Fidelity Bank Master Agreement for Treasury Management Services

I. General Terms and Conditions

The terms and conditions enumerated in these General Terms and Conditions apply to any and all Treasury Management Services in which Company has enrolled.

1. Definition of Bank. The term Bank refers to Fidelity Bank, a Louisiana state chartered mutual savings bank.
2. Definition of Treasury Management Services. For the purposes of this Agreement, Treasury Management Services (each a “Service” or collectively, the “Services”) shall mean any of a suite of banking services as may be offered by Bank from time to time, in its sole discretion, to its business clients to facilitate commercial payments and receipts, to facilitate Company’s management of its accounts, to facilitate Company’s receipt of account and transaction information, and/or to assist Company in securing its accounts and account information against unauthorized access.  
3. Additional Definitions.  Unless specified otherwise with respect to a particular Service, for the purposes of this Agreement the following terms shall have the meanings provided below:
   1. “Accounts” means all Eligible Accounts Company has designated in the Enrollment Request for any Service as the accounts which you want to have enrolled in a Service.   
   2. “Business Day” as used in this Agreement means a day Bank is open to the public for conducting substantially all of its business, generally consisting of Monday through Friday, excluding Bank, Louisiana State and Federal holidays.
   3. “Credentials” has the meaning provided in Section I.8 of this Agreement.
   4. “Deposit Account Agreement” has the meaning provided in Section I.18 of this Agreement.
   5. “Eligible Account” means any checking account, deposit account, credit card account or loan account that we deem eligible, in our   sole discretion, to establish or use any Service.
   6. “Fee Schedule” shall mean the Schedule of Fees for each Service and/or the “Business and Nonprofit Account Service Fee Information”, as amended and published by Bank from time to time.
   7. “Personal Financial Management (PFM) Software” means a computer program such as Quicken®, QuickBooks®, Turbo Tax®, or other software we may allow to link to our online banking systems from time to time, through which you may access your Accounts and certain Bank information related thereto via a direct interface with certain Bank systems. Bank shall provide Company directions for linking currently supported Personal Financial Management Software programs and versions.
   8. “Portal” shall mean a specified gateway used to provide access to a designated Service. 
   9. “Security Administrator” shall mean the person appointed by Company on the Enrollment Request for a Service as having the authority to create and revoke access privileges for other Users and assigning and maintaining Credentials as more fully set forth in this Agreement.
   10. “Security Procedures” shall have the meaning provided in Section I.8 of this Agreement.
   11. “Third Party Agent” shall mean any third party appointed by Company to perform any activity related to a Service and shall include any vendor or provider of PFM Software purchased and used by Company.
   12. “Third Party Vendor”” shall mean any third party vendor providing Third Party Software (as defined in Section10 (k) of this Agreement) used in connection with any service provided by the Bank pursuant to this Agreement.
   13. “Treasury Solution” refers to Bank’s commercial online banking service.   
   14. “Transfer Day” means Monday – Friday, to 7:00 p.m., Central Time.  Holidays are not included.
   15. “Users” shall have the meaning set forth in Section 8(c)(ii) of this Agreement. 
4. Account Access and Linkage. To have access to the Services, Company must have at least one Eligible Account with Financial Institution. The following conditions apply to Eligible Accounts:
   1. All Eligible Accounts enrolled with respect to any Service are subject to this Agreement. We reserve the right to determine the eligibility and/or ineligibility of any account as an Eligible Account at any time, in our sole discretion and without notice to you, subject to the requirements of applicable law.
   2. Company shall set forth in the Enrollment Requests for any Service the Accounts that may be accessed using such Service.  Generally, accounts with Company’s taxpayer identification number as designated on the Enrollment Requests may be linked.
   3. At Company’s request and at Company’s risk, Company may enroll accounts with different taxpayer identification numbers than that designated on the Enrollment Request, however such enrollment is at our discretion and subject to our reasonable satisfaction that Company is an owner of or signer on such linked accounts, or is otherwise affiliated with such accounts or authorized to view or conduct transactions on such accounts.  In such cases Company will be allowed access to all Accounts through a common set of Credentials (otherwise known as “single sign on”).
   4. Company should only request accounts to be linked which are owned by common owners, have one or more common signatories, or are otherwise affiliated. Personal accounts may not be designated for use with the Services or linked with designated Accounts. By requesting access to any account Company is thereby certifying to Financial Institution that Company is authorized to link the accounts of the different businesses and to use the Services for such businesses. Financial Institution reserves the right at any time to deny or remove linked access to any Account for any reason or no reason.
   5. Subject to the specifications set forth in the Enrollment Requests, we will permit Users to access and view all Accounts together, to make transfers between and from such accounts, and to otherwise use the Services with respect to such Accounts, all without regard for the ownership of such accounts.
   6. Company agrees to notify Bank promptly if Company’s authority over any Account is decreased or if there are any changes in ownership, affiliation or signatories of any Accounts. Company further agrees that Bank is not liable if Company’s authority over any Account decreases until Bank is informed of the change in authority and has a    reasonable opportunity to act on such information. 
   7. Accounts designated by Company in any Enrollment Request(s) for any Service may be changed by Company, provided Bank reasonably believes the request to have been made by Company, and subject to Bank’s having a  reasonable amount of time in which to take action on the request.
5. Establishment of Services.
   1. Company must submit a separate Enrollment Request for each Service selected. Company may not use a Service until its Enrollment Request has been accepted by Bank. Execution of an Enrollment Request or other acknowledgement by Company of its enrollment in any Service and each use of a Service under an existing Enrollment Request (including any Enrollment Request or similar type of document submitted by Company to Bank or Bank’s predecessor in interest) shall be deemed an affirmation of Company’s agreement to be bound by the terms of this Agreement.
   2. To the extent that Bank appoints a subcontractor or other third party to perform any activities relating to a Service, Bank shall be responsible for all actions and obligations of such third party as if they were the direct actions and obligations of Bank itself. Bank acknowledges that, among other things, this means that Bank is liable for the third party’s breaches of warranties and obligations, including liability for indemnification for such breaches, if applicable, as if Bank breached such warranties and/or obligations itself. Company shall undertake all appropriate due diligence of and investigation into the business, operations, intellectual property and other rights, financial and other conditions, or rights and creditworthiness, of any subcontractor or other third party based upon documentation and other information it has deemed appropriate and made its own decision to enter into a relationship with any subcontractor or other third party. 
   3. Bank represents that (i) the Services shall be provided to Company in conformity with all applicable federal and state laws and regulations.; (ii) Bank shall regularly monitor the access, use and security of the operating systems used by Bank to provide Services to Company and will promptly notify Company in writing as required by applicable laws and regulations of any actual, attempted, or suspected unauthorized access or breach of any such operating systems or Security Procedures; and (iii) To the extent that Bank utilizes any third party to perform any activities relating to any Services utilized by Company, Bank shall, as between Company and Bank, be solely responsible for all actions and obligations of such third party as if they were the direct actions and obligations of the Bank itself. 
6. Fees.   Company shall pay Bank for the Services as set forth in the Fee Schedule for each Service. Company acknowledges receiving the current Fee Schedule for the Services for which Company has enrolled. These fees may be changed by Bank on thirty (30) days' notice to Company and will be binding upon expiration of such period. Company shall maintain sufficient collected and available balances in the Account(s) to pay all fees and charges, and/or Bank may debit any fees due and owing hereunder from the Account(s). If Company does not maintain sufficient funds in the Account(s) to pay all fees and charges when due, Company shall, upon demand, immediately pay all outstanding fees and charges. Notwithstanding the foregoing, Bank may, without notice, set off against any other accounts maintained by Company with Bank or any of its affiliates, for all amounts due hereunder. In addition to fees specifically related to the Services, all Accounts shall be subject to other customary account charges and fees, as disclosed in Bank's then current Fee Schedule applicable to such Account.  Charges to Company do not include any taxes relating to the Services, and Company shall be responsible for the payment of such taxes.  Company may also incur additional expenses for additional items, including but not limited to telephone service or Internet service charges related to the use of the Services. Company is responsible for any costs or expenses associated with meeting and maintaining technical requirements or additional items necessary to use any of the Services.
7. Company Representations and Warranties.  Company represents, warrants and agrees as follows:
   1. (i) Company is a business entity duly authorized, validly existing and in good standing under the laws of the United States, or the laws of the state or country in which Company was organized, and (ii) customer has full authority and power to enter into this Agreement and to perform its obligations under this Agreement; (iii) its performance of its obligations under this Agreement will not violate any applicable law or regulation or any agreement to which Company may now or hereafter be bound; (iv)  that all necessary corporate or other actions required to authorize the Company to enter into this Agreement have been taken; (v) that the execution and performance of this Agreement does not contravene Company's articles of incorporation or charter, bylaws, partnership agreement, operating or any agreement to which Company is a party or by which it is bound; (vi) that this Agreement represents a valid obligation of Company and is fully enforceable against Company, and (vii) Bank, in accepting this Agreement, is expressly acting and relying upon the aforesaid representations and warranties.
   2. Company warrants that the Services and all information obtained therefrom shall be used only for the legal business purposes of Company and not for any unlawful or illegal purpose or activity.
   3. None of Company’s employees are a national of a designated blocked country or a “Specially Designated National,” “Blocked Entity, “ ”Specially Designated Terrorist,” ”Specially Designated Narcotics Trafficker,“ or “Foreign Terrorist Organization,“ as defined by the United States Treasury Department’s Office of Foreign Assets Control (OFAC), and Company agrees to always practice reasonable diligence and control to ensure ongoing compliance with this warranty.
   4. None of the Accounts is a consumer purpose account as defined by the Electronic Funds Transfer Act (“EFTA”) and its implementing regulation (“Regulation E”), and Bank, by providing the Services does not assume any of the Company’s obligations, if any, under EFTA or Regulation E, or any other applicable federal or state law or regulation unless Bank has agreed in writing to do so.
   5. Company shall follow commercially reasonable practices and procedures to ensure the integrity and security of its operating systems used in conjunction with a Service.
   6. To the extent that Company appoints a Third Party Agent to perform any activities relating to a Service, Company shall be solely responsible for all actions and obligations of such Third Party Agent as if they were the direct actions and obligations of Company itself.  Company acknowledges that, among other things, this means that Company is liable for the Third Party Agent’s breaches of warranties and obligations, including liability for indemnification for such breaches, as if Company breached such warranties and/or obligations itself. Company shall undertake all appropriate due diligence of and investigation into the business, operations, intellectual property and other rights, financial and other conditions, or rights and creditworthiness, of any Third Party Agent based upon documentation and other information it has deemed appropriate and made its own decision to enter into a relationship with any Third Party Agent.  Company’s agreement with any Third Party Agent must include a provision allowing Bank to conduct, upon reasonable notice and during normal business hours an on-site inspection of Third Party Agent’s books, records and premises, to ensure compliance with the requirements of this Agreement as it relates to any Service with regard to which such Third Party Agent act’s on Company’s behalf.
