SECTION 1: BUSINESS ONLINE BANKING AGREEMENT
1. Radius Bank Online Banking Agreement
This Agreement governs the use of your Radius Bank (the "Bank") Online Banking Service. Use of the Service is expressly conditioned on your acceptance of this Agreement. By using the Services, you acknowledge that you have read and agree to abide by the terms and conditions of this Agreement. If you decide not to agree to the terms and conditions discussed herein, you may not use the Service. Online Banking allows you to access the following online services: banking, Bill Payment and eBills, eStatements, external funds transfers and other banking services offered through Online Banking. You agree you must have a Radius Bank account open and in good standing to use Online Banking. You agree each person or entity that enrolls for Online Banking and any person authorized to use Online Banking agrees to the terms and conditions of this Agreement. You agree each person that enrolls for Online Banking or that is authorized to use Online Banking will be assigned a unique User ID and password. Please read this Agreement carefully, and retain a copy for your records. You may print this Agreement or download the Agreement to your computer. You may also request a copy of this Agreement and other agreements governing your accounts and Online Banking Service with Radius Bank by calling us toll free at 1-800-242-0272 or visiting our website www.radiusbank.com. The terms, conditions, and disclosures for each of your Radius Bank accounts and loans continue to apply, notwithstanding anything to the contrary in this Agreement. The headings used throughout this Agreement are for convenience only and shall not govern the interpretation of the provisions. In the event of a dispute regarding Online Banking, you agree that it will be resolved by looking to the terms and conditions contained herein and, except for business customers, in the "Important Information About Deposit Accounts Agreement" provided to you. By clicking on the "ACCEPT" button you elect to enroll in this service and you acknowledge you have read, understand and agree to the terms in this agreement.
2. Governing Law Section
This Agreement is governed by the laws of the Commonwealth of Massachusetts and applicable federal law. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable; additionally, all remaining provisions shall remain in full force and effect.
As used in this Agreement, the words "you" and "your" refer to the person(s) or entity(ies) subscribing to or authorized to use Online Banking. The words "we," "us," and "our" refer to Radius Bank. The term "business day" means Monday through Friday, and excludes Saturday, Sunday, and all banking holidays. The word "account" refers to all of your deposit and credit accounts to which you requested and obtained online access at Radius Bank. Our website is defined as www.radiusbank.com and subsequently hyperlinked pages owned and controlled by Radius Bank.
4. Warranty Disclaimer
The software related to Online Banking is provided "as is" without warranty of any kind. The entire risk as to results and performance of the software related to Online Banking is assumed by you. We do not warrant, guarantee, or make any representations regarding the use of, or the results of the use of, the software related to Online Banking in terms of correctness, accuracy, reliability, or otherwise. Neither we nor our suppliers make any representations or warranties of any kind regarding use of the software related to Online Banking, either express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose, unless disclaiming such warranties is prohibited by law.
5. Limitation of Liability
We will not be liable for failure to provide access or for interruptions in access to Online Banking due to a system failure, other unforeseen acts or circumstances or a malfunction of your computer equipment or any system you use, including your browser, Internet Online Banking provider or other software you use. Under no circumstances and under no legal theory, tort, contract, or otherwise, shall we or our suppliers be liable to you or any other person for any indirect, special, incidental, or consequential damages of any character, including, without limitation, damages for loss of goodwill, loss of use, data, profits, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses. We are also not responsible for any electronic virus or viruses that you may encounter. We suggest that you routinely scan your PC using a virus protection product. An undetected virus may corrupt and destroy your program, files, and hardware.
6. Radius Bank's Right to Terminate
Radius Bank reserves the right to terminate this Agreement and your access to Online Banking, in whole or in part, at any time, in our sole discretion without prior notice.
7. Your Right to Terminate
You may cancel your Online Banking at any time by providing us with written notice by postal mail, secure email through Online Banking, or fax, in accordance with the instructions set forth in Section 25 below. If you have designated a joint account as one of the accounts you may access with your Online Banking and you notify us that you wish to terminate your Online Banking, only your Online Banking, your User ID and password will be suspended. Other joint accountholders must notify us to suspend their own Online Banking, User ID and password.
Your access to Online Banking will be suspended within 3 business days of our receipt of your instructions to cancel Online Banking. You will remain responsible for all outstanding fees and charges incurred in connection with Online Banking.
If all accounts enrolled in Online Banking are closed, your access to Online Banking will terminate. You will no longer have access to any electronic requests or records made through Online Banking, including but not limited to messages, account history, statements, or stop payment requests. If requested, we will make our best effort to provide you with copies of any information which would no longer be available to you, but do not guarantee our ability to provide all information.
You may request that we no longer provide you with access to the Bill Payment and eBills feature by providing us notice in the manner required under the section of the Terms and Conditions (as hereinafter defined) entitled "Termination or Discontinuance".
8. Authorization to Obtain Information
You agree that we may, from time to time, obtain and review your credit report from authorized credit bureaus.
9. Amendments to Terms and Conditions
At any time, we may change the terms of this Agreement. We will notify you of changes in the manner required by applicable law. If advance notice of the change is not required, and disclosure of said change does not jeopardize the security of an account or of Online Banking, we will notify you of said change within 30 days of the change becoming effective. To the extent permitted by applicable law, if you have previously agreed to receive notices and disclosures electronically, we will forward such notices to you by e-mail or post such notices on our website and alert you by e-mail of the posting of such notice.
Your use of any or all features of Online Banking after the effective date of the notice indicates your acceptance of the change in terms.
10. Requirements for Use
To use Online Banking, you must have at least one Radius Bank account, access to Internet Online Banking, recommended Internet browser software as described in the section of this agreement named Computer Requirements, and an e-mail address.
11. What to Do In Case of Errors or Questions about Your Electronic Transfers, Including Bill Pay
Refer to the "Important Information About Deposit Accounts Agreement" previously provided to you and also available on our website under "Terms & Conditions" In case of errors or questions about your Electronic Transfers, call us at 800-242-0272, send us a secure email through your Online Banking account or write us at the address listed in your previously disclosed "Important Information About Deposit Accounts Agreement" brochure as soon as you can, if you think your statement, passbook or receipt is wrong or if you need more information about a transfer listed on the statement, passbook or receipt. We must hear from you no later than 60 days after we sent you the FIRST statement on which the problem or error appeared or, if the only transfer possible is a direct deposit to your passbook account, no later than 60 days after the problem or error was FIRST reflected in your passbook or statement. Please include the following information when you contact us:
- Tell us your name and account number (if any).
- Describe the error or the transfer you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information.
- Tell us the dollar amount of the suspected error.
12. Your Liability for Unauthorized Transfers
You should notify us immediately if you believe your password has been lost or stolen or if you believe there have been any unauthorized transactions on any of your accounts. To notify us, call 1-800-242-0272, Monday through Friday, between 8:30 a.m. and 5:00 p.m. Eastern Standard Time, or send us notice by e-mail, fax, or mail as described in Section 25 below. For a discussion of your liability for unauthorized transactions, refer to the "Important Information About Deposit Accounts Agreement" previously provided to you and also available on our website under "Terms & Conditions."
13. Our Liability for Failure to Make a Transfer
Refer to the "Important Information About Deposit Accounts Agreement" previously provided to you.
Upon successful enrollment in Online Banking, you will be provided with a password that will grant you access to Online Banking. You will be asked to change this password the first time that you access Online Banking. You are solely responsible for ensuring the confidentiality of your password. We recommend that your password not be easily associated with any personal information, such as your address, date of birth, or anniversary. Your password should be memorized, and never written down. We also recommend that you change your password regularly.
If you are a business customer, you agree that use of a password is a commercially reasonable method of providing security against unauthorized electronic transactions. It is the responsibility of your business to protect the confidentiality of your password. Whether your business has requested a single password or multiple passwords, it is your business's responsibility to require that these passwords be kept confidential and be used only by authorized persons.
You agree that we are authorized to act on any and all instructions received under your password. You agree never to share your User Name, password, or Passmark security features with any third party. You are responsible for any and all transactions that occur or are initiated using your User Name and password. We are not responsible for unauthorized use of your passwords.
We may require additional security or verification procedures to be completed before initiating or finalizing any transaction requested through Online Banking. We may choose not to honor or accept any request initiated through Online Banking, even when the User Name and password are successfully entered into Online Banking.
Should you enter your password incorrectly on three (3) consecutive attempts, you may be blocked from accessing Online Banking. If this should happen, please follow the screen prompts or call us toll-free at 1-800-242-0272.
15. Hours of Access
You may access your accounts through Online Banking seven (7) days a week, 24 hours a day. However, at certain times, some or all features of Online Banking may not be available due to system maintenance. We will post notice of any extended periods of non-availability on our website.
16. Fees and Charges
By using Online Banking, you agree to pay the associated fees and charges, as set forth in the most current "Schedule of Fees" (for non-business customers) and/or "Business Banking Schedule of Fees" (for business customers) brochure. Applicable fees, as disclosed in the most current "Schedule of Fees" and/or "Business Fee Schedule" brochure will be charged to your payment account. If the payment account has insufficient funds to cover fees, the Bank may deduct the fees from any other account linked to Online Banking. If the fee cannot be paid, we may cancel the Bill Payment and Presentment Online Banking.
Applicable fees include normal account fees and service charges, and may include non-sufficient funds fees or specific fees for transactions initiated through Online Banking. Use of the service may also result in charges from third parties for telephone or internet provider services. Radius Bank is not responsible for providing telephone, internet or other access, and is not responsible for any and all charges incurred in obtaining those services.
17. Accessible Accounts
Online Banking may be used to provide services related to the following types of accounts:
- Checking accounts
- Money Market accounts
- Savings accounts
- Certificates of Deposit
- IRA Certificates of Deposit
- Overdraft Lines of Credit
- Consumer loans
- Mortgage and Home Equity loans
- Commercial loans
Not every service described in this agreement or available in Online Banking is available for all types of accounts, or for every customer. If you own or have access to more than one account, access to Online Banking must be requested in writing for each account individually, generally done at time of account opening. A request to access any eligible account via Online Banking after the account is open must also be received in writing. If any designated account is a joint account, then all account owners must sign the Enrollment Form to subscribe to Online Banking.
18. Permissible Transactions
In most cases, you may use Online Banking to access deposit accounts in which you have an unrestricted right to withdraw funds, and credit accounts from which you have an unrestricted right to borrow money. When you use Online Banking to transfer funds from your credit account, you agree that the Bank may take any action required to obtain cash advances on your behalf without obtaining your signature. Radius Bank reserves the right to, in its sole discretion; deny Radius Bank account transactions.
You may use Online Banking to complete the following:
- Obtain transaction information and account balance histories
- View online statements, certain check images
- Download certain account transactions to your computer
- Transfer money between certain accounts owned by a common entity that are held at Radius Bank and are enrolled in Online Banking in connection with the same User Name
- Send money from your account to an account held at Radius Bank by another person, without common ownership
- Transfer money between accounts held at Radius Bank and owned by you and accounts held at other financial institutions that are owned by you or to which you have an unrestricted right to withdraw funds (retail clients only)
- Make regular payments to your Radius Bank line or loan
- Pay bills to merchants, institutions, or individuals having U.S. addresses other than tax payments or court ordered payments
- Place stop payments on checks before they have been cashed
- Schedule other payments to certain of your accounts
- Contact us via a secure Online Message
In addition to the above, business account owners may:
- Originate ACH credits or debits
- Schedule wire transfers
- Setup sweep Transfers
These features are limited to the extent, subject to the terms noted herein and in any Additional Agreements that apply to you. Not every service will be available to every customer. Service availability and any restrictions that might be applied to that service can be applied to any customer group or individual as we see fit. For certain of your accounts, you may be able to hyperlink from the Online Banking Site to another site relating to such accounts, where you may be able to access features, information, transactions or other services pertaining to those accounts that you cannot access directly on the Online Banking Site (and thus not deemed a part of the Services). We will make our best effort to provide notice of change or restrictions to any service accessing via Online Banking, but we are not required to provide notice except where governed by applicable law.
Radius Bank may, from time to time, introduce new features to Online Banking. We may, but are not required to, notify you of the existence and availability of such new features. By using these features when they become available, you agree to be bound by the terms of the Agreement governing such features.
19. Transaction Limits
Transactions initiated through Online Banking may be limited in number or dollar amount. Radius Bank reserves the right to limit the amount or number of any type of transaction for any customer at any time. We may limit the amount and or the number of transactions for any specific customer group or entity and not others as we see fit. Additional information regarding limitations on the amount of transfers can be found the "Important Information About Deposit Accounts Agreement" (for non-business customers) and the "Business Account Agreement" (for business customers). Any transaction limitation that is disclosed in these documents, in other areas, or is part of the account schedule of fees or conditions may be applied to any and all transactions initiated in Online Banking. We may choose to amend, change, or abolish limits of either kind at any time. We will make our best effort to disclosure such changes ahead of time, but are not bound to do so except where governed by applicable law.
