Revised: September 1, 2022
The following terms, provisions and service descriptions constitute the Treasury Management Services Master Agreement (this "Agreement") this day made by and between the party signing this Agreement on his/its behalf or on behalf of each of his/its affiliates (such persons and entities and each of their affiliates being collectively referred to as "Customer") and Liberty Capital Bank ("Bank"). It is the intention of the parties that this Agreement govern all Customer Accounts now or hereafter established at the Bank by Customer and any affiliate of Customer. This Agreement supersedes and replaces any previous Master Treasury Management Services Agreement. By executing the Master Services Request and Authorization Agreement (the “Implementation Agreement”) or using a Service, Customer agrees to be bound by this Agreement, and any supplement or amendment to any of the same. Customer also agrees that the deposit accounts to which the Services apply are governed by the Consumer and Commercial Account Agreements (the “Account Terms”) and the Services are governed by the applicable electronic banking Services terms, as applicable, and any supplement or amendment to any of the same, all of which are incorporated herein by reference.
In consideration of the following premises and covenants and intending to be legally bound, the parties agree as follows:
This Agreement and the Exhibits attached hereto, including those which may be added by mutual agreement in the future, describe the services Bank will perform. Bank may unilaterally change the terms of this Agreement upon thirty (30) days’ notice. All provisions shall be in addition to and cumulative with the provisions of any applicable Exhibits.
Customer will pay Bank with immediately available funds, the fees and charges listed in Bank's schedule of fees attached hereto as Exhibit 7, as modified by Bank from time to time, upon thirty (30) days written notice, or otherwise chargeable to Customer hereunder for Customer Accounts. Bank may increase such fees and charges to Customer from time to time in accordance with bank-wide increases in such fees and charges imposed by Bank. Additionally, the transporting or transmitting of data, items, and other materials to or from Bank is solely Customer's responsibility and will be at Customer's expense. Customer will pay and reimburse Bank for all governmental and third-party fees arising out of or related to Bank's performance hereunder. Customer authorizes Bank to debit any Customer Account for all such fees and charges on the date the Bank issues the monthly statement, or as otherwise provided in this Agreement, in such order or manner as Bank may elect.
The initial depository accounts established by Customer or its affiliates at the Bank and covered by this Agreement, together with any other account subsequently established by Customer or any affiliate at the Bank, are sometimes referred to herein as the "Customer Accounts" or a "Customer Account" and are hereby made subject to this Agreement. Customer will at all times maintain with Bank, in Customer Accounts, collected balances sufficient to reimburse Bank for all items, orders for payment and other amounts which Bank pays on Customer's behalf or are chargeable to Customer hereunder. If a Customer Account has insufficient funds to pay charges, orders for payment, or items on Customer's behalf, Bank will have no obligation to pay such charges, orders or items or to give any notices or to take any remedial or other action, and may refuse to pay such charges or dishonor and return unpaid such orders or items, or Bank may debit and offset such amount against another Customer Account unless such other Customer Account is specifically designated as a "Special Account". If Bank pays such amounts, orders or items in the anticipation of the availability of sufficient collected funds, Customer will, upon demand, immediately remit sufficient collected funds and Bank may exercise any legal right to collect such funds, including, but not limited to, set-off against any Customer assets held by Bank or funds Customer has on deposit in trust or otherwise whether represented by an account, certificate or time deposit. Customer acknowledges and agrees that it is liable for and will pay Bank any fees or charges agreed to with respect to any Customer Account as provided herein or in any account agreement or otherwise charged by Bank as provided herein or in accordance with its standard practices and procedures or which result from any Services requested by Customer or any account deficit resulting from charges, overdrafts or account activity relating to a Customer Account (the "Obligations"). For purposes of this Agreement, an affiliate includes any person or entity controlling, controlled by or under common control with Customer, including, but not limited to, its parents, subsidiaries, partnerships, joint ventures, brother/sister entities, and specifically including management and fiduciary accounts established by Customer or any affiliate with funds held for or beneficially owned by third parties. Customer acknowledges and agrees that the Obligations may be deducted by Bank from any account of Customer or affiliated entity as defined herein, at the discretion of Bank, except for those accounts specifically designated as a "Special Account".
Each person identified as a Company User ("Company User") or Company Administrator (“Company Administrator”) on Exhibits 1 or 2 or granted online access by any Company Administrator (collectively, "Authorized Persons"), are authorized to receive and furnish any and all information concerning this Agreement. Bank is authorized and directed (i) to communicate to any Authorized Person any and all information regarding any service offered hereunder; (ii) upon the request of any Authorized Person, to withdraw funds from any account, to transfer funds from or to any account of Customer, and to apply such funds as directed by such Authorized Person; and (iii) to take any other actions requested by an Authorized Person from time to time with regard to this Agreement, any service offered hereunder (including the Exhibits), and conduct any business with regard to the account or matters related hereto, including but not limited to, in the case of a Company Administrator, designating Company Users to utilize one or more of the Services. Bank is authorized and directed to act on, and may rely without further investigation upon, any oral or written directions (including designations of additional Company Users) from a person representing himself as an Authorized Person, whether delivered or communicated to Bank in person, by messenger, by telephone, telecopier, email, U.S. mail or other manner and Bank shall be entitled to rely on any wiring, paper, statement, order, direction, written communication, email message or telephone or personal conversation believed by Bank to have been signed, sent or made by an Authorized Person. Bank may, but in no event shall be required to, delay any transfer or any other action hereunder until Bank determines to its satisfaction that Customer has authorized such transfer or action. Customer will give Bank prior written notice in the event that it adds or removes a Company Administrator, or otherwise adds or removes a person from the list of Authorized Persons. Bank reserves the right, but is not obligated, to require evidence of authority to add or remove a Company Administrator by written certificate or resolution of Customer’s board of directors, other appropriate governing body, or chief executive officer before the addition or removal of such Company Administrator shall become effective. Any person listed as an Authorized Person in our internet banking system or on any Exhibit shall be an Authorized Person within the meaning hereof with regard to Services relating to such Exhibit and, for such purposes, shall be in addition to other Authorized Persons. A listing of any Authorized Person and signature exemplar will be collected on a separate form. If Customer is an entity, Customer shall furnish to Bank a fully completed and executed copy of the Master Services Request & Authorization Form attached hereto as Exhibit 1. Bank may, upon request from Customer, allow use of the Services by an Authorized Person without dual controls, or by someone other than an Authorized Person pursuant to the request of a Company Administrator. Such use of the Services shall be treated as having been made by an Authorized Person and shall be at Customer’s sole risk. Bank shall not be responsible to Customer for any loss, claim, liability, damage, cost, or expense, resulting from, related to, arising from, or caused by a Company Administrator’s designation, or authorization, of additional users.
