BUSINESS ONLINE BANKING AGREEMENT

This Business Online Banking Agreement “Agreement” is effective between the Bank’s customer using the Services (the “Customer”) and Chesapeake Bank (the “Bank”).  By using any of the Services, the Customer represents and warrants to the Bank that the Customer has read and understands the terms and conditions hereof.

OTHER AGREEMENTS

All other agreements, laws, rules and regulations that govern the Customer’s accounts and any service that Bank renders for the Customer (including the Services) are incorporated in this Agreement by reference to the extent consistent with this Agreement. This Agreement supersedes all previous agreements and understandings, oral or written.

SUCCESSORS

This Agreement and all the terms and provisions herein shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors.

GENERAL TERMS AND CONDITIONS

This Agreement governs the relationship between the Customer and the Bank with respect to the Bank’s electronic services described herein (the “Services”). The Bank can provide the Customer with a current version of this Agreement upon request. By accessing the Services, you can perform the Services described throughout this Agreement for which you have registered, and we have approved, subject to the limitations set forth in or otherwise incorporated into this Agreement and any applicable Account Agreement (a) automated clearing house (ACH), (b) positive pay, (c) remote deposit capture (RDC), (d) wire transfers (WTS) Unless otherwise affirmatively and specifically set forth in other Sections of this Agreement, the following provisions shall apply to this Agreement and the Services.

 

IF CUSTOMER’S PASSWORD OR TOKEN HAS BEEN LOST OR STOLEN

If Customer’s password or token has been lost or stolen, Customer shall call Bank immediately at (877) 436-9032, between the hours of 8:00 a.m. and 7:00 p.m. (Eastern Time), Monday through Friday and 9:00 a.m. to 12:00 p.m. on Saturdays. Business account holders will assume complete liability for all fraudulent transactions.

HOLIDAY SCHEDULE

Bank will be closed on the following standard holidays observed by the Federal Reserve Bank: New Year’s Day, Martin Luther King’s Birthday, Presidents Day, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, and Christmas Day. Bank will not accept files for processing on these days, as well as on all Saturdays and Sundays. Entries should not be dates effective any of the above days.

 

SECURITY CONTROLS

The Customer acknowledges and understands that the Bank will provide, and make mandatory the following security features (a) secure tokens or digital token, and (b) if the customer is processing ACH or WTS transactions, multifactor authentication.  The Customer acknowledges and understands that, while the Bank will provide the following security features, it is up to the Customer to put these features into place: (a) dual control (b) text/email alerts.  The Customer acknowledges and understands that the Bank will make available the following security controls only for Corporate Level Customers: (a) all of the above, (b) time restrict and (c) IP restrict.

 

SECURITY PROCEDURES

The Customer shall comply with the security procedures described in this section and elsewhere in this Agreement (the “Security Procedures”) and Customer acknowledges and agrees that the Security Procedures, including (without limitation) any code, password, personal identification number, user identification technology, token, certificate, or other element, means, or method of authentication or identification used in connection with a Security Procedure, Security Measures used in connection therewith, constitute commercially reasonable security procedures under applicable law for the initiation of ACH, positive pay, remote deposit capture (if applicable)-, and WTS entries. Customer authorizes Bank to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until Customer has notified Bank, according to notification procedures prescribed by Bank, that the Security Procedures or any token device has been stolen, compromised, or otherwise become known to persons other than User(s) (defined below) and until Bank has had a reasonable opportunity to act upon such notice. Customer agrees that the initiation of a transaction using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction notwithstanding any particular signature requirements identified on any signature card or other documents relating to Customer’s deposit accounts maintained with Bank, and Customer agrees and intends that the submission of transaction orders and instructions using the Security Procedures shall be considered the same as Customer’s written signature in authorizing Bank to execute such transaction. Customer acknowledges and agrees that Customer shall be bound by any and all Entries (defined below) initiated through the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated by User(s), to the fullest extent allowed by law. Customer further acknowledges and agrees that the Security Procedures are not designed to detect error in the transmission or content of communications or Entries initiated by Customer and that Customer bears the sole responsibility for detecting and preventing errors. Customer agrees to keep all Security Procedures, passwords and tokens protected, secure, and strictly confidential and to provide or make available the same only to User(s). Customer agrees to instruct each User not to disclose or provide any Security Procedures or passwords to any unauthorized person. Bank shall otherwise communicate with the Administrator regarding Security Procedures. “Administrator” means any officer or employee of the Customer or other person acting on behalf of Customer to Bank that Customer designated to Bank as being an authorized representative of Customer or as authorized to act on Customer’s behalf with respect to customer’s access and use of access to all accounts and function as set forth throughout this Agreement. The Customer’s Administrator shall have responsibility to distribute key fob tokens or go through the token app registration with each designated User(s) and to ensure the proper implementation and use of the Security Procedures by User(s). Where Customer has the ability to change or modify a password or PIN (from time to time) the Customer agrees to make those changes to ensure security. Customer agrees to notify Bank immediately, according to notification procedures prescribed by Bank, if Customer believes that any Security Procedures, password, or key fob has been stolen, compromised, or otherwise become known to persons other than User(s) or if Customer believes that any ACH, positive pay, remote deposit capture and WTS or activity is unauthorized or in error. In the event of any actual or threatened breach of security, Bank may issue Customer a key fob token or establish new Security Procedures as soon as reasonably practicable, but Bank shall not be liable to Customer or any third party for any delay in taking such actions. Customer agrees to notify Bank immediately, according to notification procedures prescribed by Bank, if the authority of any Administrator(s) shall change or be revoked. Customer shall recover and return to Bank any token devices in the possession of any User(s) whose authority to have the token device is revoked. Bank reserves the right to modify, amend, supplement, or cancel any or all Security Procedures, or to cancel or replace any token at any time and from time to time in Bank’s discretion. Bank will endeavor to give Customer reasonable notice of any change in Security Procedures; provided that Bank may make any change in Security Procedures without advance notice to Customer if Bank, in its judgment and discretion, believes such change to be necessary or desirable to protect the security of Bank’s systems and assets. Customer’s implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute Customer’s Agreement to the change and Customer’s Agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended.

USE OF THE DUAL CONTROL APPROVAL FEATURE

Dual control approval feature is available for Customers that wish to have two individuals authorized to use the Services on behalf of Customer (each, a “User” and collectively, “Users”) to initiate transactions such as ACH initiation, RDC deposit submissions and wire transfers. Typically, one User with sufficient entitlements will input transaction information; and at least one other User with sufficient entitlements will verify and finish the transaction before it is released and processed.

AUTHORITY OF OTHER ENTITIES

If Customer requests Bank-, to include in a Service accounts that belong to a person other than the Customer and held at the Bank, then as a part of the Bank’s implementation thereof; (a) Customer, in so requesting the Bank, represents and warrants to Bank that said other person (the “third party”) has given Customer (and, if applicable, Customer’s agent, as contemplated by clause (c), below) express written authority to access the third-party’s accounts through use of any Service to the same extent Customer has with respect to its own accounts; (b) all of the provisions set forth in this Agreement will apply to the third-party’s accounts as if they were the Customer’s accounts; (c) each person who is authorized to act on Customer’s behalf with respect to a Service is also authorized, to the same extent, to act on Customer’s and said third-party’s behalf with respect to the third-party’s accounts; and (d) Customer and said third- party shall be jointly and severally liable for all indemnification, confidentiality and other obligations to the Bank under this Agreement with respect to the Third-Party Accounts. The Bank will require written confirmation from said third-party that it has authorized Customer (and Customer’s agent, if applicable) to include its accounts in the Bank’s implementation of Customer for the Services, and that it agrees to the indemnification, confidentiality and other obligations to the Bank hereunder. Customer agrees to notify Bank immediately if such authority is revoked or modified. Customer agrees to notify Bank immediately of any change in the information contained in any representation or warranty, or any change to any authorization or Agreement contained in this Paragraph. Notification must be provided in writing and to an officer of Bank during its normal business hours.

AMENDMENTS

Bank may amend or add to the provisions of this Agreement without prior notice. If the Customer continues to use a Service after any of these changes or additions become effective (or if Customer confirms a Service profile for an affected Service), Customer shall be bound by those changes or additions. In the event that performance of Services under this Agreement would result in a violation of any present or future statute, regulation or governmental policy to which Bank is subject, then this Agreement shall be amended to the extent necessary to comply with such statute, regulations or policy. Alternatively, Customer agrees that Bank may terminate this Agreement if it deems such action necessary or appropriate under the circumstances. Bank shall have no liability to the Customer as a result of any such violation, amendment or termination. Any practice or course of dealing between Bank and Customer, or any procedures or operational alterations used by them, shall not constitute a modification of this Agreement or the rules of the National Automated Clearing House Association, as from time to time to time in effect (including any exhibits or appendices thereto now in effect, the “NACHA Rules”), nor shall they be construed as a supplement to this Agreement. Bank will promptly give Customer subsequent notice of any such change.

CHANGES TO CUSTOMER   SERVICES

Any changes requested by Customer must be in writing by the authorized account individual stating the requested change and the proposed effective date of the change. The change will take effect upon the requested effective date unless Bank requires additional documentation. In that event, the change will become effective once all necessary documentation is received by Bank.

NOTICES

Any notices required under this Agreement may be given by mail, personal delivery, e-mail or other electronic means. Bank may use any address (including e-mail or other electronic addresses) for Customer shown in Bank’s records that Customer has provided to Bank and Bank believes in good faith is valid. Any notice Bank sends Customer will be effective when sent or when Bank otherwise makes the notice available to Customer through an online Service. Customer must send any notices to Bank or Bank’s Electronic Services Representative. Any notice Customer sends Bank shall be effective when Bank actually receives it.

USE OF SYSTEM

If Customer uses software residing on a personal computer, then Bank hereby grants, subject to this Agreement, a non- exclusive, non-transferable license (“License”) to use the Bank’s software that operates the Services (the “System”). No title to, ownership interest in, or proprietary rights over, the System or related materials are granted to Customer by such License, and the System shall remain Bank’s exclusive property. Customer agrees to execute and deliver to Bank such license agreements and other documents as Bank or the vendors of such software may require in order for Customer to use such software, and Customer agrees to comply with all of such license agreements and other documents to which it agreed to be bound. Customer agrees to effect appropriate security measures to safeguard the System from theft, access, use or misuse, damage or destruction by any persons. Customer agrees to treat the System as strictly confidential at all times and hold the same in custody for Bank. Customer agrees not to, or allow any third party to, reproduce, alter, merge, modify, copy, remove, license, market, transfer, give, dispose of or otherwise exploit the System, or any component thereof, including its software, nor make any disclosures concerning the System, or any component thereof, or documentation relating thereto, to any third party. Customer agrees that Customer is responsible for and assumes the risk of any consequences of the fraudulent, unauthorized, or improper use or misuse of the System by Customer or its agents, officers, employees or representatives, and for adhering to the security measures that form part of it. Unless otherwise agreed by the parties, Customer shall be responsible for the payment of all costs of installation of any System provided in connection with the Services, as well as for the selection, installation, maintenance and repair of all hardware and other software required on Customer premises for the successful operation of the System. In addition, Customer shall be responsible for training all employees on how to use the System properly.

FORCE MAJEURE

Bank shall not be responsible for delays or failures in performance of Services resulting from circumstances beyond its reasonable control.

TERMINATION

This Agreement or any Service may be terminated by either party at any time by giving thirty (30) days’ prior written notice thereof to the other party. Bank may terminate or suspend immediately any Service without notice to Customer, if Customer fails to maintain sufficient available funds in the designated account for such Service. In addition, Bank may terminate this Agreement or terminate or suspend any Service immediately, upon notice to Customer, in the event: (a) Customer closes any account established in connection with a selected Service; (b) Customer breaches a material obligation under this Agreement, or any other agreement with Bank, or any applicable law or government regulation; (c) Customer becomes insolvent, is placed in Receivership or adjudicated bankrupt, or Customer becomes subject to any voluntary or involuntary bankruptcy proceeding, or any assignment for the benefit of Customer’s creditors; (d) Customer’s financial condition has become impaired, in Bank’s good faith opinion;  (e) the continued provision of Services in accordance with the terms of this Agreement would, in Bank’s good faith opinion, violate federal or state law, or would subject Bank to unacceptable risk of loss. Upon any such termination Customer shall: (i) promptly pay to Bank all sums due or to become due under this Agreement; (ii) return immediately to Bank, at Customer’s expense, all equipment or Systems provided to Customer by Bank, and all related materials, and all copies and reproductions thereof, whether written or in magnetic media and whether received from Bank or otherwise and shall pay Bank for any damages to any such materials (ordinary wear and tear excepted); and (iii) have no further right to utilize the products or Services being provided hereunder. Termination of a Service does not affect Customer’s payment obligations for Services provided to Customer on or before the product or Service was terminated. Termination of any Service does not release Customer or Bank from any respective obligations which arose or became effective prior to such termination. All provisions of this Agreement relating to the parties’ warranties, representations, confidentiality, non-disclosure, proprietary rights, and limitations of liability or indemnification shall survive the termination of a Service and this Agreement.