All transactions are subject, in addition to any limitations on dollar amount or amount, to internal review by Radius Bank, including but not limited to factors such as the sending account, receiving account, the amount of the specific transaction, the aggregate amounts of other transactions processed or ordered by the customer, fraud screening, and other factors that Radius Bank deems applicable. If we determine that there are risks associated with the transaction, we may delay or cancel the transaction. We may request additional information regarding the transaction before it is finalized or any funds are released.
For all savings accounts and Money Market accounts you will be permitted, in accordance with Federal Regulations and your deposit agreement, to make no more than six (6) preauthorized transfers from your account to third parties each month. For purposes of this limitation, all transfers made using Online Banking are counted against the permissible number of transfers, as are other transfer methods described in the Combined Disclosures. For this reason, it is our recommendation that you do not use your savings account or Money Market accounts as a primary account for bill payment, transfers, or other payment orders.
You agree to initiate or schedule all transfers or payment services only when there is or will be a sufficient balance in the account for that transfer or payment. The completion of any transfer or payment order is subject to the availability of sufficient funds in the account at the time the transaction is posted. We may cancel or delay any transaction when the funding account does not have sufficient funds at time of posting. We may also choose to complete the transaction and overdrawn the account. In either case, the account can be charged a Non-Sufficient Funds fee as outlined in the Schedule of Fees and your deposit agreement. We are not required to provide notification to you in any form that the transfer or payment order was not honored, and it is your responsibility to make other arrangements to facilitate the processing of the transaction or payment by other means, which may include rescheduling or reinitiating the transaction in Online Banking.
20. Initiation of Transactions
Radius Bank will make reasonable efforts to see that transactions initiated through Online Banking occur as detailed below:
- External transfers initiated by retail customers prior to 1:00 p.m. Eastern Time on a business day are processed on that day. Transactions completed after 1:00 p.m. Eastern Time on a business day or completed on a non-business day will be processed the following business day.
- ACH Originated transactions initiated by business customers prior to 1:00 p.m. Eastern Time on a business day are processed on that day. Transactions completed after 1:00 p.m. on a business day or completed on a non-business day will be processed the following business day.
- Wire Transfer transactions initiated by business customers prior to 3:00 p.m. Eastern Time on a business day are processed on that day. Transactions completed after 4:00 p.m. on a business day or completed on a non-business day will be processed the following business day.
- Bill Payment transactions initiated through the Bill Payment Service, as outlined in Section 24 below, prior to 4:00 p.m. Eastern Time are processed on the business day the transaction is scheduled to be delivered. Radius Bank is not responsible for the cancellation of any payments initiated by you in the Bill Pay Service at any time.
- Internal transfers between Radius Bank accounts initiated by customers prior to 8:00 p.m. Eastern Time on a business day are processed in real-time on that day. Transactions completed after 8:00 p.m. Eastern Time on a business day or completed on a non-business day will be processed the following business day.
If the status of any transfer or transaction in Online Banking is Processed or In Process, the transaction cannot be cancelled via Online Banking or by request to Radius Bank. It is your responsibility to arrange with the recipient or external institution for the re-credit or re-deposit of any funds moved at your request through Online Banking outside of the timeframes noted above.
21. Stop-Payment Requests
You may initiate stop-payment requests within the Online Banking service. These stop-payments will be in effect immediately after submission via that service and a fee, if such fee is applicable, will be assessed to the account within one business day. The stop payment may not be effective if the item on which the stop is requested is already in process or has been paid, regardless of whether the item appears in the transaction list or other detail with online banking.
To be effective, your stop-payment request must provide your account number, the name of the payee, the check number, the amount of the check, and the date of the check.
You may also initiate stop-payment requests by calling us at 1-800-242-0272. Such stop-payments may only be initiated for paper checks you have written on your accounts (not bill pay payments or electronic payments).
If you make a stop-payment request using the telephone option, we will also require you to put your request in written form and to submit this form to us. This written request must be forwarded to us within 14 days of the date of your on-line or telephone request. When we receive your written request the stop payment will be in effect for a period of 6 months. If we do not receive your written request within 14 days, the stop payment will no longer be in effect. You will incur stop-payment charges as disclosed in the most current version of the "Schedule of Fees" (for non-business customers) and/or the "Business Banking Schedule of Fees" (for business customers) brochure.
23. Periodic Statements
All of the payments and transfers made through Online Banking will appear on your monthly account statement(s).
24. Bill Payment and Presentment Feature
Online Bill Payment is provided to you for your convenience through the Bill Pay feature. You must enroll in the service through Online Banking prior to using it. Each account owner, regardless of the type of ownership held on an account (joint, sole, etc) must enroll separately to use the service. The Bill Pay Service is intended for the personal use of each individual enrollee. Any attempt or use of the service to process payments for third parties is prohibited and can result in termination of the service. Joint owners of a single account must have enrolled separately, and the payment history and payee information for each enrollee will not be shared or accessible by any other enrollee, even at the request of either party.
The actual payment of such bills is handled by an independent third party, Metavante Corporation. Enrollment in the Bill Payment services includes separate Terms and Conditions which you will be required to accept as a condition for using the Bill Payment feature, and will be displayed for review and agreement during the Bill Payment service enrollment process. To the extent that the Terms and Conditions are inconsistent with this Agreement, this Agreement shall govern the respective rights and obligations of us and you. Except as is otherwise provided by this Agreement or by applicable law, we cannot and will not guarantee, or have any responsibility whatsoever for the completion or accuracy of transactions performed through the Bill Payment feature, including electronic fund transfers that you request be performed by Metavante. Payments initiated through this service which are paid via paper check may appear to be drawn on a third-party processor and not Radius Bank.
Radius Bank hereby publishes the following terms and conditions for your use of bill payment services through the bank's Online Banking Web site. Radius Bank reserves the right to modify these terms and conditions at any time. Your use of the bill payment services constitutes your acceptance of these terms and conditions and any modifications thereof.
- All payments you make will be deducted from the account that you designate as your Bill Payment Account. Your Bill Payment Account must be a checking account. Any payments you wish to make though this service must be payable in U.S. dollars to a payee located in the continental United States. We reserve the right to restrict types of payees to whom payments may be made using the Bill Payment Service from time-to-time.
- Funds must be available in your Bill Payment Account on the "Deliver By" date indicated for each payee and payment initiated in the Bill Payment Service. If the date you schedule a payment to be delivered falls on a non-business day (Saturday, Sunday or a Holiday), funds must be available in your Bill Payment Account the previous business day. After funds are withdrawn from your Bill Payment Account to make a payment, we may make the payment either by transferring funds electronically to the payee or by mailing the payee a check.
- You may choose to schedule payments for a one-time payment or to recur in the same amount at regular weekly, monthly or yearly intervals.
- The way to cancel or change a payment is to use the Bill Payment Service. Payments must be changed or canceled using the Service prior to 4:00 p.m. Eastern Standard Time on the business day the transaction is scheduled to be delivered. Radius Bank is not responsible for the cancellation of any payments initiated by you in the Bill Pay Service at any time.
- Radius Bank reserves the right to limit the number or dollar amount of any transaction initiated in the Bill Pay Service for any customer at any time. We can limit number or dollar amount of transactions on a per-customer, per-transaction, daily, weekly, monthly, or other criteria or timeframe as we see fit. We may change, amend, establish, or abolish these limits at any time at our discretion. Currently Radius Bank limits transactions initiated through the Bill Pay service to $9,999.99 per transaction and $20,000.00 per customer per day.
You agree to accurately follow product use instructions provided in the online help tutorials.
You agree to schedule bill payments ("Deliver By" date) at least 7 - 10 business days before the payment due date, not including any grace period.
You agree to provide correct payee name, address, account information and payment amount.
You agree to maintain sufficient funds in the Bank Account on the payment transaction date
You agree that use of your Online Banking username and password is your signature authorization for any payment.
You agree that this service may not be used to transmit alimony, child support or other court-directed payments, tax payments, or payments to state and federal tax agencies for any purpose.
- You are responsible for all transactions you authorize using Online Banking and the Bill Pay Service. If you permit other persons to use your username and password to perform transactions, you are responsible for any transactions they authorize from your account. For security purposes, we ask that you never share your Online Banking User Name, password and Passmark image with anyone.
- You agree to keep your Customer Number, User Name, password, password reminder question and answer and any other security or access information confidential to prevent unauthorized access to your account(s) and to prevent unauthorized use of the Services. We recommend that you memorize your Access Information and do not write it down. You agree not to give or make available your Access Information to any unauthorized individual.
- You should notify us immediately if you believe your account has been accessed or your username and password has been used without your permission. Contacting us immediately will help your reduce losses.
- There may be other exceptions to your liability as stated in the "Important Information About Deposit Accounts Agreement" or provided by law.
- We reserve the right, under certain circumstances, to deny your access to any one or more account(s) or to the Services or any part thereof, or to deny the processing of transactions, in order to maintain or restore security or performance to the Online Banking Site or any other Capital One Sites and systems. We may do so if we reasonably believe your Access Information has been or may be obtained or is being used or may be used by an unauthorized person(s).
Radius Bank or its authorized agent is responsible for processing your requests. However, we will not be liable:
- If you do not have adequate funds in an account to complete a transaction, or if that account has been closed;
- If you have not properly followed the instructions on how to make a Transfer or Bill Payment;
- If you have not given us complete, correct and current instructions (payment amount or payee information) so that we can make a Transfer or Bill Payment;
- If you do not authorize a Bill Payment soon enough for your payment to be made and properly credited by the payee by the time it is due;
- If we make a timely Bill Payment but the payee nevertheless does not credit your payment promptly after receipt
- If withdrawals from your account have been prohibited by a court order such as a garnishment or other legal process;
- If we or our agent reasonably believes that a transaction may be unauthorized and based thereon the transaction is not completed;
- If your computer is not working properly such that it interfered with your attempt to authorize a Transfer or Bill Payment;
- If the U.S. Postal Service causes a delay;
- If your payment processing center is not working and you know or have been advised by us about the malfunction before you initiate a Transfer or Bill Payment;
- If circumstances beyond our control prevent making a Transfer or Bill Payment, despite reasonable precautions that we have taken. Such circumstances include, but are not limited to, computer failures, telecommunication outages, postal strikes, delays caused by payees, fires, floods, and other natural disasters or terrorist acts of war; or
- In any other set of circumstances as set forth in your account agreements.
- Radius Bank is not required to provide notice to you or to the payee in the event that any payment has failed for any of the reasons described above. You will be responsible for making alternate payment arrangements with the payee, which may include rescheduling or reinitiating the transaction in the Bill Pay Service.
- If the funding Bank Account does not have sufficient funds to pay a payment or transactions initiated in the Bill Pay Service on the "Deliver By" or any date in which a paper check created as a result of a valid payment order is presented to us, we may choose to pay the item and overdraw the account, or refuse to honor the payment and return it to the payee. In either case we may choose to assess the funding Bank Account with a Non-Sufficient Funds Fee in accordance with the account's schedule of fee and deposit agreement. You agree by using the service to pay the amount of any fees which are assessed to the account. Any negative balance which is created by our decision to pay an item in such circumstances is immediately due.
- Radius Bank is unable to predict or guarantee when a payment processed via paper check will be presented to us for payment by the payee, nor can we restrict or delay that payment if presented, even the item is presented prior to the date indicated in the Bill Pay Service.
- If the funding Bank Account is closed or otherwise restricted for any reason, pending and future payments will be cancelled. It is your responsibility to make alternate payments with the payee. Radius Bank accepts no liability for actions or consequences that result from payment not made in such circumstances.
- If the Bill Payment Service is cancelled or restricted by either party for any reason, all payee and bill information will be lost. Radius Bank will not provide payee name, address, account numbers, or any other information entered into the system by you in the event that the service is cancelled or restricted.
- If you are enrolled in the service and do not schedule or process a payment in any 3 – month period, Radius Bank may choose to terminate your enrollment and use of the Bill Payment service. All information and history related to the Bill Pay Service, payments, or payees that were available prior to termination will no longer be accessible or available via the service or through Radius Bank.
Radius Bank offers opt-in alerts. Online Banking users have the ability to subscribe to Alerts that deliver information about their accounts via email. Each user of Online Banking is required to subscribe to the Alerts service and designate which Alerts to receive. Joint account owners must subscribe to Alerts separately, and may choose any selection of Alerts to receive, separate and distinct from those selected by any other account owner. Radius Bank may also send security Alerts as part of the Online Banking service. You accept that these security Alerts are not optional.
Alerts will be delivered by email to the primary email address listed for each subscribed user in Online Banking. By subscribing, you understand and agree that alerts will be delivered to you by this channel. You also agree that the delivery of alerts may be delayed or prevented by a variety of factors. Radius Bank will make our best effort to deliver alerts in a timely manner and with information accurate as of the time the alert is generated. We do not guarantee the delivery or the accuracy of the information contained in any alert. We are not responsible for any action taken or not taken by an account holder or third party on the basis of information contained in an alert.
The email channel used to deliver Alerts is not secure, and Radius Bank will not include any full, sensitive information such as account number or password. Limited account information such as balance or amount of a transfer can be included. By subscribing to the Alerts feature, you understand and agree that anyone with access to the designated email account will be able to access and read this information. Radius Bank is not responsibility for the security of any information provided in the reply to an alert, as that channel is not a secure method of communication with us.