1. Bank agrees to use substantially the same type of procedures and equipment in performing Services for Customer as Bank uses in performing similar services for its other customers. The above standard of care and Bank's compliance with any instructions given to it by Customer shall be considered commercially reasonable and meeting the standard of ordinary care. Customer specifically acknowledges that, given modern electronic check processing systems and check processing volumes and electronic funding conduits, it is impractical for, and expressly not commercially reasonable or the standard of ordinary care for the Bank or its representatives to monitor each individual check, item or transaction presented or posted on any Customer Account.
2. Notwithstanding any other provisions herein, in any Exhibit, or in any other document or agreement between Customer and Bank, Bank is not liable for and Customer releases and waives all claims against Bank relating to any loss, damages or costs incurred by Customer, or any other person or entity, whether or not Customer's agent or employee, by reason of anything done or not done by Bank hereunder, including but not limited to, improper calculation or processing, transfer or investment of funds or failure to transfer or invest; dishonor or failure to dishonor; return or failure to return; payment, stop payment, or failure to pay or stop payment; processing of electronic transfer entries; or loss or delay of electronic transfers to or from Bank, unless resulting solely from Bank's bad faith or gross negligence. Bank shall NOT be liable under any circumstance for any consequential, special, punitive, incidental or similar damages in connection with this Agreement. Bank shall incur no liability for delays, errors, failures, or damages caused by circumstances beyond Bank's control including without limitation, conflicts with federal or state law or regulations, or the occurrence of any of the Force Majeure events described in Section 1.13 hereof. If Bank commits any error whatsoever in performing any Service or taking any action, Customer's sole remedy against Bank is for Bank to refund its fee relating to the specific action, item or Service to which the error relates, which refund shall in no event exceed Bank's fee for such Service for the month in which the error occurs.
3. CUSTOMER WILL INDEMNIFY AND HOLD BANK AND ITS PARENT COMPANY, AFFILIATES AND SUBSIDIARIES AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTROLLING PERSONS, STOCKHOLDERS, AGENTS, REPRESENTATIVES, THIRD-PARTY SERVICE PROVIDERS, AND SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “BANK INDEMNIFIED PARTIES”) HARMLESS FROM ANY CLAIM, LOSS, PENALTY, ASSESSMENT, COST OR DAMAGE, WHETHER IN CONTRACT OR IN TORT, INCLUDING ATTORNEYS' FEES, ARISING OUT OF ANY ERRORS, NEGLIGENCE, ACTION, NON-ACTION, OR INVOLVEMENT BY CUSTOMER OR BANK UNDER THIS AGREEMENT, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, CONTRACTORS AND ATTORNEYS UNDER THIS AGREEMENT, THE EXHIBITS OR THE ADDENDA OR IN CONNECTION WITH THE TREASURY MANAGEMENT SERVICES TO BE PROVIDED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THOSE ASSERTED BY THIRD PARTIES FOR REIMBURSEMENT OR DAMAGES AND THOSE WHICH ARISE OUT OF OR UNDER THE ELECTRONIC FUNDS TRANSFER ACT, REGULATION E OF THE FEDERAL RESERVE BOARD, OR ANY APPLICABLE STATE ELECTRONIC FUNDS TRANSFER LAW, RULE OR REGULATIONS OR GUIDELINES. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS AGREEMENT SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS' FEES) ARISING OUT OF OR RESULTING FROM THE SOLE CONTRIBUTORY OR ORDINARY NEGLIGENCE OF SUCH PERSON; PROVIDED, HOWEVER, THE FOREGOING INDEMNITIES DO NOT EXTEND TO LOSSES, LIABILITIES, CLAIMS, OR DAMAGES CAUSED BY BANK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE AMOUNT OF ANY CLAIM CUSTOMER HAS AGAINST ANY OF THE BANK INDEMNIFIED PARTIES SHALL BE SUBJECT TO REDUCTION ON THE BASIS OF THE FAILURE TO USE REASONABLE CARE ON THE PART OF CUSTOMER OR THE PART OF ANY OF CUSTOMER’S AGENTS OR EMPLOYEES WHO CONTRIBUTED TO THE LOSS WHICH IS THE BASIS OF CUSTOMER’S CLAIM.
WITHOUT LIMITING THE ABOVE, CUSTOMER FURTHER AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT CAUSED SOLELY BY BANK’S INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, CUSTOMER RELEASES THE BANK INDEMNIFIED PARTIES FROM AND HOLDS THEM HARMLESS AGAINST, AND SHALL INDEMNITY AND DEFEND THEM FROM ANY AND ALL LIABILITIES, DEMANDS, CLAIMS, ACTIONS OR CAUSES OF ACTION, ASSESSMENTS, LOSSES, DAMAGES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) AND ALL FINES, PENALTIES AND INTEREST THEREON AS A RESULT OF OR ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH ANY OF THE FOLLOWING: (1) BANK’S ACTS OR OMISSIONS IN CONNECTION WITH PROVIDING THE SERVICES, IF SUCH ACTS OR OMISSIONS ARE IN ACCORDANCE WITH, OR IN FURTHERANCE OF, CUSTOMER’S INSTRUCTIONS, THE TERMS OF THIS AGREEMENT OR ANY OTHER SEPARATE AGREEMENT; (2) ANY BREACH OF CUSTOMER’S REPRESENTATIONS OR WARRANTIES, OR OTHER ACTS OR OMISSIONS OF CUSTOMER, INCLUDING, WITHOUT LIMITATION, CUSTOMER’S VIOLATION OF APPLICABLE LAWS OR REGULATIONS; (3) ANY ACTS OR OMISSIONS OF THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, OTHER FINANCIAL INSTITUTIONS, ANY FEDERAL RESERVE BANK, AUTOMATED CLEARINGHOUSES AND ANY OTHER THIRD PARTY WITH WHICH BANK MAY CONTRACT IN CONNECTION WITH THE SERVICES TO BE PROVIDED) IF SUCH ACTS OR OMISSIONS ARE IN ACCORDANCE WITH CUSTOMER’S INSTRUCTIONS, THE TERMS OF THIS AGREEMENT OR THE TERMS OF ANY OTHER SEPARATE AGREEMENT; AND (4) ANY ACT OR OMISSION BY CUSTOMER (OR ANY OF CUSTOMER’S DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, AFFILIATES, CONTROLLING PERSONS, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) IN CONNECTION WITH, OR ANY INTENTIONAL OR UNINTENTIONAL FAILURE BY CUSTOMER (OR ANY OF CUSTOMER’S DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, CONTROLLING PERSONS, AGENTS AND REPRESENTATIVES, OR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS) TO COMPLY WITH, UTILIZE OR FOLLOW ANY INFORMATION SECURITY PROCEDURES OR PROTECTIONS, INCLUDING, WITHOUT LIMITATION, ANY ACT, OMISSION OR FAILURE RELATED TO ACCESS NUMBER(S), PASSWORD(S), LOG-IN ID(S), SECURITY TOKENS, SECURITY TOKEN SERIAL NUMBERS, PERSONAL IDENTIFICATION NUMBER(S), PASSCODE(S) AND ACCOUNT NUMBER(S) ASSIGNED TO CUSTOMER.