8. Security.  In connection with providing access to any Service, Bank may provide or make available to Company certain information, processes or technologies, including but not limited to access codes, security devices, tokens, certificates and other methods of user identification or authentication (“Credentials”). Company acknowledges and agrees that the Credentials and other safeguards, procedures, and monitoring as Bank may require or offer from time to time for any Services (together “Security Procedures”) are designed to prevent unauthorized payment orders, unauthorized entries and requests, and unauthorized access to private customer information. Company agrees to comply with all such Security Procedures. Bank reserves the right to modify, amend, supplement or cancel any or all Security Procedures (including any Credentials or any type of security device), at any time in Bank’s discretion.  Company’s implementation and use of any Security Procedures, including modified Security Procedures after receipt and notice thereof shall constitute Company’s acceptance of such Security Procedures as a commercially reasonable means of preventing unauthorized activity and adequate of the purposes intended. To maintain the privacy, integrity, and accessibility of the Services, Company agrees as follows:
   1. For any of the Services requiring the use of Credentials, Company agrees:
      1. to ensure that all Credentials are maintained and safeguarded in a secure manner;
      2. that providing any Credentials to any person effectively constitutes a grant of authority to access the Services and Company’s accounts;
      3. to provide Credentials only to those persons authorized by Company to use the Service(s);
      4. to promptly revoke Credentials for any person whose job duties no longer require access to the Service(s), including employees who have been terminated;
      5. to adopt and enforce policies that prohibit the sharing of Credentials by multiple persons; 
      6. to notify Bank immediately if you believe that any Credentials or Security Procedures have been stolen, compromised or otherwise become known to unauthorized persons or if you believe that any transaction or activity through any of the Services is unauthorized or in error; 
      7. that the initiation of any transaction or instructions using applicable Security Procedures for the Service constitutes sufficient authorization for Bank to execute such transaction or instruction and Company agrees that it shall be bound by any and all transactions initiated through  the use of such Security Procedures, whether authorized or unauthorized, and by any and all transactions and activity otherwise initiated using Company’s Credentials and the applicable Security Procedures for such Services, to the fullest extent allowed by law; and
      8. that notwithstanding any instructions or agreements that require two or more signatures to access your accounts or the funds therein, that any User (as such term is defined below) acting alone can access your accounts and initiate banking transactions using the Services. 
   2. The Bank offers various Security Procedures, which may be required or recommended:
      1. In order to access Treasury Solution (or Services accessed through Treasury Solution) the Bank requires at a minimum that each user designated by Company shall order, maintain and utilize a security token provided by the Bank for all logins.  The security token must be utilized to access Treasury Solution or initiate transactions from either ACH or Wire Transfer services.  In addition, initiation of ACH items or wire transfers – outgoing shall require “dual control” before the Bank will complete those transactions. Dual Control requires two separate parties representing the Company to review and authorize the ACH or Wire request before the Bank will accept the request and proceed with the transaction.
      2. To manage the increased the risk of account takeover and fraudulent activity that arises with electronic account activity, the Bank strongly recommends the Company perform periodic internal audits over its processes, procedures, systems and personnel to aid in the timely detection of cyber and check fraud.
      3. The Bank also makes available to our clients materials, services and software to assist clients with implementing defenses the Company deems appropriate based on its business practices and personnel.  The Bank strongly recommends the Company (a) review the  Treasury Management Resources that the Bank makes available on its website for guidance on how to review security procedures, and (b) use the Bank’s Positive Pay service to help prevent check fraud.
   3. For any Service (s) requiring or providing Company the option to designate one or more Security Administrators, Company agrees:
      1. to designate as Security Administrators only those individuals deemed by Company to possess the business knowledge, authority, technical capability, and trustworthiness appropriate for an individual charged with controlling the rights of individual users to view Company’s banking information or to conduct financial transactions on Company’s behalf;
      2. that any Security Administrator shall have the power and authority to appoint designated users or authorized representatives or other  administrator(s) (each a “User,” collectively “Users”) who may be granted any and all authority to perform transactions and initiate inquiries using the Services, including, but not limited to, the authority to designate or authorize other users of such Services and to set with regard to such other Users the level of functionality, access and transactional capabilities and limits available to User and to add and delete Users, and to modify the rights granted to any User from time to time;
      3. that each Security Administrator shall have the authority on Company’s behalf to accept and approve, electronically, or otherwise, any and all agreements and amendments to agreements by and between the Bank and Company, including, but not limited to this Agreement;   
      4. to immediately terminate the Security Administrator rights of any individual who no longer qualifies to act in that role for any reason; and;
      5. to compel any Security Administrator to add and remove user rights according to legitimate business needs and to assign limits on transaction amounts according to each user’s business responsibilities as assigned by Company.
      6. that Bank offers and recommends the use of a dual-control security procedure for the authorization and release of transactions, including, without limitation, “Dual Administration” of all additions, revisions or deletions made by a Security Administrator in Treasury Solution as recommended and described in Section I.33. of this Agreement. If Company chooses to use a single user control procedure where a dual control option is available, Company accepts the increased risk of loss and liability arising from that choice.
   4. If Bank and Company agree to security controls and procedures with respect to a Service other than those Security Procedures generally required or recommended by Bank to be used in connection with such Service, those security controls and procedures shall be applicable only if they are specifically incorporated into this Agreement in writing.
   5. Company shall be liable for any and all claims, losses, and/or damages arising from use of the Services, whether authorized or unauthorized, by any person who utilizes the Credentials or who gains access by any other means. Company shall be obligated to monitor all transactions conducted through the Services frequently and regularly, and to notify Bank promptly of any actual, attempted, or suspected unauthorized access or breach of any Security Procedure. Failure by Company to monitor and report suspicious activity timely shall relieve Bank from any and all liability (if any) for any unauthorized activity. Notwithstanding anything to the contrary contained herein, in no event shall Bank be liable for any activity in the Company’s accounts if the activity was initiated or accomplished using the Credentials or if Company failed to comply with applicable or recommended Security Procedures.
9. Service Content.  The contents of any Service website, any software used in connection with the operation and maintenance thereof, and the information provided through any Service (collectively, the “Content”) are the property of Bank or its service providers, or are licensed to Bank and/or its service providers and subject to contractual limitations on its use. Company shall use the Content for the consummation of Service transactions pursuant to the terms of this Agreement and for Company’s own use as contemplated by this Agreement, and for no other use or purpose whatsoever. Subject to Company’s own permitted use of the Content as contemplated by this Agreement, Company shall not reproduce, copy, retransmit, disseminate, sell, distribute, publish, broadcast, circulate, commercially exploit, or create derivative works based upon the Content without Bank’s written consent. Company agrees to comply with all terms and conditions relating to the use of the Content in order to protect the contractual, statutory and common law rights of Bank and/or its service providers with respect to the Content.  Company solely and exclusively owns all right, title and interest in and to any data of Company, its Affiliates, and their respective customers that Bank has access to under this Agreement, including the Items (collectively, “Company Information”).  Bank shall use, and shall cause its affiliates and subcontractors to use, Company Information solely for the purposes of and to the extent necessary to provide the Services. 
10. Computer-Based Services. For services accessed by computer or which involve the exchange of computer data between Company and Bank:
    1. Company’s computer systems must meet certain current minimum technical specifications. These technical specifications and requirements may be described elsewhere in this Agreement or in a user guide that applies to any particular feature or functionality available as part of the Services from time to time.
    2. Company possesses and shall maintain in working order all computer hardware, communications facilities and other supporting components (including software) (“Supporting Components”) necessary to support proper use of the Services. Company may also incur additional related expenses for additional items, including but not limited to telephone service or Internet service charges related to the use of the Services.
    3. Company is responsible for any costs or expenses associated with meeting and maintaining technical requirements or additional items necessary to use any of the Services.
    4. Company might be required to accept Web site Cookies to use one or more of the computer-based Services.
    5. Company hereby grants Bank access to its Supporting Components for any purposes reasonably related to Bank’s delivery of the Services.  Company agrees to follow commercially reasonable practices and procedures to ensure the integrity and security of its operating systems used in conjunction with a Service, including but not limited to the installation, routine updating, and use of anti-virus software and other available malicious software detection, the application of all applicable security patches, and the use of a firewall. 
    6. Bank strongly recommends Company install Rapport Account Protection software to increase Company’s protection from cyber-fraud.   Rapport Account Protection is available from the Bank website and may be downloaded by any Company on their internet-connected computers.
    7. We do not guarantee that the Services will be compatible with all modem types, computer systems, internet browsers, hardware and/or software.
    8. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of Company’s computer hardware or software.
    9. When required to facilitate Company’s use of a computer-based service, Company shall transmit or deliver data and other information in the format and on the media as required by the Bank in conjunction with rendering such Service. Company shall have the sole responsibility of ensuring the accuracy and correctness of the data transmitted. Company acknowledges and agrees that Bank shall not examine the data for correctness and the Bank shall not have any responsibility for detecting errors in the data transmitted by the Company. The data transmitted by Company must be legible, correct and complete. Bank shall not process, and Bank shall not be liable to Company for failure to process, the data if it is not in the format specified by Bank or if the data is incomplete. Bank shall not be liable for errors or omissions caused by data that is rejected as the result of Company's failure to provide the data in accordance with the standards specified in this Agreement and the applicable operating instructions or user guides. 
    10. Company shall deliver or transmit all data or information to Bank by the deadline(s) specified by Bank for any applicable Service. Bank shall have no obligation to process data or perform the Service if the data is not received by the Bank by the specified deadline.
    11. Some of the Services provided to Company by Bank pursuant to this Agreement utilize a third party client application software that is licensed by Bank from a third party and all documentation related thereto (“Third Party Software”).  Bank hereby grants to Company a non-exclusive, nontransferable, sublicense to use any Third Party Software provided by Bank in connection with any Service covered by this Agreement, provided that such use shall be solely for business purposes. Company’s sublicense of any Third Party Software is valid only for the latest version of the software that has been provided to Company by Bank. Company acknowledges that Third Party Software is sublicensed, not sold and the original licensor retains ownership of all copies of the software. Company agrees to the following terms and conditions applicable to its use of Third Party Software:
        1. Company will not reverse engineer, decompile, disassemble, modify, translate, create derivative work, or make any attempt to discover source code of Third Party Software provided to Company by Bank in order to implement any Service;
        2. Company will not copy Bank’s software or Third Party Software, except for archive purposes consistent with Company’s back up procedures and practices and shall not violate the proprietary rights of such Third Party Vendor or its supplies, ;
        3. Company agrees to upgrade Third Party Software with new releases made available by Bank;
        4. Company will not use Third Party Software other than in connection with the use of Bank’s Services; and