It is your responsibility to provide Radius Bank with an accurate email address for Alerts delivery. Radius Bank will not be liable or responsible for any information which is delivered to an email address which is not accessible by you, or is accessible by someone other than yourself until we have been provided the accurate email address via the Online Banking Alerts section, and have had a reasonable time in which to make the change.
26. Address Changes
You are responsible for notifying Radius Bank immediately of any change to your physical, mailing, or email address. Address changes may be initiated via written and signed request, or via a secure message sent to us via the Online Banking messaging feature.
Upon receipt of a request through the Online Banking secure messaging feature, Radius Bank may immediately apply the change of address to the account specified in the message. However, we may also require additional confirmation from an account holder or holders at our discretion prior to effecting the change on the account.
Radius Bank is not responsible for the loss or delay in delivery of any information or notification if it results from a change of address order entered under the account holder's User Name and password.
27. Business Customers
Sections 11, 12, and 13 do not apply if you are a business customer. We have no liability to business customers for the failure to process transactions for any reason.
If you are a business customer and you have reason to believe that your password or any other security code has been lost or stolen, or that an unauthorized person has used or attempted to use Online Banking without your permission, you must notify us within 24 hours. As a business customer, you are fully responsible for any on-line transactions (including, without limitation, any advances under the overdraft protection feature of your account, if any). You agree to reimburse us immediately for any loss, claim or damage which we sustain as a result of either authorized or unauthorized use of Online Banking. We shall have no liability for any loss, claim or damage which you sustain as a result of the use of Online Banking. This is true even if the use of Online Banking is unauthorized and even if you notified us of the unauthorized use within 24 hours. Once we have been notified of a loss, theft or unauthorized use of a password and we have had a reasonable opportunity to act on that notice, however, you will not be responsible for further transactions initiated with that password unless we can prove that you could have avoided the unauthorized access.
Other existing agreements and contracts you may have with us cover certain features and functionality available through Online Banking. For example, the terms and conditions of any "Wire Transfer Agreement" and "Automated Clearing House Agreement" remain in-force and prevail in instances where those Agreements and this Agreement conflict.
You agree that the security procedures we have established for the use of Online Banking are commercially reasonable.
Radius Bank may allow the designation by any duly authorized account representative of a business or non-retail account of an Online Banking Administrator. This Administrator may or may not be a signer of any authority on the account itself. The Administrator may be granted all rights and privileges associated with Online Banking use, or may be limited, at the discretion of the account owner(s) and Radius Bank. Once established, any transaction or other order received under the User Name and password of that Administrator will be considered authorized and may be acted upon by Radius Bank. It is the responsibility of the account owner(s) to monitor any and all actions of the Administrator. It is also the responsibility of the account owner(s) to notify Radius Bank immediately if the designated Administrator is not longer authorized by the account holders to transact business within Online Banking. Radius Bank assumes no liability or fault for transactions or payments authorized under an Administrator's User Name and password unless we have been notified and have had a reasonable time to act in removing or restricting the access of that Administrator.
The Administrator may have the ability to establish User names and password for other members of the business as he sees fit. The Administrator may assign rights and privileges of each user up to and including all rights and privileges that are accessible by the Administrator. Radius Bank assumes and has no liability or responsibility in monitoring the authorization of those users, and we may act on any transaction or order entered into Online Banking by any of those users, within the rights and privileges assigned to them by the Administrator.
28. Third Party Links
When you leave Radius Bank's website and enter an external website that is not hosted by Radius Bank you will no longer be subject to, or under the protection of, the privacy and security policies of Radius Bank's website. Radius Bank is not liable for information, content or transactions, nor does it guarantee the services provided at other sites. This service is provided by one of our reliable partners, however, we encourage you to read and evaluate the privacy and security policies on the site you are entering, which may be different from those of Radius Bank.
Radius Bank has no responsibility for any external website, nor makes any warranty, expressed or implied.
29. Computer Requirements
The browser specifications for Radius Bank's website are as follows: Internet Explorer 5.5 or higher or Netscape 4.6 or higher. Please be advised that AOL is currently not supported. To provide the highest degree of confidentiality and to protect the security of your financial information, you must have an Internet browser that supports 128-bit encryption and secure sockets layer version 3.0 or higher. Use of the Services with lower than 128-bit encryption is strictly prohibited. To the extent you are able to access the Services using lower than 128-bit encryption, we specifically disclaim any and all responsibility for losses resulting from your use of such lower encryption. We may change these requirements from time to time. You agree that we shall have no liability of any kind for viruses, worms, Trojan horses, or other similar harmful components that may enter your Computer by downloading information, software, or other materials from the Online Banking Site or any other Radius Bank Site.
SECTION 2: CASH MANAGEMENT SERVICES MASTER AGREEMENT
THIS CASH MANAGEMENT SERVICES MASTER AGREEMENT (this "Agreement") is by and between Radius Bank ("Bank") and the above-named corporation, partnership, sole proprietorship or other commercial entity (the "Customer"). If Customer enrolls, Bank agrees to provide to Customer certain Cash Management Services (as defined below) offered by Bank in accordance with the terms of this Agreement and the rules and procedures applicable to each of the associated Services (collectively, the "Rules"). In addition to the terms of this Agreement, the Rules are contained in the Appendices to this Agreement and are hereby incorporated in and made a part of this Agreement. This Agreement shall be effective when signed by both parties, and such date shall be as reflected above.
TERMS AND CONDITIONS
1. Definitions. Capitalized terms used in this Agreement and in any Appendix or associated document, unless otherwise defined herein or therein, shall have the meanings set forth below:
- "Access Devices" means collectively all security, identification and authentication mechanisms, including, without limitation, security codes or tokens, PINs, electronic identities or signatures, encryption keys and/or individual passwords associated with or necessary for Customer's access to and use of any Cash Management Service(s) from time to time.
- "Account(s)" means any Deposit Account(s) and/or Credit Account(s), as further defined herein, used in connection with any Cash Management Service(s).
- "Account Agreement(s)" means the terms and conditions of any Deposit Account Agreement(s), Credit Account Agreement(s), Fee Schedule, and any other agreements, disclosures and other documents issued by Bank and governing Customer's deposit or credit relationship with Bank, as the same may be amended from time to time. "Affiliate(s)" means, with respect to any party, any company controlled by, under the control of or under common control with such party.
- "Appendix" means a description of the Rules applicable to a particular Service to be provided by Bank to Customer. Each Appendix, including any amendment thereto, is incorporated herein by reference and made a part hereof. If there is any conflict between the provisions of this Agreement and any Appendix, the Appendix shall govern, but only to the extent reasonably necessary to resolve such conflict.
- "Authorized Representative" means a person designated by Customer, including Customer when Customer is a sole proprietorship, as an individual authorized to act on behalf of Customer and/or authorized to access and use the Services, as evidenced by certified copies of resolutions from Customer's board of directors or other governing body, if any, or other certificate or evidence of authority satisfactory to Bank.
- "Business Day" means every Monday through Friday, excluding Bank holidays. Saturday and Sunday are not Business Days for purposes of this Agreement even if Bank is open for business on such days. In the absence of specific reference to Business Days, any reference to days in this Agreement shall mean Calendar Days.
- "Cash Management Services" or "Services" means, collectively, the various electronic banking and/or associated cash management services provided by Bank (and/or Bank's third-party service providers) to Customer from time to time pursuant to this Agreement, the Appendices, exhibits, set-up form(s) and any service guides or manuals made available to Customer by Bank.
- "Credit Account(s)" means any line of credit, term loan or commercial or investment mortgage that Customer maintains with Bank that was established primarily for business or commercial purposes.
- "Credit Account Agreement(s)" means the promissory notes, credit agreements, mortgages and any other documents, disclosures or agreements that Customer executes or otherwise agrees to that establish Customer's rights and responsibilities under and otherwise provide the terms and conditions of Customer's Credit Accounts with Bank, each as may be amended from time to time.
- "Deposit Account(s)" means any checking, money market or savings Account, certificate of deposit or other deposit account that Customer may have with Bank that was established primarily for business or non-consumer purposes.
- "Deposit Account Agreement(s)" means the terms and conditions, Fee Schedule, and any other documents, disclosures or agreements that Customer executes or otherwise agrees to that establish Customer's rights and responsibilities under and otherwise provide the terms and conditions of Customer's Deposit Accounts with Bank, each as amended from time to time.
- "Fee Schedule" means, at any given time, Bank's then current schedule of customer fees and charges applicable to the Deposit Account(s) opened by Customer and maintained with Bank, as well as those applicable to the Cash Management Services.
- "Online Banking Service" means Bank's Internet-based electronic banking information delivery and transaction initiation system, as may be offered by Bank to its business or non-consumer customers from time to time and as further described in a separate Appendix to this Agreement.
- "Primary Account" means the Account designated by Customer to which any direct Service fees due Bank may be charged in accordance with this Agreement. Unless otherwise agreed upon in writing by Bank, the address for Customer associated with the Primary Account shall be the address to which all notices and other communications concerning the Services may be sent by Bank.
- "Substitute Check" has the meaning given to it Section 3(16) of the Check Clearing for the 21st Century Act ("Check 21"), P.L. 108-100, 12 U.S.C. § 5001(16).
- 2.1 Bank shall provide to Customer, subject to this Agreement and the applicable Appendix, the Cash Management Services that Customer may request and Bank approves from time to time.
- 2.2 Customer, through its Authorized Representative, may use the Cash Management Services solely in accordance with the terms and conditions of this Agreement and the related Appendices.
- 2.3 With the exception of scheduled off-peak downtime periods, Bank shall make all reasonable efforts to make the Services available to Customer each Business Day.
- 2.4 Access to the Online Banking Service will be denied if invalid Access Devices are used or if the user exceeds the number of invalid attempts allowed by Bank.
- 2.5 Customer is authorized to use the Services only for the purposes and in the manner contemplated by this Agreement and related Appendices.
- 2.6 Customer agrees to cooperate with Bank, as Bank may reasonably request, in conjunction with the performance of the Services.
- 2.7 Customer agrees to comply with the Rules, as they may be amended from time to time by Bank.
- 2.8 A number of Bank's Cash Management Services are subject to processing cut-off times on a Business Day. Customer can obtain information on Bank's current cut-off time(s) for Cash Management Service(s) by reviewing the relevant Service's Appendix or by calling Bank's Customer Service Department as set forth in Section 26 of this Agreement. Instructions received after a cut-off time or on a day other than a Business Day may be deemed received as of the next Business Day.
- 2.9 Bank may make changes to this Agreement and any Appendix at any time by providing notice to Customer in accordance with the terms of this Agreement or as may be required by applicable law. Notwithstanding anything to the contrary herein, any Appendix that provides for an alternative form and method for making changes to such Appendix and for providing notice of the same shall govern changes to that Cash Management Service. Further, notwithstanding anything to the contrary in this Agreement or in any Appendix, if Bank believes immediate action is required for the security of Bank or Customer funds, Bank may immediately initiate changes to any security and related procedures and provide prompt subsequent notice of the change to Customer.
- 2.10 In connection with this Agreement and the Cash Management Services, Customer agrees that it shall present, and Bank shall have a duty to process, only Substitute Checks that are created by financial institutions; provided, however, that this limitation shall not apply to Substitute Checks created with data from Customer pursuant to any Appendix or Agreement for Services involving the creation of electronic check images using check conversion technology.
3. Covenants, Representations and Warranties.
- 3.1 Customer represents and warrants that the individual executing this Agreement on behalf of Customer has been authorized by all necessary Customer action to sign this Agreement, to issue such instructions as may be necessary to carry out the purposes and intent of this Agreement and to enable Customer to receive each selected Cash Management Service. Each Authorized Representative whom Customer permits to access and use the Cash Management Services is duly authorized by all necessary action on the part of Customer to (i) access the Account(s) and use the Cash Management Services; (ii) access any information related to any Account(s) to which the Authorized Representative has access and (iii) engage in any transaction relating to any Account(s) to which the Authorized Representative has access.
- 3.2 Bank may unconditionally rely on the validity and accuracy of any communication or transaction made or purported to be made by an Authorized Representative and in accordance with the terms of this Agreement and/or related Appendices.
- 3.3 Customer shall take all reasonable measures and exercise all reasonable precautions to prevent the unauthorized disclosure or use of all Access Devices associated with or necessary for Customer's use of the Cash Management Services.
- 3.4 Customer is not a "consumer" as such term is defined in the regulations promulgated pursuant to the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., nor a legal representative of a "consumer."
- 3.5 Customer shall use the Cash Management Services only for its own lawful business or other Bank-approved purposes. Customer shall not use the Cash Management Services for or on behalf of any third party, except as may otherwise be approved by Bank in its sole and exclusive discretion. Customer shall take all reasonable measures and exercise reasonable precautions to ensure that Customer's officers, employees and Authorized Representative(s) do not use the Cash Management Services for personal, family or household purposes, or any other purpose not contemplated by this Agreement or the Appendices or otherwise approved by Bank.