WITHOUT LIMITING THE ABOVE, CUSTOMER AGREES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THAT UNDER NO CIRCUMSTANCES WILL BANK BE RESPONSIBLE FOR ANY DELAY OR FAILURE TO ACT IN CONNECTION WITH THIS AGREEMENT, OR ANY SEPARATE AGREEMENT (INCLUDING, BUT NOT LIMITED TO, ANY DELAY OR FAILURE TO PROVIDE A SERVICE, IF THE FAILURE OR DELAY IS DUE TO CIRCUMSTANCES BEYOND ITS CONTROL INCLUDING, WITHOUT LIMITATION, ANY OF THE FOLLOWING: STRIKES OR LOCKOUTS; FIRE OR OTHER CASUALTY; RISK OR CIVIL COMMOTION; ACTS OF WAR OR TERRORISM; PANDEMICS AND OTHER WIDESPREAD HEATH ISSUES WHICH DISRUPT GENERALLY THE CONDUCT OF COMMERCE, WINDSTORMS, EARTHQUAKES, FLOODS OR OTHER ACTS OF GOD; DELAY IN TRANSPORTATION; GOVERNMENT REGULATION OR INTERFERENCES; ERROR, MALFUNCTION, INTERRUPTION OR DELAY IN THE INTERNET, COMMUNICATION/ TELECOMMUNICATION/TRANSMISSION EQUIPMENT OR LINES, OR THIRD-PARTY SERVICES; FAILURE OF THIRD-PARTY SOFTWARE OR HARDWARE; OR INABILITY TO OBTAIN RAW MATERIALS, SUPPLIES, OR POWER USED IN EQUIPMENT NEEDED FOR THE PROVISION OF THE SERVICES. IN ADDITION, BANK SHALL BE EXCUSED FROM ANY FAILURE OR DELAY IN EXECUTING A TRANSACTION OR PROVIDING A SERVICE HEREUNDER IF BANK REASONABLY BELIEVES THAT SUCH EXECUTION WOULD RESULT IN THE VIOLATION OF ANY APPLICABLE STATE OR FEDERAL LAW, RULE, REGULATION OR GUIDELINE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER HEREBY RELEASES THE BANK INDEMNIFIED PARTIES FROM AND HOLDS THEM HARMLESS AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES), FINES, PENALTIES AND INTEREST THEREON INCURRED AS A RESULT OF, OR ARISING DIRECTLY OR INDIRECTLY OUT OF, OR IN CONNECTION WITH, ANY OF THE FOREGOING.
CUSTOMER SHALL PROMPTLY EXAMINE ALL COMMUNICATIONS, REPORTS AND STATEMENTS OF ACCOUNTS SUBJECT TO THIS AGREEMENT AND ANY SEPARATE AGREEMENT, WHETHER SENT TO CUSTOMER BY MAIL OR ELECTRONIC TRANSMISSION OR MADE AVAILABLE TO CUSTOMER ON-LINE OR THROUGH OTHER MEANS AND SHALL NOTIFY BANK IMMEDIATELY IN THE EVENT OF AN ERROR OR DISCREPANCY INCLUDING, BUT NOT LIMITED TO, ANY UNAUTHORIZED TRANSACTION. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER AGREES THAT BANK SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH SUCH ERROR OR DISCREPANCY IF CUSTOMER FAILS TO NOTIFY BANK WITHIN THIRTY (30) DAYS FROM THE DATE OF THE COMMUNICATION, REPORT OR STATEMENT OF ACCOUNT IN WHICH THE ERROR OR DISCREPANCY FIRST APPEARED. WITH RESPECT TO ANY OTHER MATTER, CUSTOMER AGREES THAT IT SHALL NOT ASSERT A CLAIM AGAINST BANK ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY SEPARATE AGREEMENT OR ANY SERVICE PROVIDED THEREUNDER MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE FIRST EVENT WHICH GIVES RISE TO SUCH CLAIM.
4. CUSTOMER AGREES THAT WHEN APPLICABLE LAW REQUIRES BANK TO EXERCISE ORDINARY CARE, SUBSTANTIAL COMPLIANCE WITH THE POLICIES AND/OR PROCEDURES ESTABLISHED BY BANK SHALL BE DEEMED TO CONSTITUTE THE EXERCISE OF ORDINARY CARE, AND CUSTOMER AGREES THAT OCCASIONAL, UNINTENTIONAL DEVIATIONS BY BANK FROM ITS POLICIES AND/OR PROCEDURES SHALL NOT BE DEEMED A FAILURE TO EXERCISE ORDINARY CARE AS TO THE SERVICES OR TRANSACTIONS WITH RESPECT TO WHICH ANY SUCH DEVIATIONS OCCUR.
THE LIMITATIONS ON THE LIABILITY OF THE BANK INDEMNIFIED PARTIES AND THE BANK INDEMNIFIED PARTIES’ RIGHT TO INDEMNITY CONTAINED IN THIS SECTION 1.5 SHALL BE IN ADDITION TO ANY OTHER LIMITATION ON THE LIABILITY OF ANY BANK INDEMNIFIED PARTY AND THE RIGHT OF ANY BANK INDEMNIFIED PARTY TO INDEMNITY PROVIDED FOR IN THIS AGREEMENT, ANY SEPARATE AGREEMENT, ANY OTHER AGREEMENT BETWEEN THE PARTIES, OR PROVIDED BY APPLICABLE LAW.
FURTHERMORE, THE LIMITATIONS ON THE LIABILITY OF ANY BANK INDEMNIFIED PARTY AND THE RIGHT OF ANY BANK INDEMNIFIED PARTY TO BE INDEMNIFIED PROVIDED FOR IN ANY PROVISION OF THESE TERMS AND DISCLOSURES SHALL BE CUMULATIVE AND NOT EXCLUSIVE OF ANY OTHER LIMITATION ON THE LIABILITY AND THE RIGHT OF INDEMNITY OF ANY BANK INDEMNIFIED PARTY PROVIDED ELSEWHERE IN THIS AGREEMENT.
5. Actual receipt by Bank of proper notice or delivery of any information (e.g., ACH, wires, stop payment, return, processing, dishonor and similar notices required by this Agreement or the Exhibits) from Customer before the deadline required by Bank in its sole discretion is an express and non-waivable condition precedent to Bank's related obligation to perform such Service or to meet any deadline imposed by law, regulation, or any person. Customer bears the burden of proof of the time and manner of Bank's actual receipt of any notice or transmittal of information. The provisions of this Section 1.5 are assignment of risk provisions forming the basis of the bargain and consideration for this Agreement and shall control all conflicting provisions hereof or in any Exhibit added now or in the future or in any other document or agreement.