INDEMNIFICATION

Customer agrees to indemnify the Bank and its successors and assigns, and hold the Bank and its successors and assigns harmless, upon demand, from and against any and all losses, claims, liabilities, expenses, penalties and other damages of any kind incurred by or threatened against Bank by reason of or arising out of or in connection with the Services provided hereunder by Bank (collectively hereinafter, “Losses”), including without limitation all Losses resulting from adjustments and including without limitation actual attorneys’ fees and expenses incurred by Bank. Bank may hire counsel of its choosing to represent it in any dispute or lawsuit that arises as a result of the Services or this Agreement. All invoices for legal services submitted by Bank to Customer shall be paid within thirty (30) days after receipt. The foregoing indemnification will not, however, apply with respect to any loss solely caused by Bank’s gross negligence or willful misconduct.

LIMITATION OF LIABILITY

In the event of a Bank error or other deficiency in a Service, the Bank’s sole obligation and the Customer’s sole remedy shall be for Bank to assist the Customer in correcting or otherwise mitigating the effect of such error or deficiency, if possible. Bank shall also review its systems and procedures for the purpose of implementing changes to prevent or mitigate a future occurrence of a similar error or deficiency. IN NO EVENT SHALL BANK BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION LOSSES, OR AMOUNTS PAID TO THIRD PARTIES TO SETTLE OR SATISFY CLAIMS AGAINST THE CUSTOMER. The Customer waives any right to recover damages under tort theories. Even if the Customer’s remedies are deemed to have failed in its essential purpose, Bank shall have no liability to the Customer. No lawsuit or other action may be brought by the Customer against Bank on any claim or controversy after one (1) year from the date on which the cause of action arose regardless of the nature of the claim or form of action.

LIMITED WARRANTY

Bank warrants that it will provide the Services (“Services”, as used in this Paragraph, to include any equipment and software provided by Bank in connection with said Services) in a commercially reasonable manner and substantially in accordance with industry standards. Bank assumes no other obligation as to performance or quality of the Services provided. EXCEPT AS STATED IN THE IMMEDIATELY PRECEDING SENTENCE, BANK MAKES NO WARRANTIES REGARDING THE SERVICES. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED BY BANK AND WAIVED BY THE CUSTOMER.

VENDORS

Any third-party Servicer or vendor used by Customer in connection with the Services (“Vendor”) shall be Customer’s agent and Customer will be liable for: (a) Any Vendor’s failure to comply with any security procedures or operating requirements relating to the Services; (b) All fees, costs and expenses owed to each Vendor for its Services; (c) Any Losses incurred as a result of any Vendor’s failure to perform, delay or error in performing, its Services. Customer acknowledges and agrees that no Vendor, authorized agent of Customer or Vendor, or any other person acting on its behalf is, and shall not hold themselves out to be, vested with any power or right to bind contractually or to act on Customer’s behalf as agent or otherwise.

PRIVACY

Except as expressly authorized by prior written consent of the disclosing party, each party shall,- limit access to Confidential Information (defined below) to its employees and agents who have a need to know; only use Confidential Information for the purposes for which it was disclosed, and not re-use or re-disclose confidential information for other purposes except as permitted or required by consumer laws; and safeguard all Confidential Information by implementing and maintaining appropriate administrative, technical and physical safeguards to ensure the security and confidentiality of Confidential Information, protect against any anticipated threats or hazards to the security or integrity of Confidential Information, and protect against unauthorized access to or use of Confidential Information which could result in substantial harm or inconvenience to any individual. As used herein, “Confidential Information” means non-public personally identifiable financial information, as those terms are defined by applicable consumer protection and privacy laws (including but not limited to the Gramm-Leach-Bliley Act), and the applicable regulations issued thereunder and interpretations thereof.

GOVERNING LAW; VENUE

This Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Virginia. Customer hereby irrevocably agrees to submit to the exclusive jurisdiction of the state courts of the Commonwealth of Virginia and the United States of America for the Eastern District of Virginia and agrees that any legal action or proceeding with respect to this Agreement may be commenced in such courts. In the event of any arbitration or other adversarial proceeding between the parties concerning this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs in addition to any other relief to which it may be entitled.

UNDERWRITING, FINANCIAL INFORMATION, AUDIT AND ANNUAL REVIEW

Bank’s approval for use of certain Services may be subject to underwriting criteria established by Bank. If Bank requires application of underwriting criteria to approve a Customer for use of certain Services, Bank will communicate to Customer the nature and content of that criteria and the information Customer will be required to provide to Bank. Customer agrees to provide Bank such financial, business and operating information as Bank may reasonably request in connection with Bank’s underwriting and approval process. The Customer acknowledges that Bank will deny any electronic service request in which the controlling officers or principal owners do not meet the Bank’s minimum underwriting standards. Bank may, from time to time, request information from Customer in order to evaluate a continuation of any of the Services provided by Bank-, and make adjustments of any set limits. Customer agrees to provide the requested financial information immediately upon request by Bank. Customer authorizes Bank to investigate or reinvestigate at any time any information provided by Customer in connection with this Agreement. Upon request by Bank, Customer hereby authorizes Bank to enter Customer’s business premises for the purpose of ensuring that Customer is in compliance with this Agreement and Customer specifically authorizes Bank to perform an audit of Customer’s operational controls, risk management practices, staffing and the need for training and ongoing support, and information technology infrastructure. Customer hereby acknowledges and agrees that Bank shall have the right to mandate specific internal controls at Customer’s location(s) and Customer shall comply with any such mandate. In addition, Customer hereby agrees to allow Bank to review available reports of independent audits performed at the Customer location related to information technology, and any associated operational processes. Customer agrees that if requested by Bank, Customer will complete a self-assessment of Customer’s operations, management, staff, systems, internal controls, training and risk management practices that would otherwise be reviewed by Bank in an audit of Customer. If Customer refuses to provide the requested financial information, or if Bank concludes, in its sole discretion, that the risk of Customer is unacceptable, if Customer violates this Agreement or the Rules (defined below), or if Customer refuses to give Bank access to Customer’s premises, Bank may terminate the requested Services and this Agreement according to the provisions hereof. Customer authorizes Bank to retain possession of any information submitted to Bank concerning creditworthiness. Customer understands that Bank will deny any Services to a Customer where the Customer or the principal owners do not meet Bank’s minimum underwriting standards.

WAIVER

No delay or failure on the part of Bank in exercising any of Bank’s rights under this Agreement shall constitute a waiver of such rights, and no exercise of any remedy hereunder by Bank shall constitute a waiver of its right to exercise the same or any other remedy hereunder. Except for changes made in accordance with this Agreement, no deviation, whether intentional or unintentional, will constitute an amendment of this Agreement or will constitute a waiver of any right or duty of either party.

SEVERABILITY

In the event that any provision of this Agreement shall be determined to be invalid, illegal, or unenforceable to any extent, the remainder of this Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

FEES

Customer agrees to pay Bank the monthly fees established for each account type as disclosed at the time the account(s) is established. If, applicable, additional fees may apply to the Services. Bank from time to time may change the fees, and will notify the Customer by giving the Customer thirty (30) days’ written notice thereof.

USE OF TRADEMARKS

Customer may not use Bank’s name or trademarks.

THE SERVICES

This section contains additional products and services offered through Online Banking. Unless otherwise stated, all terms and conditions stated above apply to all additional products and services. Additional products and services may be added, modified or removed at any time without notice. Additional fees may apply.

1. ACH SERVICES TERMS & CONDITIONS

 

GENERAL

Customer (Originator) wishes to initiate credit and/or debit entries through Bank (Originating Depository Financial Institution) to accounts maintained at Bank and in other depository financial institutions by means of the Automated Clearing House Network (“ACH”) pursuant to the terms of this Agreement, and of the “NACHA”-Rules and Bank’s operating rules and procedures for electronic entries as may be amended from time to time, collectively, the “Rules”, and Bank is willing to act as an originating depository financial institution (“ODFI”) within the meaning given that term in the Rules, with respect to such Entries (defined below). This Agreement sets forth the Agreement between the parties pursuant to which Bank will provide to Customer the ACH Services described herein (“ACH Services”). Customer (Originator) hereby requests that Bank (ODFI) to originate Entries on behalf of the Originator to Receivers’ Accounts. By using any of the ACH Services, Originator agrees to be bound by Nacha rules and accepts and agrees to all terms, conditions, and provisions of this Agreement and agrees that this Agreement sets forth this Agreement pursuant to which Bank will provide to Customer the ACH Services. To the extent that Customer transmits Entries via the Internet, Customer must execute the Business Online Banking Agreement which is hereby incorporated by reference and made a part hereof. In the event of an inconsistency between provisions of this Agreement, the applicable Uniform Commercial Code (“UCC”), the Business Online Banking Agreement, and the depository agreement(s) between Bank and the Customer with respect to the related account(s) (the “Depository Agreement”), the provisions of this Agreement shall prevail, unless otherwise provided in the UCC. Terms not otherwise defined in this Agreement shall have the meaning ascribed to those terms in the NACHA Rules. The terms “Entry” and “Entries” shall have the meaning provided in the NACHA Rules and shall also mean the data received from Customer hereunder from which Bank initiates each entry. The ODFI maintains the right to terminate or suspend this Agreement for breach of these Rules in a manner that permits the ODFI to comply with these Rules and ODFI maintains the right to audit the Originator’s compliance with this Agreement and the Rules.

PRE-FUNDING

Bank reserves the right to require Customer to pre-fund an account maintained at Bank prior to the effective date of any Entry (the “Effective Date”). Bank shall determine whether pre-funding is required based upon criteria established from time to time by Bank. Bank will communicate directly to Customer if pre-funding is required and, if requested by Customer, will provide Customer with an explanation of its pre-funding criteria. If it is determined that pre-funding is required, Customer will provide immediately available and collected funds sufficient to pay all Entries initiated by Customer (a) not later than 8:00 a.m. local time not fewer than 2 business days before each Effective Date, and (b) prior to initiating any Entries for which pre- funding is required.

COMPLIANCE WITH RULES AND LAWS

Customer acknowledges it has a copy or has access to a copy of the NACHA Rules. The NACHA Rules may also be found online at www.nacha.org under the publications tab. Customer agrees to comply with and be subject to the Rules in existence at the date of this Agreement, and any amendments to the Rules made from time to time. It shall be the responsibility of the Customer that the origination of ACH transactions complies with U.S. law, including but is not limited to sanctions enforced by the Office of Foreign Assets Control (“OFAC”). It shall further be the responsibility of the Customer to obtain information regarding such OFAC enforced sanctions. (this information may be obtained directly from the OFAC Compliance Hotline at 800-540-OFAC or from the OFAC’s home page site at www.ustreas.gov/ofac.) Customer agrees that the performance of any action by Bank to debit or credit an account or transfer funds otherwise required by the Rules is excused from the performance of such action to the extent that the action is inconsistent with United States law, including the obligations of Bank under OFAC or any program administered by the United States Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”). Customer agrees generally and warrants to Bank that all actions by Customer contemplated by this Agreement, including the preparation, transmittal, and settlement of Entries and payment orders, shall comply in all material respects with United States laws, regulations, regulatory guidelines and guidance, and official commentaries, including without limitation all such regulations, guidelines, and commentaries issued by the Board of Governors of the Federal Reserve and the Federal Financial Institutions Examination Council (“FFIEC”). Bank will charge the Customer with any fines or penalties imposed by OFAC, NACHA or any organization which are incurred as a result of non-compliance by the Customer and the Customer agrees to fully reimburse and indemnify Bank for such charges or fines. The specific duties of the Customer provided in the following paragraphs of this Agreement in no way limit the foregoing undertaking. The duties of the Customer set forth in the following paragraphs of this Agreement in no way limit the requirement of complying with the Rules.

