not specifically required by us, the system is deemed to be your
agent for that purpose. We are not liable to you for any discrepancy between the terms you
transmit to such system and the terms it then transmits to us.
ALL SERVICES
In no event will we be liable for any indirect, consequential or punitive loss, damage, cost
or expense of any nature or any economic loss or damage, expense and loss of business,
profits or revenue, goodwill and anticipated savings, loss of or corl1lption to your data, loss
of operation time or loss of contracts, even if advised of the possibility of such loss, damage,
cost or expense.
We will not be responsible for the acts or omissions of you or your officers, employees or
agents (including but not limited to the amount, accuracy, timeliness or authorization of
any instructions or information from you) or the acts or omissions of any other person or
entity, including but not limited to any clearing house association or processor, any U.S.
Federal Reserve Bank or any other country's central bank, any other financial institution or
any Supplier, and no such person or entity will be deemed our agent.
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If you permit any Subsidiary or other person to access one of our Service installations on
your premises through use of a remote access software package, we will not be
responsible or liable for such Subsidiary or person's use or misuse of our Services or
access to accounts owned by you and for which you did not authorize that Subsidiary or
person to have access via your installation. We may and will treat all instructions and
information received by us through this an'angement as provided by and for the benefit of
you and subject to all our rights under this Booklet with respect to the peltinent Services.
We will not be liable for and will be excused from any failure or delay in perfonning our
obligations for any Service if such failure or delay is caused by circumstances beyond our
control, including any natural disaster (such as earthquakes or floods), emergency
conditions (such as war, riot, fire, theft or labor dispute), legal constraint or governmental
action or inaction, breakdown or failure of equipment, breakdown of any Supplier, or your
act, omission, negligence or fault.
We also will not be liable for any failure to act on our part if we reasonably believed that
our action would have violated any law, l1lle or regulation.
OVERDRAFI'S
With respect to a Service, we may, at our sole discretion, allow an overdraft to occur in
your account. Except as we agree or advise you otherwise in writing, you must repay us
immediately, without demand, the amount of such overdraft plus any overdraft charges. In
such cases, the fact that we previously allowed an overdraft to occur does not obligate us
to do so in the future. Additional terms and conditions contained in your Account
Agreement may apply.
PAYMENT FOR SERVICES
You must maintain and designate account(s) with us which we will use for debiting or
crediting with respect to all payments and deposits and related adjustments and charges.
Except as otherwise provided, you must have Collected and Available Funds on deposit in
your account(s) sufficient to cover such obligations. For purposes of satisfying your
payment obligations, we may consider any overdraft line of credit or other arrangement
you have with us.
SERVICE CHARGES
You will pay us for each Service you use according to our schedule of charges currently in
effect for you, except as we agree otherwise (in writing) from time to time. At your request.,
we will provide you a copy of the current schedule of charges for the applicable Service. All
charges are subject to change upon 30 days prior written notice to you (unless otherwise
agreed in writing), except that any increase in charges to offset any increase in fees
charged to us by any Supplier for services used in delivering any Service may become
effective in less than 30 days.
You will pay us for Software support in excess ofthat contemplated in the General
Provisions sections of this Booklet. The charges for such extra support will be as specified
by us before such charges are incurred or as otherwise agreed by you and us from time to
time.
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We will, on a monthly basis, debit your account with us for payment of charges due, unless
you arrange another payment procedure acceptable to us.
TAXES
All Service charges are exclusive of sales, value-added and use taxes, stamp and other
duties and other governmental charges imposed on any Selvice or Materials and not
based on our net income. Such taxes, duties and charges are payable by you.
PROTECI'ION FROM THIRD PARTIES
You will indemnify us against and hold us harmless from and defend us against any and all
liabilities, claims, costs, expenses and damages of any nature (including Legal Expenses)
arising out of or relating to disputes or legal actions by parties other than you and us
concerning any SeIvice. The obligations contained in the preceding sentence will continue
after a Selvice you are using is terminated. This section does not apply to any cost 01' damage
attributable to our gross negligence or intentional misconduct.
REPRESENTATIONS AND WARRANTIES
On and as of each day we provide any Selvice to you, you represent and wanant to us that:
· Your agreement to each provision contained in this Booklet is a duly authorized, legal,
valid, binding and enforceable obligation;
· The debiting of any account as provided in this Booklet is not inconsistent with
any restriction on the use of that account;
· All approvals and authol'izations required to permit the execution and delivery of the
Agreement and Authorization form and any other necessalY documentation, and the
perfOlmance and consummation by you of the transactions contemplated under each
Selvice, have been obtained, including but not limited to due authorization from each
applicable third party to allow you to transfer funds and access information from such
party's account;
· Your performance of your obligations will not violate any law, regulation, judgment,
decree or order applicable to you; and
· There is no lawsuit, tax claim 01' other dispute pending or threatened against you
which, if lost, would impair your financial condition or ability to pay us under
the terms of this Booklet.
RESOLUTION OF DISPUTES
We by to resolve our clients' Service problems 01' disputes as quickly as possible. In most
cases, we can resolve a problem by telephone.