- 3.6 Customer agrees to use the Account(s) only for lawful purposes, and will not use the Account(s) for any unlawful or illegal purposes including, but not limited to, unlawful Internet gambling transactions of any sort (online gambling), and any betting transaction including the unlawful purchase of lottery tickets, casino chips, or off-track betting and wagering. Bank reserves the right to block all such transactions. However, in the event that such a transaction is approved and processed, Customer will still be liable for any associated fee or charge.
- 3.7 Customer and Bank shall comply with (i) the Account Agreements, and (ii) all applicable laws, regulations, rules and orders, including without limitation all applicable National Automated Clearing House Association ("NACHA") rules, regulations, and policies, the Uniform Commercial Code ("UCC"), the U.S. Department of the Treasury's Office of Foreign Asset Control ("OFAC") requirements, and all applicable laws, regulations and orders administered by the U.S. Department of the Treasury's Financial Crimes Enforcement Network ("FinCEN") (the "Compliance Laws").
4. Account Agreement; Service Fees.
- 4.1 Bank and Customer agree that any Account established by Customer in connection with the Cash Management Services offered by Bank shall be governed by the Account Agreement. If there is any conflict between the terms and provisions of this Agreement and the Account Agreement, the terms and provisions of this Agreement shall govern, but only to the extent reasonably necessary to resolve such conflict.
- 4.2 Customer agrees to compensate Bank for all Cash Management Services that Bank provides pursuant to this Agreement, including any Appendices, in accordance with the applicable fee schedules or agreements between Bank and Customer in effect from time to time that apply to the Services (the "Service Fees"). By and upon entering into this Agreement, Customer acknowledges receipt of the Account Agreement and acceptance of the Service Fees and agrees to be bound by their terms, as those terms may be amended from time to time.
- 4.3 Customer authorizes Bank to charge the Primary Account for all applicable Service Fees for Cash Management Services to the extent that such Service Fees are not offset by earnings credits or other allowances for Customer's Account(s). If the balance of available funds in the Primary Account is not sufficient to cover such fees, Bank may charge such fees to any other Deposit Account maintained by Customer with Bank. Customer also agrees to pay all sales, use or other taxes (other than taxes based upon Bank's net income or that are otherwise the legal responsibility of Bank) that may be applicable to the Cash Management Services provided by Bank hereunder.
- 4.4 Bank may amend the Service Fee(s), in the aggregate or individually, at any time. Bank will give notice to Customer of such changes in accordance with applicable law.
5. Customer Identification Program. Customer agrees to provide to Bank, before Bank begins providing any Cash Management Service(s) to Customer, any and all information required to comply with applicable law and Bank's policies and procedures relating to customer identification. Such information may include, without limitation, official certificates of Customer existence, copies of Customer formation agreements and business resolutions or equivalent documents in a form acceptable to Bank, authorizing Customer to enter into this Agreement, to receive Cash Management Services from Bank pursuant hereto and to designate certain individuals as Customer's Authorized Representatives.
- 6.1 Bank may supply Customer with certain software owned by or licensed to Bank to be used by Customer in connection with the Cash Management Services. Customer agrees that all such software is and shall remain the sole property of Bank and/or the vendor of such software. Customer agrees to comply with all of the terms and conditions of all license and other agreements which are provided to Customer by Bank and/or the software vendor or which govern Customer's use of software associated with the Cash Management Services. Unless otherwise agreed in writing between Bank and Customer, Customer shall be responsible for the payment of all costs of installation of any software provided to Customer in connection with the Cash Management Services, as well as for selection, installation, maintenance and repair of all hardware required on Customer's premises for the successful operation of the software.
- 6.2 Customer shall indemnify, defend and hold harmless Bank and its successors and assigns from and against any loss, damage or other claim or liability attributable to Customer's unauthorized distribution or disclosure of any software provided with the Cash Management Services or any other breach by Customer of any software license. The provisions of this paragraph shall survive termination of this Agreement.
- 6.3 Any breach or threatened breach of this Section will cause immediate irreparable injury to Bank, and Customer agrees that injunctive relief, including preliminary injunctive relief and specific performance, should be awarded as appropriate to remedy such breach without limiting Bank's right to other remedies available in the case of such a breach. Bank may apply to a court for preliminary injunctive relief, permanent injunctive relief and specific performance, but such application shall not abrogate Bank's right to proceed with an action in a court of competent jurisdiction in order to resolve the underlying dispute.
7. Computer Requirements. For certain Cash Management Services, Customer will need to provide at Customer's own expense, a computer, software and necessary telephone lines, Internet or other connections and equipment as needed to access the Cash Management Services and as described during the enrollment process (collectively, the "Computer"). Customer is responsible for the installation, maintenance and operation of the Computer. Customer's Internet or other web browser software must support a minimum 128-bit SSL encryption or other security measures as Bank may specify from time to time. Bank is not responsible for any errors or failures caused by any malfunction of the Computer, and Bank is not responsible for any computer virus or related problems that may be associated with the use of the Services, the Computer or other Internet access, including but not limited to any virus, trojan horse, worm, keystroke logger, rootkit, spyware, dishonest adware, crimeware and other malicious and unwanted software or related problems that may be associated with access to or use of the Services or the Computer. Bank recommends that Customer routinely scan the Computer using reliable virus protection products, and to remove any viruses found using such products. Customer is responsible for all Internet service provider, telephone and other similar charges incurred in connecting to the Services. From time to time, Bank may require that Customer upgrades or installs software to the Computer to ensure the proper operation of the Services. Customer agrees to promptly load any such upgrades or additional installations upon Bank's notice to Customer.
8. Bank Third Parties.
- 8.1 Customer acknowledges that certain third parties, agents or independent service providers (hereinafter "Third Parties") may, from time to time, provide services ("Third Party Services") to Bank in connection with Bank's provision of the Cash Management Services to Customer and that, accordingly, Bank's ability to provide the Cash Management Services hereunder may be contingent upon the continuing availability of certain services from such Third Parties. Third Party Services may involve the processing and/or transmission of Customer's data, instructions (oral or written) and funds. Customer agrees that Bank may disclose Customer's financial information to such Third Parties (i) where it is necessary to provide the Services requested; (ii) in order to comply with laws, government agency rules or orders, court orders, subpoenas or other legal process or in order to give information to any government agency or official having legal authority to request such information; or (iii) when Customer gives its written permission.
- 8.2 Bank will be responsible for the acts and omissions of its Third Parties in the same manner as if Bank had performed that portion of the Cash Management Services itself, and no claim may be brought by Customer against such Third Parties. Notwithstanding the foregoing, any claims against Bank (with respect to the acts or omissions of its Third Parties) or its Third Parties shall be subject to the limitations of liability set forth herein to the same extent as if Bank had performed that portion of the Cash Management Services itself. Bank will not be deemed to be the agent of or responsible for the acts or omissions of any person (other than its Third Parties), however, and no such person shall be deemed Bank's agent.
9. Confidential Information.
- 9.1 "Confidential Information" means any information obtained by or disclosed or made available to either party hereto (whether in writing, verbally or by observation of objects or processes) from or by the other party, that is accompanied by a clear indication that the disclosing party considers the information to be confidential or proprietary, or is of a type that the recipient should reasonably consider it the confidential or proprietary information of the disclosing party or its licensors.
- 9.2 Each party acknowledges that it may obtain or have access to the Confidential Information of the other party, and agrees to: (i) maintain the confidentiality, integrity and security of such Confidential Information; (ii) use such Confidential Information only for the purposes set forth in this Agreement, including without limitation for the performance of its obligations and exercise of its rights hereunder; (iii) disclose such Confidential Information only to its employees, agents, auditors, accountants, attorneys and regulators, and only as necessary to perform its obligations and exercise its rights hereunder, or as otherwise permitted by law; and (iv) maintain physical, technical, procedural and administrative controls and safeguards reasonably designed (taking into account the nature and circumstances of such party's business, and in all cases, no less than a reasonable person standard) to ensure the security, integrity and confidentiality of Confidential Information, and to protect against any anticipated threats or hazards to the security or integrity of, or unauthorized access to, the Confidential Information.
- 9.3 Confidential Information does not include information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the recipient; (ii) was in the recipient's possession before the time of disclosure; (iii) becomes available to the recipient on a non-confidential basis from another source, provided that the recipient has no actual knowledge that the source of such information was bound by and in breach of a confidentiality obligation with respect to such information; or (iv) is independently developed by the recipient without reference to or use of the disclosing party's other Confidential Information.
10. Customer Information; Security Procedures.
- 10.1 In providing the Cash Management Services, Bank shall be entitled to rely upon the accuracy of all information and authorizations received from Customer or an Authorized Representative and the authenticity of any signatures purporting to be of Customer or an Authorized Representative. Customer agrees to promptly notify Bank of any changes to any information or authorization provided to Bank in connection with the Cash Management Services and further agrees to promptly execute any new or additional documentation Bank reasonably deems necessary from time to time in order to continue to provide the Cash Management Services to Customer.
- 10.2 Customer agrees that it shall be solely responsible for ensuring compliance with any security procedures established by Bank in connection with the Cash Management Services, as such may be amended from time to time, and that Bank shall have no liability for any losses sustained by Customer as a result of a breach of security procedures if Bank has complied with the security procedures.
- 10.3 Bank shall be entitled to rely on any written list of Authorized Representatives provided to Bank by Customer until revoked or modified by Customer in writing. Customer agrees that Bank may refuse to comply with requests from any individual until Bank receives documentation reasonably satisfactory to it confirming the individual's authority. Bank shall be entitled to rely on any notice or other writing believed by it in good faith to be genuine and correct and to have been signed by the individual purporting to have signed such notice or other writing. Bank may also accept oral instructions from persons identifying themselves as an Authorized Representative, and Bank's only obligation to verify the identity of such person as an Authorized Representative shall be to call back such person at a telephone number(s) previously provided to Bank by Customer. Bank may, but shall have no obligation to, call back an Authorized Representative other than the Authorized Representative from whom Bank purportedly received an instruction. Bank may, but shall have no obligation to, request additional confirmation, written or oral, of an instruction received via telephone at any time or for any reason whatsoever prior to executing the instruction. Bank may also in its discretion require the use of security codes for Authorized Representatives and/or for receiving instructions or items from Customer. Customer understands and agrees, and Customer shall advise each Authorized Representative that, Bank may, at Bank's option, record telephone conversations regarding instructions received from an Authorized Representative.
- 10.4 Any security procedures maintained by Bank are not intended to detect errors in the content of an instruction, request or transaction received from Customer or Customer's Authorized Representative, agent or vendor. No security procedure for the detection of any such Customer error has been agreed upon between Bank and Customer. Any errors in an instruction, request or transaction from Customer, Customer's Authorized Representative, agent or vendor shall be Customer's sole responsibility. Customer agrees that all security procedures described in this Agreement and applicable Appendices are commercially reasonable and that Bank may charge Customer's Account for any instruction, request or transaction that Bank executed in good faith and in conformity with the security procedures, whether or not the instruction, request or transaction is in fact authorized.
- 10.5 Customer is strictly responsible for establishing and maintaining procedures to safeguard against unauthorized instructions, requests, transactions or transmissions. Customer covenants that no employee or other individual under Customer's control will be allowed to initiate instructions, requests, transactions or transfers in the absence of proper authority, supervision and safeguards, and agrees to take reasonable steps to maintain the confidentiality of the security procedures and any Access Devices and related instructions provided by Bank in connection with any security procedure utilized by Bank and/or Customer. If Customer believes or suspects that any such Access Device, security procedure, information or instructions have been disclosed to or accessed by unauthorized persons, Customer agrees to notify Bank immediately followed by written confirmation. The occurrence of unauthorized access will not affect any transfers made in good faith by Bank prior to receipt of such notification and within a reasonable time period thereafter.
- 10.6 Customer also agrees to adopt and implement its own commercially reasonable policies, procedures and systems to provide security to information being transmitted and to receive, store, transmit and destroy data or information in a secure manner to prevent loss, theft or unauthorized access to data or information ("Data Breaches"). Customer also agrees that it will promptly investigate any suspected Data Breaches and monitor its systems regularly for unauthorized intrusions. Customer will provide timely and accurate notification to Bank of any Data Breaches when known or reasonably suspected by Customer and will take all reasonable measures, which may include, without limitation, retaining competent forensic experts, to determine the scope of and data or transactions affected by any Data Breaches and promptly provide all such information to Bank.
- 10.7 BANK'S SECURITY PROCEDURES ARE STRICTLY CONFIDENTIAL AND SHOULD BE DISCLOSED ONLY TO THOSE INDIVIDUALS WHO ARE REQUIRED TO KNOW THEM. IF A SECURITY PROCEDURE INVOLVES THE USE OF ACCESS DEVICES, CUSTOMER SHALL BE RESPONSIBLE TO SAFEGUARD THESE ACCESS DEVICES AND MAKE THEM AVAILABLE ONLY TO DESIGNATED INDIVIDUALS. CUSTOMER HAS THE SOLE RESPONSIBILITY TO INSTRUCT THOSE INDIVIDUALS THAT THEY MUST NOT DISCLOSE OR OTHERWISE MAKE AVAILABLE TO UNAUTHORIZED PERSONS THE SECURITY PROCEDURE OR ACCESS DEVICES TO ANYONE. CUSTOMER HAS THE SOLE RESPONSIBILITY TO ESTABLISH AND MAINTAIN PROCEDURES TO ENSURE THE CONFIDENTIALITY OF ANY PROTECTED ACCESS TO THE SECURITY PROCEDURE.