TRANSMISSION OF ENTRIES BY CUSTOMER

User(s) shall initiate the debit or credit Entries listed in the “Credit and Debit Entries; Records Retention” section below on behalf of and as selected by Customer. Bank shall be entitled to deem any person having knowledge of any Security Procedure-, listed in this Agreement, to initiate Entries under this Agreement, to be a User. User(s) shall transmit Entries to Bank in computer readable form in compliance with the formatting and other requirements set forth in the NACHA file specifications or as otherwise specified by Bank. Entries shall be transmitted to Bank no later than the time and the number of days prior to the “Effective Date” as set forth on Processing Schedule set forth below. For purposes of this Agreement, Business Day means Monday through Friday, excluding federal holidays, and the Settlement Date with respect to any Entry shall be the Business Day when such Entry is debited or credited in accordance with instructions of the Customer. A federal holiday calendar, set forth in the above section titled “Holiday Schedule”. Entries received after the cut off time shall be deemed to have been received on the next Business Day. In-Process Entries means the aggregate dollar amount of all credit or debit Entries initiated by Customer and in process on any date for which settlement has not occurred with respect to credit Entries, or the applicable period for the return of items has not expired with respect to debit Entries. Entry Settlement Limit means the maximum aggregate amount of In-Process Entries permitted outstanding for Customer. Over Limit Entry means an Entry, the amount of which would cause the aggregate amount of “In-Process Entries” in this Agreement to exceed the settlement limit. Customer agrees that Bank will not process an Over-Limit Entry. Bank will suspend any over-limit entry submitted by Customer, and Bank may following its receipt of an over-limit entry; suspend all “In-Process Entries”. Customer acknowledges that any over-limit entry or other In-Process Entries suspended by Bank will not settle on their scheduled Settlement Date. If Customer wishes to initiate an Entry that would cause the amount of In-Process Entries to exceed the “Entry Settlement Limit” set forth in this Agreement, Customer may submit to Bank its request to initiate an Entry that otherwise would be an over- limit Entry. Customer must submit a request prior to initiating the Entry that otherwise would be an over -limit entry. A Banking Day is that portion of a Business Day where Bank is open to the public for carrying on substantially all of its banking functions. Bank may require from Customer financial or other information in connection with Bank’s consideration of the request. Bank may grant or deny Customer’s request at its sole discretion. In addition to the foregoing, Bank generally reserves the right to limit the nature and amount of the preauthorized debit and credit Entries processed under this Agreement or to refuse to process any debit or credit Entry under this Agreement if, in Bank’s sole judgment (i) there is reasonable cause to believe that any Entry will be returned or will not settle in the ordinary course of the transaction for any reason, (ii) to do otherwise would violate any limit set by the applicable clearing house association or any governmental authority or agency to control payment system risk, or (iii) a preauthorized credit Entry or the return of a preauthorized debit Entry would create an overdraft of Customer’s accounts. If any of the foregoing actions are taken by Bank with respect to a particular preauthorized debit or credit Entry, Bank will notify Customer as promptly as practicable, but in no event later than 2 Banking Days after its decision. Customer may not reinitiate entries except as prescribed by the Rules.

THIRD PARTY SERVICE PROVIDERS

Customer may use special equipment, services or software provided by a third party to assist it in processing files hereunder (a “Service Provider”). If Bank authorizes Customer to use a Service Provider, the relationship between Customer and the Service Provider shall be governed by a separate Agreement between Customer and Service Provider (“Service Provider Agreement”). Customer agrees not to use a Service Provider to transmit files to Bank without first entering into a Bank-approved Service Provider Agreement. If Customer uses Service Provider to transmit files to Bank, and Customer and Service Provider have not entered into a Bank-approved Service Provider Agreement, Customer (a) agrees that Service Provider is acting as Customer’s agent in the delivery of files to Bank, and (b) agrees to assume full responsibility and liability for any failure of Service Provider to comply with the laws of the United States, the Rules and this Agreement. Customer agrees that Bank will not be liable for any losses or additional costs incurred by Customer as a result of any error by Service Provider or a malfunction of equipment provided by Service Provider. Customer agrees that it shall be solely responsible for maintaining compliance with the requirements of Service Provider, including obtaining any software updates. Customer agrees that Bank shall not have any responsibility for any file handled by Service Provider until such time as Bank accepts and approves a file from such Service Provider for processing. All of Customer’s obligations and responsibilities under this Agreement will apply to the Service Provider, and Customer’s separate Agreement with the Service Provider shall so provide. At Bank’s request, Customer shall provide to Bank a true and exact copy of each service Provider Agreement. Customer shall designate the Service Provider as a User and the Service Provider shall also enter into a Service Provider Agreement before the Service Provider sends files to Bank. Notwithstanding the foregoing, Customer hereby authorizes Bank to accept any file submitted by the Service Provider even if the Service Provider has not been designated as a User or if the Service Provider has not executed the Service Provider Agreement. Customer hereby agrees to indemnify and hold Bank harmless from and against any losses, damages, fines, assessments, costs and expenses incurred or suffered by Bank or any other person as a result of or arising from Customer’s use of Service Provider, including fines or assessments incurred under or pursuant to the Rules and attorney’s fees.

PHYSICAL AND ELECTRONIC SECURITY

Customer is solely responsible for providing for and maintaining the physical, electronic, procedural, administrative, and technical security of data and systems in Customer’s possession or under Customer’s control. Bank is not responsible for any computer viruses (including, without limitation, programs commonly referred to as “malware,” “keystroke loggers,” and “spyware”), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of an online system or any ACH origination services, including the ACH Services. Any material downloaded or otherwise obtained is obtained at Customer’s own discretion and risk, and Customer agrees that Bank is not, and shall not be, responsible for any damage to Customer’s computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise. Customer is solely responsible for maintaining and applying anti-virus software, security patches, firewalls, and other security measures with respect to Customer’s operating systems, and for protecting, securing, and backing up any data and information stored in or on Customer’s operating systems. Customer agrees that Bank shall not be responsible for any errors or failures resulting from defects in or malfunctions of any software installed on Customer’s operating systems or accessed through an Internet connection. Customer acknowledges and agrees that it is Customer’s responsibility to protect itself and to be vigilant against e-mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as “phishing” and “pharming”). Customer agrees to educate Users, agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. Customer acknowledges that Bank will never contact Customer by e-mail in order to ask for or to verify account numbers, token device code, or any sensitive or confidential information. In the event Customer receives an e-mail or other electronic communication that Customer believes, or has reason to believe, is fraudulent, Customer agrees that neither Customer nor its Users, agents, and employees shall respond to the e-mail, provide any information to the e-mail sender, click on any links in the e-mail, or otherwise comply with any instructions in the e-mail. Customer agrees that Bank shall not be responsible for any losses, injuries, or harm incurred by Customer as a result of any electronic, e-mail, or Internet fraud. In the event of a breach of the Security Procedure, Customer agrees to assist Bank in determining the manner and source of the breach. Such assistance shall include, but shall not be limited to, providing Bank or Bank’s agent access to Customer’s hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure. Customer further agrees to provide to Bank any analysis of such equipment, device, or software or any report of such analysis performed by Customer, Customer’s agents, law enforcement agencies, or any other third party. Failure of Customer to assist Bank shall be deemed to be an admission by Customer that the breach of the Security Procedure was caused by a person who obtained access to transmitting facilities of Customer or who obtained information facilitating the breach of the Security Procedure from Customer and not from a source controlled by Bank.

CREDIT AND DEBIT ENTRIES; RECORDS RETENTION

Customer shall obtain an authorization agreement (an “Authorization Agreement”) as required by the Rules from the person or entity whose account will be debited or credited as the result of a debit or credit Entry initiated by Customer and Customer shall retain the Authorization Agreement in original form while it is in effect and the original or a copy of each authorization for two (2) years after termination or revocation of such authorization as stated in the Rules. Upon request, Customer shall furnish the original or a copy of the authorization to any affected “Participating Depository Financial Institution”, as defined in the Rules. The proper “Standard Entry Class Code” (SEC Codes), has the meaning set forth in the NACHA rules. The proper SEC code(s) a Customer shall use is dependent on the Customer obtaining the debit or credit authorization to debit or credit an individual or company’s account- CCD – Corporate Credit or Debit – Either a credit or debit where funds are either distributed or consolidated between corporate entities. CTX – Corporate Trade Exchange –The transfer of funds (debit or credit) within a trading partner relationship in which payments related information is placed in multiple addenda records.  PPD – Prearranged Payment and Deposit (a) Direct Deposit –(a) if a Direct Deposit- the transfer of funds into a consumer’s account. Funds being deposited can represent a variety of products, such as payroll, interest, pension, dividends, etc; (b) if a Direct Payment – the preauthorized payment is a debit application. This includes recurring bills that do not vary in amount — insurance premiums, mortgage payments, charitable contributions, and installment loan payments or standing authorizations where the amount does vary, such as utility payments. The below SEC Codes are the most commonly used and the list is not all-inclusive. Use of any Standard Entry Class Code other than those listed below require Bank approval prior to originating.

SEC Code	Debit / Credit	Authorization Method
PPD	Debit or Credit	Document signed by individual or similarly authenticated
CCD, CTX	Debit or Credit	Document signed or verbal Agreement by Customer*

RECORDING AND USE OF COMMUNICATIONS

Customer and Bank agree that all telephone conversations or data transmissions between them or their agents made in connection with this Agreement may be electronically recorded and retained by either party by use of any reasonable and legal means. Bank shall not be obligated to make such recordings.

PROCESSING, TRANSMITTAL, AND SETTLEMENT BY BANK

Except as otherwise provided for in this Agreement and if Bank elects to accept Entries, Bank shall: (a) use commercially reasonable efforts to comply with the instructions of Customer, (b) process Entries received from Customer to conform with the file specifications set forth in the Rules, (c)( in the case of a credit Entry received for credit to an account with Bank (“On-Us Entry”)), credit the Receiver’s account in the amount of such credit and transmit said Entry as provided in this Agreement, (d) transmit Entries by the deposit deadline, provided: (i) such Entries are completely received by Bank’s cut-off time at the location specified by Bank to Customer from time to time; (ii) the Effective Date satisfies the criteria provided by Bank to Customer; and (iii) Bank is open for business on such Business Day. Customer agrees that the selected Bank shall be considered to have been selected by and designated by Customer. The Customer will receive immediately available funds for any debit Entry initiated by it on the applicable Settlement Date.

SETTLEMENT OF CREDIT ENTRIES AND RETURNED DEBIT ENTRIES

Customer agrees to settle for all credit Entries issued by Customer, or User(s), and all credit Entries otherwise made effective against Customer. Customer shall make settlement at such time on the date of transmittal by Bank of such credit Entries as Bank, in its discretion, may determine, and the amount of each On-Us Entry at such time on the Effective Date of such credit Entry as Bank, in its discretion, may determine. Customer shall settle with Bank for the amount of each debit Entry returned by a “Receiving Depository Financial Intuition” (“RDFI”) or debit Entry dishonored by an RDFI. Settlement shall be made by Customer to Bank in any manner specified by Bank. Notwithstanding the foregoing, Bank is hereby authorized to credit or debit customer’s online account(s) to proceed with settlement for credit Entries issued by Customer or returned or dishonored debit Entries. If Bank requires pre-funding, Customer shall maintain sufficient collected funds in the account(s) to settle for the credit Entries at the time the credit Entries are issued by Customer. In the event the account or any other Customer account at Bank does not have collected funds sufficient on the Effective Date to cover the total amount of all Entries to be paid on such Effective Date, Bank may take any of the following actions: (a)Refuse to process all such credit Entries, in which event Bank shall return the data relating to such credit Entries to Customer, whereupon Customer agrees that Bank shall have no liability to Customer or to any third party as a result thereof; (b)  process that portion of the credit Entries as Customer has sufficient available funds in the Authorized Account to cover, in whatever order Bank in its sole discretion shall elect to process, in which event Bank shall return the data relating to such credit Entries that are not processed to Customer, whereupon Customer agrees that Bank shall have no liability to Customer or any third party as a result thereof; (c) process all credit Entries. In the event Bank elects to process credit Entries initiated by Customer and Customer has not maintained sufficient available funds in the Authorized Account with Bank to cover them, the total amount of any insufficiency advanced by Bank on behalf of Customer shall be immediately due and payable by Customer to Bank without any further demand from Bank. Unless otherwise agreed by the Bank in a written agreement with Customer, Bank shall in no event be obligated to advance any such funds. If Bank elects to pay an overdraft in Customer’s account, or otherwise advance funds as aforesaid, on any one or more occasions, such action or actions shall not be considered a waiver of Bank’s right to refuse to do so at any other time, nor shall it be an Agreement by Bank to pay other items that would cause in the overdraft.

ON-US ENTRIES

Except as provided in the “Rejection of Entries” section below, or in the case of an On-Us Entry, Bank shall credit the Receiver’s account in the amount of such Entry, provided the requirements set forth in the “Processing, Transmittal and Settlement by Bank” section above are met. If any such requirement is not met, Bank shall use reasonable efforts to credit the Receiver’s account in the amount of such Entry no later than the next Business Day following such Effective Date.

REJECTION OF ENTRIES

Customer agrees that Bank has no obligation to accept Entries and therefore may reject any Entry issued by Customer. Bank has no obligation to notify Customer of the rejection of an Entry but Bank may do so at its option. Bank shall have no liability to Customer for rejection of an Entry and shall not be liable to pay interest to Customer even if the amount of Customer’s payment order is fully covered by a withdrawable credit balance in an Authorized Account of Customer or Bank has otherwise received full payment from Customer.

CANCELLATION OR AMENDMENT BY CUSTOMER

Customer shall have no right to cancel or amend any Entry after its receipt by Bank. However, Bank may, at its option, accept a cancellation or amendment by Customer. If Bank accepts a cancellation or amendment of an Entry, Customer must comply with the Security Procedures provided in the “Security Procedures” section of this Agreement. If such a request is received by Bank before the affected Entry has been transmitted to the ACH (or, in the case of an On-Us Entry, before the Receiver’s account has been credited or debited), Bank will use reasonable efforts to cancel or amend the Entry as requested, but Bank shall have no liability if the cancellation or amendment is not affected. If Bank accepts a cancellation or amendment of an Entry, Customer hereby agrees to indemnify, defend all claims and hold Bank harmless from any loss, damages, or expenses, including but not limited to attorney’s fees, incurred by Bank as the result of its acceptance of the cancellation or amendment.