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Any dispute or controversy concerning your use of Services described in this Booklet will
be decided by binding arbitration.conducted in the United States of America (except as
you and we expressly agree otherwise) in accordance with the United States Arbitration
Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the American
Arbitration Association. Under these procedures, the dispute is submitted to a neutral
person for determination in place of a trial before a judge or jury. Judgment upon the
award made by the arbitrator may be entered in any court having jurisdiction.
Without regard to the foregoing, any dispute 01' controversy that arises from an Electronic
Funds Transfer Service will be decided by a judge without a jury in a United States of
America federal or state court (except as you and we expressly agree otherwise in
writing). This means that in these instances you waive any right to a trial by jury in any
action or proceeding and agree that such action or proceeding will be tried before a judge
without a jUlY.
Either you or we may exercise self-help remedies or obtain provisional or ancillary
remedies from a COUlt. You or we may exercise or obtain these remedies at any time, even
while the arbitration or tJial by a judge is pending. By exercising or obtaining any such
remedies, neither you nor we waive the right to request that a dispute or controversy be
decided by arbitration or trial by a judge.
SOF'IW ARE LICENSE
TIllS section applies to all Software we provide to you after you return the Agreement and
Authorization form unless we provide you a separate license agreement for specific
Software (including a "click-wrap" Software license you may obtain from us by
downloading from our website and including, in the case of the Commercial and Corporate
Card Services, the licenses for Visa InfoSpan, MasterCard SmartData and any other third-
party Software we provide you in connection with such Services). Notwithstanding
anything to the contrary in the "General Provisions" section of this Booklet, the software
licenses granted to you under this Software License section are governed by and
interpreted according to the laws of the State of California without reference to its
principles of conflicts of law.
LICENSE
For each Software application we provide to you for one or more Services, we grant you a
non-exclusive, non-transferable license for the use of that Software and its related
Materials. Each license is granted solely for use in object code form only in connection
with one or more Services. You may use the Software only in accordance with the
applicable User Documentation.
The Software, its source code, the related Materials and all copyright, patent, trademark,
trade secret and other rights in them are and will remain the exclusive property of us or
our licensors. You will secure and protect the Software (including all copies) in a manner
consistent with the maintenance of our rights and those of our licensors. In order to
protect those rights, you will reproduce and incorporate copyright notices and all other
proprietary legends prescribed by us in any permitted copies. You may not remove,
obscure or otherwise tamper with or alter any such notices or legends affixed to or otherwise
contained in the Software or related Materials or copies. You will also take appropriate
action to instl1lct and obligate your representatives who are permitted access to the
Software (including copies) to comply with your obligations to protect the Software.
AD-AG-0455B (2004-2)
61
We are obligated to provide you only with those updates, upgrades or new releases of
Software which we make generally available to our other customers who license the same
Software. Any corrections, updates, upgrades or new releases that we provide to you must be
installed by you promptly or by such later time as we specify, and will be deemed part of the
Software upon delivelY to you. We will provide support only fOl' the most CUl1'ent version of
Software we have provided to you.
You will, at your eXpense, cause a computer to be installed and kept in good condition and
working order at your site for use of the Software. The computer and its components must be
equipment which is acceptable as specified by us from time to time.
We may assist you with the installation of Software on your computer and with the training
of persons who will use the Software, but we will not bear any responsibility for the proper
installation and use of the Software. Except as you and we may agree otherwise, you will be
deemed to have accepted the Software upon its installation and upon om' having made such
training available to you.
You may not (i) sell, assign, transfer, license, sublicense 01' publish the Software 01' copies of
the Software or (ji) disclose, display or otherwise make available the Software or copies
thereof to third parties without our express approval.
You may not copy, or allow anyone else to copy, the Software or related Materials, except that
you may make two copies fOl' backup and archival purposes. You may not
electronically distribute, or allow anyone else to electronically distribute, Software except
from the network server on which it is installed to wOl'kstations on that network.
You will provide us notice, in writing or by electronic means approved by us for such
purpose, each time you make a permitted copy of Software (except for backup or archival
copies) or electronically distribute it to a workstation, indicating the location and date of the
copy or distribution. We may audit your site to confirm compliance with this Software
License section if you fail to make the reports called for or if we reasonably believe you are
using unauthorized copies of Software.
You may not alter, repair, modify or adapt any Software or related Materials, including, but
not limited to, translating, reverse engineering, decompiling, disassembling 01' creating
derivative works from it.
You agree to inform our client support unit of all errors, difficulties or other problems with
the Software of which you become aware. We will make reasonable efforts to fix or provide
workarounds for material reported errors and to provide you with support and
consultation concerning the Software. The reasonable effort, support and consultation will
be such as we, in our sole discretion, determine. You will cooperate with us in the
expeditious resolution of such erl'Ors, difficulties or other problems by providing us, on
AD-AG-0455B (2004-2)
62
request, a listing of input, output and all other data which we may reasonably request in
order to reproduce operating conditions similar to those present when such errors,
difficulties or other problems were discovered.