11. Duty to Inspect. Customer is responsible for monitoring its use of all Cash Management Services provided by Bank, including each individual transaction processed by Bank, and notifying Bank of any errors or other problems no later than thirty (30) Calendar Days (or such longer period as may be required by applicable law) after Bank has made available to Customer any report, statement or other material containing or reflecting the error, including an Account analysis statement or Internet Account access. Except to the extent required by law, failure to notify Bank of an error or problem within such time will relieve Bank of any and all liability for interest upon correction of the error or problem (and for any loss from any subsequent transaction involving the same error or problem). In the event Customer fails to report such error or problem within sixty (60) Calendar Days (or such longer period as may be required by applicable law) after Bank made available such report, statement or Internet Account access, the transaction shall be deemed to have been properly authorized and executed, and Bank shall have no liability with respect to any such error or problem.
12. Overdrafts; Set-off. Bank may, but shall not be obligated to, complete any transaction in connection with providing the Services if there are insufficient available funds in Customer's Account(s) to complete the transaction. In the event any actions by Customer result in an overdraft in any of Customer's Accounts, including but not limited to Customer's failure to maintain sufficient balances in any of Customer's Accounts, Customer shall be responsible for repaying the overdraft immediately and without notice or demand. Bank has the right, in addition to all other rights and remedies available to it, to set-off the unpaid balance of any amount owed it in connection with the Services against any debt owing to Customer by Bank, including, without limitation, any obligation under a repurchase agreement or any funds held at any time by Bank, whether collected or in the process of collection, or in any other Account maintained by Customer at or evidenced by any certificate of deposit issued by Bank. If any of Customer's Accounts become overdrawn, under-funded or for any reason contain a negative balance, then Bank shall have the right of set-off against all of Customer's Accounts and other property or deposit Accounts maintained at Bank, and Bank shall have the right to enforce its interests in collateral held by it to secure debts of Customer to Bank arising from notes or other indebtedness now or hereafter owing or existing under this Agreement, whether or not matured or liquidated.
13. Transaction Limits.
- 13.1 In the event that providing the Cash Management Services to Customer results in unacceptable credit exposure or other risk to Bank or will cause Bank to violate any law, regulation, rule or order to which it is subject, Bank may, in Bank's sole and exclusive discretion, without prior notice, limit Customer's transaction volume or dollar amount and refuse to execute transactions that exceed any such limit, or Bank may terminate any or all of the Services then being provided to Customer.
- 13.2 Customer shall, upon request by Bank from time to time, provide Bank with such financial information and statements and such other documentation as Bank reasonably determines to be necessary or appropriate showing Customer's financial condition, assets, liabilities, stockholder's equity, current income and surplus, and such other information regarding the financial condition of Customer as Bank may reasonably request to enable Bank to evaluate its exposure or risk. Any limits established by Bank hereunder shall be made in Bank's sole discretion and shall be communicated promptly to Customer.
14. Term and Termination.
- 14.1 This Agreement and any Appendix shall be effective when (i) signed by an Authorized Representative of Customer and accepted by Bank and (ii) Customer delivers to Bank all documents and information, including any setup form(s) and electronic data reasonably required by Bank prior to commencing to provide the Cash Management Service(s). Bank will determine the adequacy of such documentation and information in its sole discretion and may refuse to provide the Cash Management Services to Customer until adequate documentation and information are provided.
- 14.2 This Agreement and/or any Appendix shall continue in effect until terminated by either party with ten (10) Calendar Days' prior written notice to the other, provided that Customer may terminate this Agreement or any Appendix immediately upon its receipt of notice from Bank of a change in or amendment of the provisions of this Agreement, the Cash Management Services or any Appendix that is not acceptable to Customer, in accordance with Section 20 of this Agreement. Either party may terminate an Appendix in accordance with the provisions of this Section without terminating either this Agreement or any other Appendix. Upon termination of this Agreement or any Appendix, Customer shall, at its expense, return to Bank, in the same condition as when delivered to Customer, normal wear and tear excepted, all property belonging to Bank and all proprietary material delivered to Customer in connection with the terminated Cash Management Service(s).
- 14.3 If an Appendix is terminated in accordance with this Agreement, Customer must contact the Customer Service Department as set forth in Section 26 of this Agreement for instructions regarding the cancellation of all future-dated payments and transfers. Bank may continue to make payments and transfers and to perform other Cash Management Services that Customer has previously authorized or may subsequently authorize; however, Bank is not under any obligation to do so. Bank will not be liable if it chooses to make any payment or transfer or to perform any other Cash Management Services that Customer has previously authorized or subsequently authorizes after an Appendix had terminated.
- 14.4 Notwithstanding the foregoing, Bank may, without prior notice, terminate this Agreement and/or terminate or suspend any Cash Management Service(s) provided to Customer pursuant hereto (i) if Customer or Bank closes any Account established in connection with the Cash Management Services, (ii) if Bank determines that Customer has failed to maintain a financial condition deemed reasonably satisfactory to Bank to minimize any credit or other risks to Bank in providing Services to Customer, including but not limited to the commencement of a voluntary or involuntary proceeding under the United States Bankruptcy Code or other statute or regulation relating to bankruptcy or relief of debtors, (iii) in the event of a material breach, default in the performance or observance of any term, or material breach of any representation, covenant or warranty by Customer, (iv) in the event of default by Customer in the payment of any sum owed by Customer to Bank hereunder or under any note or other agreement, (v) if there has been a seizure, attachment or garnishment of Customer's Account(s), assets or properties, (vi) if Bank believes immediate action is required for the security of Bank or Customer funds, (vii) in the event of termination of a third party contract by Customer or Bank which is necessary for the performance of one or more Cash Management Services, or (viii) if Bank reasonably believes that the continued provision of Cash Management Service(s) in accordance with the terms of this Agreement or any Appendix would violate federal, state or local laws or regulations or would subject Bank to unacceptable risk of loss. In the event of any termination hereunder, all Service Fees due Bank under this Agreement as of the time of termination shall become immediately due and payable. Notwithstanding any termination, this Agreement shall remain in full force and effect with respect to all transactions initiated prior to such termination.
15. Limitation of Liability; Disclaimer of Warranties.
- 15.1 Except to the extent otherwise required by law, the liability of Bank in connection with the Cash Management Services will be limited to actual damages sustained by Customer and only to the extent such damages are a direct result of Bank's gross negligence, willful misconduct or bad faith. In no event shall Bank be liable for any consequential, special or indirect loss or damage that Customer may suffer or incur in connection with the Cash Management Services, including, without limitation, attorneys' fees, lost earnings or profits, loss or damage from subsequent wrongful dishonor resulting from Bank's acts, or for any indemnification claim, whether contractual, equitable or other, regardless of whether the likelihood of such claim, loss or damage was known by Bank and regardless of the basis, theory or nature of the action on which a claim is asserted. Except to the extent otherwise provided by law, Bank's aggregate liability to Customer for all losses, damages, and expenses incurred in connection with any single claim shall not exceed an amount equal to the monthly billing to Customer for Cash Management Services over the six (6) month-period immediately preceding the date on which the damage or injury giving rise to such claim is alleged to have occurred. This Agreement is only between Bank and Customer, and Bank shall have no liability hereunder to any third party.
- 15.2 Notwithstanding the foregoing, but subject to Customer's compliance with the requirements of Section 11, if Customer incurs a loss pursuant to a transaction that Customer has properly processed through the Cash Management Services in accordance with the Internet "help" instructions or other instructions provided to Customer, due to Bank's gross negligence or willful misconduct in the handling of such transaction, Bank will be responsible for returning any improperly transferred funds, with interest at the rate paid by Bank at such time on statement savings accounts, from the date of such error to, but not including, the date such funds are returned to the Account from which the funds were withdrawn and for directing to the proper recipient any payments or transfers that were previously misdirected or not completed. RE-CREDITING OF CUSTOMER'S ACCOUNT AND RE-DIRECTING OF PAYMENTS AND TRANSFERS, AND INTEREST ONLY AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, SHALL CONSTITUTE THE BANK'S ENTIRE LIABILITY FOR INCOMPLETE OR INCORRECT PAYMENTS OR TRANSFERS, AND CUSTOMER AGREES THAT IT SHALL NOT BE ENTITLED TO ANY OTHER RECOVERY OR RELIEF. At Bank's option, payment of such interest may be made by crediting an Account of Customer with Bank.
- 15.3 Except to the extent required by law, or as otherwise expressly provided in this Agreement, Bank shall not be liable for any loss, damage or injury caused by any act or omission of any third party; for any charges imposed by any third party; or for any loss, damage or injury caused by any failure of the hardware or software utilized by a third party to provide Cash Management Services to Customer.
- 15.4 Bank shall not be liable or responsible for damages incurred as a result of data supplied by Customer that is inaccurate, incomplete, not current or lost in transmission. It is understood that Bank assumes no liability or responsibility for the inaccuracy, incompleteness or incorrectness of data as a result of such data having been supplied to Customer through data transmission.
- 15.5 Bank is not liable for failing to act sooner than required by any Appendix or applicable law. Bank also has no liability for failing to take action if Bank had discretion not to act.
- 15.6 Bank shall not be responsible for Customer's acts or omissions (including, without limitation, the amount, accuracy, timeliness of transmittal or due authorization of any entry, funds transfer order or other instruction received from Customer) or the acts or omissions of any other person, including, without limitation, any Automated Clearing House processor, any Federal Reserve Bank, any financial institution or bank, any transmission or communication facility, any receiver or receiving depository financial institution, including, without limitation, the return of an entry or rejection of a funds transfer order by such receiver or receiving depository financial institutions, and no such person shall be deemed Bank's agent. Bank shall be excused from failing to transmit or delay in transmitting an entry or funds transfer order if such transmittal would result in Bank's having exceeded any limitation upon its intra day net funds position established pursuant to Federal Reserve guidelines or otherwise violating any provision of any risk control program of the Federal Reserve or any rule or regulation of any other U.S. governmental regulatory authority. In no event shall Bank be liable for any damages resulting from Bank's action or inaction which is consistent with regulations issued by the Board of Governors of the Federal Reserve System, operating circulars issued by a Federal Reserve Bank or general banking customs and usage. To the extent required by applicable laws, Bank will compensate Customer for loss of interest on funds as a direct result of Bank's failure to comply with such laws in executing electronic transfers of funds, if such failure was within Bank's control.
- 15.7 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT USE OF THE CASH MANAGEMENT SERVICES IS AT CUSTOMER'S SOLE RISK, AND THE SERVICES ARE PROVIDED "AS IS." BANK AND ITS SERVICE PROVIDERS AND AGENTS DO NOT MAKE AND EXPRESSLY DISCLAIM ANY WARRANTIES, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WITHOUT BREACHES OF SECURITY OR WITHOUT DELAYS. IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIABILITY OF BANK AND ITS SERVICE PROVIDERS AND AGENTS IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW.
- 15.8 Bank and Customer acknowledge and agree that the limitations of liability in this Section 15 are a bargained for allocation of risk and liability, and the parties agree to respect such allocation of risk and liability. Customer acknowledges and agrees that Bank would not enter into this Agreement without the limitations of liability set forth in this Section.
- 15.9 The provisions of this Section 15 shall survive termination of this Agreement.
- 16.1 Except as otherwise expressly prohibited or limited by law, Customer shall indemnify and hold Bank harmless from any and all liabilities, losses, damages, costs and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel in connection with any investigative, administrative or judicial proceedings, whether or not Bank shall be designated a party thereto) which may be incurred by Bank due to any third party claim against Bank relating to or arising out of:
i. any claim of any person that (a) Bank is responsible for any act or omission of Customer or (b) a Customer payment order contravenes or compromises the rights, title or interest of any third party or contravenes any law, rule, regulation, ordinance, court order or other mandate or prohibition with the force or effect of law;
ii. any failure by Customer to observe and perform properly all of its obligations hereunder or any wrongful act of Customer or any of its Affiliates;
iii. any breach by Customer of any of its warranties, representations, covenants or agreements;
iv. any action taken by Bank in reasonable reliance upon information provided to Bank by Customer or any Affiliate or subsidiary of Customer; and
v. any legal action that Bank responds to or initiates, including any interpleader action Bank commences, involving Customer or Customer's Account(s), including without limitation, any state or federal legal process, writ of attachment, execution, garnishment, tax levy or subpoena.
- 16.2 Notwithstanding the foregoing, Bank shall have no right to be indemnified hereunder for losses resulting from its own gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.
- 16.3 The provisions of this Section 16 shall survive termination of this Agreement.