Either party to this Agreement may terminate this Agreement with or without cause, upon thirty (30) days written notice, unless otherwise specifically provided herein. However, notwithstanding the above, Bank may terminate this Agreement at any time, without notice to any party, upon the happening of any of the following events or circumstances: (i) Customer's violation or breach of, or default in the performance or observance of any material provision contained herein; (ii) Customer’s failure to implement or comply with certain Security Procedures required by Bank from time to time as a condition to providing the Services covered by this Agreement; (iii) default in the payment of any sum due and payable by Customer to Bank under this Agreement or any other agreement; (iv) misrepresentation by Customer of any material fact in any statement, report or representation given or made to Bank in connection herewith; (v) the seizure, attachment, garnishment or encumbrance by court order or legal process of any portion of Customer's deposit accounts, assets, or properties; (vi) Customer's business failure, insolvency or bankruptcy; (vii) Customer's default under any agreement between Customer and Bank; (viii) Customer fails to provide financial information reasonably requested by Bank (ix) Bank has reason to believe that Customer has engaged in fraudulent or illegal activity; (x) a material adverse change occurs in Customer's business or financial condition; or (xi) if any action be taken, or if there shall be any occurrence, which would or does have the effect of terminating, dissolving or winding up Customer's business. No delay or failure of Bank to exercise any option or right herein given or reserved shall constitute a waiver of such option or right to stop Bank thereafter to exercise the same. Upon termination for any reason, Bank shall have no obligations or duties hereunder whatsoever. All warranties, indemnities, representations and covenants made before termination shall survive and be binding and enforceable after the termination of this Agreement.
This Agreement is made in the State of Texas. Customer agrees that Texas law and applicable federal law shall govern the enforcement and interpretation of this Agreement. Customer submits to jurisdiction in the State of Texas for any action or cause arising out of this Agreement and agrees that venue shall be in Dallas County, Texas.
All notices required and permitted hereunder, including under all Exhibits, shall be in writing, by U.S. Mail until the party changing its address actually delivers written notice of an address change to the other. Notices intended for Customer, shall be sent to the address next to Customer's signature line hereunder, and if to Bank, addressed as follows:
Customer warrants to Bank that it has full and complete authority to enter into this Agreement. The person executing this Agreement on behalf of Customer represents and warrants that (i) he or she is authorized to enter into this Agreement and bind Customer hereto and (ii) each of the statements, covenants, assurances, representations and warranties made by Customer herein are true and correct. Bank may accept oral or written instructions (including written instructions sent via facsimile or other electronic transmission) from any Authorized Person. Bank may require further written confirmation of instructions given orally or by facsimile. Each Authorized Person is authorized to conduct any transaction within the scope of Services covered by this Agreement, including the applicable Exhibits and related to the account or accounts specified in the applicable Exhibits. Bank may rely on any written notice containing signatures of an Authorized Person if Bank believes, in good faith, that the signature is genuine. Unless the applicable Exhibit states otherwise, each Authorized Person may act alone. If Bank receives conflicting instructions from Authorized Persons, Bank may (i) honor one or more of the instructions received, (ii) refuse to honor any of the instruction until Bank receives instructions to which all Authorized Persons agree or (iii) submit to a court all funds which are subject to the conflicting instructions (at which time Bank shall be automatically discharged from any obligations with respect to such funds).
Customer has sole audit responsibility for determining and ensuring the accuracy and validity of information, data, entries and processing services. Customer must promptly report in writing any non-receipt of statements or other regular reports and any error in connection with any Services covered by this Agreement and any discrepancy between Customer's records of its orders and requests (including wire and ACH payment orders) and the notices Customer receives from Bank regarding Bank's execution of Customer's orders and requests. Customer agrees that thirty (30) days from the date Customer receives, or is made available by Bank, any statement or other regular report is a reasonable time for Customer to notify Bank of discrepancies, including unauthorized and erroneous payment orders, unless any other portion of this Agreement, or any other applicable document, agreement or law or regulation provides for a shorter notification time, in which case such shorter time shall apply. Any such notification shall be in writing and shall identify with specificity the discrepancy. Customer agrees to provide Bank with all information it reasonably requests in connection with any discrepancy. This Section 1.11 does not modify Bank's rules and regulations governing deposit accounts, notification requirements regarding checks paid without a properly authorized signature or errors or discrepancies other than those specifically related to a Service covered by this Agreement. In the event Customer fails to notify Bank within the time frame set forth herein, Customer acknowledges and agrees that Bank shall be relieved of any liability in connection therewith. If, upon Customer’s questioning a transaction within the time frame set forth herein, it is determined Bank complied with this Agreement or that Customer did not comply with this Agreement, Bank shall be relieved of all liability in connection therewith.
Certain provisions of this Agreement may require Customer to have specified amounts of collected or available funds in Customer Accounts at Bank at certain times. Bank is not ever obligated to extend credit to Customer unless Bank has specifically agreed to do so in writing and any conditions to that obligation have been satisfied. However, Bank has the option to extend credit to Customer from time to time by permitting overdrafts in its accounts, delaying collection of amounts due or otherwise. If Bank extends credit to Customer, the outstanding principal amount is immediately due and payable and will bear interest from the date the credit is extended until it is repaid at a per annum interest rate determined by Bank, but not exceeding the lesser of eighteen percent (18%) per annum or the maximum nonusurious rate of interest permitted under applicable Texas or federal law (whichever permits the higher rate). If Bank does not elect to extend credit to Customer, Customer must provide immediately available funds sufficient to satisfy its obligations under this Agreement.
Bank will not be deemed to have breached this Agreement if it fails to perform because of a cause beyond the reasonable direct control of Bank, and without fault or negligence of Bank. Examples of causes beyond the reasonable direct control of Bank include, without limitation: any failure or interruption of any electronic communication system between Customer and Bank, equipment or software failure or malfunction, electrical computer, or mechanical failure or malfunction, computer viruses, action or inaction of governmental, civil or military authority, fire, strike, lockout or other labor disputes, flood, hurricane, war, theft, earthquake, natural disaster, pandemic and other widespread health issues which disrupt generally the conduct of commerce, default of common carriers or third party vendors or processors, criminal or fraudulent acts of others, and suspension in payments by another financial institution.
All specifications, tapes, electronic data or media, records, programs, and disks generated and/or used by Bank under this Agreement are Bank's sole property unless otherwise provided herein. Bank may, in its sole discretion, make available such information upon Customer's request. Any expenses incurred by Bank in making any such information available to Customer shall be paid by Customer. All data, reports, items or other materials which Customer is required to furnish or perform, including computer tapes or data, will conform to Bank's computer and other specifications unless waived in writing by Bank. Bank is authorized, but not required, to record electronically telephone and other conversations or communications between Bank and Customer's agents or employees.