You may move the Software to another computer replacing the one on which the Software
was originally installed or to another site, but only after you give us notice, in writing or by
electronic means approved by us for such purpose, specifying the new computer and site.
We will have reasonable access to Software while it is at your site to provide assistance or
to verify the status or location of Software.
A license to Software and related Materials will terminate automatically if you breach a
material term of the license or if the Services for which you are using the Software are
terminated. In addition, in the event of a breach of your confidentiality obligations with
respect to the Software, we may seek any remedy provided by law or equity.
LIMITED WARRANTY /DISCLAIMERS
You acknowledge that the Software has not been produced to meet your specific
requirements and has not been tested in every possible combination and operating
environment. You are responsible for satisfying yourself that the Software is satisfactory
for your purposes.
You further understand and agree that we make no representation concerning the
completeness, accuracy, operation or performance of the Software or its compatibility with
any hardware. You acknowledge that the operation of the Software may not be
uninterl1lpted or error-free.
We warrant that the Software will substantially conform to the documentation provided
with the Software for a period of 60 days after delivery to you provided that: (i) the
Software is used by you in strict compliance with the terms of this Booklet and the related
Materials, (ii) the Software is not modified in any way by you and (iii) you promptly notify
us and reproduce for us any defects, errors or bugs in the Softwal'e. We will use
reasonable efforts to correct or work around any Software errors reported by you or, at our
discretion, but in any event if our efforts are unavailing, we will accept return ofthe
Software and refund any license fees paid by you.
You agree that the foregoing is your sole and exclusive remedy for breach of warranty and
our sole obligation in connection with the pelformance or operation of the Software and
related Materials.
Except as specifically stated above and in the Infringement Indemnity subsection below
and notwithstanding any other provision in this Booklet or otherwise, we make no
representation or warranty, express or implied, written or oral, and, to the full extent
permitted by law, disclaim all other warranties including, but not limited to, the implied
warranties of merchantability or fitness for a particular purpose, regarding the Software,
the related Materials and all other property, services or rights covered by this Booklet.
To the extent permitted by applicable law, and except as otherwise provided in this
section, we will not be liable for damages of any kind arising out of the use of, or inability
to use, the Software or accompanying documentation.
AD-AG-0455B (2004-2)
63
You agree that the United Nations Convention on Contracts for the Intemational Sales of
Goods will not apply to our provision to you or your use of any Software.
Neither you nor we limit or exclude our liability to the other for death, personal injury,
willful misrepresentation, willful default or fraud.
INFRINGEMENT INDEMNITY
Notwithstanding your indemnity of us in the "Protection From Third Parties" section of this
Booklet., we will defend at our own expense or settle any action brought against you to the
extent it is based on a claim that your use of the Software and/or Materials provided by us to
you pursuant to this Booklet infringes any Berne Convention country copyright 01' any United
States of America or United Kingdom patent., trade secret or trademark of any third party,
and we will pay all costs and damages finally awarded in any such action.
Our obligation is subject to (i) prompt notice from you of any such claim or action, (ii) your
not having made any admission of liability or agreed to any settlement or compromise, (iii)
your providing to us, in a prompt and timely manner, the documents, information and
assistance we reasonably request., (iv) our having sole control of defending such claim or
action, (v) your having used the current version of the Software and Materials, as provided to
you by us, in compliance with the terms of this Booklet and the related Materials and (vi) our
obligations under this indemnity being our only obligations to you with respect to any
infringement claim in connection with your use of the Software.
EXPORT CONTROlS
You understand and acknowledge that our obligations to provide the Software, technical
assistance, any media in which any of the foregoing is contained, training and related
technical data (collectively "Data") will be subject in all respects to all applicable laws and
regulations as shall from time to time govern the expOlt or diversion of certain products and
technology to and from certain countries. You warrant and agree that you will comply in all
respects with the export and reexport restrictions applicable to the Data shipped to you and
will otherwise comply with all applicable laws and regulations governing export and
diversion of the Software and technical data in effect from time to time.
SUPPLEMENTAL IMAGE CD-ROM SOFrWARE LICENSE PROVISIONS
This subsection supplements this Software License section with respect to Software we
provide you for the Disbursement Image Service under which we provide you with CD-ROMs
and shall control in the event of conflict between it and the balance of the Software License
section.
We warrant for a period of 45 days after the CD-ROM creation date appearing on the CD.ROM
that such CD-ROM itself will be free of defects in material and workmanship. If we provide you
a CD-ROM which contains a media defect or is unreadable in its entirety, you must notify us
within the 45.day period.
Our disclaimer of warranties in this Software License section applies to CD-ROMs as well as to
the Software and related Materials.
AD-AG-0455B (2004-2)
64
You may not electronically distribute the Image CD-ROM Software to any workstation other
than the one for which such Software is originally installed on your site.
Notwithstanding anything to the contrary in the TelTIunation section of this Booklet, if a
Disbursement Image Service under which we provide you with CD-ROMs is terminated for a
reason other than your breach of this Software License section, you may continue to use
the Software for such Selvice after termination of such Service for six months, or for such
longer period as we approve, subject to the terms of this Software License section or such
other software license agreement as we, at our election, require you to sign for this purpose.