17. Force Majeure. Neither party shall bear responsibility for non-performance of this Agreement to the extent that such non-performance is caused by an event beyond that party's control, including, but not necessarily limited to, fire, casualty, breakdown in equipment or failure of telecommunications or data processing services, lockout, strike, unavoidable accident, act of God, riot, war or the enactment, issuance or operation of any adverse governmental law, ruling, regulation, order, decree or an emergency that prevents Bank or Customer from operating normally.
18. Documentation. The parties acknowledge and agree that all documents evidencing, relating to or arising from the parties' relationship may be scanned or otherwise imaged and electronically stored and the originals (including manually signed originals) destroyed. The parties agree to treat such imaged documents as original documents and further agree that such reproductions and copies may be used and introduced as evidence at any legal proceedings including, without limitation, trials and arbitrations relating to or arising under this Agreement.
19. Entire Agreement. Bank and Customer acknowledge and agree that this Agreement and any amendments hereto, all other documents incorporated by reference therein and Appendices, constitute the complete and exclusive statement of the agreement between them with respect to the Cash Management Services and supersede any prior oral or written understandings, representations and agreements between the parties relating to the Cash Management Services.
20. Amendments. Bank may, at any time, amend this Agreement, the Cash Management Services or Appendices in its sole discretion and from time to time. Except as expressly provided otherwise in this Agreement, any such changes generally will be effective immediately upon notice to Customer as described below. Customer will be deemed to accept any such changes if Customer accesses or uses any of the Cash Management Services after the date on which the change becomes effective. Customer will remain obligated under this Agreement and any Appendices, including without limitation, being obligated to pay all amounts owing thereunder, even if Bank amends this Agreement or any Appendices. Notwithstanding anything to the contrary in this Agreement or in any Appendix, if Bank believes immediate action is required for the security of Bank or Customer funds, Bank may immediately initiate changes to any security procedures and provide prompt subsequent notice thereof to Customer.
21. Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be unenforceable as written, that provision shall be interpreted so as to achieve, to the extent permitted by applicable law, the purposes intended by the original provision, and the remaining provisions of this Agreement shall continue intact. In the event that any statute, regulation or government policy to which Bank is subject and that governs or affects the transactions contemplated by this Agreement would invalidate or modify any portion of this Agreement, then this Agreement or any part thereof shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Bank shall incur no liability to Customer as a result of Bank's compliance with such statute, regulation or policy.
22. Assignment and Delegation. Bank may assign any of its rights or delegate any of its responsibilities in whole or in part without notice to or consent from Customer. Customer may not assign, delegate or otherwise transfer its rights or responsibilities under this Agreement or any Appendix without Bank's prior written consent, which consent Bank may grant or withhold in its sole discretion.
23. Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
24. Non-Waiver. No deviation from any of the terms and conditions set forth or incorporated in this Agreement shall constitute a waiver of any right or duty of either party, and the failure of either party to exercise any of its rights hereunder on any occasion shall not be deemed to be a waiver of such rights on any future occasion.
25. Governing Law. Any claim, controversy or dispute arising under or related to this Agreement shall be governed by and interpreted in accordance with federal law and, to the extent not preempted or inconsistent therewith, by the laws of the Commonwealth of Massachusetts.
26. Notices, Instructions, Contacts.
- 26.1 Except as otherwise expressly provided in this Agreement, all Customer communications and inquiries, including without limitation all notices that are required or permitted to be given by Customer (including all documents incorporated herein by reference) shall be made to Bank as follows:
Postal Mail — Customer can write Bank at:
Attention: Customer Service Department
One Harbor Street, Suite 201
Boston, MA 02210
Telephone — Customer may contact Bank by telephone Monday – Friday 8:30 AM – 5:00 PM at Bank's toll free number: 800-242-0272.
E- Mail — Customer can contact Bank by e-mail at: email@example.com. (Please note that banking transactions through Bank's Online Banking Service are not made via e-mail.)
All written notices and communications shall be sent by first class mail, postage prepaid and addressed to Bank at the address provided above. All such notices shall be effective upon receipt.
- 26.2 Customer authorizes Bank to, and Customer agrees that Bank may, send any notice or communication that Bank is required or permitted to give to Customer under this Agreement, including but not limited to notice of any change to the Cash Management Services, this Agreement or any Appendix, to Customer's business mailing address or Customer's business e-mail address as it appears on Bank's records or electronically by posting the notice on Bank's website, on an Account statement or via facsimile and that any such notice or communication will be effective and deemed delivered when provided to Customer in such a manner. Customer agrees to notify Bank promptly about any change in Customer's business mailing or Customer's business e-mail address and acknowledges and agrees that no such change will be effective until Bank has had a reasonable opportunity to act upon such notice. Customer agrees that Bank may consider any such notice or communication as being given to all Account owners when such notice or communication is given to any one Account owner.
27. Arbitration; Jury Trial Waiver.
- 27.1 Except with respect to Bank's right to seek injunctive relief as set forth in Section 6 of this Agreement, any controversy relating to this Agreement and/or any Appendices, or the breach thereof, shall be determined by arbitration in the City of Boston, Commonwealth of Massachusetts, U.S.A., in accordance with the Commercial Arbitration Rules of the American Arbitration Association, using arbitrators who are experienced business/commercial litigators admitted before the bar of any state of the United States. The dispute shall be determined by one (1) arbitrator acceptable to both parties who shall be selected within seven (7) days of receipt of notice of intention to arbitrate by the party receiving that notice. If, by the end of said seven (7) day period, the parties have not agreed upon one (1) arbitrator as acceptable, then the dispute shall be determined by a panel of three (3) arbitrators selected as follows: Within an additional seven (7) days, each party will appoint one (1) arbitrator. These two (2) arbitrators will then, within an additional seven (7) days, name a third arbitrator to preside over the panel. If either party fails to appoint an arbitrator, or if the two (2) arbitrators do not name a third arbitrator within seven (7) days, either party may request the person or entity administering the arbitration, or, if none, the American Arbitration Association or any other arbitration administering person or entity, to appoint the necessary arbitrator(s) pursuant to the Commercial Arbitration Rules. The costs of compensation of the arbitrator(s) shall be shared equally by the parties. The United States Federal Rules of Civil Procedure shall apply with respect to any arbitration hereunder. The arbitrator(s) shall follow substantive rules of law. The arbitrator(s) shall make its award in strict conformity with this Agreement and shall have no power to depart from or change any of the provisions hereof. All parties agree to be bound by the results of this arbitration; judgment upon the award so rendered may be entered and/or enforced in any court of record of competent jurisdiction in any country, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the law of such jurisdiction may require or allow. To the extent reasonably practicable, both parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved.
- 27.2 IN THE EVENT THAT THE ABOVE ARBITRATION PROVISION IS OR BECOMES INAPPLICABLE FOR ANY REASON, BANK AND CUSTOMER EACH AGREE THAT NEITHER BANK NOR CUSTOMER SHALL (I) SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER ACTION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY ACCOUNT OR THE DEALINGS OF OR THE RELATIONSHIP BETWEEN BANK AND CUSTOMER, OR (II) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANOTHER IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER BANK NOR CUSTOMER HAS AGREED WITH OR REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. BANK AND CUSTOMER EACH ACKNOWLEDGE THAT THIS WAIVER HAS BEEN KNOWINGLY AND VOLUNTARILY MADE.
- 27.3 The provisions of this Section 27 shall survive termination of this Agreement.
28. Attorneys' Fees. If any action is brought by either party against the other regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to any relief granted, reasonable attorneys' fees, costs of court, expert witness fees and other expenses of action.
29. Beneficiaries. This Agreement is for the benefit only of the undersigned parties hereto and is not intended to and shall not be construed as granting any rights to or otherwise benefiting any other person.
30. Recording of Communications. Customer and Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement or any Appendix may be recorded and retained by either party by use of any reasonable means.
31. Facsimile Signature. The parties acknowledge and agree that this Agreement and any Appendix may be executed and delivered by facsimile and that a facsimile signature shall be treated as and have the same force and effect as an original signature. Notwithstanding the foregoing, Bank may, in its sole and exclusive discretion, also require Customer to deliver this Agreement and any Appendix with an original signature for its records.
32. Relationship. Customer and Bank are not, and Customer and Bank's licensors are not, partners, joint venturers or agents of each other as a result of this Agreement.
33. Additional Representations and Warranties. For purposes of this Section, "Governmental Unit" means (A) any town, city, school district or school administrative unit of any nature, water district, sewer district, sanitary district, housing authority, hospital district, municipal electric district, county or other political subdivision, government agency, bureau, department or other instrumentality, or quasi-governmental corporation or entity defined by applicable law, and (B) any state government or any agency, department, bureau, office or other instrumentality thereof.
a. If Customer is a Governmental Unit of the type included in (A) above, Customer and the individual signing below represent, warrant and agree:
i. that this Agreement has been duly executed by the Treasurer, Finance Director, or other financial officer authorized by law to make disbursements of governmental funds and enter into banking agreements;
ii. that this Agreement has been duly authorized by a vote of the governing body of Customer that was duly called and noticed, at which the necessary majority voted to authorize this Agreement, as evidenced by the certification of the Secretary of the governing body and provided with this Agreement;
iii. that only persons authorized to disburse municipal funds from any Account will be enrolled as Authorized Users having access to wire transfer, ACH or Account transfer functions;
iv. that if this Agreement remains in effect for more than one budget year, upon request of Bank, Customer will ratify and provide evidence of the renewal of this Agreement in subsequent years; and
v. that this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.
b. If Customer is a Governmental Unit of the type included in (B) above, Customer and the individual signing below represent, warrant and agree:
that this Agreement has been duly executed by a financial officer authorized by law to make disbursements of governmental funds and enter into banking agreements on behalf of Customer;
i. that this Agreement has been duly authorized by a senior officer of Customer;
ii. that Customer has complied with all state laws and regulations, including any regulations or policies adopted by Customer with respect to electronic commerce in entering into and performing this Agreement and any related ACH or wire transfer agreement;
iii. that only persons authorized to disburse Customer funds from any Account will be enrolled as Authorized Users having access to wire transfer, ACH or Account transfer functions; and
iv. that this Agreement is the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms.
c. For a Customer of the type included in either (A) or (B) above, Customer and the individual signing below further represent, warrant and agree:
that upon Bank's request, Customer shall provide evidence of those persons authorized to disburse Customer funds as described in (a)(iii) and (b)(iv) above;
i. that upon Bank's request, Customer will certify its compliance with (a) or (b), as applicable, on an annual basis; and
ii. that Customer will provide notice to Bank if any person authorized to disburse Customer funds as described in (a)(iii) and (b)(iv) is no longer so authorized or his/her position of such authority is terminated for any reason.
34. Section Headings. The section headings used in this Agreement are only meant to organize this Agreement and do not in any way limit or define Customer's or Bank's rights or obligations.
APPENDIX I: BUSINESS ONLINE BANKING SERVICES
THIS BUSINESS ONLINE BANKING SERVICE APPENDIX (hereinafter, this "Appendix") is made by and between Radius Bank ("Bank") and the above-named corporation, partnership, sole proprietorship or other commercial entity (the "Customer") and is incorporated by reference into the parties' Cash Management Services Master Agreement (hereinafter, the "Agreement"). This Appendix governs Customer's use of Bank's Business Online Banking Service ("Online Banking Service" or "Online Banking"). All capitalized terms used herein without definition shall have the meanings given to them in the parties' Agreement. Except as otherwise expressly provided in this Appendix, to the extent that this Appendix is inconsistent with the provisions of the Agreement, this Appendix and any amendment hereto from time to time shall control, but only to the extent necessary to resolve such conflict. This Appendix shall be effective when signed by both parties, and such date shall be as reflected above.
TERMS AND CONDITIONS
1. Definitions. In addition to the definitions set forth in the Agreement, certain terms used in this Appendix are defined in the specific portion of this Appendix where they are used. The following terms are also used throughout this Appendix and have the meanings indicated:
- "Administrator" or "Senior Administrator" means Customer's employee(s) or other person(s) that Customer (or any Administrator designated by Customer) designates on the application, enrollment and/or similar form(s) associated with use of Online Banking as being Customer's Authorized Representative or as authorized to act on Customer's behalf with respect to the administration of the Online Banking Service.
- "Authorized User" or "Designee" means any person that Customer's Administrator designates as being authorized to access or use any of the Online Banking Service on Customer's behalf.
- "Available Funds" means the balance in a Deposit Account, which includes collected funds on deposit plus any overdraft credit line balance associated with the Deposit Account.
- "Bill Payment Service" means the online bill payment service offered by Bank and any associated service provider as further described in this Appendix.
- "eStatements Service" means the online service offered by Bank permitting Customer to view Customer's current Deposit Account statements via a secure website as further described in this Appendix.
2. Eligibility. Customer is eligible to use Online Banking if Customer maintains a Deposit Account (checking and/or savings), has executed the Agreement, satisfies the Computer requirements associated with Online Banking and maintains an email address, and if Bank has otherwise approved Customer's use of Online Banking as described further below.