Customer acknowledges that it will have access to certain confidential information regarding Bank's execution of the Services contemplated by this Agreement. Customer shall not disclose any such confidential information of Bank and shall use such confidential information only in connection with the transactions contemplated by this Agreement and any Exhibits.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors, and permitted assigns. This Agreement is not for the benefit of any third party, and no third party shall have any right against Bank or Customer hereunder.
The terms, provisions, representations and warranties contained in this Agreement which by their sense and context are intended to survive the performance hereunder shall so survive the completion of performance and termination of this Agreement.
Bank and Customer each agree to cooperate with the other party in performing loss recovery efforts in the event either party may be liable to the other for damages.
In the event of any disagreement hereunder, or if conflicting demands or notices are made upon Bank relating to this Agreement or any item or amount received by Bank hereunder, Bank may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder with regard to the subject matter of the dispute, so long as such dispute continues; and in any such event, Bank shall not be or become liable to any person for its failure or refusal to act, and Bank shall be entitled to continue so to refrain from acting until (i) the rights of all parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or (ii) all differences shall have been adjusted and all doubt resolved by agreement among all of the interested persons. The rights of Bank under this Section 1.19 are cumulative of all other rights which it may have by law or otherwise.
If one or more of the provisions of this Agreement (including the instructions) should be or declared to be illegal or unenforceable in any respect under present or future laws or regulations effective during the term of this Agreement, the legality, validity and enforceability of the remaining provisions of this entire Agreement shall not be affected or impaired thereby; PROVIDED HOWEVER, that if this entire Agreement shall be or be declared to be illegal, invalid or unenforceable or should any regulatory agency direct Bank to discontinue providing the Services hereunder, the parties agree that payments or credits due up to that time shall be remitted or made, and this Agreement shall thereafter be immediately terminated without liability to either party.
The accounts with Bank affected by this Agreement shall continue to be governed by the deposit agreement issued by Bank applicable to such accounts, as it may be amended from time to time, except to the extent such agreement may be inconsistent with this Agreement (in which case this Agreement shall control unless otherwise provided herein).
Customer may transmit, and Bank will accept communication via email of notices, files, reports and other communication contemplated under this Agreement. Customer acknowledges the inherent risk of email communication and understands that email addresses can be simulated and manipulated by third parties. If Customer uses email in connection with the provision of Services under this Agreement, Customer accepts all risk of loss of any kind or character which may result, and releases Bank from any liability related in any way to Customer's use of email. Bank will not ask Customer to verify User ID’s, PINs, password or any other personal identifiers conveyed via email.
1.23 THIRD PARTY AGREEMENTS.
Customer acknowledges that Bank shall engage one or more third party service providers in order to provide the Services provided for in this Agreement, and to exchange information with such providers through internet linkages and other media. Although Bank and such third-party providers undertake to provide commercially reasonable efforts to maintain the security of information relating to Customer or Customer's account, Customer acknowledges the inherent security risks posed by any electronic internet communication. Customer further understands that Bank provides the Services described herein pursuant to the terms of its contracts with such third-party service providers and all limitations on liability in such third-party service provider contracts shall be binding on Customer. Bank disclaims any and all liability for the acts or omissions of such third-party service providers.
Customer may not assign its interest or rights under this Agreement without the prior written consent of Bank, and any purported assignment in violation of this section shall be void.
Customer is obligated to use "ordinary care" to prevent fraudulent, unauthorized or criminal activity affecting Customer’s Accounts. A failure to use positive pay, tokens, dual controls and other security procedures, when available, may be seen as a failure to implement reasonable commercial standards to protect Customer from fraud risk. Customer acknowledges that Bank is not obligated to examine each check which is drawn on or deposited to Customer Accounts.
In addition to the terms otherwise defined in this Agreement, the following definitions shall apply to this Agreement:
1. "Advice" shall mean notice of all Funds Transfers which affect Customer Accounts provided by Bank to Customer on a daily basis.
2. "Authorized Persons" shall have the meaning set forth in Section 1.4.
3. "Banking Day" shall mean the part of a day on which Bank is open to the public for carrying on substantially all of Bank's banking functions, except Saturday or Sunday or Bank holidays.
4. "Beneficiary" means the person or entity to be paid by the Beneficiary's Bank.
5. "Beneficiary's Bank" means the bank identified in a Payment Order in which an account of the Beneficiary is to be credited pursuant to the Payment Order which otherwise is to make payment to the Beneficiary if the order does not provide for payment to an account.
6. “Computer” or “computer” means any type of electronic device used by Customer or its agents or employees that processes, stores or manipulates information, including but not limited to servers, computer workstations, notebooks, laptops, smart phones, tablets, cameras, smart televisions, or any other device that is used to connect to bank systems or connected to Customer’s network.
7. "Customer Accounts" shall have the meaning set forth in Section 1.3.
8. "Damages" means any expense, claim, loss, damage, attorneys' fees or cost arising out of or relating to Bank's performance, or failure to perform, under this Agreement.
9. "Exhibit" means any exhibit attached hereto, each of which are made a part hereof for all purposes, the same as if set forth herein verbatim. In the event there is a change by Customer to any Exhibit, such change (unless stated otherwise herein) shall be in writing, signed by Customer and shall not be effective until such time as it is received and accepted by Bank and Bank has had a reasonable opportunity to act on it.
10. "Funds Transfer" or "Transfer" means the series of transactions, beginning with a Payment Order, made for the purpose of making payment electronically to the Beneficiary of the order. A Funds Transfer is completed by acceptance by the Beneficiary's Bank of a Payment Order for the benefit of the Beneficiary of the Payment Order.
11. "Payment Order" means an instruction from Customer to Bank, transmitted orally, electronically, or in writing, to initiate a Funds Transfer of a fixed or determinable sum of money to a Beneficiary. If the instruction is to make repetitive transfers to the same Beneficiary, the instruction is a separate Payment Order with respect to each payment.
12. "PIN" means a unique code generated by the token given to Customer by the Bank to Customer and/or an Authorized Person for authentication of Customer's Payment Orders as further defined herein.
13. "Random Transfer" means a Payment Order for which repetitive instructions have not been established.
14. "Repetitive Transfer" is a predefined Payment Order (occurring periodically with the instructions remaining constant except for the date and possibly the transfer amount) from a designated Customer Account at Bank to Beneficiary. Upon written request from an Authorized Person, Bank may establish such Transfer on a semi-repetitive file assigning a unique code number to each.
15. "Service" means a service offered by Bank and initiated by Customer under this Agreement or any Exhibit thereto or otherwise in connection with Customer Accounts.
Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate.
a. Security Procedures. By accessing Bank services, Customer acknowledges that it has reviewed the security measures and protocols established by the Bank. Customer agrees that the security measures employed by the Bank are commercially reasonable. Customer agrees that Bank is not responsible for any losses due to the Customer’s lack of security protocols with regard to its own computer systems, networks, and authentication mechanisms (i.e., passwords, security tokens, etc.). Customer understands the importance of these security measures and agrees that it is responsible for each of the following areas, which are also covered in Exhibit 5. b. Access Controls. Security of Customer passwords and access tokens is of the upmost importance. Specific security measures should be used to ensure the security of these passwords. Customer agrees that it will (i) use passwords in a secure environment; (ii) allow only Authorized Persons to have access to Customer passwords; (iii) change Customer passwords on a regular basis and (iv) immediately notify Bank if it believes that Customer passwords granting access to Bank services have been compromised. If Customer authentication credentials do fall into the wrong hands or are otherwise compromised, Customer agrees it is responsible for losses incurred. Additionally, Customer agrees to cooperate with Bank on any investigation and prosecution of any individuals who gain access to Customer Accounts through the unauthorized disclosure or theft of Customer authentication credentials. c. System and Network Security. Customer understands that there is a constant risk posed to its computer systems and networks by individuals attempting to gain unauthorized access. On a daily basis, computer systems run the risk of compromise through unauthorized access by hackers, malware, and other threats that not only put the Customer’s own data and employees at risk but could also potentially compromise Customer financial information and accounts. Financial losses resulting from such risk could cause the failure of Customer’s business. Customer explicitly acknowledges that Bank is not responsible for the safety and security of Customer’s systems and networks. Customer understands that its computer systems are vulnerable to various types of infiltration. Customer will take responsible measures to protect its data by ensuring that proper security network devices are deployed, configured properly, and kept up to date with tools such as firewalls, proxies, intrusion detection and prevention systems, up-to-date anti-virus protection, operating system patches, and patches for third-party software packages like Java, Adobe Flash, Internet Explorer, Google Chrome, and Microsoft Office. Additionally, security audits should be performed by Customer to ensure that the security measures it has in place are adequate and effective. d. Security Awareness. Maintaining a secure network environment is a responsibility shared by Customer, its agents, and employees. Thus, Customer should educate its agents and employees on a regular basis on how to maintain a secure networked environment, including, but not limited, (i) guidance regarding the threats posed by internet activity, and (ii) what to do if they think their computer is compromised or they receive suspicious e-mail communications. e. Physical Security. Customer should ensure that security measures are in place to protect its computer systems and sensitive information from tampering and theft. Only authorized personnel should have access to sensitive areas in which network or server devices are kept. If a security token or any physical security device used to access the Customer’s accounts is lost or stolen, the Customer should immediately report it to Bank. f. Disclaimer. Bank has no obligation to prevent, and has no liability for, loss resulting from infiltration of Customer’s computer systems or any fraudulent or criminal activity by third parties. The FDIC insures deposits from bank insolvency, not from losses resulting from any other cause. Bank, directly or through its third-party service providers, may implement various security measures or devices. Such security measures or devices are primarily for the benefit of Bank and should not be relied upon by Customer to prevent theft or other losses. Any security measure is subject to malfunction, tampering or human error and may be circumvented by the criminal conduct of third parties.
Certain Security Procedures designed to verify the origination (but not errors in transmission or content) of instructions, orders and other communications sent by Bank and Customer might be used in connection with the Services. Customer agrees that any such mutually agreed-upon Security Procedures shall be deemed commercially reasonable. Bank shall not be obligated to act on a communication not transmitted in accordance with the Security Procedures and may refuse to act on any communication where Bank reasonably doubts its authorization, contents, origination or compliance with the Security Procedures. Bank shall have no duty to discover, and shall not be liable for, errors or omissions by Customer. If Bank complies with the Security Procedures in respect of a communication, Bank shall be entitled to act on that communication and shall not be obligated to verify the content of such communication, establish the identity of the person giving it, or await any confirmation thereof, and Bank shall not be liable for acting on, and Customer shall be bound by, any communication sent in the name of Customer, whether or not authorized. Bank reserves the right to issue new Security Procedures and/or to cancel or change any Security Procedures from time to time. Whenever the Security Procedures include the assigning to Customer of any confidential password, logon identification, identification code, personal or location identification number, repetitive code, or similar security device, Customer shall not disclose such security device except to employees or agents authorized to act for Customer in connection with the RDC Services. Customer shall implement such safeguards as are reasonably necessary to ensure the confidentiality and integrity of such security devices and shall immediately notify Bank if the confidentiality or integrity of any such security device is breached or threatened. Bank expressly reserves the right to condition the provision of some or all of the Services to be provided under this Agreement upon Customer’s use of Security Procedures required by Bank. Customer shall be solely responsible for the safekeeping of such security devices and assumes all risk of accidental disclosure or inadvertent use of such security devices by any party whatsoever, whether such disclosure or use is on account of Customer's negligence or deliberate acts or otherwise. IF CUSTOMER, FOR ANY REASON WHATSOEVER, ELECTS NOT TO EMPLOY, IMPLEMENT OR UTILIZE ONE OR MORE SECURITY PROCEDURES, BANK SHALL BE FULLY EXCULPATED FROM ANY LIABILITY IN CONNECTION WITH THE PROVISIONS OF THE SERVICES, AND CUSTOMER SHALL INDEMNIFY AND HOLD BANK HARMLESS FROM AND AGAINST ANY AND ALL LOSS SUFFERED OR INCURRED BY CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES, INCLUDING WITHOUT LIMITATION INDEMNIFICATION FOR ANY LEGAL FEES AND COSTS INCURRED BY BANK. Bank shall not be liable for any loss or damage resulting from fraudulent, unauthorized or otherwise improper use of any security devices.
Authorized individuals should not share assigned Customer usernames and passwords and security tokens with others.
Use authentication mechanisms in a secure environment.
Do not use authorization mechanisms on public computers, public networks, or computers that are not up to date with the latest security patches and virus definition files.
Use complex passwords of at least eight characters. Never use words that could be easily guessed. For example: I was born In August 1963 would translate to a password of IWBIO863.
Never write the password down and leave it in the open, on a monitor, under keyboard, store unencrypted, or in a desk drawer.
SYSTEM AND NETWORK SECURITY
Computers will be kept up to date with the latest security patches, especially critical security patches.
Anti-virus software will be used on all systems and the definitions will be kept current.
Users will be provided a username and password that is complex and changed on a regular basis.
Local administrator rights on individual computers should only be provided to users that need it.
A firewall and proxy should be used to protect the network from unauthorized traffic and intrusions.
Network monitoring devices like intrusion prevention and detection systems should be used.
Ensure that remote access granted to customer networks is secured and maintains systems and network security requirements.