        5. Company agrees to be bound by limitations of liability set forth herein and agrees that Bank’s Third Party Vendor  with respect to Third Party Software, is a third party beneficiary of this Agreement, the end user license agreement and the provisions related to the Third Party Software are made expressly for the benefit of, and are enforceable by Bank’s Third Party Vendor. Bank’s Third Party Vendor, its affiliate, and their respective directors, officers, employees, agents, suppliers and contractors shall have no direct liability to Company under this Agreement.
11. Service Output. Company shall inspect all reports, journals, statements and other material evidencing the output of the Service(s) performed by Bank as necessary to detect errors or unauthorized activity. Company must report all errors or unauthorized activity within a reasonable time not to exceed thirty (30) days from the date that the error or unauthorized activity is discovered or discoverable by Company.  Failure of Company to promptly report errors within such specified time shall preclude Company from asserting against the Bank any claims arising from the error or any loss caused by the error.
12. Continuation or Renewal of Services.  Bank may from time to time request information from Company in order to evaluate a continuation of the Service(s) to be provided by Bank hereunder and/or adjustment of any limits set by this Agreement. Company agrees to provide the requested financial information immediately upon request by Bank, in the form required by Bank.  If Company refuses to provide the requested financial information, or if Bank concludes in its sole discretion that the credit risk of Company is unacceptable, Bank may terminate any Service as provided in this Agreement.  Company authorizes Bank to investigate or reinvestigate at any time any information provided by Company in connection with this Agreement or any Services and to request reports from credit bureaus and reporting agencies for such purpose.
13. Liability; Limitations on Liability.
    1. In the performance of the Services, Bank will be entitled to rely on the information, representations and warranties provided by Company pursuant to the Enrollment Request(s) and this Agreement and will not be responsible for the accuracy or completeness thereof.
    2. Bank shall have no duty or obligation to inquire as to the appropriateness, correctness, or authenticity of any entry, instruction, transaction or order in connection with the Services, whether or not it will result in payment to any officer, employee, or agent of Company or is otherwise tendered in payment of such person's individual obligations.
    3. Notwithstanding any other provision of the Agreement, to the fullest extent permitted by law, Bank’s liability to Company under this Agreement shall be limited to damages, losses, expenses or claims  resulting solely from the  gross negligence or willful misconduct of Bank, its agents, employees, officers or directors and only to the extent set forth below.
    4. For any Service provided by Bank using an internet site:
       1. Bank shall not be responsible for any liability, loss, claim, or damage related to malicious code or other defects in the internet site, incompatibility between the internet site and Company's browser or from other causes or events beyond the control of Bank.
       2. TO THE FULLEST EXTENT ALLOWED BY LAW, CUSTOMER AGREES THAT BANK SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOST PROFITS, LOSSES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THE INTERNET SITE, THE USE OR INABILITY TO USE THE INTERNET SITE BY ANY PARTY; OR ANY FAILURE OR PERFORMANCE, ERROR, OMISSION, INTERRUPTION DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE, EVEN IF BANK, OR ITS REPRESENTATIVES, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES OR EXPENSES.
       3. Hyperlinks to other internet resources are used at Company's own risk. Bank makes no representation or warranties of any kind, express or implied, as to the operations conducted at other internet sites provided by way of hyperlinks or the accuracy or completeness of any information, content, materials or products included thereat, including, but not limited to, the warranties of non-infringement of third party rights, title, merchantability and fitness for a particular purpose.
       4. The information and material contained in the internet site, including, but not limited to text, graphics or links are provided on an "as is" and "as available" basis.
       5. Bank does not warrant that the internet site, its servers or e-mail sent from Bank is free of viruses or other harmful components. Company acknowledges its awareness and acceptance of the risks associated with the use of the internet.
    5. Bank does not make any representations or warranties with respect to the legal effect or sufficiency, under any federal, state or local statute or regulation or other law, of any forms, documents, or other matters provided by Bank from time to time in connection with this Agreement, or of the Services.
    6. NEITHER BANK NOR CUSTOMER SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT LOSS OR DAMAGE WHICH BANK OR CUSTOMER MAY INCUR OR SUFFER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF ANY SERVICE EVEN IF BANK OR CUSTOMER HAVE BEEN NOTIFIED OF THE PROBABLE OR CERTAIN CONSEQUENCES TO BANK, CUSTOMER OR ANY OTHER PERSON OF SUCH POSSIBLE DAMAGES.
    7. Bank shall not be responsible or liable for any errors or failures resulting from defects in or malfunctions of Company’s computer hardware or software, for the quality of performance or lack of performance of any computer software or hardware supplied by Bank to Company in connection with this Agreement, or for the transmission or failure of transmission of any information from Company to Bank or from Bank to Company.  Bank shall not be responsible for notifying Company of any upgrades or enhancements to any of Company’s computer hardware or software.
    8. Bank shall not be responsible for the acts or omissions of Company, its agents, employees, officers or directors, any Third Party Agent, or any other person, except as otherwise provided herein.
    9. Bank shall be excused from failing to act or for 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 reasonable control (“Force Majeure”).
    10. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BANK MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, OR SUITABILITY. CUSTOMER AGREES THAT NO WARRANTY OR REPRESENTATION   OBTAINED FROM A BANK EMPLOYEE OR REPRESENTATIVE SHALL CREATE A WARRANTY OR REPRESENTATION FOR PURPOSES OF THIS AGREEMENT OR ANY SERVICES TO BE PERFORMED PURSUANT HERETO.
    11. In consideration of the nominal rates and fees charged for the Services, in no event shall Bank's liability under this Agreement exceed the sum of all fees paid to Bank for the Services during the past twelve (12) months. Company shall not have the right to bring any claim against Bank more than one (1) year after the claim arises.
    12. In the event of any possible loss to Bank or Company under this Agreement, Bank and Company agree to undertake reasonable efforts to cooperate with each other, as permitted by applicable law, in performing loss recovery efforts and in connection with any action that either party may be obligated to defend or elects to pursue against a third party.
14. Security Interest.  To secure the payment and performance of Company’s liabilities and obligations to Bank under this Agreement, including, without limitation, interest, attorneys' fees, expenses of collection and costs, Company grants to Bank a continuing security interest in and a right of set-off and compensation against and pledges and assigns to Bank all of Company’s right, title and interest in and to the following described property (the “Collateral”), whether now owned or hereafter existing or acquired and wherever located, (a) all cash, deposit accounts, CDs, financial assets, instruments, investment property and financial assets that are now or in the future in Bank’s custody or control; (b) any other collateral described in any security instrument securing the obligations of Company to Bank under this Agreement or securing  any other obligations of Company to Bank; (c) all cash and non-cash proceeds and products of the forgoing as well as any replacements, accessions, substitutions and additions to any of the above. Upon the written request of Bank, and at the sole expense of Company, Company shall promptly and duly execute and deliver all further instruments and documents and take such further action as Bank may deem necessary to obtain the full benefits arising under this Agreement. Company hereby acknowledges the obligations owed under this Agreement and agrees that, in the event of default thereof, Bank shall be entitled to all of the rights, powers and remedies afforded a secured party by the Uniform Commercial Code as enacted in Bank’s state of organization with reference to the personal property in which Bank has been granted a security interest herein, including the right to take possession of any part of the Collateral without judicial process. In the event Company initiates insolvency or bankruptcy proceedings, Bank shall be deemed a secured party for all purposes with respect to the Accounts and all amounts held in the Accounts. This security interest shall survive the termination of this Agreement.
15. Indemnification.  Company agrees to reimburse, indemnify, protect, defend and hold Bank, its affiliates and its officers, directors, employees and agents harmless, from and against, any losses, claims, liabilities, fees (including attorneys' fees, costs and investigatory fees) fines or penalties, of any kind whatsoever arising out of or in connection with any third party claims arising from (a) any actions or omissions taken by Bank , its employees, officers, directors or agents in reliance upon the instructions of any employee, officer or agent of Company; (b) any claim of any person that Bank is responsible for any act or omission of Company or any other persons; (c) any failure on the part of Company, its officers, employees or agents to comply with this Agreement, the Enrollment Request(s) or any other applicable law, rule or regulation; (d) any damage or injury to Company or any third parties asserted to have arisen out of the Bank’s performance of its duties and obligations under this Agreement; (e) any negligence or willful misconduct of Company, its employees, directors, officers and agents; and (f) any unauthorized use of the Credentials by unauthorized persons, unless the action complained of was caused by Bank’s gross negligence or willful misconduct. This indemnification shall survive the termination of this Agreement.
16. Data Recording.  Company hereby agrees on behalf of itself, its officers, employees and agents that Bank may (but, except as required by law, rule or regulation, need not ) record, retain or monitor any information, data, or communications (including, without limitation, telephone conversations) furnished, exchanged or made in connection with this Agreement or the Services without further notice to any person. All such information, data, and communications recorded, retained, or monitored by Bank shall be and remain the property of Bank. Company acknowledges that Company is responsible for the maintenance and storage of Company’s own data and other information created through Company’s use of the Services.
17. Documentation.  Company shall execute and deliver to Bank all documentation required by it in a form acceptable to Bank. Bank may delay implementation of the Services until receipt of satisfactory documentation. Company will notify Bank promptly of any changes affecting the documentation delivered to Bank and agrees to execute and deliver any additional documentation as Bank, in its sole discretion, may require. The Bank shall not be liable for any action or inaction taken as the result of any such change until Bank receives written notice and has had a reasonable opportunity to act thereon.
18. Governing Documents.  Company acknowledges and agrees that Company’s demand deposit account(s) maintained with Bank are an integral part of the Services offered by Bank and that all transactions and Services initiated or processed pursuant to this Agreement are subject to the terms and conditions of the rules, regulations and agreements (“Deposit Account Agreement”) governing accounts in effect from time to time between Company and Bank. The Deposit Account Agreement and any schedules or exhibits annexed thereto are expressly incorporated herein by reference. If any inconsistency exists between the Deposit Account Agreement and this Agreement then this Agreement shall control, but only to the extent necessary to resolve the inconsistency.
19. Entire Agreement, Amendments.  Bank reserves the right to amend the terms of this Agreement and to alter, change or modify the Services provided under the terms of this Agreement (including the fees and charges for any Services) or any supplemental agreement at any time in its sole discretion by giving written notice to Company, except that modifications for clarification or reasonable security purposes may be made without prior notice.  Except as otherwise provided herein, any amendment or modification of this Agreement shall be effective on the date specified in any such notice or immediately in the case of an amendment made for clarification or reasonable for security purposes. If required by agreement or by applicable law, notice will be given for the required applicable number of days in advance of such amendments.  Company’s continued use of the Services shall constitute Company’s agreement to such amendment. This Agreement, the Enrollment Request(s), the Deposit Account Agreement and any schedules or exhibits, as any of the foregoing may be amended from time to time, shall constitute the complete agreement between Bank and Company with respect to the subject matter hereof and supersede any prior agreement between Bank and Company with respect to such subject matter.
20. Pricing.  Except for any increases in governmental or access fees charged to Bank which may immediately be passed onto Company, at cost without notice, Bank will provide written notice to the Company at least thirty (30) days in advance if any increase in fees.
21. Notices Related to This Agreement.  Except as otherwise specified below and agreed to between Company and Bank with respect to Electronic Notices, all notices related to this Agreement shall be in writing and delivered to the following addresses:

To Bank:

Fidelity Bank
Attn: Electronic Banking Department
PO Box 5990
Metairie, LA 70009

To Company:

At the latest primary address shown on Bank’s books and records for Company, as reasonably determined by Bank.

Legal notices may be delivered, or sent, at sender’s election only by: (i) written notice delivered by hand, (ii) by first class mail, or (iii) by a nationally recognized overnight delivery service.

21. Electronic Notices.   THIS SECTION CONTAINS IMPORTANT INFORMATION ABOUT ELECTRONIC NOTICES.  PLEASE READ CAREFULLY.  By signing and submitting to Bank an Enrollment Request for any online Services, Company thereby gives its consent for us to deliver to Company any required disclosures and other notices concerning such Services by e-mail or other appropriate electronic means. Company may withdraw such consent to receipt of electronic notices and required disclosures or change Company’s e-mail address or electronic contact information by a message to Bank by mail at Bank’s notification address above, or by fax or email using Bank’s fax, telephone number or email address as communicated to Company at the time, subject to Bank’s confirmation of receipt. If Company withdraws consent, we reserve the right to terminate Company’s participation in these Services.  Before Bank will send to Company electronically any disclosures or notices that would otherwise be required by applicable law or regulation to be made available to Company in writing, Bank may send Company an e-mail message and ask Company to confirm that Company can access the electronic information in the form in which it will be provided.  After providing this confirmation, Company may still request a paper copy of a disclosure or notice provided to Company electronically by writing to Bank at the address above and identifying the disclosure or notice Company is requesting.  A fee may be charged for a paper copy of the electronic information.   Company may use e-mail to contact us about inquiries, maintenance and/or some problem resolution issues.  E-mail may not be a secure method of communication.  Thus we recommend you do not send confidential personal or financial information by e-mail.  There may be times when you need to speak with someone immediately (especially to report a lost or stolen Credential, or unauthorized activity).  In such cases, do not use e-mail.  Instead, Company should contact Bank’s Treasury Management Support Center at its telephone number published from time to time.
22. Termination and Assignment.  Bank shall continue to provide the Services until the earliest of (i) cancellation by either party on thirty (30) days' notice to the other, (ii) cancellation by either party because of the other party's failure to comply with these terms and conditions in all material respects, or (iii) cancellation by Bank if required by governmental authority. Notwithstanding the foregoing, Bank may immediately terminate this Agreement without notice, if, in Bank’s sole discretion, Bank determines that Company has abused the Services, or if Bank has reason to believe that it may suffer a possible loss or other damage if the Agreement is not terminated, for any reason, including, without limitation, (a) an adverse change in the financial condition of Company; (b) Company ceasing to conduct business in the ordinary course: (c) the filing by or against Company of a proceeding under the U.S. Bankruptcy Code or for any other relief afforded debtors or affecting rights of creditors generally under the laws of any jurisdiction; (d) the default by Company under this Agreement or under any other obligation owed by Company to Bank; and (e) any judgment, garnishment, seizure, tax lien or levy against any assets of Company.  

Upon termination of this Agreement, (i) Company will promptly pay to Bank all sums due or to become due under this Agreement, (ii) then and thereafter, Company shall have no further right to make use of the Services or any system or software program which may have been provided in connection with the Services. Bank’s termination of this Agreement is in addition to other remedies that may be available to Bank, and will not affect any obligations Company may have to Bank arising prior to such termination.  Bank may assign its rights and liabilities hereunder with no further liability upon thirty (30) days' notice to the Company. The Company may not assign its rights hereunder.