INCONSISTENCY OF NAME AND ACCOUNT NUMBER

The Customer acknowledges and agrees that, if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry transmitted by Bank to the RDFI may be made by the RDFI (or by Bank in the case of an On-Us Entry) on the basis of the account number supplied by the Customer, even if it identifies a person different from the named Receiver, and that the Customer’s obligation to pay the amount of the Entry to Bank is not excused in such circumstances. Customer agrees that it shall be liable for and must settle with Bank for any Entry initiated by Customer that identifies the Receiver by account or identifying number or by name and account or identifying number.

REVERSALS OF ENTRIES

Upon proper and timely request by the Customer, Bank will use reasonable efforts to affect a reversal of an Entry or a File. To be “proper and timely,” the request shall meet the following requirements: (a) the request must be made within five (5) Business Days after the Effective Date of the Entry or File to be reversed; (b)the request must be made as soon as possible, but in no event to exceed ten (10) hours, after discovery of the error; and must comply with all of the Rules; (c) if the Customer requests reversal of a debit Entry or Debit File, it shall concurrently deposit into the Customer’s account an amount equal to that Entry or file. The Customer shall notify the Receiver of any reversing Entry initiated to correct any Entry it has initiated in error. The notification to the Receiver must include the reason for the reversal and be made no later than the Effective Date of the reversing Entry; (D) Customer agrees that Bank shall under no circumstances be liable for interest or related losses if the requested reversal of an Entry is not affected. The Customer shall reimburse Bank for any expenses, losses or damages it incurs in effecting, or attempting to effect, the Customer’s request for reversal of an Entry.

ADDITIONAL CUSTOMER WARRANTIES FOR SELECTED STANDARD ENTRY CLASSES

Customer hereby warrants to Bank that, for each single-use or limited -use ACH Entry submitted for processing, Customer has obtained all authorizations from the Receiver as required by the Rules, by Regulation E of the CFPB, other applicable law, and this Agreement. Customer agrees to indemnify and holds Bank harmless from and against any liability arising out of Customer’s breach of these warranties.

ERROR DETECTION

Bank has no obligation to discover, and Customer agrees that Bank shall not be liable to Customer for errors made by Customer, including but not limited to errors made in identifying the Receiver, an intermediary or RDFI, for errors in the amount of an Entry, or for errors in Effective Dates. Customer further agrees that Bank shall likewise have no duty to discover, and shall not be liable to Customer for, duplicate Entries issued by Customer. Notwithstanding the foregoing, if the Customer discovers that any Entry it has initiated was in error, it shall notify Bank of such error. In the event that Customer makes an error or issues a duplicate Entry, Customer agrees that it shall indemnify, defend, and hold Bank harmless from and against any loss, damages, or expenses, including but not limited to attorney’s fees, incurred by Bank as result of the error or issuance of duplicate Entries.

PROHIBITED TRANSACTIONS

Customer agrees not to use or attempt to use the ACH Services (a) to engage in any illegal purpose or activity or to violate any applicable law, rule or regulations, (b) to breach any contract or Agreement by which Customer is bound, (c) to engage in any Internet or online gambling transaction, whether or not gambling is legal in any applicable jurisdiction, or (d) to engage in any transaction or activity that is not specifically authorized and permitted by this Agreement. Customer acknowledges and agrees that Bank has no obligation to monitor Customer’s use of the ACH Services for transactions and activity that is impermissible or prohibited under the terms of this Agreement; provided, however, that Bank reserves the right to decline to execute any transaction or activity that Bank believes violates the terms of this Agreement.

NOTICE OF RETURNED ENTRIES AND NOTIFICATIONS OF CHANGE

Bank shall notify Customer by e-mail, facsimile transmission, US mail, or other means of the receipt of a returned Entry from the ACH operator. Except for an Entry retransmitted by Customer in compliance with the Rules and applicable law. Bank shall have no obligation to retransmit a returned Entry to the ACH Operator if Bank complied with the terms of this Agreement with respect to the original Entry. Customer shall notify the Receiver by phone or electronic transmission of receipt of each return Entry no later than one Business Day after the Business Day of receipt of such notification from Bank. Bank shall provide Customer all information, as required by the Rules, with respect to each “Notification of Change” (“NOC”) Entry or “Corrected Notification of Change” (“Corrected NOC”) Entry received by Bank relating to Entries transmitted by Customer. Bank must provide such information to Customer within two (2) Banking days before the Effective Date of each NOC or Corrected NOC Entry. Customer shall ensure that changes requested by the NOC or Corrected NOC are made within six (6) Banking Days of Customer’s receipt of the NOC information from Bank or prior to initiating another Entry to the Receiver’s account, whichever is later.

ACCOUNT RECONCILIATION

The Customer agrees to notify Bank promptly of any discrepancy between the Customer’s records and the information shown on any periodic statement. If the Customer fails to notify Bank within ten (10) calendar days of receipt of a periodic statement containing such information, the Customer agrees that Bank shall not be liable for any other losses resulting from the Customer’s failure to give such notice or any loss of interest or any interest equivalent with respect to any Entry shown on such periodic statement. If the Customer fails to notify Bank within thirty (30) calendar days of receipt of such periodic statement, the Customer shall be precluded from asserting any discrepancy against Bank.

PROVISIONAL SETTLEMENT

Customer shall be bound by and comply with the Rules as in effect from time to time, including without limitation the provision thereof making payment of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry; and Customer acknowledges that it has received notice of that Rule and or the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Customer shall not be deemed to have paid the Receiver the amount of the Entry.

CUSTOMER REPRESENTATIONS AND WARRANTIES; INDEMNITY

With respect to each Entry transmitted by Customer, Customer represents and warrants to Bank and agrees: (a) each person or entity shown as the Receiver on an Entry received by Bank from Customer has authorized the initiation of such Entry and the crediting or debiting of its account in the amount and on the Effective Date shown on such Entry, (b) such authorization is operative at the time of transmittal or crediting or debiting by Bank as provided herein, (c) Entries transmitted to Bank by Customer are limited to those types of credit and debit Entries set forth in the Credit and Debit Entries; Records Retention section of this Agreement, (d) Customer shall perform its obligations under this Agreement in accordance with all applicable laws, regulations, and orders, including, but not limited to, the sanctions laws, regulations, and orders administered by OFAC; laws, regulations, and orders administered FinCEN; and any state laws, regulations, or orders applicable to the providers of ACH payment services, (e)Customer shall be bound by and comply with the provision of the NACHA Rules (among other provisions of the NACHA Rules) making payment of an Entry by the RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Entry. Customer specifically acknowledges that it has received notice of the rule regarding provisional payment and of the fact that, if such settlement is not received, the RDFI shall be entitled to a refund from the Receiver of the amount credited and Customer shall not be deemed to have paid the Receiver the amount of the Entry. The Customer shall defend, indemnify, and hold harmless Bank, and its officers, directors, agents, and employees, from and against any and all actions, costs, claims, losses, damages, or expenses, including attorney’s fees and expenses, resulting from or arising out of (i) any breach of any provision of this Agreement, or any representation or warranty of the Customer contained in this Agreement; or (ii) any act or omission of the Customer or any other person acting on the Customer’s behalf. This indemnity and hold harmless provision is in addition to other specific indemnification provisions provided in other Sections of this Agreement.

LIMITATION OF LIABILITY

IN THE PERFORMANCE OF THE ACH SERVICES REQUIRED BY THIS AGREEMENT, BANK SHALL BE ENTITLED TO RELY SOLELY ON THE INFORMATION, REPRESENTATIONS, AND WARRANTIES PROVIDED BY CUSTOMER PURSUANT TO THIS AGREEMENT, AND SHALL NOT BE RESPONSIBLE FOR THE ACCURACY OR COMPLETENESS THEREOF. BANK SHALL BE RESPONSIBLE ONLY FOR PERFORMING THE ACH SERVICES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, AND SHALL BE LIABLE ONLY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN PERFORMING THOSE ACH SERVICES. BANK SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S ACTS OR OMISSIONS (INCLUDING, WITHOUT LIMITATION, THE AMOUNT, ACCURACY, TIMELINESS OF TRANSMITTAL OR AUTHORIZATION OF ANY ENTRY RECEIVED FROM CUSTOMER) OR THOSE OF ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, ANY FEDERAL RESERVE BANK, ACH OPERATOR OR TRANSMISSION OR COMMUNICATIONS FACILITY, ANY RECEIVER OR RDFI (INCLUDING, WITHOUT LIMITATION, THE RETURN OF ANY ENTRY BY SUCH RECEIVER OR RDFI), AND NO SUCH PERSON SHALL BE DEEMED BANK’S AGENT. CUSTOMER AGREES TO INDEMNIFY BANK AGAINST ANY LOSS, LIABILITY OR EXPENSE (INCLUDING ATTORNEYS’ FEES AND COSTS) RESULTING FROM OR ARISING OUT OF ANY CLAIM OF ANY PERSON THAT BANK IS RESPONSIBLE FOR ANY ACT OR OMISSION OF CUSTOMER OR ANY OTHER PERSON DESCRIBED IN THIS SECTION. CUSTOMER AGREES THAT BANK SHALL BE LIABLE FOR CUSTOMER’S ACTUAL DAMAGES DUE TO CLAIMS ARISING SOLELY FROM BANK’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; IN NO EVENT SHALL BANK BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT LOSS OR DAMAGE WHICH CUSTOMER MAY INCUR OR SUFFER IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN OR CONTEMPLATED BY BANK AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY OF LIABILITY WHICH CUSTOMER MAY ASSERT, INCLUDING, WITHOUT LIMITATION, LOSS OR DAMAGE FROM SUBSEQUENT WRONGFUL DISHONOR RESULTING FROM BANK’S ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, BANK SHALL BE EXCUSED FROM FAILING TO ACT OR DELAY IN ACTING IF SUCH FAILURE OR DELAY IS CAUSED BY LEGAL CONSTRAINT, INTERRUPTION OF TRANSMISSION OR COMMUNICATION FACILITIES, EQUIPMENT FAILURE, WAR, EMERGENCY CONDITIONS OR OTHER CIRCUMSTANCES BEYOND BANK’S CONTROL. IN ADDITION, BANK SHALL BE EXCUSED FROM FAILING TO TRANSMIT OR DELAY IN TRANSMITTING AN ENTRY IF SUCH TRANSMITTAL WOULD RESULT IN BANK’S HAVING EXCEEDED ANY LIMITATION UPON ITS INTRA-DAY NET FUNDS POSITION ESTABLISHED PURSUANT TO PRESENT OR FUTURE FEDERAL RESERVE GUIDELINES OR IN BANK’S REASONABLE JUDGMENT OTHERWISE WOULD VIOLATE ANY PROVISION OF ANY PRESENT OR FUTURE RISK CONTROL PROGRAM OF THE FEDERAL RESERVE OR ANY RULE OR REGULATIONS OF ANY OTHER U.S. GOVERNMENTAL REGULATORY AUTHORITY. SUBJECT TO THE FOREGOING LIMITATIONS, BANK’S LIABILITY FOR LOSS OF INTEREST RESULTING FROM ITS ERROR OR DELAY SHALL BE CALCULATED BY USING A RATE EQUAL TO THE AVERAGE FEDERAL FUNDS RATE AT THE FEDERAL RESERVE BANK OF NEW YORK FOR THE PERIOD INVOLVED. AT BANK’S OPTION, PAYMENT OF SUCH INTEREST MAY BE MADE BY CREDITING THE ACCOUNT.

DATA MEDIA AND RECORDS

All data media, Entries, security procedures and related records used by Bank for transactions contemplated by this Agreement shall be and remain Bank’s property. Bank may, at its sole discretion, make available such information upon the Customer’s request. Any expenses incurred by Bank in making such information available to the Customer shall be paid by the Customer.

COOPERATION IN LOSS RECOVERY EFFORTS

In the event of any damages for which Bank or Customer may be liable to each other or to a third party pursuant to the ACH Services provided under this Agreement, Bank and Customer will undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any actions that the relevant party may be obligated to defend or elects to pursue against a third party.

PROCESSING SCHEDULE

Internet transmissions The Customer may electronically transmit files to Bank via Internet Banking System. Format and content of entries all files must be submitted in NACHA format. The Customer should refer to Appendix Two and Appendix Three in the NACHA Rulebook for specific formatting details. Same Day Entries Transmission of a File until 3:45 p.m. Eastern Time on the same day as submission date prior to the Effective Date Credit Entries Transmission of a File until 3:45 p.m. Eastern Time two (2) business days prior to Effective Date Debit Entries Transmission of a File until 3:45 p.m. Eastern Time one (1) business day prior to Effective Date “Effective Date” must be a Business Day or the file will be processed on the first Business Day following the effective date.

ADDITIONAL SECURITY PROCEDURES

In addition to other Security Procedures contained in this Agreement: Customer Responsibility: Customer is responsible to establish and to maintain, and to strictly adhere to, procedures to safeguard against unauthorized transactions. Customer warrants that no individual will be allowed to initiate transfers in the absence of proper supervision and safeguards, and agrees to take reasonable steps to maintain the confidentiality of the security procedures and any passwords, codes, token device, and related instructions provided by Bank. If Customer believes or suspects that any such information has been accessed by an unauthorized individual, Customer will verbally notify Bank immediately, followed by written confirmation. The occurrence of such notification will not affect any transfers made in good faith by Bank prior to the notification and within a reasonable time period to prevent unauthorized transfers. Data Security: Limiting access and securely storing ACH data used in the routing and settlement of ACH transactions is a critical data security precaution. Customer’s ability to limit access to production data can be done through commercially available software products. Access can be limited to specific programs, user IDs, or read-only or read-and-edit-only access functionality. Files can also be transmitted between ACH participants using the following data protection methods: encryption and authentication.