3. Access. To use Online Banking, Customer must have a Computer, access to the Internet and an e-mail address. Customer will be required to complete and submit an application, enrollment and/or similar form(s) associated with use of Online Banking (hereinafter, "Sign-Up Forms"). Once Bank has received such Sign-Up Forms and verified Customer's Account information, Bank will send Customer, by secure e-mail associated with the Service, confirmation of Bank's acceptance of Customer's enrollment, along with a Bank-provided Username and temporary password. Customer's enrollment in Online Banking will enable Customer to access only those Accounts that Customer has designated for access with Online Banking in Customer's Sign-Up Forms. Customer can also add or remove access to any of Customer's Accounts through Online Banking by completing required form(s). Access to Customer's Accounts through Online Banking will be based upon the identification of Authorized Users and authority levels specified by Customer in Customer's Sign-Up Forms. Except as may otherwise be set forth in this Appendix, Bank shall have no responsibility or obligations whatsoever to monitor transactions through Online Banking to determine that they are made by or on behalf of Customer.
4. Administrator and Authorized Users.
- 4.1 Customer shall designate an Administrator(s) with Bank as set forth in certain set-up and/or the Enrollment Form(s). Customer is solely responsible for designating its Administrator.
- 4.2 The Administrator may designate Authorized Users. Notwithstanding the foregoing, Bank recommends, as an additional security procedure, that Customer designate only one Administrator at a time. Customer accepts as its sole responsibility the Administrator's designation of Authorized Users. Customer understands that Administrator(s) will control, and Customer authorizes Administrator(s) to control, access by Authorized Users of the Service by instructing Bank to issue Access Devices. The Administrator(s) may instruct Bank to add, change or terminate Customer's Authorized User(s) or de-activate an Access Device(s) from time to time and in his/her sole discretion. Bank does not control access by any of Customer's Authorized Users to any of the Services. In the event that Customer designates more than one Administrator, Bank recommends that Customer manage its use of the Services by requiring dual approval to set up new Authorized Users. In the event that Customer designates more than one Administrator, Bank recommends that Customer manage its use of the Services by requiring dual approval to set up Authorized Users.
- 4.3 Customer will require each Administrator and each Authorized User to review and comply with all provisions of the Agreement, this Appendix and all other applicable Appendices and/or agreements. Customer acknowledges and agrees that it is fully responsible for the failure of any Administrator or any Authorized User to so comply. Customer is responsible for any payment, transfer and other use of the Online Banking Service and any charges incurred by any Administrator and any Authorized User, even if such Administrator or Authorized User exceeds his/her authorization as established by Customer.
- 4.4 If an Authorized User authorizes other persons/entities to use the Authorized User's Access Devices in any manner, said authorization will be considered unlimited in amount and manner until Customer has notified Bank in writing as set forth in the Agreement or this Appendix, that Customer has revoked the authorization and changed, or caused Bank to change, the subject Authorized User's Access Devices. Customer is responsible for any transactions made by such persons/entities until Customer notifies Bank that transfers by that person/entity are no longer authorized and Bank has had a reasonable opportunity to act upon the requested change. Bank will not be liable for and will not reimburse Customer for any losses that may occur as a result of this authorized use of an Authorized User's Access Devices.
- 4.5 Customer shall notify Bank of any changes in access to or use of the Online Banking Service by the Administrator(s) or Authorized User(s) in accordance with the terms of the Agreement or this Appendix. Notwithstanding the foregoing, whenever an Administrator or Authorized User leaves Customer's employ or Customer otherwise revokes an Administrator's or Authorized User's authority to access or use the Online Banking Service, Customer must notify Bank in writing immediately.
5. Access Devices; Security Procedures.
- 5.1 Upon successful enrollment, Customer can access the Online Banking Service from Bank's designated website, using the Online Banking Service's Access Devices and applicable security procedures applicable to Customer's access to and use of Online Banking, as described in Schedule A attached to this Appendix and in associated Appendices from time to time (hereinafter the "Security Procedures").
- 5.2 Customer accepts as its sole responsibility the use, protection and maintenance of confidentiality of, and access to, the Access Devices. Customer agrees to take reasonable precautions to safeguard the Access Devices and keep them confidential. Customer agrees not to reveal the Access Devices to any unauthorized person. Customer further agrees to notify Bank immediately if Customer believes that the confidentiality of the Access Devices has been compromised in any manner.
- 5.3 The Access Devices identify and authenticate Customer (including the Administrator and Authorized Users) to Bank when Customer accesses or uses the Online Banking Service. Customer authorizes Bank to rely on the Access Devices to identify Customer when Customer accesses or uses any of the Service and as signature authorization for any payment, transfer or other use of the Online Banking Service. Customer acknowledges and agrees that Bank is authorized to act on any and all communications or instructions received using the Access Devices, regardless of whether the communications or instructions are authorized. Bank owns the Access Devices, and Customer may not transfer them to any other person or entity.
- 5.4 Customer acknowledges and agrees that the Access Devices and other Security Procedures applicable to Customer's use of the Online Banking Service and set forth in this Appendix and associated Appendices are a commercially reasonable method for the purpose of verifying whether any payment, transfer or other use of the Online Banking Service was initiated by Customer. Customer also agrees that any election Customer may make to change or waive any Security Procedures recommended by Bank is at Customer's risk and that any loss resulting in whole or in part from such change or waiver will be Customer's responsibility. Customer further acknowledges and agrees that the Access Devices are not intended and that it is commercially reasonable that the Access Devices are not intended to detect any errors relating to or arising out of a payment, transfer or any other use of the Online Banking Service.
- 5.5 If Customer has reason to believe that any Access Devices have been lost, stolen or used (or may be used) or that a payment or other use of the Online Banking Service has been or may be made with any Access Devices without Customer's permission, Customer must contact its Administrator. The Administrator must instruct Bank to de-activate, and has the sole responsibility for instructing Bank to de-activate, any such Access Device(s). Customer also agrees to contact Bank in any such event. In no event will Bank be liable for any unauthorized transaction(s) that occurs with any Access Devices.
6. Eligible Accounts. Customer may use Online Banking to access and in conjunction with the following types of Accounts:
- Checking Accounts
- Money Market Accounts
- Savings Accounts
- Certificates of Deposit
- IRA Certificates of Deposit
- Overdraft Lines of Credit
- Consumer Loans
- Mortgage and Home Equity Loans and Lines of Credit
- Commercial Loans and Lines of Credit
Not every Service described in this Appendix or available in Online Banking is available for all types of Accounts, or for every customer. If Customer owns or has access to more than one Account, access to Online Banking must be requested in writing for each Account individually, which generally occurs at the time of Account opening and/or enrollment in Online Banking. A request to access any eligible Account via Online Banking after the Account is opened must also be received in writing. If any designated Account is a jointly-owned Account, then all Account owners must sign the enrollment form to subscribe to Online Banking.
7. General Service Features.
7.1 Customer can use Online Banking to perform the following:
- Obtain transaction information and Account balance histories
- View online statements, certain check images
- Download certain Account transactions to Customer's Computer
- Transfer money between certain Accounts owned by a common entity that are held at Bank and are enrolled in Online Banking in connection with the same Username
- Send money from Customer's Deposit Account to an account held at Bank by another person, without common ownership
- Make payments on Credit Accounts that Customer has with Bank
- Pay bills to merchants, institutions, or individuals having U.S. addresses other than tax payments or court ordered payments
- Place stop payments on checks before they have been cashed
- Schedule other payments to certain of Customers' Deposit Accounts
- Contact Bank via a secure Online Message
7.2 In addition to the Online Banking Service's general features, additional features or modules related to the Online Banking Service may be offered from time to time by Bank, in its sole and exclusive discretion, including by way of example but not by limitation the following:
ACH Originations. ACH originations are subject to the terms and conditions of the Automated Clearing House (ACH) Origination Service Appendix. This Service allows Customer to initiate and approve (with pre-authorization) ACH transactions that Customer desires Bank to enter into the ACH network on Customer's behalf.
i. Wire Transfers. Wire transfers are subject to the terms and conditions of the Wire Transfer Service Appendix. This Service allows Customer to request certain wire transfer payment orders to be made to third parties on Customer's behalf.
7.3 The Online Banking features are limited to the extent of and are subject to the terms noted herein and in any agreements that apply to Customer. Not every Online Banking feature or service will be available to every customer. Service availability and any restrictions that might be applied to that service can be applied to any customer group or individual as Bank deems appropriate in its sole and exclusive discretion. For certain of Customer's Deposit Accounts, Customer may be able to hyperlink from the Online Banking website to another site relating to such Deposit Accounts, where Customer may be able to access features, information, transactions or other services pertaining to those Accounts that Customer cannot access directly on the Online Banking website (and thus not deemed a part of the Online Banking Service).
7.4 Bank may, from time to time, introduce new features to Online Banking. Bank may, but is not required to, notify Customer of the existence and availability of such new features. By using these features when they become available, Customer agrees to be bound by the terms of the Appendix or other service agreement governing such features.
8. Hours of Access. Online Banking is generally available seven (7) days a week, twenty-four (24) hours a day. Some or all features of Online Banking may not be available from time to time due to problems arising in connection with transmissions over the Internet, as well as emergency or scheduled system maintenance. Bank will post a notice of any extended periods of non-availability on the Online Banking site. Certain transactions posted outside normal business hours, such as those using the Bill Payment Service, will not take effect until the next Business Day.
9. Fees and Charges. Customer agrees to pay the Service Fees associated with Customer's use of Online Banking as set forth in the Bank's Fee Schedule as it may be amended from time to time. Customer agrees that all such Service Fees will be deducted from the checking Deposit Account designated as the "Primary Account" on Customer's Sign-Up Forms. If Customer closes the Primary Account, Customer must contact Bank immediately to designate another Deposit Account as the Primary Account. Customer agrees to pay any and all additional charges for services that Customer may request which are not covered by this Appendix, another Appendix or the Agreement. Customer acknowledges and agrees to be responsible for all telephone and Internet service fees Customer may incur in connection with Customer's use of Online Banking.
10. Overdrafts. Customer agrees to initiate or schedule all transfers or payment transactions only when there is or will be sufficient Available Funds in the Account for that transfer or payment. The completion of any transfer or payment order is subject to sufficient Available Funds in the Account at the time the transaction is posted. If Customer's Account has insufficient Available Funds to perform any fund transfer Customer has requested for a given Business Day, Bank may either pay or return it. Bank is not required to provide notification to Customer in any form that the transfer or payment order was not honored, and it is Customer's responsibility to make other arrangements to facilitate the processing of the transaction or payment by other means, which may include rescheduling or reinitiating the transaction in Online Banking. Customer agrees to pay the outstanding overdraft and any fee(s) associated with the overdraft in accordance with the Fee Schedule, whether the item is paid or returned. The honoring of one or more of Customer's overdrafts, however, does not obligate Bank to honor any future overdrafts. Bank may assess a fee to Customer's Account for processing an item that is presented for payment for which there are no funds, insufficient funds or unavailable funds. Please refer to the Fee Schedule for the amount of this fee. If Customer has an "Overdraft Protection" feature with Customer's Deposit Account, any check or debit that overdraws such Deposit Account will be honored up to Customer's available credit limit.
11. Limits on Amounts and Frequency of Online Banking Transactions.
- 11.1 Transactions initiated through Online Banking may be limited in number or dollar amount. Bank reserves the right to limit the amount or number of any type of transaction for any customer at any time. Bank may limit the amount and or the number of transactions for any specific customer group or entity as Bank deems appropriate in its sole and exclusive discretion. Additional information regarding limitations on the amount of transfers can be found the applicable Deposit Account Agreement. Any transaction limitation that is disclosed in these documents, in other areas, or is part of the Fee Schedule may be applied to any and all transactions initiated in Online Banking. Bank may amend, change, or abolish transaction limits of any kind at any time. Bank will use commercially reasonable efforts to give prior notice of such changes, but is not bound to do so except where governed by applicable law. All transactions are subject, in addition to any limitations on dollar amount or amount, to internal review by Bank from time to time, including but not limited to the review of factors such as the sending account, receiving account, the amount of the specific transaction, the aggregate amounts of other transactions processed or ordered by the customer, fraud screening, and other factors that Bank deems applicable and appropriate. If Bank determines that there are risks associated with the transaction, Bank may delay or cancel the transaction. Bank may request additional information regarding the transaction before it is finalized or any funds are released. In addition, if a hold has been placed on the deposits made to an Account from which Customer wishes to transfer funds, Customer cannot transfer the portion of the funds held until the hold expires.
- 11.2 By regulation, certain restrictions apply to the number of Internet transfers from savings Deposit Accounts (including Money Market Deposit Accounts) processed in a statement cycle. Transfers from savings Deposit Accounts to another Account or to third parties by preauthorized, automatic, telephone or computer transfer or by check, draft, debit card, or similar order to third parties are limited to six (6) per monthly statement cycle. There are no limits on withdrawals or transfers that Customer makes in person at any of Bank's branches or at an automated teller machine (ATM). If Customer exceeds these limits more than occasionally, Bank may convert Customer's savings Deposit Account to a transaction Deposit Account. If Bank converts Customer's Deposit Account, Bank will tell Customer and will tell Customer what kind of Deposit Account was used. A fee in the amount set forth in the Fee Schedule will be charged for each debit transaction from a savings Deposit Account in excess of the above limitations. (For a more detailed description of the limits on such transactions, please refer to the Deposit Account Agreement for business and non-consumer Accounts.)