23. Binding Agreement; Benefit.  This Agreement shall be binding upon and is for the benefit of the parties hereto and their respective successors and assigns except as expressly provided otherwise herein. This Agreement is not for the benefit of any other person, and no other person shall have any right against Bank or Company hereunder.
24. Arbitration, Waiver of Jury Trial and Governing Law.  CUSTOMER AND BANK AGREE THAT THE TRANSACTIONS PROCESSED UNDER THIS AGREEMENT OR ANY SERVICES PROVIDED HEREUNDER INVOLVE “COMMERCE” UNDER THE FEDERAL ARBITRATION ACT (“FAA”).  ANY CONTROVERSY OR CLAIM BETWEEN CUSTOMER AND BANK, OR BETWEEN CUSTOMER AND ANY OF BANK’S OFFICERS, EMPLOYEES, AGENTS OR AFFILIATED ENTITIES, THAT ARISES OUT OF OR IS RELATED TO ANY SERVICE PROVIDED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT OR IN TORT OR ANY OTHER LEGAL THEORY, INCLUDING CLAIMS OF FRAUD, SUPPRESSION, MISREPRESENTATION AND FRAUD IN THE INDUCEMENT (COLLECTIVELY, ANY “CLAIM”), WILL BE SETTLED BY BINDING ARBITRATION UNDER THE FAA.  THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES (“THE ARBITRATION RULES”).  IF A CLAIM IS SUBMITTED TO ARBITRATION, (A) CUSTOMER WILL NOT HAVE THE RIGHT TO GO TO COURT OR TO HAVE A JURY TRIAL;(B) CUSTOMER WILL NOT HAVE THE RIGHT TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED IN THE RULES; (C) CUSTOMER WILL NOT HAVE THE RIGHT TO HAVE ANY CLAIM ARBITRATED AS A CLASS ACTION UNDER THE RULES OR UNDER ANY OTHER RULES OF CIVIL PROCEDURE; (D) THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING WITH LIMITED RIGHTS TO APPEAL;  AND (E) THIS AGREEMENT SUPERSEDES ANY PRIOR ALTERNATIVE DISPUTE RESOLUTION AND/OR ARBITRATION AGREEMENT THAT MAY EXIST BETWEEN CUSTOMER AND BANK WITH RESPECT TO THIS AGREEMENT AND THE SERVICES.  THIS AGREEMENT TO ARBITRATE DISPUTES WILL SURVIVE THE CLOSING OF ANY OF CUSTOMER’S ACCOUNT AND THE TERMINATION OF THIS AGREEMENT OR ANY SERVICE.  THE FORUM FOR ANY ARBITRATION REQUIRED UNDER OR RELATED TO THIS AGREEMENT SHALL BE NEW ORLEANS, LOUISIANA.  Except as otherwise provided herein with respect to a Service, this Agreement shall be construed in accordance with and governed by the laws of the State where Bank is organized and existing, without reference to its conflict of law provisions and applicable federal law.
25. Independent Contractor.  Except as expressly provided in this Agreement, the acceptance by Bank of this Agreement is subject to the express condition and understanding that Bank shall act solely as an independent contractor and not as Company's agent or in any other representative capacity except with respect to the Services. Neither Company nor its representatives shall make any representations to any other person or governmental authority to the contrary.
26. Severability.  If any term, covenant or condition of this Agreement or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforced to the fullest extent permitted by law.
27. Construction.  This Agreement is an agreement between parties who are experienced in sophisticated and complex matters similar to the transactions contemplated by this Agreement, is entered into by both parties in reliance upon the economic and legal bargains contained herein, and shall be interpreted and construed in a fair and impartial manner without regard to such factors as the party which prepared the instrument or drafted any provision thereof, the relative bargaining powers of the parties, or the domicile of any party.
28. Counterparts.  Enrollment Requests, which become a part of this Agreement when executed, may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute only one original.
29. Waiver.  No delay or failure of Bank in exercising any right, remedy or privilege hereunder, and no partial or single exercise thereof, shall be deemed a waiver of any such rights, remedies or privileges. Only written waivers executed by an expressly authorized officer of Bank shall be effective under this Agreement.
30. Headings.  Headings are used for reference purposes only and shall not be deemed a part of this Agreement.
31. Confidential Information and Proprietary Right in Data.  The parties acknowledge that their officers, employees and agents may have access to certain confidential information of the other party (including, without limitation, any nonpublic personal information of any employee or customer of Bank or Company). Each party warrants that it, its officers, employees and agents shall not disclose any such confidential information of the other party except as required by applicable law and shall use such confidential information only in connection with the Services contemplated by this Agreement. It is the express intent of the parties that these warranties of confidentiality be construed broadly and comprehensively. All warranties set forth in this Section shall survive termination of this Agreement for any reason. Additionally, both parties will destroy the confidential information in a commercially reasonable manner so that no third party can view or recreate the Confidential Information, electronically or otherwise, after the retention of the confidential information is no longer reasonably necessary.  In addition, should Company at any time receive or acquire any information relating to another Company of Bank, Company 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.  Bank's and Company's obligations and agreements hereunder shall not apply to any information supplied that was known to either party prior to the disclosure by the other, or 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 authorized and agreed by Bank and Company that the performance of one or more selected Services is or may be subject to regulation and examination by authorized representatives of the Board of Governors of the Federal Reserve System, the Board of Directors of the Federal Deposit Insurance Corporation, and/or a State regulatory agency and the Company agrees to the release of the Company's confidential information or other data as may be required by them under applicable laws and regulations.  Company agrees that any specifications, programs or software developed by Bank in connection with this Agreement or supplied or made available to Company by Bank, are the exclusive property of Bank, its agents, supplies, 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 Section shall survive the termination of the Agreement.
32. Media Releases.  Neither party may use the name or service marks of the other in connection with any advertising or publicity materials or activities without the prior written consent of the other party.
33.  Actions of the System Administrator.  Company acknowledges that Services require Company’s appointment of a Security Administrator and allows the Company the option of setting up “Dual Administration” pursuant to which any changes made by a Security Administrator will require the approval of a second Security Administrator. Dual Administration allows the Company, at its option and discretion, to require dual review of all additions, revisions or deletions to the permissions assigned to any Authorized User in Services. Company agrees to comply with the requirements set forth herein regarding Security Administrators.
34. Force Majeure.  In the event that either party is unable to perform any of its obligations under this Agreement, or to enjoy any of its benefits because of a Force Majeure event, the party who has been so affected shall immediately give notice to the other party and shall do everything possible to take such steps as are necessary to overcome and mitigate the cause of the defaults or delays as promptly as possible in order to resume its performance.

* * * End of General Terms and Conditions * *

II. Automated Clearing House (“ACH”) Origination Service

The terms and conditions enumerated below apply solely to Bank’s ACH Origination Service. These terms apply to Company if and only if Company enrolls in this Service, as evidenced by the submission to Bank of an Enrollment Request signed by Company’s duly authorized representative.

1. Statement of Service.  Subject to the terms and conditions of this Agreement, Bank shall provide an ACH Origination service which allows Company to initiate debit and/or credit electronic fund transfer entries through Bank by means of the ACH. Bank shall process entries received from Company, shall transmit such entries to an ACH processor selected by Bank in its sole discretion, and shall settle such entries.
2. Definitions.   In addition to the definitions contained in the General Terms and Conditions, the following definitions shall apply with respect to the Service:
   1. “Rules” shall mean the Operating Rules of the National Automated Clearing House Association, as in effect from time to time.
   2. “NACHA” shall mean the National Automated Clearing House Association.
   3. “ACH Network” shall means the funds transfer system (network) governed by the Rules which provides for the inter-Bank clearing of electronic entries for participating Banks.
   4. “Account” shall mean a demand deposit account or other deposit account Company has with Bank that Bank permits to be linked to a Service.
   5. “Agreement” shall mean the ACH Origination Master Agreement, which may change from time to time. All references to Agreement include all Schedules, Addendums and User Guides Bank provides to Company from time to time.
   6. “Effective Entry Date” shall mean the date placed on an ACH transaction by the Originator of the transaction or the ODFI – it is normally the date the Originator or ODFI intends the transfer to take place.
   7. “Electronic Funds Transfer Act” shall mean the law passed by the United States congress in 1978, which set out the rights and obligations of consumers and their Banks regarding the use of electronic systems to transfer funds. This act is implemented in the Federal Reserve Bank's Regulation E.
   8. “File” shall mean a group of ACH entries stored for delivery to an ACH receiving point.
   9. “Password” shall mean confidential, unique personal numbers, codes, marks, signs, public keys or other information composed of a string of characters used as a means of authenticating and accessing a Service.
   10. “Regulation E” shall mean the regulation published by the Federal Reserve Bank to implement the Electronic Fund Transfer Act mandating consumer rights and obligation with regard to electronic fund transfers.
   11. “Return Entry or Return Entries” shall mean any item, which cannot be processed and is being returned by the RDFI to the ODFI for correction or re-initiation.
   12. “SEC Codes” or Standard Entry Class codes shall mean the three-character code within an ACH Company/batch header, which identifies the type of transactions within that batch (e.g. CCD or PPD).
   13. “Security Procedures” shall mean, unless we agree otherwise with you, the applicable security requirements and procedure for verifying the authenticity of Entries.
   14. “Service” shall mean the ACH Services and features of those services which Bank may provide from time to time to Bank’s commercial or small business customers.
   15. “Settlement Date” shall mean the date, on which settlement occurs, i.e., funds actually change hands as a result of an ACH Entry.
   16. “Sub-User” shall mean an Authorized User who has been assigned access to a Business Customer’s Eligible Account by a System Administrator.  Sub-Users may be granted full or limited access to originate online transfers such as ACH transactions and/or wire transfers.”
   17. “System Administrator” shall mean an administrative user available only to Business Customers.  A System Administrator may administer and assign access rights to Sub-Users.”
   18. “Uniform Commercial Code Article 4A (UCC4A)” shall mean the portion of the Uniform Commercial Code which deals with certain funds transfers, including ACH credit transactions not subject to the Electronic Fund Transfer Act of Regulation E. This law outlines the protections and responsibilities given to the parties to wholesale credit transactions, and sets the legal standard for commercially reasonable security procedures to be used in conjunction with those transactions.

The following additional definitions as used in the Rules will apply to terms used herein with respect to the Service:

1. “Originator” refers to the entity who initiates debit or credit transactions via the ACH Network; i.e., the Company hereunder.
2. “Receiver” refers to the entity whose account receives the transaction.
3. “Originating Depository Financial Institution” or “ODFI” refers to the financial institution who processes, and settles transactions submitted by the Originator;
4. “Receiving Depository Financial Institution or “RDFI” is the financial institution which maintains the Receiver’s account.
5. “Entries” shall mean individual ACH Credit Entries and Debit Entries, including On-Us Entries consistent with the Rules and also includes any data for entries or any pre-notification entries.

With respect to the Service, terms not otherwise defined in this Agreement shall have the meaning ascribed to those terms in the Rules.