Encryption is a process of scrambling data content through hardware or software in order to protect the confidentiality of a file’s contents. This information should remain encrypted between all parties in the ACH Network using commercially reasonable procedures. Authentication is a process of ensuring that files and data content have not been altered between the origination and receiving points. Like encryption, this can be done using hardware or software to ensure data integrity. Transmittal of Files: Customer will only transmit files on the dates specified in the agreed upon processing schedule (see the “Processing Schedule” Section, above). Customer will transmit files to Bank via pre-arranged access to the ACH system utilizing agreed upon logon procedures and proper access identification. Files will be encrypted by Customer before being transmitted to Bank. Customer has the ability to set up email notifications using the “Electronic Banking Alert” feature of the Bank’s online banking portal. Should any of the above procedures not be met, the file will be rejected by Bank and Customer will be notified.

1. POSITIVE PAY & REVERSE POSITIVE PAY

ACH POSITIVE PAY

The positive pay ACH fraud reduction Service (“ACH Positive Pay Service”) is designed to reduce the likelihood that an unauthorized ACH will be paid against the Account. At the time of set up, Customer will provide a list of ACH originators that are allowed or not allowed to credit or debit the Account. This information will be input into Bank’s core system by the Bank. As ACH’s are presented for payment, Bank will match the incoming ACH against the list of allowed or not allowed originators. ACH’s that do not match the list of originators that are allowed to credit or debit the Account by Customer will be reported electronically to Customer by Bank. This will enable Customer to instruct Bank to either pay the item or return the item as unauthorized. Customer must review the “Daily Exceptions” report on a daily basis to determine whether any ACH that has been presented for payment that does not match the ACH Originator Allowed/Disallowed list (an “Exception Item”). If Customer is informed by Bank that an Exception Item has been identified, Customer must instruct Bank to pay or return the Exception Item by electronic transmission (a “Pay/Return Decision”) not later than the cutoff time set by Bank on the same Business Day that the Exception Item was originally presented to Bank for payment (“Notification Deadline”). The ACH Positive Pay Service is available only through Bank’s electronic banking cash management product.

CHECK POSITIVE PAY

The positive pay and check fraud reduction Service (“Check Positive Pay Service”) is designed to reduce the likelihood that an unauthorized check will be paid against the Account. On a daily basis, Customer will transmit electronic files to Bank using the Positive Pay Service that will identify checks that have been validly issued by Customer payable against the Account. As Checks are presented for payment, Bank will match the incoming checks against the list of issued items. Checks that do not match the list of validly issued checks provided by Customer will be reported electronically to Customer by Bank. This will enable Customer to instruct Bank to return checks drawn on the Account that appear to be counterfeit, altered, or are otherwise not validly issued by Customer. The Positive Pay Service is available only through Bank’s electronic banking cash management product.

REVERSE POSITIVE PAY

All checks presented to Bank are identified as “exceptions” and are provided to Customer in the “Daily Exceptions” report with Bank’s electronic banking cash management product. After the Customer has received the “Daily Exceptions” report, it is the Customer’s responsibility, prior to the cutoff time set by Bank, to review it and make an exception decision either to “pay” or “return” any or all of the checks.

CHECK ISSUE DATA

Customer will provide Bank with the complete issue date, check number, payee information and amount of each check issued (the “Check Issue Data”) on the Account. Customer agrees to provide the Check Issue Data to Bank on the same day that the checks are issued, in the format and medium specified by Bank. Bank will utilize the Check Issue Data to electronically compare to checks presented against the Account. In performing the Positive Pay Service, Bank will use only the Check Issue Data that Customer has provided to Bank in the format specified by Bank.

PAYMENT OF MATCHING CHECKS

If a check presented against the Account matches exactly the description of the item in the Check Issue Data file the Customer has provided Bank (a “Matching Check”) Bank will consider the item as validly issued and properly payable and accordingly, will make final payment thereof and charge it to the Account, subject to availability in the Account of good and sufficient collected funds, unless the check is a duplicate item and has already cleared the Account.

DAILY EXCEPTIONS

Customer must review the “Daily Exceptions” report on a daily basis to determine whether any check that has been presented for payment that does not match the Check Issue Data (an “Exception Item”). From time-to-time the “Daily Exception” report will also include checks that are not Matching Checks because of encoding errors. It is the Customer’s responsibility to notify Bank promptly when a check is being presented in error within the “Daily Exceptions” report. Exceptions will occur if (a) a check has not been issued, (b) a check has already cleared, (c) a check does not have a serial number, (d) a check has been voided, (e) a check is dormant or stale dated, (f) a check amount does not match issued file, (g) a check number doesn’t match, (h) the payee doesn’t match, or (i) a stop payment order has been issued.

RETURN INSTRUCTIONS

If Customer is informed by Bank that an Exception Item has been identified, Customer must instruct Bank to pay or return the Exception Item by electronic transmission (a “Pay/Return Decision”). Each Exception Item must be identified by complete check number, payee information and dollar amount. Customer may view images of Exception Items via Bank’s electronic banking cash management not later than the cutoff time set by Bank on the same business day that the Exception Item was originally presented to Bank for payment (“Notification Deadline”). Bank is under no obligation to pay an Exception Item if the Pay/Return Decision is received by Bank after the Notification Deadline.

PAYMENT OF CHECKS

In the event that Customer fails to notify Bank of Customer’s Pay/Return Decision on an Exception Item by the Notification Deadline, Customer will be conclusively presumed to have explicitly not authorized Bank to make final payment of the Exception Item and it will be returned. Checks presented at the teller window will be compared to the file Customer previously transmitted. In the event there is a discrepancy between the item presented and the file information, Bank will try and contact an authorized individual to verify if item can be paid. If Bank is unable to reach an authorized individual, then Bank will not honor the item. Bank is not obligated to verify signatures on any items which match the Customer’s “Check Issue Data” file. Bank will electronically compare the information encoded against the Customer’s “Check Issue Data” file. Bank is not required to examine clearing items to determine if any of them is properly signed, completed and encoded. Bank may pay stale or post- dated checks unless the Customer has properly submitted a stop payment for such items.

STOP PAYMENT AND RETURN DECISIONS

The Positive Pay Service shall not be used as a substitute for Bank’s stop payment service. Customer agrees to follow Bank’s standard stop payment procedures if it desires to return a matching or other check that was validly issued. Nothing in this Agreement will limit: (a) Customer’s right to stop payment on any matching or other check; (b) Bank’s right to return any matching or other check that Customer has authorized Bank to pay if Bank determines, in its sole discretion, that the check is not properly payable for any reason; or (c) the right of Bank to return any check or other debit transaction when there are insufficient collected and available funds in the Account. Nothing in this Agreement will be construed as obligating Bank to perform any verification procedures on any check or other debit that Customer has authorized Bank to pay, although Bank may choose to perform certain check verification procedures if it so chooses in its sole discretion.

ACCOUNT RECONCILIATION TERMS & CONDITIONS

The services provided by Bank under its account reconciliation Service (the “AR Service”) are provided through Bank’s cash management electronic banking and work in conjunction with Bank’s Positive Pay Service. Service choices include: (a) Full Reconciliation – Customer transmits the current reporting period’s Check Issue Data activity to Bank where the Check Issue Data file is matched to checks that have actually cleared the Account for payment. The matched check data as well as non-check transactions are available to Customer for download to update Customer’s accounts payable system. (b) Partial Reconciliation – A listing of paid checks that have cleared the Account is available to Customer for download to update Customer’s accounts payable system. (c) Deposit Reconciliation – A listing of deposits posted to the Account during the reporting period based on location specific deposit ticket codes are available to Customer for viewing or can be downloaded electronically for use in account reconcilement.

LIMITATION OF LIABILITY

Any check that Bank returns in accordance with the terms of this Agreement will be deemed to not be properly payable. Any check drawn on the Account that Customer authorizes Bank to pay in accordance with this Agreement will be paid without Bank’s performing any other check verification procedures. Customer hereby agrees that, once Customer has authorized the payment of a check or other debit transaction against the Account utilizing the Positive Pay Service, Bank will have no liability whatsoever for paying the check, regardless of whether or not the item was validly issued by Customer and whether or not Bank has performed any additional check verification procedures for the item. Customer (a) agrees to indemnify and hold Bank harmless from any losses or liabilities it may suffer or incur as a result of Bank’s returning or paying a check or other debit transaction against the Account based upon Customer’s Pay/Return Decision, to the extent permitted by law, and (b) releases and forever discharges Bank, its officers, directors, employees, and agents from any and all manner of action or actions, suits, claims, damages, judgments, levies, executions, expenses, costs, interest, attorneys’ fees and legal expenses, known or unknown, liquidated or un-liquidated, fixed, contingent, direct or indirect, which Customer has, or ever can, may or shall have or claim to have against Bank regarding or relating to the payment or return of any check pursuant to the provisions of this Agreement.

LIMIT OF LIABILITY

In addition to the limits of liability set forth elsewhere in this Agreement, the following additional terms apply to the AR Service. Without liability to any party, Bank shall be entitled to terminate the Customer’s AR Service if the quality of the checks, including the quality of the magnetically encoded characters on the face of each check, is below a commercially reasonable standard for processing on Bank’s equipment. The term “Full Reconciliation” shall not be construed as relieving Customer of its normal due diligence responsibilities regarding the examination of account statements and individual checks to detect errors or alterations. Customer agrees that Bank shall not be liable for any loss arising from Customer’s failure to exercise ordinary care. Payee names reported by Bank to Customer in any Full Reconciliation report or database are derived from the Customer-provided database of checks issued, and not from the face of the check. Therefore, such reports shall not be used to detect fraudulent alteration of the payee name and Bank shall have no liability for losses arising from Customer’s reliance on the reconcilement service for this purpose. Customer’s use of the AR Service or Bank’s receipt of information associated with the AR Service does not impose on Bank any obligation or duty with respect to Customer’s accounts (including the Account) or the payment of checks, and Bank shall have no obligation to examine or inspect any check or other item for completeness or authorization or to determine whether a check or other item is properly payable.

C.    REMOTE DEPOSIT CAPTURE (“RDC”) TERMS AND CONDITIONS

Bank agrees to assist in processing images of checks the Customer wishes to present for collection (each such item “Check” or “Checks”, in accordance with the following terms:

REMOTE IMAGE PRESENTMENT SERVICES

HARDWARE AND SOFTWARE

(a) Customer understands it must, and hereby agrees to, at its sole cost and expense, use computer hardware and software that meets all technical requirements for the proper delivery of the Bank’s remote deposit capture Service (“RDC Service”) and that fulfills Customer’s obligation to obtain and maintain secure access to the Internet. Customer understands and agrees it may also incur, and shall pay, any and all expenses related to the use of the RDC Service, including, but not limited to, telephone service or Internet service charges. Customer is solely responsible for the payment of any and all costs and expenses associated with meeting and maintaining all technical requirements and additional items necessary for the proper use of the RDC Service (see the “RDC Hardware” and “Computer Requirements” section). Customer understands and agrees that it is solely responsible for the operation, maintenance and updating of all equipment, software and services used in connection with the RDC Service and the cost thereof, and Customer hereby agrees that it will perform, or cause to be performed, all vendor recommended maintenance, repairs, upgrades and replacements, and such performance shall be rendered by properly trained personnel, whether employed by the Customer or a third-party service provider. Customer agrees that Bank shall not be responsible for, and Customer hereby releases Bank from, any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using electronic mail or the Internet. Bank hereby advises Customer, and Customer hereby agrees, to scan its computer hardware and software on a regular basis using a reliable computer virus detection product in order to detect and remove computer viruses. In connection with its use of the RDC Service, Customer shall only use the hardware described in the “Computer Requirements” section or such other hardware as is approved in advance by Bank and shall only use such software as is approved in advance by Bank. (a)The Customer will image Checks through a qualified scanner. The captured items will be transmitted to Bank for further processing. (b) Bank will route the data and Check images (collectively, “Images”) to its image replacement documents. These will be transmitted on a daily basis (using Banking Days set forth by The Federal Reserve) for settlement. (c) Bank, in its sole discretion, shall determine the manner in which Images shall be presented for payment to the drawee Bank. Bank, in its sole discretion, shall select the clearing agents used to collect and present the Images, and Bank’s selection of the clearing agents shall be considered to have been designated by Customer. Customer agrees that Bank shall not be liable for the negligence of any clearing agent. (d)The Customer hereby accepts full responsibility for multiple presentments, whether by the Customer or a third party. The Customer will be responsible for the safekeeping and destruction of Checks captured and transmitted to Bank.