12. Transaction Cut-Off Times. Bank will use commercially reasonable efforts to process Customer's transactions that are initiated through Online Banking as set forth below, or as may otherwise be specifically set forth in any applicable service Appendix or other agreement:
- Internal transfers between Customer's Accounts that are initiated by Customer prior to 8:00 p.m. Eastern Time ("ET") on a Business Day are processed in real-time on that Business Day. Transactions completed after 8:00 p.m. ET on a Business Day or that are completed on a non-Business Day will be processed on the following Business Day.
- Bill Payment transactions initiated through the Bill Payment Service, as outlined below, prior to 4:00 p.m. ET are processed on the Business Day on which the transaction is scheduled to be delivered. Bank is not responsible for the cancellation of any payments initiated by Customer in the Bill Payment Service at any time.
If the status of any transfer or transaction in Online Banking is "Processed" or "In Process," the transaction cannot be cancelled via Online Banking or by request to Bank. It is Customer's responsibility to arrange with the recipient or external financial institution for the re-credit or re-deposit of any funds transferred at Customer's request through Online Banking outside of the timeframes noted above.
13. Stop Payment Requests.
- 13.1 Customer may initiate stop payment requests within the Online Banking Service. These stop payment requests will be effective immediately after submission via Online Banking, and any applicable fee associated with that request will be assessed to the Deposit Account within one (1) Business Day. The stop payment request will not be effective if the item on which the stop is requested is already in-process or has been paid, regardless of whether the item appears in the transaction list or other detail within Online Banking.
- 13.2 To be effective, Customer's stop payment request must include Customer's Deposit Account number, the name of the payee, the check number, the amount of the check, and the date of the check.
- 13.3 Customer may also initiate stop payment requests by calling Bank at 1-800-242-0272. Such stop payments may only be initiated for paper checks that Customer has written on Customer's Deposit Accounts (and not those made via the Bill Payment Service or that is an electronic payment).
- 13.4 If Customer makes a stop payment request using the telephone option, Bank will also require Customer to put the stop payment request in written form and to submit this form to Bank. This written request must be forwarded to Bank within fourteen (14) days of the date of Customer's Online Banking or telephone request. When Bank receives Customers' written request, the stop payment will be in effect for a period of six (6) months. If Bank does not receive Customer's written request within fourteen (14) days, the stop payment will no longer be in effect.
14. Periodic Statements. Customer will not receive a separate Online Banking statement. Transfers to and from Customer's Accounts using Online Banking will appear on the respective periodic statements for each of Customer's Accounts. Statements will be provided in paper form unless Customer elects the eStatements Service in the Sign-Up Forms.
15. BILL PAYMENT SERVICE TERMS AND CONDITIONS.
- 15.1 The Online Banking Service's Bill Payment Service ("Bill Payment") allows Customer to schedule business-purpose bill payments through the Internet. Bill Payment is offered through and actual payments are handled by Bank's third party service provider, FIS. Additional terms and conditions govern Bill Payment and are available on the Online Banking Service's site. In addition to the terms and conditions available on the Service's site, this Appendix, including the Bill Payment security procedures described in Schedule A, and the following additional terms and conditions shall also apply to Customer's use of Bill Payment.
- 15.2 Customer is required to enroll in Bill Payment prior to using it. Each Deposit Account owner, regardless of the type of ownership held on a Deposit Account (joint, sole, business, etc.), must enroll separately to use Bill Payment. Bill Payment may be used for the business use of Customer only. Any attempt or use of Bill Payment to process payments for third parties is prohibited and can result in termination of Bill Payment. Joint owners of a single Deposit Account must have enrolled separately, and the payment history and payee information for each enrollee will not be shared or accessible by any other enrollee, even at the request of either party.
- 15.3 Enrollment in Bill Payment includes separate terms and conditions provided during enrollment that Customer will be required to accept as a condition for using Bill Payment. At least one (1) Authorized Representative must enroll in Bill Payment in order for it to be activated. Customer's Authorized Representative and all Authorized Users of Bill Payment will be required to review and accept the additional terms and conditions, which will be displayed electronically during the Bill Payment Service enrollment process.
- 15.4 Except as is otherwise provided by this Appendix, the Agreement or by applicable law, Bank cannot and will not guarantee or have any responsibility whatsoever for the completion or accuracy of transactions performed through Bill Payment, including electronic fund transfers that Customer requests be performed by Bank's service provider. Payments initiated through Bill Payment that are paid via paper check may appear to be drawn on a third-party processor and not Bank.
16. eSTATEMENTS SERVICE TERMS AND CONDITIONS.
- 16.1 This portion of the Appendix describes the terms and conditions applicable to the eStatements Service offered through Bank. If Customer completes the enrollment process for eStatements, this Service will allow Customer to view certain of Customer's current Deposit Account statements for Customer's Deposit Accounts on a secure website.
- 16.2 Consent and Authorization for Electronic Transmission of Account Statements. Customer understands that pursuant to Customer's Deposit Account Agreement with Bank, Customer may be entitled to receive periodic Deposit Account statements in connection with Customer's Deposit Accounts, such as checking Deposit Account statements ("Account Statements"). By enrolling in eStatements via the link on the Online Banking Service's site, Customer authorizes Bank to discontinue sending such periodic Account Statements via postal mail service for Customer's Deposit Account (s) and to instead deliver such periodic Account Statements to Customer electronically. Bank will send Customer an e-mail on an ongoing basis to Customer's primary e-mail address, as indicated in Customer's online profile with Online Banking, notifying Customer that one or more of Customer's eStatement Account Statements are ready to be viewed on the Bank website.
- 16.3 Authorization. As a condition of using eStatements, Customer represents to Bank and further agrees that, if the Deposit Account used to access eStatements is a joint Deposit Account, Customer is an Deposit Account holder of the joint Account and Customer's election to use eStatements for the Deposit Account has been authorized by each of the joint accountholders. All joint accountholders on the Deposit Account are legally bound by these terms and conditions.
- 16.4 Termination of eStatements. Customer election to receive subsequent Account Statements electronically is voluntary and may be terminated at any time. Customer may elect to terminate eStatements at any time in writing, by sending Bank a secure e-mail via the Online Banking Service. Subject to Bank's confirmation of Customer's request, such termination shall become effective no later than fifteen (15) days after receipt by Bank. Upon termination, Customer will no longer have access to Customer's Account Statements online and Customer will receive all Account Statements in paper form via postal mail service, subject to any fee as set forth in the Fee Schedule.
- 16.5 Valid E-Mail Address Required. Customer must maintain a valid, active e-mail address to use eStatements. Customer must promptly notify Bank of any change in Customer's e-mail or postal address by contacting Bank's Customer Service Department as set forth in Section 26 of the parties' Agreement. Bank is not liable for any third party-incurred fees, other legal liability, or any other issues or liabilities arising from eStatements or notifications sent to an invalid or inactive e-mail address or postal address that Customer has provided.
- 16.6 Paper Statements. Customer may also request a paper copy of any periodic regular Account Statement. A fee may be charged for any such paper copies in accordance with the Fee Schedule.
- 16.7 eStatement Changes. As further set forth in the Agreement, Customer acknowledges and agrees that Bank reserves the right to change the terms and conditions of this Appendix as it pertains to eStatements at any time. Bank will notify Customer in accordance with the Agreement. Accessing Customer's eStatements after Customer receives any notice of change will constitute Customer's acceptance and agreement to each such change. Bank reserves the right to discontinue the eStatements service at any time.
- 17.1 Bank offers opt-in "Alerts" associated with certain eligible Customer Accounts. Online Banking users have the ability to subscribe to Alerts that deliver information about Accounts via email. Each user of Online Banking is required to subscribe to the Alerts service and designate which Alerts to receive. Joint Online Banking users must subscribe to Alerts separately, and may choose any selection of Alerts to receive, separate and distinct from those selected by any other user. Bank may also send security Alerts as part of the Online Banking Service. Customer acknowledges and agrees that these security Alerts are not optional.
- 17.2 Alerts will be delivered by email to the primary email address listed for each subscribed Authorized User in Online Banking. By subscribing, Customer understands and agrees that Alerts will be delivered to Customer via this channel. Customer also agrees that the delivery of Alerts may be delayed or prevented by a variety of factors. Bank will use commercially reasonable efforts to deliver Alerts in a timely manner and with information that is accurate as of the time the Alert is generated. Bank does not guarantee the delivery or the accuracy of the information contained in any alert. Bank is not responsible for any action taken or not taken by an Account holder or third party on the basis of information contained in an Alert.
- 17.3 The email channel used to deliver Alerts is not secure, and Bank will not include any full, non-public personal information such as account number or password. Limited Account information such as balance or amount of a transfer can be included. By subscribing to the Alerts feature, Customer understands and agrees that anyone with access to the designated email account will be able to access and read this information. Bank is not responsibility for the security of any information provided in any reply to an Alert, as that channel is not a secure method of communication with Bank.
- 17.4 It is Customer's responsibility to provide to and maintain with Bank an accurate email address for Alerts delivery. Bank will not be liable or responsible for any information which is delivered to an email address which is not accessible by Customer, or is accessible by someone other than Customer until Bank has been provided an accurate email address via the Online Banking Alerts section, and has had a reasonable time in which to process the change.
18. Customer Communications with Bank. Unless the Agreement provides otherwise, Customer can communicate with Bank with respect to Online Banking by contacting Bank's Customer Service Department as set forth in Section 26 of the parties' Agreement.
19. Customer Responsibilities; Security.
- 19.1 Customer is responsible for all transfers, payments or other Online Banking Service transactions that Customer authorizes to be made using the Online Banking Service and as otherwise set forth in this Appendix or in the Agreement.
- 19.2 Customer agrees not to disclose any proprietary information regarding the Online Banking Service to any third party (except to Customer's Administrator(s) and Authorized User(s)). Customer also agrees to comply with any operating, security and recognition procedures Bank may establish from time to time with respect to the Online Banking Service. Customer will be denied access to the Online Banking Service if Customer fails to comply with any of these procedures. Customer acknowledges that there can be no guarantee of secure transmissions over the Internet.
20. Contacting Bank. Customer may telephone Bank and/or write Bank at the phone number and address provided in the Agreement to: (a) inquire about the receipt and/or amount of credits to Customer's Account(s), (b) notify Bank if Customer's Access Devices are lost or stolen, (c) notify Bank of unauthorized transactions appearing on Customer's statement or (d) change Customer's mailing or email address.
21. Joint Accounts. When Customer's access to the Online Banking Service is linked to one or more jointly owned Accounts, Bank may act on the oral, written or electronic instructions of any joint owner of those Accounts made in accordance with the terms of the Agreement. Each owner of a Deposit Account is authorized to access all of the Available Funds held in that Deposit Account through the Online Banking Service.
22. Hyperlinks. Bank may elect to display one or more hyperlinks on the Online Banking Service website from time to time. A hyperlink is any highlighted words or phrases in a document that allows Customer to click through to another section of the same document or to another document on the Internet. A hyperlink may allow Customer to click through to a third party website over which Bank has no control. Bank disclaims any responsibility for the content, products and services provided at linked third party websites. Bank is not liable for any failure of the products or services advertised on third party websites. Customer should be aware that third party websites may have privacy policies that differ from Bank's; it is Customer's responsibility to review privacy policies at the linked third party websites to determine whether those policies are acceptable to Customer. The linked third party websites may provide less security than Bank's website.
2 3. ERRORS OR QUESTIONS ABOUT ELECTRONIC TRANSACTIONS.
• 23.1 Errors or Questions.
o 23.1.1 Customer will call Bank or write to Bank at the number/address provided in the Agreement if Customer thinks:
i. Customer's statement or transaction record is wrong, or
ii. Customer needs more information about a transaction, including one listed on the statement.
23.1.2 Bank will need to know the following:
. Customer's name and account number;
i. A description of the error or the transfer Customer is unsure about and an explanation of why Customer believes it is an error or why Customer needs additional information;
ii. The dollar amount of the suspected error; and
23.1.3 Bank will tell Customer the results of Bank's investigation within a reasonable time after Bank hears from Customer and will correct any error that may be identified in accordance with the terms of the Agreement.
24. Unauthorized Online Banking Service Transactions.
- 24.1 Customer will notify Bank at once if Customer believes its Access Devices have been stolen or compromised. In addition, Customer will notify Bank at once if Customer believes someone has transferred or may transfer money from Customer's Account(s) without Customer's permission or if Customer suspects any fraudulent activity on Customer's Account.
- 24.2 When Customer gives someone its Access Device(s), Customer is authorizing that person to use the Online Banking Service, and Customer is responsible for all transactions the person performs using the Online Banking Service. All transactions that person performs, even transactions Customer did not intend or want performed, are authorized transactions. Transactions that Customer or someone acting with Customer initiates with fraudulent intent are also authorized transactions. For Customer's protection, Customer should sign-off after every Online Banking Service session and close Customer's browser to ensure confidentiality.