3. Compliance.
   1. ODFI must enter in an Origination Agreement with each Originator for which the ODFI will originate Entries, except for the origination of Entries through a Third Party Sender. The Origination Agreement must include at a minimum, each of the following:
      1. The Originator must authorize the ODFI to originate Entries on behalf of the Originator to Receivers' account;
      2. The Originator must agree to be bound by these Rules;
      3. The Originator must agree not to originate Entries that violate the laws of the United States;
      4. Any restrictions on the types of Entries that may be originated;
      5. The right of the ODFI to terminate or suspend the agreement for breach of these Rules in a manner that permits the ODFI to comply with these Rules;
      6. The right of the ODFI to audit the Originator's compliance with the Origination Agreement and these Rules.
   2.  
      1. Company and Bank agree to comply with and be bound by the NACHA Rules, copies of which are available from NACHA (https://www.nacha.org) and various regional ACH associations, and which may be amended from time to time. Company certifies that Company has a current copy of the Rules and that Bank requires that Company have and use the most current edition of the Rules, has subscribed to receive revisions to the NACHA Rules directly from NACHA, and acknowledges that bank requires that Company have and use the most current edition of the Rules, at all times. The duties of Company set forth in this Agreement in no way limits the requirements of complying with the Rules. Any fines or liabilities imposed against Bank for a violation of the Rules caused by an action and/or inaction of Company shall be assessed against Company. Costs associated with Rules publications and/or association membership will be the responsibility of Company. If Company utilizes a third-party vendor or processor, Company shall immediately provide written notification to Bank of the identity of the third-party vendor or processor and such further information as Bank may reasonably require. Company will take such measures as may be necessary to ensure compliance with the Rules by such vendors and processors, and shall be jointly, severally and solidarity liable with any such vendors or processors and shall defend and hold Bank harmless against any loss, liability or expense (including attorneys’ fees and expenses) resulting from any claim or action caused directly or indirectly by the action, inaction or omission of any such vendors or processors or their failure to comply with the Rules.
      2. Company and Bank agree to comply with all applicable federal and state laws and regulations governing transactions to be performed hereunder and Company acknowledges and agrees that Bank may delay the processing, settlement and/or availability of any Entries in order to comply with such laws, regulations and the Security Procedures.
      3. Company agrees that it shall be Company’s responsibility to originate only Entries that comply with the laws of the United States, including, without limitation, the anti-terrorism and anti-money laundering programs administered by the U.S. Treasury Department's Office of Foreign Asset Control (OFAC) and other law enforcement entities.  Company acknowledges that it is aware that it is very important that U.S. businesses, individuals, and others subject to OFAC jurisdiction comply with the full legal requirements of OFAC's programs which are set forth in the applicable statutes, Executive Orders, and implementing regulations found in Title 31 Chapter V of the Code of Federal Regulations and in Federal Register documents that update the regulations.  It shall further be the responsibility of the Company to obtain information regarding OFAC enforced sanctions. This information may be obtained directly from the OFAC.  Bank will charge Company with any fines or penalties imposed by OFAC, NACHA or any organization which are incurred as result of non-compliance by the Company and the Company agrees to fully reimburse and/or indemnify Bank for such charges or fines. Company acknowledges that it shall not generate transactions that violate the laws or regulations of the United States. It shall be the responsibility of Company 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.
      4. Company acknowledges and agrees that Bank reserves the right to examine and audit Company’s records, policies, procedures and controls at any time upon reasonable notice to Company to ensure that the Company is in Compliance with the Rules and Company’s representations and warranties hereunder.
   3. Termination, Suspension, and Audit of Originators and Third- Party Senders.
      
      In addition to any other termination or suspension rights in an Origination Agreement, including for breach, if an Originator or Third-Party breaches these Rules, or causes its ODFI to breach these Rules, the Origination Agreement may be terminated or suspended by the ODFI upon ten Banking Days' notice, or such shorter notice period as may be provided in the Origination Agreement. In addition to any other audit rights that may be set forth in an Origination Agreement, the ODFI may audit the compliance of the Originator or Third-Party Sender with these Rules and the Origination Agreement, subject to the procedural requirements, if any, set forth in the Origination Agreement.
   4. Types of Entries.  Bank will transmit debit and/or credit Entries initiated by Company to the ACH Network as provided in the NACHA Operating Rules (referred to as the “Rules”) and this Agreement. As used in this Agreement, the following are ACH Standard Entry Class Codes (“SEC Codes”):
      1. CCD – Corporate Credit or Debit – Either a credit or debit where funds are either distributed or consolidated between corporate entities.
      2. PPD - Prearranged Payment and Deposit
         1. 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.
         2. Direct Payment - 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.
   5. Reclamation Entries and Written Demands for Payment

An Originator or ODFI may initiate a Reclamation Entry or written demand for payment with respect to a previously Transmitted credit Entry to a Receiver's account under the following circumstances:

1. 1. 1. A) The Receiver has died and the Receiver's right to receive one or more pension, annuity, or other benefit payments has terminated before the receipt by the RDFI of one or more credit Entries to the Receiver's account; and
      2. B) Neither the Receiver's estate nor any other holder of the account is entitled to the payments.

1. 6. Micro – Entries
      
      An Originator may originate one or more Micro-Entries to a Receiver's account prior to initiating future credit or debit Entries to the Receiver's account. A credit Micro-Entry must be in an amount less than $1.00. One or more debit Micro-Entries must not exceed, in total, the amount of the corresponding credit Micro-Entries.

The above SEC Codes are the most commonly-used. Bank restricts the use of all other SEC Codes other than those listed above.

1. 7. Underwriting. Company approval for use of this Service may be subject to underwriting criteria established by Bank from time to time. If Bank requires application of underwriting criteria to Company approval for use of this Service, Bank will communicate to Company the nature and content of that criteria and the information Company will be required to provide to Bank. Company agrees to provide Bank such financial, business and operating information as Bank may reasonably request in connection with Bank’s underwriting and approval process. Bank reserves the right to pull credit to verify continued qualification for ACH, typically annually, but if performance on the handling of ACH declined that may also trigger a review more frequently.
   8. Authorizations. Before Company’s initiation of the first debit or credit Entry to a customer's account, Company will obtain a proper authorization in accordance with the Rules and U.S. laws. An authorization agreement must be readily identifiable as either an ACH credit or an ACH debit authorization and must clearly and conspicuously state the terms of the authorization in order that the consumer or company understands the authorization to which it is agreeing. All debits to consumer accounts must be authorized by the consumer in writing by using Appendix A and must be signed or similarly authenticated using a digital signature or other code. For debit Entries, Company must provide the consumer with evidence of the authorization and information regarding the manner in which authorization can be revoked. Company, upon request, must present a copy of the customer's authorization to Bank within 5 Business Days. Company must retain the signed or authenticated authorization for a period of two calendar years following the termination or revocation of the authorization. Company will initiate no Entry after the termination or revocation of a consumer’s authorization.

 
The following table shows the proper SEC Codes to use depending on how you obtained the authorization to debit/credit an individual or company’s account:

SEC Code	Debit / Credit	Authorization Method
PPD	Debit or Credit	Document signed by individual or similarly authenticated
CCD	Debit or Credit	Document signed or verbal agreement by Company*

*All transactions from a business account must be CCD. Please see the CCD definition in Section II.4 above or refer to the Rules for a detailed explanation.

9. Pre-notifications. If Company chooses to originate non-dollar pre-notification Entries to verify the accuracy of routing and account numbers, it agrees not to initiate live dollar Entries until at least 6 Business Days following the settlement date of the pre-notification Entry. Pre-notifications will be provided to Bank in the format provided in the Rules. If Company receives notice that a pre-notification has been rejected or returned, Company will research the problem and make any necessary corrections before transmitting another Entry.
10. Notifications of Change. Bank will notify Company of Correction Entries (“COR”), which are commonly referred to as Notification of Change (“NOC”) Entries, received no later than 2 Business Days after the settlement date of the NOC. Company agrees to make the changes submitted within 6 Business Days of the receipt of the NOC information or before the next “live” Entry, whichever is later. If the NOC is incorrect, Company will generate a Refused NOC and deliver it to Bank within 15 calendar days.
11. Transmission of Entries. Company will transmit all Entries to Bank on or before the deadlines described below. Company will conform all Entries to the format, content, data encryption, and other specifications contained in the Rules. Company authorizes Bank to transmit all Entries received by Bank from Company in accordance with the terms of this Agreement and to credit or debit such Entries to the specified accounts.
    1. Delivery Deadline: All ACH input files must be received by Bank no later than 2:00 p.m. Central Time to be processed on that same Business Day. Input files containing credit transactions must be transmitted or delivered to Bank at least 2 Business Days prior to the Effective Entry Date of the Entries contained within the file. Input files containing debit transactions must be transmitted or delivered to Bank at least 1 Business Day prior to the Effective Entry Date of the Entries contained in the File. The received ACH File will be processed if the file total is below the call back limit that is set by the Bank.  The received ACH File will not be processed if Customer does not participate in the call back procedure.  The call back process will only take place when the batch total is over the threshold that has been determined by the Bank.  The Originator will have to resubmit the File in accordance with proper security measures if the file is declined. Cancellation of an ACH File can be performed by the Originator if the ACH File Status is “pending.” Once the ACH File Status is “processed,” the File cannot thereafter be cancelled or recalled.
    2. Effective Entry Date: The Effective Entry Date (contained in the Company/Batch Header Record(s) of the ACH input file) is a date specified by Company on which it intends an Entry to be posted and settled. The Effective Entry Date must be a future date and must not be a Saturday, a Sunday, or a holiday observed by the Federal Reserve Bank. This information may be obtained directly from the Federal Reserve Bank at http://www.frbservices.org/holidayschedules/index.html. The Effective Entry Date may be, but isn’t necessarily always, the same date as the settlement of funds.
    3. File Format: All ACH input Files must be in the standard ACH format based on the NACHA Operating Rules.
12. Security Procedures. Company is strictly responsible to establish and maintain the procedures to safeguard against unauthorized transmissions. Company 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, security devices and related instructions provided by Bank in connection with the Service.

Company agrees as follows:

1. 1. All transactions initiated by Company hereunder will comply with the Security Procedures established in accordance with the General Terms and Conditions of this Agreement and Company hereby releases and agrees to hold Bank harmless from any loss or liability incurred by Company as a result of Company’s failure to comply with the Security Procedures.
   2. Company agrees to create and maintain a separation of duties such that no one person acting solely may both create ACH transactions and submit them to Bank for processing. Company acknowledges that submission of ACH Entries, whether in a batch or individually, will require Dual Authorization for release of the Entries for submission to Bank.  Under Dual Authorization, Company will have one person prepare and submit the Entries and another person(s) authorize the release of ACH Entries to Bank.    
   3. Company agrees that the purpose of the Security Procedures is to verify the authenticity of the Entries submitted to Bank in the name of Company and not to detect errors in the content or transmission of any Entry.  Company and Bank have agreed upon no procedures for the detection of such errors.  
   4. Company and Bank agree that the Security Procedures are commercially reasonable.

13. Dual Control Process. The Bank recommends that the Company which transmits any and all Files does so under a Dual Control Process.  The Dual Control Process requires that one employee serve as an originator and a second employee serve as an approver.  The originator will be responsible for adding templates, adding and maintaining participants (payees), and submitting batches.  The approver will be responsible for approving the batches.  By default, you agree to perform your file submissions via this process.