E-mail systems should be secured and scan for spam and other phishing e-mails.
Up-to-date internet browsers and patches should be used, and malicious sites should be blocked.
Conduct audits to ensure that security measures are implemented properly and effective.
Execute all online banking activities from a stand-alone, hardened, locked-down pc from which e-mail and web browsing are not possible.
Educate employees about the dangers of the internet.
Never provide security credentials to anyone even if you think it is a request from the Bank.
Be wary of e-mail attachments and links from unknown accounts or attached to or contained in unexpected e-mails or e-mails that appear suspicious (even from known senders or accounts).
Report any data breaches immediately to the Treasury Management Services Department of the Bank.
Reconcile all banking transactions on a daily basis.
Respond to the Bank’s alerts and implement new security procedures as they are made available.
Put security measures in place to protect your computer systems and sensitive information from tampering and theft.
Only authorized personnel should have access to sensitive information, computers and computer systems, and security devices.
Initiate ACH and wire transfers under dual control.
Set up balance alerts.
Establish limits on individual ACH or wire transfers.
Establish list of approved ACH or wire transfer recipients.
Employ Positive Pay Service.
Modify and rotate a password that is unique to each bank system used.
This Agreement and the Exhibits hereto constitute the entire agreement between the parties, supersede all prior agreements relating to the matters provided herein. Bank may amend this Agreement from time to time, and such amendment shall automatically become effective thirty (30) days following notice thereof. For this purpose, notification may be made electronically by posting on Bank’s website or Customer’s on-line banking display, and Customer acknowledges it has access to such electronic reports. Any such waivers shall be effective only for the specific purposes, circumstances and duration provided therein. Section headings are included for convenience of reference only and shall not constitute a part of this Agreement. There are no third-party beneficiaries of this Agreement. Notwithstanding any other terms of this Agreement, this Agreement shall be deemed to be amended automatically, without notice to either party, to comply with any statute, regulation or ruling (or any amendment thereof) of any government agency to whose jurisdiction Bank is subject.
Bank may modify or amend this Agreement or any separate Service agreement from time to time. Bank shall notify Customer in writing or otherwise disseminate and make available to Customer notice of any modification or amendment made to this Agreement or any separate Service agreement no later than thirty (30) days prior to the Effective Date of such modification or amendment. Notwithstanding the foregoing, Bank may modify or amend any terms, conditions or operating procedures under this Agreement or any separate Service agreement without prior notice to Customer, including any Service incorporated herein, if Bank determines in its sole discretion that an immediate change is necessary to maintain or restore the security of a system (including the Funds Transfer system) or an account or is necessary to comply with any applicable law or regulation. However, if Bank makes such change permanent, Bank will notify Customer as soon as reasonably possible thereafter either by way of tangible or electronic means unless Bank determines in its sole discretion that (a) disclosure would jeopardize the security of a system or an account, or (b) such change is not adverse to Customer in which case ([a] or [b]) Bank shall not be required to provide any notice to Customer at all. Notwithstanding anything herein to the contrary, except as required by law, Bank reserves the right to increase or decrease any fee(s) for Service at any time without notice to Customer. Customer’s continued use or receipt of Service or Services shall evidence Customer’s acceptance of such modified or amended fees. Notice of modification or amendment to this Agreement or any separate Service agreement may be mailed or delivered to Customer as part of the Customer’s statement, delivered to Customer via email or mailing address as reflected on Bank’s system of record, may be posted within Bank’s online system or internet website, or provided by any other method permitted by applicable law, or any combination of the foregoing notification methods.
Customer shall provide to Bank a correctly completed U.S. Internal Revenue Service (“IRS”) Form W-9, W-8BEN, W-8IMY, W-8EXP, or W-8ECI, as applicable, upon entering into this Agreement and shall provide an updated IRS Form (i) promptly upon reasonable demand by Bank, and (ii) promptly upon learning that any such form previously provided has become obsolete or incorrect. Customer acknowledges that Bank may reduce payments under any transaction by amounts required to be deducted or withheld in respect of taxes and that such amounts shall be treated as paid to the Customer for purposes of the transaction. Customer shall indemnify Bank, as provided herein this Agreement, for any loss suffered by Bank in respect of any failure to withhold or deduct such amounts (including taxes, interest, and penalties). Customer shall recover directly from the IRS and not from Bank any amount withheld by Bank and paid to the IRS in respect of a transaction. Customer shall indemnify Bank, in accordance with this Agreement, for any and all stamp, documentary, transfer or similar taxes, or any other excise or property taxes or similar levies that arise on account of any payment being made under a transaction.
Digital (“electronic”) signatures, often referred to as an “e-signature”, enable paperless contracts and help speed up business transactions. The 2001 E-Sign Act was meant to ease the adoption of electronic signatures. The mechanics of this Agreement's electronic signature include Customer signing this Agreement below by typing in Customer’s name, with the underlying software recording Customer’s IP address, Customer’s browser identification, the timestamp, and a securities hash within an SSL encrypted environment. This electronically signed Agreement will be available to both Customer and the Bank. Customer and Bank each hereby consent and agree that electronically signing this Agreement constitutes your signature, acceptance and agreement as if actually signed by you in writing. Customer agrees to the ESIGN consent to use electronic records and signatures (the “ESIGN Consent”), in the form of Exhibit 8. Further, Customer agrees that no certification authority or other third-party verification is necessary to validate any electronic signature; and that the lack of such certification or third-party verification will not in any way affect the enforceability of Customer’s signature or resulting contract between Customer and Bank. Customer understands and agrees that its e-signature executed in conjunction with the electronic submission of this Agreement shall be legally binding and such transaction shall be considered authorized by Customer. Customer agrees its electronic signature is the legal equivalent of its manual signature on this Agreement and Customer consents to be legally bound by this Agreement's terms and conditions. Furthermore, unless otherwise provided in the ESIGN Consent, Customer agrees that all current and future notices, confirmations and other communications regarding this Agreement, may be made by email, sent to the email address of record as provided herein or as otherwise from time to time changed or updated and disclosed to the other party, without necessity of confirmation of receipt, delivery or reading, and such form of electronic communication is sufficient for all matters regarding the relationship between Customer and Bank. If any such electronically sent communication fails to be received for any reason, including, but not limited to, such communication being diverted to the recipient’s spam filters by the recipient’s email service provider, or due to a recipient's change of address, or due to technology issues by the recipient’s service provider, Customer and Bank agree that the burden of such failure to receive is on the recipient and not the sender, and that the sender is under no obligation to resend communications via any other means, including, but not limited to, postal service or overnight courier, and that such communications shall for all purposes, including, legal and regulatory, be deemed to have been delivered and received. Unless otherwise provided in the ESIGN Consent, no physical, paper documents will be sent to Customer, and if Customer desires physical documents, then Customer agrees to be satisfied by directly and personally printing, at Customer’s own expense, the electronically sent communication(s) and maintaining such physical records in any manner or form that Customer desires.