At the end of such six-month or longer period, the license for your use of the Software for
such Disbursement Image Service will then terminate automatically.
SUPPLEMENTAL IMAGE (POSITIVE PAY) SOFIW ARE UCENSE PROVISIONS
This subsection supplements this Software License section with respect to Software we
provide you for the Image Positive Pay Service and shall control in the event of conflict
between it and the balance of the Software License section.
You may not electronically distribute the CCR (C Compression Routines) Software for
Windows 3.1 provided to you in connection with the Image Positive Pay Service to any
workstation other than the one for which such Software is oliginally installed on your site.
TERMINATION
Either you or we may terminate any or all Services upon 30 (60 in the case of Corporate Card
Services) calendar days pl'ior written notice to the other party. Notwithstanding the
foregoing sentence, we may terminate any or all Services effective immediately, and we will
send you notice of the termination, if any of the following occurs:
· You breach any of the terms and conditions in this Booklet or any other agreement
with us;
· You terminate, liquidate or dissolve your business or dispose of a substantial portion
of your assets;
. You fail generally to pay your debts as they become due;
· You, voluntarily or involuntarily, become the subject of any bankruptcy, insolvency,
reorganization or other similar proceeding;
· You initiate any composition with your creditors;
· You experience a material adverse change in your financial condition or your ability to
perform your obligations under the terms and conditions in this Booklet; or
· Any guaranty of your obligations to us terminates, is revoked or its validity is contested
by the guarantor, or any of the events set forth in the above five bullet points
attributable to you occur to the guarantor.
If a Service you are using is terminated for any reason, you will do the following:
· Immediately stop using any Materials relating to the terminated Service;
· Erase or delete any Software we have provided relating to the terminated SelVice to
the extent it is stored in your computers; and
· At our option, either return to us or destroy all Materials relating to the
terminated Service and certify to us that you have done so.
AD-AG-0455B (2004-2) 65
These obligations will continue after a Service you are using has been terminated.
Termination of a Service you use does not affect your payment obligations for services we
provide to you before the Service is terminated, and any such termination is in addition to
our other rights under applicable law and under the terms of this Booklet. Also,
termination of any Service you use does not release you or us from any of our respective
obligations which arose or became effective before such termination. Upon termination, all
amounts owed by you and outstanding will become immediately due and payable.
AD-AG-0455B (2004-2)
66
GLOSSARY OF TERMS
The following are some important terms that appear in this Booklet.
Aa:eptahle P~ Your name and any other payee name
you provide to us as an acceptable payee for checks to be
processed under the Lockbox SelVice.
Account Agreement. The current signature card,
International Account Agreement or SAOTC and ,the
publication(s), as amended from time to time, we provide
you containing terms and conditions applicable to each
deposit, savings or current account for which you use a
Selvice.
Bill Pa.Yment SeIVioo Provider. Any entity, which may
include us, you authorize to deliver payments,
remittance information and other related data from your
customers to us for the Electronic Bill Payment
Consolidation Service.
Business Da.,v. Each day on which the bank or bank office
providing or facilitating a Selvice is open for business
related to that Service.
Card. Each plastic charge card which we issue for your Card
Account under our Commercial or Corporate Card SelVices.
Caro Account. Each MasterCard or Visa account which we
issue to you or to a Cardholder under our Commercial or
Corporate Card Services, including an account for which
only an account number and no Card is provided.
Cash Advance. Use of a Card Account to obtain cash from a
participating financial institution, merchant or ATM, to
write a Convenience Check or to obtain items readily
convertible into cash, such as money orders, travelers
checks, foreign currency, lotteI)' tickets, casino chips and
race-track wagers.
Card Administrator. One or more individuals designated by
you in writing, as our primary contact for the Card
Accounts, who is authorized to take actions necessary or
appropriate to maintain the Card Accounts, including
without limitation designating persons to receive Card
Accounts, receiving communications from us related to the
Card Accounts, requesting the closure of Card Accounts
and otherwise communicating with us with respect to the
Card Accounts.
AD-AG-0455B (2004-2)
Cardholder. Your employee or any other person who you designate in
writing and who we approve to receive a Card Account or a
Commercially Prepaid Card. If you or a Cardholder makes a
Commercial Prepaid Card, a Card Account number or Convenience
Check available to another party, that person will also be
considered a Cardholder.
Check Issuance Request. Using the Check Issuanoo SeIVice, a
message transmitted from you to us requesting us to issue a
check on your behalf drawn on either accounts you maintain with
us or accounts designated and owned by us.
Collected and Ava.ilable Funds. Funds in an account equal to the
ledger balance minus float which, in our reasonable
determination, are not subject to a hold, dispute or legal process
preventing their withdrawal.
Commercial Prepaid Cazd A pre-paid magnetic strip-based plastic
card issue by us for a Cardholder's purchase of goods or services
or for cash withdrawals.
Controlled Disbursement Point. Each bank office designated
by us through which checks issued under the Controlled
Disbursement Service will be cleared or routed.