If you disagree with implementing a dual control process, please “Opt – out” by submitting a request to the Bank in writing.  By opting-out, the Company will not be required to transmit any and all Files under a Dual Control Process.  By waiving the Dual Control requirement, the Company  does hereby waive, release and relinquish the Bank from any  and all rights, claims, demands, claims for relief, causes of action and the like arising at law, under a contract, in tort, in equity or otherwise, which  occur during the Company transmission process.

14. Bank Obligations. In a timely manner and in accordance with the Rules, Bank will process, transmit, and settle for the Entries received from Company which comply with the terms of this Agreement, including the Security Procedures. Bank shall have no obligation to transmit Entries if Company is in default of any of its obligations under this Agreement, including any obligation to pay Bank.
15. Warranties. Company certifies to Bank all warranties Bank is deemed by the Rules to make with respect to Entries originated by Company. Without limiting the foregoing, Company warrants and agrees that (a) each Entry is accurate, is timely, has been authorized by the party whose account will be credited or debited, and otherwise complies with the Rules; (b) each debit Entry is for the sum which, on the settlement date with respect to it will be owing to Company from the party whose account will be debited, is for a sum specified by such party to be paid to Company, or is a correction of a previously transmitted erroneous credit Entry; and (c) Company will comply with the terms of the Electronic Funds Transfer Act and Federal Reserve Board Regulation E, if applicable, or Uniform Commercial Code Article 4A, if applicable, and shall otherwise perform its obligations under this Agreement in accordance with all applicable laws and regulations. Company shall indemnify and hold harmless Bank against any loss, liability, or expense (including attorney’s fees and expenses) resulting from or arising out of any breach of any of the foregoing warranties, certifications, or agreements.
16. Data Retention. Company shall retain data on file adequate to permit remaking of Entries for one calendar year following the date of their transmittal by Bank as provided herein, and shall provide such data to Bank upon its request. Company is responsible to retain all items, source documents and records of authorization in accordance with the Rules.
17. Provisional Credit. Company acknowledges that the Rules make provisional any credit given for an Entry until Bank crediting the account specified in the Entry receives final settlement. If Bank does not receive final settlement, it is entitled to a refund from the credited party and the originator of the Entry shall not be deemed to have paid the party.
18. Form and Format. Bank shall notify Company whether Entries shall be in the form of balanced or unbalanced files.  If Bank requires a balanced file, then Bank shall control when and where offset Entries occur. If Bank requires that Entries shall be in the form of an unbalanced file, then this means an Entry contains only the originating items for that Entry without any corresponding offset or settlement transaction.
    1. Credit Entries.  Bank reserves the right to require that Company pay Bank in immediately available funds at the time of transmittal or at any time prior to settlement the amount of each credit Entry submitted by Company.
    2. Debit Entries. Bank shall on the applicable Settlement Date credit the account with the amount of each debit Entry transmitted to Bank. In the event any Entry is returned in accordance with the Rules by a Receiving Depository Bank after Bank has provided credit, Company shall, upon demand, repay Bank the amount of the Return Entry. Bank may require Company to maintain reserves in accordance with Section 21 of this Agreement.
    3. Acknowledgement Entries. Bank does not allow the origination of Acknowledgement Entries.
    4. IAT Entries. Bank does not allow the origination of IAT Entries (International ACH Transactions).
    5. Entry Settlement. Company shall provide Bank with immediately available funds not later than 8:00 a.m. Central Time on each Settlement Date sufficient to pay all Entries initiated by Company which are to be settled on that date. Company hereby authorizes and instructs Bank to make deposits, withdrawals and transfers to and from Company's Accounts as appropriate or necessary in connection with any of the ACH services provided by Bank under this Agreement. Notwithstanding anything in this Agreement to the contrary, Bank reserves the right to require that sufficient collected funds be in Company's Accounts prior to the time any Entry is processed by Bank under this Agreement.
    19. Pre-Funding.  Bank reserves the right to require Company to pre-fund an Account maintained at Bank prior to the Settlement Date of the ACH file.  Bank shall determine whether pre-funding is required based on criteria established from time to time by Bank.  Bank will communicate directly to Company if pre-funding is required and, if requested by Company, will provide Company with an explanation of its pre-funding criteria.  If it is determined that pre-funding is required, Company will provide immediately available and collected funds sufficient to pay all Entries initiated by Company (a) not later than 8:00 a.m. Central Time 2 Business Days (not fewer than 2) before each Settlement Date, and (b) prior to initiating any Entries for which pre-funding is required.
    20. Settlement. Company will maintain an Account with Bank at all times during the term of this Agreement and until the period for Return Entries has elapsed. Company will maintain in the Account immediately available funds sufficient to cover all credit Entries originated and returns of debit Entries originated. Company authorizes Bank to debit its Account in the amount of each file.
    21. Settlement Discrepancies. The periodic statement issued by Bank for Company’s Account will reflect Entries credited and debited to Company’s Account. Company agrees to notify Bank within a reasonable time not to exceed 30 calendar days (except where applicable law provides a 60 calendar day review period) after Company receives a periodic statement of any discrepancy between Company’s records and the information in the periodic statement. Company and Bank agree to cooperate with the other party in performing loss recovery efforts in the event either party may be liable to the other for damages.
    22. Cancellation or Amendment of Entries. Company shall have no right to cancel or amend any Entry/File after receipt of Entry/File by Bank. However, Bank shall use reasonable efforts to act on a request by Company to cancel an Entry/File before transmitting it to the ACH Network or processing it as an on-us Entry. Bank shall have no liability if it fails to effect the cancellation.
    23. Rejection of Entries. Bank may reject any Entry/File, including an on-us Entry, which does not comply with the requirements of Sections 2 and 3 of this Agreement and may reject any Entry if Company is not otherwise in compliance with the terms of the Agreement. Bank shall notify Company of such rejection no later than the Business Day such Entry would otherwise have been transmitted by Bank to the ACH Network or, in the case of an on-us Entry, its effective Entry date. It shall be the responsibility of Company to remake any Entries or files rejected by Bank or the ACH Operator.
    24. Return Entries. Bank shall notify Company of the receipt of a Return Entry from the ACH no later than 1 Business Day after the Business Day of such receipt. Bank shall have no obligation to re-transmit a Return Entry if Bank complied with the terms of this Agreement with respect to the original Entry. Company authorizes Bank to charge back returns to Company’s designated Account the amount of any Return Entry as soon as information is made available to Bank. Company will promptly provide immediately available funds to indemnify Bank if any debit Entry is returned after Bank has permitted Company to withdraw funds in the amount thereof or if any adjustment memorandum that relates to such Entry is received by Bank.
    25. Reversals. Company may initiate a reversing Entry or File of Entries for erroneous or duplicate transactions, as permitted by the Rules. In doing so Company warrants that it has initiated the Entries or Files within 5 Business Days of the original Entry or Entries and within 24 hours of discovery of the error. Company also warrants that the account holder of a reversing Entry has been notified of the reversal, and the reason for the reversal, no later than the settlement day of the reversal. For both reversing Entries and Files, Company indemnifies all and hold harmless parties of the transaction(s) from and against any claim, demand, loss, liability, or expense.
    26. Reserves. From time to time, Bank shall evaluate Company's transaction activity for the purpose of establishing averages for transaction frequency, amount, and returns and adjustments. These evaluations will occur at least annually and may occur more frequently at Bank's sole but reasonable discretion. In connection with these evaluations, Bank reserves the right to require Company to establish reserves with Bank calculated by Bank to cover Company's obligations to Bank arising from ACH activities under this Agreement. Reserves may be expressed as a fixed dollar amount or as a "rolling reserve" calculated based on "rolling" averages determined by Bank's periodic evaluations. The amount of reserves required by Bank, if any, will be communicated directly to Company from time to time. Company agrees to establish reserves as required by Bank within 10 Business Days after receipt of a communication from Bank setting forth the amount of required reserves and the basis of calculation used to determine the amount of reserves. Bank may suspend ACH processing activity for Company if Company fails to establish the required amount of reserves within the time period specified by Bank in its communication to Company.
    27. Name and Account Number Inconsistency.  Company acknowledges that, if an Entry describes the receiver inconsistently by name and account number, payment of the Entry may be made as provided in the Rules on the basis of the account number even if it identifies a party different from the named receiver.
    28. Liability. Bank shall be responsible only for performing the services expressly provided for in the Agreement.  In no event shall Bank have any liability for any consequential, special, punitive, or indirect loss or damage which Company may incur or suffer in connection with this Agreement. In addition, Bank shall be excused from failing to act or delay in acting if such failure or delay is caused by an act of God, fire, floods, adverse weather or atmospheric conditions or other catastrophes; war sabotage, riots, acts of public enemy, or acts of governmental authority or the Board of Governors of the Federal Reserve; labor difficulties; equipment or computer failures or destruction or the unavailability, interruption or malfunction of communications facilities or utilities; delays or failure to act by your or third parties and their personal criminal acts; or generally any cause reasonably beyond the Bank's control. Bank shall not be held liable for any delay by an ACH Operator or Receiving Depository Bank in processing any credit or debit Entry Company originates, nor shall it be held liable for the failure of a third party to process, credit, or debit any such Entry, or for other acts of omission. Subject to foregoing limitations, Bank's liability for loss shall be limited to general monetary damages in the amount not to exceed the total amount paid by Company for the applicable ACH service, as performed by Bank under Agreement for the preceding 30 calendar days.
    29. Exposure Limits. Company shall comply with the monetary file limits established by Bank. The maximum value of originated transactions (“Exposure Limits”) will be initially set by mutual agreement between Customer and Bank, subject to change from time to time at the Bank’s discretion based on Customer’s changing business needs and financial condition.  Exposure Limits may be expressed as a daily maximum, an unsettled transaction maximum (defined as transactions submitted by Customer but which have not reached the settlement date) or both. In the event Customer submits transactions which exceed an established limit, Bank in its sole discretion may elect to not process Customer’s originated ACH transactions.  Customer should be aware of its current established limits at all times and is responsible for determining whether the limits are established at levels appropriate for Customer’s operations and should promptly advise Bank if the established limits are inappropriate for any reason. Customer acknowledges that (i) Bank may, for its own benefit or purposes from time to time or on a more regular basis, check, verify or confirm that the Entries do not exceed established limits, but that Customer shall have no right to rely on Bank’s enforcement of such limits. Customer agrees that Customer shall have no right, claims, or demand against Bank arising from Bank’s effecting one or more Entries which, individually or when aggregated, exceed any established limits or exceed the Customer’s funds, credit or collateral held by Bank.  Entries received by the Bank that have exceeded Customer’s Exposure Limits are suspended and subject to officer approval for release. If Customer’s Entries exceed the applicable daily limit, please contact Electronic Banking.
        1. "Entry Settlement Limit" means the maximum aggregate amount of In-Process Entries permitted to be outstanding at any time, which amount shall be separately communicated to Company by Bank in writing from time to time.
        2. "In-Process Entries" means the aggregate dollar amount of all credit or debit Entries initiated by Company 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.
        3. "Over limit Entry" means an Entry the amount of which would cause the aggregate amount of In-Process Entries to exceed the Entry Settlement Limit.