IMAGE REPLACEMENT DOCUMENT PRINTING SERVICES

(a) Bank has the authority to designate another service to print substitute checks or other image replacement documents for the Customer, if and as it determines are needed. The requirements of this Section shall apply, regardless of whether another service is used. (b) Prior to file creation, the Customer is responsible for ensuring that all Images are of sufficient quality for the creation of substitute checks. The Customer must use reasonable care to ensure Image quality. (c) Files or batches containing one or more Images (“Files”) must be received by Bank no later than 6:00 p.m. Eastern Time on any Banking Day for the Customer to receive credit. Any deposit received after the 6:00 p.m. Eastern Standard Time cut-off will receive credit on the next Business Day. Upon acceptance of the File, Bank shall grant Customer’s designated account (the “Account”) provisional credit (as herein defined) for the total amount of the corrected File or the accepted File. As used herein, “provisional credit” means that the credit is made to the Account is subject to final payment of the Checks and subject to the terms of the Customer’s deposit agreement with Bank. For the purpose of determining availability of funds, Bank may hold funds for the period of time permitted by Bank’s availability disclosure. (d) Customer agrees that it will only scan and deposit Checks drawn on United States financial institutions. All items are that are submitted through RDC must be presented with a restrictive indorsement on the back of each Check. Foreign Checks, including Canadian items, along with poor image quality Checks must be deposited traditionally at a branch office and not submitted through the remote capture Service. Customer agrees that the Image transmitted to Bank shall be deemed an “item” within the meaning of Article 4 of the Uniform Commercial Code, as from time to time in effect. Customer further agrees that it will not remotely deposit any Check or other item that: (i) is payable to any person or entity other than Customer, (ii) is prohibited by Bank’s then current procedures pertaining to the RDC Service (the “Procedures”) or are in violation of any law, rule or regulation, (iii) Customer knows or suspects, or should know or suspect, is fraudulent or otherwise not authorized by the owner of the account on which the Check is drawn, (iv) has not been previously indorsed by a Bank and is either a “substitute check” (as defined in the Federal Reserve Board’s Regulation CC or other applicable federal law or regulation) or an “image replacement document” that purports to be a substitute check, without Bank’s prior written consent, (v) is drawn on a financial institution that is located outside of the United States or Territories of the United States, (vi) is a “remotely created” Check, or (vii) which is not acceptable to Bank for deposit into a deposit account as provided in the Customer’s deposit agreement with Bank, which is incorporated herein by reference and made a part hereof (Checks described in clauses (i) through (viii), each a “Prohibited Check” and, collectively, “Prohibited Checks”). (e)The Customer will scan each Check only one time. Customer will accept full responsibility of any scanned items deposited multiple times or depositing an item in more than one depositing channel. (f) If Images are dishonored or otherwise returned unpaid by the drawee bank, or are returned by a clearing agent for any reason, including, but not limited to, issues relating to the quality of the Image, Customer understands and agrees that, since Customer either maintains the original Check or has destroyed the original Check in accordance with the “Lost, Destroyed or Damaged Files” section of this Agreement, the original Check will not be returned, and Bank may charge back an Image of the Check to the Account. Customer understands and agrees that the Image may be in the form of an electronic or paper reproduction of the original Check or a substitute check. Unless otherwise instructed by Bank, Customer agrees not to deposit the original Check if an Image or other debit as previously described is charged back to Customer.

 

IMAGE AND MICR QUALITY

Each File transmitted by Customer to Bank shall contain Images of the front and the back of the Checks scanned and remotely deposited by Customer. Each Image of each Check shall be of such quality that the following information can clearly be read and understood by sight review of such Image: the amount of the Check; the payee of the Check; the signature of the drawer of the Check; the date of the Check; the Check number; the information identifying the drawer and the payor bank that is preprinted on the Check, including the MICR line; and all other information placed on the Check prior to the time an image of the Check is captured, such as any required identification written on the front of the Check and any indorsements applied to the back of the Check. Each Image shall also meet all standards for image quality established by the American National Standards Institute (“ANSI”), the Board of Governors of the Federal Reserve System or any other regulatory agency, clearing house or association. Customer shall also capture and transmit to Bank the full-field MICR encoding on each Check. In accordance with the Procedures, Customer shall ensure that the following information is captured from the MICR line of each Check: the American Bankers Association routing transit number (“RTN”); the number of the account on which the Check is drawn; when encoded, the amount of the Check; and when encoded, the serial number and the process control field of the Check.

LOST, DESTROYED OR DAMAGED FILES.

Bank has no responsibility for Images or Files that are lost, destroyed or damaged during transmission; that is, prior to receipt and validation by Bank and its processing center. If an Image or File is lost, destroyed or damaged after receipt and validation by Bank at its processing center, Bank shall assist the Customer in reconstructing the items from the best information available. In such event, to the extent that the loss, destruction or damage was caused by Bank, Bank shall waive its charge for the assistance provided by Bank in reconstructing the items involved. The Customer shall in any event, at its expense, cooperate as required by Bank, including without limitation requesting supporting information and data from its customer(s). In no event shall Bank be liable for the face value of any item.

RETENTION AND DESTRUCTION OF ITEMS

The Customer will retain any original check that has been deposited through the RDC Service for a minimum of fourteen (14) days from the date processed. After this retention period, Customer will destroy and dispose of original Check(s) security procedures to safeguard original Check(s) during retention period to prevent the risk of threat; reproduction; unauthorized use; or the possibility of any fraudulent activity.

BANK’S RESPONSIBILITIES

Customer agrees to monitor its account balances and charges, to promptly notify Bank if any report conflicts with Customer’s records, and to refrain from acting on information it has reason to believe is erroneous. In all instances, Bank’s, and if the services of a third-party provider are utilized in the provision of the RDC Service, such third parties, and sole liability to Customer shall be limited to the correction of any errors made. Bank shall not be responsible for suspension of performance of all or any of its obligations, responsibilities or covenants hereunder, whether expressed or implied, if at any time, or from time to time, compliance therewith is prevented or hindered by, or are in conflict with: any federal or state law, regulation or rule, the order of any court of competent jurisdiction, any act of God or of the public enemy, war, epidemic, pandemic, strike, or work stoppages of the U.S. Postal Service and commercial carrier(s), or electric power disruption or shortage, telecommunications failure or computer failures; acts, omissions or errors of any carrier or agent operating between Customer and Bank or Bank and any Federal Reserve Bank or other agency utilized to exercise transfers or any recipients of transferred funds; any incorrect, unauthorized or fraudulent use or other fraud by any person other than Bank’s employees; or, without limiting the generality of the foregoing, any other cause or circumstance beyond Bank’s control or other conditions or circumstances not wholly controlled by Bank, which would prohibit, or otherwise affect Bank’s complete or partial performance under this Agreement.

INTERNET DISCLAIMER

Bank cannot, and shall not, control the flow of any documents, files, data or other information over the Internet, whether to or from Bank’s network, other portions of the Internet or otherwise. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof). Bank cannot, and shall not, guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability arising out of, resulting from or related to, such events, and in no event shall Bank be liable for any damages of any kind (whether in contract, in tort or otherwise) that are attributable or in any way related to the Internet infrastructure or Customer’s or Bank’s ability or inability to connect to the Internet.

CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHT IN DATA

All information of a business nature relating to the assets, liabilities or other business affairs disclosed to Bank by Customer and Customer’s customers in connection with this Agreement is confidential. Except as allowed by applicable law, Bank shall not disclose or permit access to any such information by any person, firm or corporation. Bank shall cause its officers, employees and agents to take such action as shall be reasonably necessary to preserve and protect the confidentiality of such information, by disclosing such information only to persons needing to have access thereto for the performance of Bank’s obligations under this Agreement or to any other party to which Bank may be required by law to report such information. Customer agrees to hold confidential, and to use only in connection with the RDC Service, all information furnished to Customer by Bank or by third parties from whom Bank has secured the right to use the RDC Service, including, but not limited to, Bank’s product and service pricing structure, system design, programming techniques or other unique techniques. In addition, should Customer at any time receive or acquire any information relating to another Customer of Bank, Customer shall promptly return such information to Bank and not reveal such information to any other party and shall not make use of such information for its own benefit or otherwise. Banks and Customer’s obligations and agreements under this section shall not apply to any information supplied that was known to either party prior to the disclosure by the other, is or becomes generally available to the public other than by breach of this Agreement or otherwise becomes lawfully available on a non- confidential basis from a third party who is not under an obligation of confidence to either party. Notwithstanding anything to the contrary contained herein, it is understood and agreed by the parties hereto that the performance of the RDC Service is or might be subject to regulation and examination by authorized representatives of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation or a state regulatory agency, and Customer agrees to the release by Bank of Customer’s reports, information, assurances and other data and information as may be required under applicable laws and regulations. Customer agrees that any specifications or programs developed by Bank in connection with this Agreement, or supplied or made available to Customer by Bank, are the exclusive property of Bank, its agents, suppliers or contractors, and further agrees that such material shall not be copied or used in any manner or for any purpose without the express written consent of Bank. This paragraph shall survive the termination of this Agreement.

WARRANTIES AND COVENANTS

The Customer hereby represents warrants and covenants to Bank the following: (a) only acceptable items will be deposited and the Customer certifies that no items are altered; (b) original items being imaged are made payable to the Customer; (c) Images are all properly indorsed with a restrictive indorsement; (d) no duplicate items will be submitted; (e)The original Check will not be deposited after it has been imaged; (f) Files submitted to Bank do not contain viruses; (g) the Customer agrees to indemnify and hold harmless Bank for any loss, cost, expense, action or cause of action arising from or related to the RDC Services, whether such loss, cost, expense, action or causes of action is asserted by any customer of Customer or any other third party.

LIMIT OF LIABILITY

ANY PROVISION IN THIS AGREEMENT, ANY OTHER AGREEMENT OR THE RULES TO THE CONTRARY NOTWITHSTANDING, BANK SHALL ONLY BE LIABLE FOR DAMAGES SOLELY AND PROXIMATELY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND BANK’S LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF CUSTOMER’S ACTUAL DAMAGES OR THE TOTAL FEES PAID BY CUSTOMER TO BANK FOR THE RDC SERVICE FOR THE PERIOD OF SIX MONTHS IMMEDIATELY PRECEDING THE DATE OF THE ALLEGED GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT SHALL BANK OR ANY PROVIDER BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INCIDENTAL DAMAGES, LOSSES OR INJURIES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR COST OF COVER) ARISING OUT OF, OR RELATED TO, THE USE BY CUSTOMER OF THE RDC SERVICE OR ANY OTHER SERVICE, OR THE FAILURE OF BANK OR ANY PROVIDER TO PROPERLY PROCESS AND COMPLETE TRANSACTIONS THEREUNDER, EVEN IF BANK OR SUCH PROVIDER(S) HAVE BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR INJURIES. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S USE OF THE RDC SERVICE SHALL BE AT CUSTOMER’S SOLE RISK, AND THAT THE RDC SERVICE IS PROVIDED BY BANK ON AN “AS IS” BASIS.EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BANK MAKES ABSOLUTELY NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, UNDER LAW OR IN FACT, TO CUSTOMER OR TO ANY OTHER PERSON, AS TO THE RDC SERVICE OR ANY ASPECT THEREOF, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY, AND BANK HEREBY DISCLAIMS ANY AND ALL OF THE SAME. CUSTOMER AGREES THAT NO ORAL OR WRITTEN ADVICE OR REPRESENTATION OBTAINED FROM ANY BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR THE RDC SERVICE TO BE PERFORMED PURSUANT HERETO. TO THE FULLEST EXTENT ALLOWED BY LAW, AND SUBJECT TO THE FOREGOING PROVISIONS OF THIS SECTION DEALING WITH BANK’S LIABILITY FOR DAMAGES SOLELY AND PROXIMATELY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BANK’S LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL BE LIMITED TO CORRECTING ERRORS RESULTING FROM BANK’S FAILURE TO EXERCISE ORDINARY CARE. BANK MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, UNDER LAW OR IN FACT, TO CUSTOMER OR TO ANY OTHER PERSON AS TO ANY COMPUTER HARDWARE, SOFTWARE OR EQUIPMENT IN CONNECTION WITH THE RDC SERVICE, INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S COMPUTER SYSTEMS OR RELATED EQUIPMENT, CUSTOMER’S SOFTWARE, OR CUSTOMER’S INTERNET SERVICE PROVIDER OR ITS EQUIPMENT, OR AS TO THE SUITABILITY OR COMPATIBILITY OF BANK’S SOFTWARE, INTERNET DELIVERED SERVICE, EQUIPMENT OR COMMUNICATION INTERFACES WITH THOSE THAT CUSTOMER USES, OR AS TO WHETHER ANY SOFTWARE OR INTERNET DELIVERED SERVICE WILL PERFORM IN AN UNINTERRUPTED MANNER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BANK SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERRORS OR FAILURES RESULTING FROM DEFECTS IN, OR MALFUNCTIONS OF, CUSTOMER’S COMPUTER HARDWARE OR SOFTWARE, FOR THE QUALITY OF PERFORMANCE OR LACK OF PERFORMANCE OF ANY COMPUTER SOFTWARE OR HARDWARE OR INTERNET DELIVERED SERVICES SUPPLIED BY BANK TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, OR FOR THE TRANSMISSION OR FAILURE OF TRANSMISSION OF ANY INFORMATION FROM CUSTOMER TO BANK, FROM BANK TO CUSTOMER, FROM CUSTOMER TO ANY PROCESSOR, FROM ANY PROCESSOR TO BANK, OR OTHERWISE. BANK SHALL NOT BE RESPONSIBLE FOR NOTIFYING CUSTOMER OF ANY UPGRADES OR ENHANCEMENTS TO ANY OF CUSTOMER’S COMPUTER HARDWARE OR SOFTWARE. BANK IS NOT RESPONSIBLE FOR, AND CUSTOMER HEREBY RELEASES BANK FROM ANY AND ALL CLAIMS OR DAMAGES RESULTING FROM, OR RELATED TO, ANY COMPUTER VIRUS OR RELATED PROBLEMS THAT MAY BE ASSOCIATED WITH USAGE.