Convenience Check. A check which we may provide to you to draw on
a Card Account.
Deposit Account. One or more demand deposit accounts maintained
by you with us and used in connection with our Controlled
Disbursement Service.
Depository Transfer Checks (IJIQI). DepositoI)' trn.nsfer checks and
preauthorized checks to debit Receivers' accounts to accomplish the
same purpose as debit Entries. (Receiver is defined in the NACHA
Rules.)
Effective Entry Date. The date specified, in accordance with the
NACHA Rules, on the Entry by the Originator on which the
Originator intends the Entry to be settled. (Originator is defined in
the NACHA Rules.)
Electronic F\mds Transfur Ser:vices. ACH SeIVices, International
Electronic Funds Transfer Services and Wire Transfer Services.
67
Entries. Entries has the meaning provided in the
NACHA Rules and also includes any data for EntJ.ies
and any prenotification.
eUCP. The rules for electronic presentation of documents
under the UCP.
Fedwire. The funds transfer system owned and operated by
the Federal Reserve Banks of the United States of America,
but excludes the system for making automated clearing
house transfers.
Fedwire Regulations. Subpart B of R.egulation J of the Board
of Governors of the Federal Reserve System of the United
States of America, as amended from time to time.
FX Transaction. A transaction between you and us,
permitted under the Electronic Foreign Exchange Service,
for the purchase of one currency in exchange for the sale of
another currency (including without limitation any foreign
exchange spot, swap or outright fOlward transaction or
option), including any transaction that effects the pre-
delivery, extension, rollover or splitting of such a
transaction.
FX Request A request by means permitted under the
Electronic Foreign Exchange Service to enter into an FX
Transaction.
International Acoount Agreement. A form of Account
Agreement used in some countries.
Intemati.onaJ Electronic Funds Transfer Servires. Electronic
payment services for transfers to or from your account
outside the United States of America or to or from your
account in the United States of America to or from an
account in a different country. These services include low-
value batch payments made according to multiple requests
within a single electronic data file. International
Electronic Funds Transfer SeIVices exclude ACH Services
within the United States of America and exclude Wire
Transfer services.
AD-AG-0455B (2004-2)
1SP98. The "International Standby Practices 1998" developed by
the Institute of International Banking Law & Practice and
endorsed and published by the International Chamber of
Commerce or such later revision as may be adopted and be in
effect on the date the subject standby letter of credit is issued.
legal Expenses. Reasonable lawyer's fees, allocated costs of staff
counsel (unless prohibited by applicable law), fees and expenses of
litigation and any other fees and expenses incurred in enforcing
any provision of this Booklet.
I.ockbox Address. The post office address we assign to you or we
accept from you for the Lockbox Service.
Materials. The Software, user identification codes, passwords,
codes, keys, test keys, security devices, embedded algoritluns,
digital signatures and certificates, other similar devices and
information, User Documentation and related documentation we
provide to you.
NACHA Rules. The roles of the National Automated Clearing House
Association (including any other clearing house l1lles
applicable to automated clearing house transactions), as amended
from time to time.
Payment Advice. Using the Client- Plinted Drafts Services, an
electronic message transmitted by you to us advising us that you
have created a draft.
Persona.l Da.ta. Information we receive from you in
connection with the Selvices consisting of an individual's bank
accounts or other financial data or identifying a living individual.
PIN. A personal identification number which a Cardholder may
receive when activating a Commercial Prepaid Card.
RCK. A ''Re-Presented Check Entry" as defined in the NACHA Rules.
Request A request by means permitted under the relevant Wire
Transfer or International Electronic Funds Transfer Service to
transfer funds to or from a specified account or beneficiary
(including standing instructions) or to amend or cancel a prior
request to transfer funds.
68
ReversaljDeletion Request. A request for a Reversal or a
request to delete a previously delivered Entry.
Reversals. Data for reversing Entries.
SAaJ'C. Each form of Standard Account Opening Terms and
Conditions used in certain countries as an Account
Agreement.
Security Procedure. Unless we agree otherwise with you, th e
applicable security procedure described in the
Materials for your data delivery type or SeIVice for verifying
the authenticity of Entries, Requests, Reversal/Deletion
Requests, Payment Advices, Check Issuance Requests, Stop
Payment Requests, FX Requests or Tax Payment
Instructions.
Service. With respect to a Bank of America Corporation
subsidiary bank, a treasury management service provided
in a specific Bank location and covered by this Booklet.
Software. The programs and data files provided by us for
use on a computer in connection with one or more
particular Selvices.
Stop Pa.yment Request. A message you send us using the
Online Stop Payment Services, the Check Issuance Smvices
or the Client. Printed Drafts Services to request that
payment be stopped on a check or draft which, in the case
of the Online Stop Payment Services, must be drawn on an
eligible account you have with us.
Subsidiary. Any entity in which more than 50% of the
ownership interest is owned, directly or indirectly, by you.
The term "Subsidiary" does not include affiliates or other
entities in which 50% or less of the ownership interest is
owned, directly or indirectly, by you.