CUSTOMER’S CONSENT IS HEREBY GIVEN: BY SIGNING THIS AGREEMENT, CUSTOMER EXPLICITLY AGREES TO RECEIVE DOCUMENTS ELECTRONICALLY INCLUDING A COPY OF THIS SIGNED AGREEMENT AS WELL AS ONGOING DISCLOSURES, COMMUNICATIONS, AND NOTICES.
The source code, listings, and any accompanying support materials and documentation supplied under this Agreement, as well as the ideas and concepts incorporated in such items, are confidential to and trade secrets of Bank and Licensor ("Confidential Information"). Customer agrees to provide Confidential Information only to those employees, agents, and independent contractors who are required to know of its existence. Customer shall inform all such individuals of the confidential nature of the Confidential Information, and such persons shall be bound by the terms and conditions of this Agreement. Customer further agrees to take all other actions necessary or appropriate to preserve the confidentiality of the Confidential Information and to protect and secure the Internet Banking Product in a manner consistent with Bank's and Licensor's rights. Except as specifically provided in this Agreement, Customer agrees not to publish, disclose, display or otherwise make available any Confidential Information without the advance written consent of Bank and Licensor. The provisions of this Section 2.3 shall survive the termination of this Agreement.
Subject to all terms of this Agreement, in the event the Internet Banking Product or any portion of the Internet Banking Product is held to constitute an infringement of any third party's rights such that use of such Internet Banking Product by Customer is prohibited, Bank and Licensor shall, at their election, (i) promptly procure the right for Customer to utilize the Internet Banking Product, or (ii) notify Customer of their intent to discontinue use of the Internet Banking Product and/or provide an alternative Internet Banking Product providing substantially equivalent services.
Customer agrees to purchase, lease or license hardware, software, support services, communications equipment and links as specified by Bank. Customer shall be solely responsible for ensuring equipment compatibility with Bank's Internet Banking Product. All hardware and telecommunications lines will be purchased and maintained by Customer. Customer further agrees to the payment terms for the purchase of these products and services as detailed in Exhibit 7.
Customer agrees to transmit transactions pursuant to this Agreement and any applicable Exhibits ("Transactions") to Bank in accordance with such instructions as Bank shall give from time to time in writing, and in accordance with the specifications for the Internet Banking Product, the Internet Banking Program requirements, and this Agreement.
Customer agrees that the Internet Banking Product is proprietary with respect to Bank and Licensor, and that Customer shall not under any circumstance transmit a transaction via the Internet Banking Product to any financial institution or other entity other than Bank for processing. Customer agrees that any breach of this covenant shall constitute an immediate and material breach of this Agreement. CUSTOMER FURTHER AGREES TO INDEMNIFY AND HOLD HARMLESS BANK FROM ANY AND ALL LIABILITIES, CLAIMS, AND DAMAGES RESULTING FROM CUSTOMER'S BREACH OF THIS SECTION 2.7 TO THE FULLEST EXTENT PROVIDED FOR INDEMNITIES UNDER SECTION 1.5.
Customer warrants, represents and covenants that each transaction submitted to Bank (i) will be accurate, true and correct in all respects, (ii) will have been fully authorized and approved by Customer holding the account to which the Transaction pertains and such authorization and approval will be effective until such Transaction is posted to the account, (iii) will be valid and timely under such authorizations, (iv) will fully satisfy and comply with all applicable requirements of Bank and other guidelines, (v) will fully comply with the EFT Act, Regulation E and all other federal and state laws and regulations applicable thereto, and (vi) fully comply with the specifications of the Internet Banking Product and the Internet Banking Program requirements.
Customer agrees that Bank has no obligation or duty to detect errors with respect to any Transaction. However, if Bank detects an error with respect to a Transaction, Bank will attempt to give Customer notice of such error, and Customer agrees to furnish to Bank corrections promptly via the Internet Banking Product or as Bank shall direct. In the event Customer discovers, or has reason to believe, that an error has been made with respect to any Transaction, Customer agrees to notify Bank immediately and, in all events, not later than thirty (30) days following the date of the monthly statement which identifies the Transaction and Customer agrees to take such corrective actions as Bank shall require. Because the passage of time substantially reduces the likelihood of correcting or remedying any error, Customer agrees that such thirty (30) day notice period is commercially reasonable.
If Customer requests Bank to transmit a Transaction in an amount other than the authorized or proper amount, or requests Bank to withdraw funds from an unauthorized or improper account, Customer (a) will be responsible for all resulting losses, damages and liabilities, (b) waives and releases Bank from any claim, liability, or responsibility relating to the transactions; and (c) AGREES TO DEFEND, INDEMNIFY AND HOLD BANK HARMLESS FROM ALL CLAIMS, DEMANDS, LOSSES, LIABILITIES, COSTS AND EXPENSES, INCLUDING ATTORNEYS' FEES AND COSTS, RESULTING OR ARISING FROM THE TRANSACTION TO THE FULLEST EXTENT PROVIDED FOR INDEMNITIES UNDER SECTION 1.5.
Customer authorizes Bank to receive, execute and charge Customer Accounts without limit as to amount (unless an amount limit is specifically set forth in Exhibit 1) for all telephonic, electronic, computer communication device, oral or written funds transfer requests, when such requests are received in accordance with the procedures specified herein from an Authorized Person. Prior to utilizing the funds transfer services described in this Section 4, Customer shall furnish to Bank a fully completed and executed copy of Exhibit 1.
Customer shall comply with the security procedure requirements described below and in Exhibits 1, 2, & 3 and Section 1.29 with respect to Entries transmitted by Customer to Bank, or any subsequent modifications or enhancements required by Bank from time to time. Without implying Bank’s consent to any variance by Customer of these security procedures, Customer fully accepts and assumes the risk of non-compliance, and shall indemnify and hold Bank harmless from and against any and all loss or liability arising out of Customer’s non-compliance. Bank reserves the right to immediately cease providing ACH services to any non-compliant customer, or to require Customer to adopt additional safeguards such as ACH Positive Pay as a condition to the continued provision of ACH services to such Customer.
TREASURY MANAGEMENT MASTER AGREEMENT
Remote Deposit Capture
Liberty Capital Bank, located in Addison, Texas, services clients with
personal and commercial banking needs across the Dallas/Fort Worth metroplex.
We offer a fresh approach to banking, with long-term results in mind.
5055 Keller Springs Rd #120 | Liberty Plaza I | Addison, TX 75001 | (469) 375-6600
Real Estate Banking
Your privacy is very important to us. We would like to advise you that Internet email is not secure. Please do not submit any information that you consider confidential. We recommend you do not include your social security or account number or other specific identifying information.
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