INDEMNIFICATION AND LIABILITY; THIRD PARTY CLAIMS

In addition to, and without limiting, any specific indemnification and hold harmless provision contained in this Agreement, Customer hereby generally indemnifies Bank and each of its parents, subsidiaries and affiliates and their respective officers, directors, employees, members, partners, agents, insurers and attorneys (each and “Indemnified Party” and, collectively, the “Indemnified Parties”) for, and holds each of the Indemnified Parties harmless from and against, all actions, causes of action, claims, damages, liabilities and expenses (including reasonable attorneys’ fees) of any nature or kind (including those by third parties) arising out of, or related to, this Agreement, including all actions, causes of action, claims, damages, liabilities and expenses arising out of, related to or resulting from: Customer’s (a) failure to report required changes, (b) transmission of incorrect data to Bank, (c) failure to maintain compliance with the Rules, (d) destruction of original Checks, (e) deposit of an electronic representation of a substitute check into an Account instead of an original Check, (f) deposit of a Prohibited Check; (g) Bank’s provision of the RDC Service, (h) Bank’s action or inaction in accordance with, or in reliance upon, any instructions or information received from any person reasonably believed by Bank to be an authorized representative of Customer, Customer’s breach of any of Customer’s warranties, representations or obligations under this Agreement or any other agreement between Customer and Bank, including, but not limited to, the Customer’s deposit agreement with the Bank, or customer’s breach or violation of any Rules; provided, however, Customer is not obligated to indemnify Bank for any damages solely and proximately caused by Bank’s gross negligence or willful misconduct. The terms of this Section shall survive the termination of this Agreement.

RDC HARDWARE

Scanner(s) License. If the Scanner(s) is provided by Bank as part of this Service, Bank hereby grants to Customer a nontransferable non-exclusive license (“License”) to use a scanner (“Scanner(s)”) only in connection with the Service provided by Bank. Customer accepts the License subject to this Agreement set forth in the following sections. (a) OWNERSHIP OF SCANNER(S) Customer acknowledges the Scanner(s) is and shall at all times remain the sole and exclusive property of Bank. Customer agrees that nothing in this License shall give Customer any right, title or interest in the Scanner(s) other than the right to use the Scanner(s) in accordance with this License, and Customer agrees that it will not attack the validity of this License. (b) USE Customer shall use the Scanner(s) in a careful and proper manner in accordance with the documentation and shall comply with and conform to all federal, state, municipal, and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Scanner(s). Scanner(s) is owned by Bank. The Customer shall limit the use of the Scanner(s) to the processing of transactions with Bank pursuant to this Agreement. The Customer may not use the Scanner(s) to facilitate processing transactions with any other person or any other bank other than Chesapeake Bank. (c) RECEIPT OF SCANNER(S) Customer agrees that Bank will deliver or ship the Scanner(s) to Customer at the address designated by Customer in this Agreement. Customer acknowledges that delivery or shipment to the address designated by Customer shall be considered receipt of the Scanner(s) by Customer. (d) INSPECTION Customer shall inspect the Scanner(s) within 24 hours after receipt thereof. Unless Customer, within this period of time, gives written notice to Bank specifying any defect in or other proper objection to the Scanner(s), Customer agrees that it shall be conclusively presumed, as between Bank and Customer, that Customer has fully inspected and acknowledged that the Scanner(s) is in good condition and repair, and that Customer is satisfied with and has accepted the Scanner(s) in such good condition and repair. Bank shall at any and all times during business hours have the right to enter into and upon the premises where the Scanner(s) may be located for the purpose of inspecting the same or observing its use. Customer shall give Bank immediate notice of any attachment or other judicial process affecting Scanner(s) and shall, whenever requested by Bank, advise Bank of the exact location of the Scanner(s).

(e)MAINTENANCE Customer shall maintain the Scanner(s) in working order by following the instructions for proper use, care and cleaning of the Scanner(s) provided to Customer. In the event that the Scanner(s) does not function in accordance with the manufacture’s specifications, Bank shall either repair or replace the Scanner(s). Bank shall not repair or replace the Scanner(s) if it is lost or damaged, or because of misuse, negligence or failure of Customer to follow instructions for proper use, care and cleaning of the Scanner(s). (f) LOSS AND DAMAGE In the event of loss or damage of any kind to the Scanner(s), or any part thereof, Customer shall make a payment to Bank in an amount contained in an invoice submitted by Bank to Customer (“Invoice Amount”). Payment shall be due within thirty (30) calendar days of receipt of the invoice from Bank. Failure to make such payment shall be a default. (g) SURRENDER OF SCANNER(S) Within fifteen (15) calendar days of the expiration or earlier termination of this Agreement, with respect to the Scanner(s), Business shall return the Scanner(s) to Bank in good repair, condition and working order (ordinary wear and tear resulting from proper use thereof alone excepted), or Business shall pay Bank the Invoice Amount contained in an invoice submitted to Business upon termination. If Business fails to return the Scanner(s), or if the Scanner(s) is not in good working order and repair upon return, or if Customer fails to pay the Invoice Amount, such failure shall be a default. (h)LOCATION OF SCANNER(S) Without the written permission of Bank, Customer will not permit the Scanner(s) to be removed from the Customer’s business addresses and Customer shall not physically locate the Scanner(s) outside of the United States. Customer must notify Bank if the scanner(s) moves from the location(s) designated. (i) PERSONAL PROPERTY The Scanner(s) is, and shall at all times remain, personal property notwithstanding that the Scanner(s) or any part thereof may now be, or hereafter become, in any manner affixed or attached to, or imbedded in, or permanently resting upon, real property or any building thereon, or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise. (j)ENCUMBRANCES Customer shall not do any act that will in any way encumber the title of Bank in and to the Scanner(s). In the event the Scanner(s) becomes the subject of any lien or encumbrance through the action of Customer, Customer shall indemnify and hold harmless Bank from all costs, losses or expenses with respect thereto, and Customer shall immediately pay any such lien and obtain a release thereof. (k) DEFAULT If Customer fails to pay any amount herein provided within thirty (30) calendar days after the same is due and payable, Bank shall have the right to take possession of the Scanner(s), without demand or notice, wherever same may be located, without any court order or other process of law. Customer hereby waives any and all damages occasioned by such taking of possession. Any such taking of possession shall constitute a termination of this Agreement. Bank may also debit the Account for amounts due and payable to Bank. (l) BANK’S EXPENSES Customer shall pay Bank all costs and expenses, including reasonable attorneys’ fees, incurred by Bank in exercising any of its rights or remedies hereunder or in enforcing any of the terms, conditions or provisions hereof.

COMPUTER REQUIREMENTS

Computer Requirements: Customer must provide a computer with local administrative rights with a USB port 2.0 or higher. Computer with Microsoft Windows must meet the following criteria (a)Windows 8.1, (b) Windows 10, (c) .NET Framework 4.6 or higher.  Macintosh Computers must meet the following criteria (a) OS X EL Capitan (Google Chrome), (b) macOS Sierra (Google Chrome).

1. MOBILE DEPOSIT

This Mobile Deposit Agreement (“Agreement”) contains the terms and conditions for the use of mobile remote deposit services (“Services”) provided by Chesapeake Bank (“the Bank”, “us”, “our”, or “we”) to you (“you” or “User”). Other agreements you have entered into with the Bank, including the Online Banking Agreement (for consumers) regarding your account(s) at Chesapeake Bank, are incorporated by reference and made a part of this Agreement.

SERVICES
The Services are designed to allow you to make deposits to your checking, savings, or money market savings accounts from home or other remote locations by capturing the image of a check and delivering the images and associated deposit information to the Bank or our designated processor through a mobile device.

ACCEPTANCE OF THESE TERMS

Your use of the Services constitutes your acceptance of this Agreement. This Agreement is subject to change at any time. We will notify you of any material change via  an update in your online banking but may advise of changes in other manners including but not limited to email, text message and or links to updated agreements on the Bank’s website. Your continued use of the Services will indicate your consent to be bound by the revised Agreement. Further, the Bank reserves the right, in its sole discretion, to change, modify, add, or remove portions from the Services without prior notice. Your continued use of the Services will indicate your acceptance of any such changes to the Services.

LIMITATIONS OF SERVICES

When using the Services, you may experience technical or other difficulties. We will attempt to post alerts to notify you of these interruptions in the Services. We cannot assume responsibility for any technical or other difficulties or any resulting damages that you may incur. Some of the Services have qualification requirements, and we reserve the right to change the qualifications at any time without prior notice. We reserve the right to change, suspend or discontinue the Services, in whole or in part, or your use of the Services, in whole or in part, immediately and at any time without prior notice to you.

HARDWARE AND SOFTWARE

In order to use the Services, you must obtain and maintain, at your expense, compatible Smartphone with an active data plan and download the Chesbank Mobile App. The Bank is not responsible for any third-party software you may need to use the Services. Any such software is accepted by you as is and is subject to the terms and conditions of the software agreement you enter into directly with the third-party software provider at time of download and installation.

FEES

At this time the Bank does not charge a fee for this service, however, additional mobile carrier messaging and data rates may apply.

ELIGIBLE ITEMS

You agree to scan and deposit only “checks” as that term is defined in Federal Reserve Regulation CC (“Reg. CC”). When the image of the check transmitted to the Bank is converted to an image for subsequent presentment and collection, it shall thereafter be deemed an “item” within the meaning of Articles 3 and 4 of the Uniform Commercial Code. You agree that you will not scan and deposit any of the following types of checks or other items which shall be considered ineligible items:

1. Checks payable to any person or entity other than the person or entity that owns the account to which the check is being deposited.
2. Checks containing any alteration, or which you know or suspect, or should know or suspect, are fraudulent, counterfeit, or otherwise not authorized by the owner of the account on which the check is drawn.
3. Checks payable jointly, unless deposited into an account in the name of all payees.
4. Checks previously converted to a substitute check, as defined in Reg. CC.
5. Checks drawn on a financial institution located outside the United States.
6. Checks that are remotely created checks, as defined in Reg. CC.
7. Checks not payable in United States currency.
8. Checks dated more than 6 months prior to the date of deposit.
9. Checks or items prohibited by the Bank’s current procedures relating to the Services or which are otherwise not acceptable under the terms of your account.
10. Checks with any endorsement other than that specified in this Agreement.
11. Checks that have previously been submitted through the Services or through a remote-deposit-capture service offered at any other financial institution.
12. Checks that have previously been deposited or negotiated in any way via any method at the Bank or at any other financial institution.

In addition, we will not accept the following items:

1. Cash Advance Checks
2. Cashier’s Checks
3. Comdata Checks
4. HELOC (Home Equity Line of Credit) Checks
5. Money Orders
6. Savings Bonds
7. Travelers Checks

ENDORSEMENTS AND PROCEDURES

You agree to restrictively endorse any item transmitted through the Services as your business name followed by “For mobile deposit only” and “Chesapeake Bank”; or as otherwise instructed by the Bank. Lack of proper endorsement will cause your item to be denied. You agree to follow any and all other procedures and instructions for use of the Services as the Bank may establish from time to time.

RECEIPT OF ITEMS

We reserve the right to reject any item transmitted through the Services, at our discretion. We are not responsible for items we do not receive or for images that are dropped during transmission. An image of an item shall be deemed received when you receive a confirmation from the Bank that we have received the image. Receipt of such confirmation does not mean that the transmission was error free, complete, or will be considered a deposit and credited to your account. We further reserve the right to charge back to your account at any time; any item that we subsequently determine was not an eligible item. You agree that the Bank is not liable for any loss, costs, or fees you may incur as a result of our chargeback of an ineligible item.

AVAILABILITY OF FUNDS

Checks deposited via the Services by 6:00 p.m. Eastern Time will be considered deposited on that business day. Funds deposited using mobile deposit will generally be made available unless there is a reason to place a hold on the funds. Typically, if a hold is placed, $225 will be made immediately available with the balance available in two (2) business days. Under certain circumstances, an exception hold may be placed for up to seven (7) business days. New accounts or when there is a reasonable cause to doubt collectability of a check fall into the exception category and the $225 availability does not apply.

DISPOSAL OF TRANSMITTED ITEMS

Upon your receipt of a confirmation from us that we have received the image that you have transmitted, you agree not to re-deposit, transmit, or present the check at any other institution or to us. You agree to retain the original check for 14 calendar days from the date of the image transmission. After 14 days, you agree to destroy the original check. During those 14 days, you agree to properly handle the original check and upon request, promptly provide it to the Bank.