Supplier. Any private or common carrier communication or
transmission facility, any time-sharing supplier or any
mail or courier service.
SWIFT. The international electronic message-transfer
service known as the Society for Worldwide Interbank
Financial Telecommunication.
AD-AG-0455B (2004-2)
Tax Pa,yment Instmction. An instruction by means permitted
under the relevant Tax Payment Service to pay any taxes using
any of the tax fOlms specified in the applicable User
Documentation.
Transaction. The purchase or reseIVation of goods or services or a
cash advance made or facilitated by use of a Stored Value Card, a
Commercial Card, Convenience Check or Card Account.
UCC 4A. Article 4A of the Uniform Commercial Code - Funds
Transfers, as adopted by the state in the United States of Amelica
whose law applies to a Service, as amended from time to time.
UCP. The Uniform Customs and Practices for Documentary
Credits, 1993 Revision, Ice Publication No. 500 or such later
revision as may be adopted by the International Chamber of
Commerce and be in effect on the date the subje"ct letter of credit
is issued.
Unauthorized Use. Use of a Card Account, Card or Convenience
Card by a person (i) who is not your Cardholder, employee or
agent., (ij) who does not have actual, implied or apparent
authority to use the Card Account and (iii) whose use does not
benefit you directly or indirectly.
Unifonn Rules fur Collections. The Uniform Rules for Collections, ICC
Publication No. 522, or such later revision as may be adopted by
the International Chamber of Commerce and be applicable to a
collection.
User Documentation. Any written information we provide you,
including information in electronic format, as amended
from time to time, which contains detailed instructions regarding
the use of a Service, as provided by a palticular banking center or
office. User Documentation may vary from one jurisdiction to
another. Current User Documentation is available upon your
request.
69
Agreement for Government Banking Services
This Agreement for Government Banking Services (the "Agreement") is made as of this _ day
of ,2009, between City of Sunny Isles Beach (the "City") and Bank of America,
N.A., a national banking association.
WHEREAS, the City of Sunny Isles Beach IS In need of government banking serVIces
("Services"); and
WHEREAS, Bank of America, N.A. is qualified to provide these services; and
WHEREAS, the Village of Wellington issued an Invitation to Negotiate #023-08/JWV for
banking services in December 2008; and
WHEREAS, Bank of America, N.A. was the successful negotiator under the Invitation to
Negotiate #023-08/JWV, having submitted its response dated May 15, 2008 (the "Response");
and
WHEREAS, the parties wish to enter into this Agreement for the purpose of specifying the term
and constituent documents of the agreement between the City and Bank of America, N.A.
pursuant to the Village of Wellington, Florida's Invitation to Negotiate #023-08/JWV for
banking services awarded to Bank of America, N.A. in December 2008;
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable
consideration, the parties hereby agree as follows:
1. Integrated Agreement. The entire and integrated agreement between the City and Bank of
America related to the Services shall consist of this Agreement, Bank of America's Treasury
Terms and Conditions booklet (including user documentation and set-up forms), Bank of
America's Response and Village of Wellington Florida's Invitation to Negotiate #023-
08/JWV for banking services. In the event of conflict among any of the preceding
documents, such documents shall govern in the following order of precedence: (1) this
Agreement, (2) Bank of America's Treasury Terms and Conditions booklet (including user
documentation and set-up forms), (3) Bank of America's Response to Invitation to
Negotiate #023-08/JWV and (4) Village of Wellington's Invitation to Negotiate #023-
08/JWV for banking services. The integrated agreement supersedes all prior negotiations,
representations, statements and agreements, whether written or oral, regarding the Services.
2. Commencement of Performance. Except as otherwise agreed by the parties, Bank of
America, shall begin performing each Service upon execution and delivery of this
Agreement, the pertinent service-level agreement and the related set-up forms. Bank of
America shall continue to perform such Services during the term of this Agreement.
3. Term. This Agreement is for an initial term of Three (3) years with an extension of Two (2)
years and One (1) year. The Agreement may be extended by mutual consent of the parties as
S\~
set forth in the Village of Wellington's Invitation to Negotiate #023-08/JWV. Either party
may terminate any or all Services upon sixty (60) days prior written notice to the other party.
4. Notices. Except as may otherwise be specified in the applicable service-level agreement or
set-up form, notices to the City and Bank of America shall be sent to the addresses set forth
below:
City:
Finance Director
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Bank:
Bank of America
625 N Flagler Drive
West Palm Beach, FL 33401
Changes in the respective address set forth above may be made from time to time by any
party upon written notice to the other party.
In witness whereof, the parties have executed this Agreement as of the date first written above.
CITY OF SUNNY ISLES BEACH
A Florida Municipal
BANK OF AMERICA, N.A.
~~xI
By:
Norman S. Edelcup
[Type or Print]
[Signature]
Name:
[Type or Print]
Title:
Mayor
[Type or Print]
Title:
[Type or Print]
ATTEST:
By: ~f\~
Jane A. Hines, CMC, City Clerk
WITNESS:
By:
Name:
[Type or Print]
Title:
[Type or Print]
S\B
PARTICIPATION AGREEMENT
BETWEEN
BA MERCHANT SERVICES and BANK OF AMERICA, N.A.
AND
ENTITY
This Participation Agreement is entered into between BA Merchant Services LLC, an Ohio limited
liability corporation and Bank of America, N.A. (together "Contractor") and City of Sunny Isles Beach, an
Agency or Unit of Local Government as defined in the Electronic Payments Receipt System Provider
Contract effective January 1, 2007 ("Contract") and (hereinafter known as the "Entity").
I. PARTICIPATION TERMS AND CONDITIONS
A. By signing this Participation Agreement, the Entity and the Contractor agree to be bound by the
terms of this Participation Agreement and the Electronic Payments Receipt System Provider
Contract between the Contractor and the State of Florida (the "Contract") in the performance of their
obligations. The terms of the Contract between the State of Florida (the "State") and the Contractor,
including the Card Organizations operating regulations, take precedence over this Participation
Agreement.
B. By signing this Participation Agreement, the Entity agrees to be bound by the terms of the Merchant
Card Services Agreement Terms and Conditions dated 1/2003 and as modified from time to time
("Terms and Conditions"). Entity is referred to as "Merchant" in the Terms and Conditions. The
standard form Terms and Conditions booklet is modified as provided in Section IV below.
C. The Entity will retain copies of Sales Slips, Credit Slips and other related documents for no less than
three (3) years from the transaction date.
II. FEES TO BE PAID TO THE CONTRACTOR
A. The Entity agrees to pay the Contractor a discount rate or transaction fee based on the fee schedule in
Attachment I of the Contract.
B. Such fees will be debited monthly from the Entity's Deposit Account or billed to the Entity via an
invoice process.
III. EFFECTIVE DATE AND TERMINATION
A. This Participation Agreement will become effective on the date it is signed by both parties.
B. This Participation Agreement remains in full force and effect until terminated as provided in this
section or until the Contract is terminated.
C. Either party may terminate this Participation Agreement at any time by giving the other thirty (30)
days prior written notice.
D. In the event of non-payment of an invoice for forty-five (45) days or more, Contractor may cease
processing after fifteen (15) days prior written notice to Participant.
E. Notwithstanding any foregoing subsection, Provider may terminate this Participation Agreement
effective immediately, followed by written notice, as required by applicable federal law or card
organization operating regulations.
I 189553/v7
IV. MERCHANT SERVICES TERMS AND CONDITIONS
A. Section 2.01 (B) of the Terms and Conditions is hereby removed and replaced in its entirety with the
following:
Merchant will provide BA with updated business and financial information concerning Merchant,
including evidence of required licenses and other information and documents BA may reasonably
request from time to time. All material marked "confidential" which BA receives from Merchant
will be used only by BA or Card Organizations in performing services under this Agreement or
related services and reporting. At any reasonable time, BA or any Card Organization may audit
Merchant's records relating to this Agreement.
B. Section 14 of the Terms and Conditions is hereby deleted.
C. Section 18.01 of the Terms and Conditions is hereby removed and replaced in its entirety with the
following:
SECTION 18.0 I FLORIDA LAW APPLIES.
Florida law, as applied to agreements made and performed entirely in Florida without reference to
conflict of laws provisions, governs this Agreement.
E. The heading and all the provisions constituting Section 24 "Continuing Guarantee" are hereby
deleted in their entirety.
V. NOTICES
A. Any notice required or permitted to be given under this Participation Agreement by one party to the
other shall be in writing and shall be given and deemed to have been given if hand-delivered,
delivered by telephonic facsimile transmission equipment and confirmed by telephone with an
original mailed or hand-delivered thereafter, or mailed by certified or registered mail with postage
prepaid to the party or their successor at the address specified as follows:
The Entity:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Attention: Legal Department
Facsimile Number: (305) 792-1562
The Contractor:
BA Merchant Services, LLC
1231 Durret Lane
Louisville, Kentucky 40213
Attention: Contract Management
Facsimile Number: (502) 315-2271
B. All such notices shall be deemed given when received, as evidenced by the signed acknowledgment
of receipt of the person to whom such notice or communication shall have been delivered by hand,
the document transmission summary generated by the telephonic facsimile transmission equipment,
or the acknowledgment of receipt returned to sender by the United States Post Office, if such receipt
is requested.
I I 89553/v7
2
C. The absence of the forms of documentary evidence of date of delivery, however, shall not be
interpreted as invalidating the form of notice utilized.
D. Either party may change the address to which notices are to be delivered by giving to the other party
not less than ten Business Days prior written notice thereof.
VI. MISCELLANEOUS PROVISIONS
A. This Participation Agreement, incorporating the terms of the Contract and the Terms and Conditions,
contains the entire understanding of the parties and supersedes any and all previous discussions,
proposals, or agreements, if any, between the parties with respect to the subject matter hereof.
B. This Participation Agreement may not be amended except by an instrument in writing signed by an
authorized representative of each of the parties.
C. This Participation Agreement is binding on the parties and their successors and assigns.
Bank of America. N.A.