DEPOSIT LIMITS
We reserve the right to and may establish limits on the dollar amount and/or the number of items we accept for deposit from you using the Services from time to time. If you attempt to initiate a deposit in excess of these limits, we may reject the deposit. If we permit you to make a deposit in excess of these limits, such deposit will still be subject to the terms of this Agreement, and we will not be obligated to allow such a deposit at other times.

PRESENTMENT

The manner in which the items are cleared, presented for payment, and collected shall be in the Bank’s sole discretion subject to the agreements governing your account.

ERRORS

You agree to notify the Bank of any suspected errors regarding items deposited through the Services immediately, and in no event later than 60 days after the applicable Bank account statement is sent. Unless you notify the Bank within 60 days, such statement shall be deemed correct, and you are prohibited from bringing a claim against the Bank for such alleged error.

ERRORS IN TRANSMISSION

By using the Services you accept the risk that an item may be intercepted or misdirected during transmission. The Bank bears no liability to you or others for any such intercepted or misdirected items or information disclosed to other parties thereby.

IMAGE QUALITY

The image of an item transmitted to the Bank using the Services must be legible, as determined in the sole discretion of the Bank. Without limiting the foregoing, the image quality of the items must comply with the requirements established from time to time by the Bank, the Board of Governors of the Federal Reserve Board, or any other regulatory agency, clearinghouse, or association.

USER WARRANTIES AND INDEMNIFICATION

You warrant to the Bank that:

1. You will only transmit eligible and legible items.
2. You will not transmit duplicate items.
3. You will not re-deposit or re-present the original item.
4. All information you provide to the Bank is accurate and true.
5. You will comply with this Agreement and all applicable rules, laws, and regulations.
6. You are not aware of any factor which may impair the collectability of the item.
7. You agree to indemnify and hold harmless the Bank from any loss for breach of this warranty provision

COOPERATION WITH INVESTIGATIONS

You agree to cooperate with us in the investigation of unusual transactions, poor-quality transmissions, and resolution of customer claims, including by providing, upon request and without further cost, any originals or copies of items deposited through the Services in your possession and your records relating to such items and transmissions.

TERMINATION

We may terminate this Agreement at any time, for any reason, and without notice. This Agreement shall remain in full force and effect unless and until it is terminated by us. Without limiting the foregoing, this Agreement may be terminated if you breach any term of this Agreement, if you use the Services for any unauthorized or illegal purposes, or you use the Services in a manner inconsistent with the terms of your account agreement or any other agreement with us.

ENFORCEABILITY

We may waive enforcement of any provision of this Agreement. No waiver of a breach of this Agreement shall constitute a waiver of any prior or subsequent breach of the Agreement. Any such waiver shall not affect our rights with respect to any other transaction or to modify the terms of this Agreement. In the event that any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable to any extent, the remainder of the Agreement shall not be impaired or otherwise affected and shall continue to be valid and enforceable to the fullest extent permitted by law.

OWNERSHIP AND LICENSE

You agree that the Bank retains all ownership and proprietary rights in the Services, associated content, technology, and website(s). Your use of the Services is subject to and conditioned upon your complete compliance with this Agreement. Without limiting the effect of the foregoing, any breach of this Agreement immediately terminates your right to use the Services. Without limiting the restriction of the foregoing, you may not use the Services (i) in any anti-competitive manner, (ii) for any purpose which would be contrary to the Bank’s business interests, or (iii) to the Bank’s actual or potential economic disadvantage in any aspect. You may use the Services only in accordance with this Agreement. You may not copy, reproduce, distribute or create derivative works from the content and agree not to reverse engineer or reverse compile any of the technology used to provide the Services.

DISCLAIMER OF WARRANTIES

YOU AGREE THAT YOUR USE OF THE SERVICES AND ALL INFORMATION AND CONTENT (INCLUDING THAT OF THIRD PARTIES) IS AT YOUR RISK AND IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES OF ANY KIND AS TO THE USE OF THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICES (i) WILL MEET YOUR REQUIREMENTS, (ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SERVICES OR TECHNOLOGY WILL BE CORRECTED.

LIMITATION OF LIABILITY

YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICES INCURRED BY YOU OR ANY THIRD PARTY ARISING FROM OR RELATED TO THE USE OF, INABILITY TO USE, OR THE TERMINATION OF THE USE OF THIS SERVICES, REGARDLESS OF THE FORM OF ACTION OR CLAIM (WHETHER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF THE BANK HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.

E.     WIRES (“WTS”) TERMS AND CONDITIONS

GENERAL

As used herein, the following terms have the following meanings: (a) “Cutoff Time” means 3:30 p.m. Eastern Time on any Banking Day or any earlier time that may be displayed on the wire transfer screens when Customer initiates a transfer, (b) “Instructions” means the information provided by Customer to Bank for a wire transfer to be delivered to the recipient (such as, but not limited to, the amount to be transferred, the recipient’s name and address, the receiving bank’s name, address and routing number, and the recipient’s account number), (c)“Wire Date” means the Business Day specified in a wire transfer payment instruction on which Customer wishes a new transfer instruction to be executed by Bank.  It is also the day Customer’s wire from the account will be debited for the transaction, (d) “WTS” means the wire transfer system. The Customer authorizes the Bank to execute without inquiry beyond that required by this Agreement, and all wire transfer requests shall be completed through the Bank’s online banking for wire transfer of funds from the designated Account. The Bank will debit the designated Account in the amount of the requested wire transfer plus the applicable fee as set forth in the Bank’s fee schedules, as from time to time in effect. The Bank is not obligated to make any wire transfer that will create a negative balance in the Account, nor will the Bank draw upon uncollected funds of the Customer. Wire transfers may be initiated using the Bank’s online Service from the designated Accounts.  All wire transfer requests shall be subject to the following procedures, Wire transfer request(s) shall be submitted by an individual authorized to submit a wire transfer request(s) as indicated and verified by an individual authorized to verify outgoing wires on behalf of the Customer. Bank shall confirm the transfer instruction by obtaining from the verifier data regarding the transfer instruction amount, beneficiary, and beneficiary’s account. If the person verifying a transfer instruction is not known to the Bank’s wire representative, then the wire representative shall request the verifier’s Personal Identification Number (“PIN”). Customer may submit wire transfer requests using the Customer’s secure online banking. All such requests will be input by a person authorized to input a wire transfer request and verified by a person authorized to verify outgoing wires. Bank is authorized to execute wire transfers from the Customer’s account as requested by any one of the Users who have been given wire authority by the Administrator. The Customer shall provide Bank with all outgoing domestic wire transfer orders prior to the Cutoff Time on the Banking Day on which such transfers are to be effective. Wire requests received after Bank’s daily cut off will be sent the following Business Day. All outgoing wire transfers must be in collected funds.

COMPENSATION FOR LOSS AND LIMITATION OF LIABILITY

If Bank causes a loss as a result of its negligence, it shall compensate the Customer for the loss, but its liability shall not be greater than the amount of the transfer requested. Bank shall not be liable for any loss of prospective profits, or any special or consequential damages, whether or not the likelihood of loss or damage was known by Bank. The Bank’s liability is further limited as follows: (a)Customer agrees that Bank shall not be responsible for acts or omissions of parties not in its control, for failure of computer facilities or the WTS, for failure or interruption of communication facilities, for action or inaction of government, or for acts of nature; (b)Bank will not be liable for any transfer, even if the transfer was due to the negligence of Bank, if the Customer fails to bring the transfer to Bank’s attention; and (c)Bank and the Customer are the only parties to this Agreement, and no other entity shall be a third- party beneficiary of this Agreement.

CHANGES AND AMENDMENTS

Bank may change its procedures at any time. The Customer will use the new procedures as soon as they are received. This Agreement will not be changed or modified, except in writing signed by an authorized representative of Bank. Except for changes made in accordance with this Agreement, no deviation or course of dealing, whether intentional or unintentional, shall constitute a change to this Agreement, and no such deviation or curse of dealing shall constitute a waiver or any right or duty of either party.

E-MAIL SECURITY & SECURITY PROCEDURES

Because e-mail messages are transmitted over the Internet, Bank cannot ensure the security of the messages. Customer acknowledges and is aware of Bank’s regulatory requirements, in choosing to send e-mail messages to Bank. Customer shall utilize a user ID, password and security token to access online banking and the WTS. Customer shall establish its recipient(s) online in accordance with Section entitled “Establishment of Recipient”, below. Once Customer has established a recipient in this manner, Customer will be able to transmit one or subsequent wire transfers to the same recipient by logging on to online banking with the user ID, password and security token,. Customer agrees that these Security Procedures help to prevent unauthorized access to Customer’s accounts (including the Wire-from Account), so Customer agrees not to discuss or disclose these procedures, the user ID, password, , or any other items of personal information. Customer acknowledges and agrees that the Security Procedures described in this Agreement are commercially reasonable.

GOVERNING LAW

The provisions of Regulations J, 12 CFR Part 210, Subpart B, including the appendices, to the extent that the wire transfer request carried out through Fed Wire, govern this Service. Terms used in this Section which are not defined in this Agreement shall have the same meanings as defined in Uniform Commercial Code Article 4A. This Agreement is also subject to all operating circulars of the Federal Reserve Bank, and any other applicable provision of federal or state law. To the extent such statutes, regulations and rules do not apply, this Agreement will be governed by the laws of the Commonwealth of Virginia.

ERRORS IN PAYMENT ORDERS

Customer agrees that Bank shall have no obligation to discover errors in the Instructions and shall not be liable to Customer for errors made by Customer, including but not limited to errors made in identifying the beneficiary, or an intermediary or beneficiary’s financial institution, or for errors in the amount of any wire. Any acceptance by Bank of a request by Customer to change, delete or recall wire transfer instructions which have been transmitted to Bank, is made conditionally upon the express understanding by Customer that Bank cannot guarantee fulfillment of such a request and that Bank shall not be responsible for any failure to change, delete or recall such wire transfer. Bank shall likewise have no duty to discover, and shall not be liable for, duplicate wires issued by Customer. In the event that Customer makes an error or issues a duplicate wire, Customer shall indemnify, defend all claims, and hold Bank harmless from and against all losses, damages and expenses, including but not limited to attorneys’ fees, incurred by Bank as the result of completion of a funds transfer.

USE OF ACCOUNT NUMBERS

The Customer is hereby notified of, and hereby acknowledges, that in executing or otherwise acting on a payment order, the Bank shall rely solely and exclusively upon identifying account or identification numbers of a beneficiary, beneficiary’s financial institution or intermediary financial institution and shall not rely on the name of the beneficiary. Customer is liable for and must settle with Bank for any funds transfer initiated by Customer that identifies the beneficiary by account or identifying number or by name and account or identifying number. The Bank shall have no duty to detect any inconsistency between the name and number contained in Instructions. The Customer shall be responsible for any inconsistencies. The Customer shall indemnify and hold the Bank harmless from and against any loss, liability, expense or damage that the Bank incurs as a result of such inconsistency, including, without limitation, attorneys’ fees and expenses of litigation.

ESTABLISHMENT OF RECIPIENT

Bank must receive Customer’s recipient’s information before Bank will be able to send a wire transfer to said recipient. To send a domestic wire transfer within the United States, Bank must receive the Recipient’s name, address and account number, as well as the receiving bank’s name, address and ABA number. In accepting an Instruction issued in Customer’s name, Bank may rely upon the identifying number (such as Fedwire routing number or account number) of the recipient, the recipient’s bank or any intermediary bank, as instruction. In addition, the Recipient’s bank in the Instructions may make payment on the basis of the identifying number even though it identifies a person or entity different from the named recipient. Accordingly, Customer shall be responsible of any errors and any inconsistency between the name and the identifying number, as instructed, of any party in such Instructions.

INTERNATIONAL PAYMENT ORDERS

To send a wire outside of the United States, Customer shall provide Bank with the correspondent bank’s name, ABA number, international bank name, account number/swift code, as well as the recipient’s name, address and account number/IBAN. Fund transfers to beneficiaries outside of the United States may be paid to the beneficiary in the foreign currency of the country to which the funds are transferred. It is the responsibility of Customer to notify the beneficiary that the funds originated in U.S. dollars may be paid to the beneficiary in the currency of the country to which the funds are transferred at the Bank’s buying rate of exchange for funds transfers.

CUSTOMER COOPERATION

In the event the Bank is entitled under the law governing mistake and restitution to recover from any beneficiary all or any part of a funds transfer made to such beneficiary hereunder, Customer shall upon the Bank’s request (but without expense to the Bank) testify in any legal proceedings and otherwise take any action necessary to assist or enable Bank to recover from such beneficiary. Customer hereby consents to the Bank’s disclosure to government authorities of information concerning the Customer and transactions under this Agreement that the Bank believes to be appropriate or necessary to fulfill legal recordkeeping and reporting requirements.

FURNISHING INFORMATION

Upon request, the Customer shall provide the Bank with any transaction information necessary for the Bank to handle inquiries and tracing, or otherwise to comply with applicable laws and regulations relating to WTS, including but not limited to, dollar amounts, account(s) affected, dates and names of beneficiaries.

 

Revised 7/15/2024