City of Sunny Isles Beach
Printed Name
By:
Title:
Title: Mayor
Date:
Date:
BA Merchant Services, LLC
By:
By:
~~~
Tan~ A_ Hines. CMC
Printed Name
Printed Name
Title:
Title: City Clerk
Date:
Date:
I l89553/v7
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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
MEMQRANDUM
TO:
The Honorable Mayor and City Commission
FROM:
Douglas Haag, Assistant City Manager-Finance
DATE:
10/15/2009
RE:
AGREEMENT WITH BANK OF AMERICA FOR BANKING
SERVICES
RECOMMENDATION:
Approve the attached resolution and agreements with Bank of America, establishing
Bank of America as the City's primary depository and financial institution.
REASONS:
Earlier this year the City entered into an agreement with Bank of America for a $20
million loan to be repaid over 20 years. As part of that commitment the City agreed to
establish and maintain a minimum depository of $5 million. The most efficient way to
accomplish this over the long term is to consolidate our current banking arrangements
with SunTrust and Colonial at Bank of America. Bank of America has a branch office in
Sunny Isles Beach and was the only bank with a local presence to respond to that loan
request.
To accomplish this, we are recommending that the city 'piggyback' on an RFP that the
Village of Wellington awarded to Bank of America in December, 2008. We have
reviewed the RFP and accompanying documents and determined that the services
available from Bank of America will meet the requirements of the City now and into the
future.
The estimated cost of $687.02/month of providing the same level of services is slightly
less than what the City is currently paying to SunTrust and Colonial Bank combined - an
average of $782.81/month. Additional savings of approximately $5,000/year will be
realized because Bank of America's fees for processing credit card payments (i.e. parking
meter and CHS fees) is less than the city is currently paying. Finally, Bank of America
charges separately for FDIC insurance (13 basis points as of January 1, 2009) while
Colonial Bank netted it out of the interest rate they paid the City on our accounts.
http://sibagenda.sibfl.net/agenda/Preview.aspx?I temID= 1 08&MeetingID=0&MeetingDate... 10/7/2009
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Page 2 of2
As part of the changeover, the city will also be implementing certain best practices to
further maximize investment earnings, reduce fees and enhance security. The entire
process will take several months and all phases will likely not be implemented until after
the first of the year.
FUNDING SOURCE:
Funding for will come from the following accounts:
10-513-5492
10-525-5492
10-573-5492
ATTACHMENTS:
. Attachment A
. Resolution
. Agreement
http://sibagenda.sibfl.net/agenda/Preview.aspx?I temID= 1 08&MeetingID=0&MeetingDate... 10/7/2009
Attachment A - Bank of America Summary Proposal for Banking Services
GENERAL SERVICE
Checks aid 250 0.06 15.00
De osits 33 0.25 8.25
Branch - cash de osit fee 200 0.04 8.00
Account maintenance 9 7.00 63.00
Master account maintenance 15.00 15.00
Sub-account maintenance 2 10.00 20.00
5 0.25 1.25
De osited Items 500 0.06 30.00
GENERAL SERVICES TOTAL 160.50
RETURNS
De osited items-char ed back 6 2.00 12.00
Return ima e viewed - online 10 0.25 2.50
RETURNS TOTAL 14.50
ACH
Misc items aid 20 0.07 1.40
Files Processed 2 10.00 20.00
Maintenance 2 15.00 30.00
ACH returns 2 1.50 3.00
Notification of chan e 2 1.50 3.00
ACH TOTAL 57.40
PAPER DISBURSEMENTS
Paper Disbursements-pd item
re'ects>2% 127 0.06 7.62
PAPER DISBURSEMENTS TOTAL 7.62
PAID CHECK IMAGE
250 0.03 7.50
1
PRICE MONTHL Y
SERVICE PROVIDED AVG VOLUME (1 ) COST
Paid check imaqe-per CD 1 10.00 10.00
Paid check imaQe viewed online 10 0.25 2.50
Monthly Main- CD Rom 2 15.00 30.00
PAID CHECK IMAGE TOTAL 50.00
ACCOUNT RECONCILEMENT
Account recon output transmission 2 15.00 30.00
Partial recon service per item 250 0.06 15.00
Basic positive pay per item 250 0.02 5.00
ACCOUNT RECONCILEMENT TOTAL 50.00
ONLINE BANKING
Prior day access 1-10 accounts 5 35.00 175.00
Prior day access per item 500 0.04 20.00
Current day access 1 20.00 20.00
Online stop payments 3 10.00 30.00
Check status 4 1.00 4.00
Return item -fax 9 1.00 9.00
ONLINE BANKING TOTAL 258.00
WIRE TRANSFER
Domestic Wire - Online 10 6.00 60.00
Book transfer - Online 8 3.00 24.00
Incoming Wire 1 5.00 5.00
WIRE TRANSFER TOTAL 89.00
BOA TOTAL BANKING SERVICES (1) 687.02
Current Analysis fees (provided by
City) 782.81
Addl Monthly Cost (Savlnas) (95.79)
2
FDIC Insurance
(1) Fees are based on Village of Wellington ITN
3