    Company agrees that Bank will not process an Over limit Entry. Bank will suspend any Over limit Entry submitted by Company and may, following its receipt of an Over limit Entry; suspend all In-Process Entries. Company acknowledges that any Over limit Entry or other In- Process Entries suspended by Bank will not settle on their scheduled Settlement Date. If Company wishes to initiate an Entry that would cause the amount of In-Process Entries to exceed the Entry Settlement Limit, Company may submit to Bank its request to initiate an Entry that otherwise would be an Over limit Entry. Company must submit its request at least 2 Business Days prior to the date on which Company wishes to initiate the Entry that otherwise would be an Over limit Entry. Bank may require from Company financial or other information in connection with Bank's consideration of the request. Bank may grant or deny Company'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/credit Entries processed under this Agreement or to refuse to process any debit/credit Entries 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 Company's Accounts. If any of the foregoing actions are taken by Bank with respect to a particular preauthorized debit/credit Entry, Bank will notify Company as promptly as practicable, but in no event later than 2 Business Days after its decision.

    30. Inspection. Upon reasonable notice from Bank to Company, Bank shall have the right to inspect Company's books and records and to make on-site visits to any and all Company locations with regard to all information deemed by Bank to be necessary or pertinent to Company’s use of ACH services provided by Bank under this Agreement. Information subject to Bank's right of inspection shall include all information maintained by Company with respect to Company's customers, clients, vendors and processors (including audits) if, in the opinion of Bank, Company's relationship with such customers and clients is materially related to Company's ACH transaction activity conducted through Bank under this Agreement. Physical site visits may be conducted to ensure notification and communication processes and disclosure requirements are being followed with respect to those addressed in the Rules.

    * * * End of Terms and Conditions for ACH Origination * * *

III. Remote Deposit Service

The terms and conditions enumerated below apply solely to Bank’s Remote Deposit Service. These terms apply to Company if and only if Company enrolls in this Service, as evidenced by the submission to Bank of an Enrollment Request signed by Company’s duly authorized representative.

1. Statement of Service.  Subject to the terms and conditions of this Agreement, Bank shall provide the Service to Company, which allows Company to make deposits to Company’s designated Account(s) from Company’s office by scanning Checks (as hereafter defined) on equipment consisting of a desktop image scanner (the "Equipment"). The Equipment will capture an image of the front and back of the check (each an “Image”) and will read and capture the Magnetic Ink Character Recognition (MICR) line of the Check. After capture of the image and data, Company will use the Service to transmit an electronic data file containing the Images of the Checks and the data, via the internet, to Bank for deposit to Company’s account(s). Company agrees that the image of the check that is transmitted to Bank shall be deemed an “item” within the meaning of Article 4 of the Uniform Commercial Code.
2. Actions of the Administrator.   Company acknowledges that the Remote Deposit Service requires Company’s appointment of a Security Administrator as defined in the General Terms and Conditions and Company agrees to comply with the requirements set forth herein regarding Security Administrators.
3. Term/Termination.  This Agreement is effective from the date of execution and shall continue in effect for an initial term of one (1) year, except as set forth below.  Thereafter, this Agreement will automatically renew for successive one (1) year terms.  Either party hereto may terminate this Agreement for cause during the initial term upon at least sixty (60) days prior written notice.  During any successive term, either party may cancel at any time, with or without cause, upon at least sixty (60) days prior written notice and the return by Company of all Equipment to Bank.  Notification of cancellation must be by registered or certified mail to the applicable address listed above, or as otherwise provided in writing.  Company will be subject to the early termination fees set forth on Schedule A should the Agreement be terminated by Company other than as provided for herein.  Notwithstanding the foregoing, Bank may immediately terminate this Agreement without notice if, in Bank’s sole discretion, Bank determines that Company has abused the Service or Bank believes that it will suffer a loss or other damage if the Agreement is not terminated. Bank’s election to terminate this Agreement is in addition to any and all other remedies that may be available to Bank and will not affect any obligations Company may have to Bank.  Any reinstatement of the Service under this Agreement will be at Bank’s sole discretion and must be agreed upon in writing by an authorized representative of Bank. Upon termination of this Agreement, any property or rights of a party in the possession of the other party, tangible or intangible, shall be returned to owner thereof within thirty (30) days after the later to occur of (i) termination of the Agreement or (ii) the last date that such party receives any such property or rights.Upon termination of this Agreement, (i) Company will promptly pay to Bank all sums due or to become due under this Agreement, (ii) Company shall have no further right to make use of the Service or any system or software which may have been provided in connection with any Service.
4. Other Costs. Company will be responsible for all telecommunications-related costs as well as the costs of any Equipment or supplies necessary to access the Service.  Bank will not be obligated to supply any special Equipment (e.g., electrical outlets, telephone outlets, surge protectors, extension cords) necessary to operate any Equipment.  Company 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 Service.  Company 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 Service and the cost thereof, and Company 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 they are employees of Company or third-party employees.
5. Payment.  Invoices are payable upon receipt.  If not paid within thirty (30) days from date of invoice, Bank may, in its sole discretion, immediately terminate this Agreement and Company’s access to the Service without prior notice, and Company will be subject to the early termination fees set forth on the Fee Schedule.  Regardless of whether Bank exercises this termination right, Bank will assess and Company agrees to pay a finance charge equal to 1.5% per month (18%) per year on all outstanding balances 31 days and older.  Company shall be responsible to Bank for all costs incurred by Bank to collect any outstanding balances due Bank, including, but not limited to, reasonable attorney’s fees and court costs.  The charges applicable to the Service do not include sales, use, excise or similar taxes.  Consequently, in addition to the specified charges, Company is solely responsible for and agrees to pay amounts equal to any such taxes resulting from this Agreement or any activities hereunder.  In the event any dispute arises involving any of the items contained on Bank’s invoice, Company agrees to promptly notify Bank of said dispute but will not withhold payment.  Bank shall investigate such disputed items within fifteen (15) days and promptly notify Company of the findings of its investigation.
6. Ownership. Bank will retain ownership of the Equipment provided by Bank for the Service.  Upon termination of this Agreement by either party for any reason, Company shall return the Equipment in the condition as originally provided to Company excepting ordinary wear and tear resulting from proper use, packed for proper shipment, shipped FOB to such place or carrier as Bank shall specify.  As the Equipment is the property of the Bank, use of this Equipment is prohibited outside the United States of America, or any U.S. territory.  In the event the Equipment has not been returned within fifteen (15) days of the date of termination, Company shall make payment to Bank in an amount equivalent to Bank’s replacement cost for the Equipment as established by Bank.
7. Deposited Items. All checks deposited through the Service will be deposited under the provisions of the current Company deposit agreement (“Deposit Agreement”) with Bank.  In addition, Company agrees to follow Automated Clearing House Rules and Regulations and the provisions of The Check Clearing for the 21st Century Act for all checks deposited where applicable. Company agrees that original checks will not be deposited through the Service more than once and the original checks will be securely stored then destroyed within    60   days from the date of deposit unless otherwise agreed to in writing. Company also agrees to review and validate the accuracy of the check data captured including the amount of the check and the legibility of the check image through the Service. Company agrees to only deposit checks drawn on United States financial institutions through the Service.  Company agrees not to deposit any checks made payable to multiple parties through the Service.  Company hereby agrees that it will only scan and deposit a check(s) as that term is defined in Federal Reserve Board Regulation CC (“Reg CC”).  Company agrees that the image of the check that is transmitted to Bank (each such check and other item a “Check” and, if more than one, “Checks”) shall be deemed an “item” within the meaning  of Article 4 of the Uniform Commercial Code (1990 Official Text). Company further agrees that it will not remotely deposit any check or other item that: (a) are payable to any person or entity other than Company, (b) are drawn, or otherwise issued, by Company or any affiliate of Company on any account of Company or of such affiliate, (c) are prohibited by Bank’s then current procedures pertaining to the Service (the “Procedures”) or are in violation of any law, rule or regulation, (d) Company 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, (e) have not been previously endorsed by a bank and are either “substitute checks” (as defined in Reg CC or other applicable federal law or regulation) or “image replacement documents” that purport to be substitute checks, without Bank’s prior written consent, (f) are drawn on financial institutions that are located outside of the United States or Territories of the United States, (g) is a Remotely Created Check, or (h) which are not acceptable to Bank for deposit into a deposit account as provided in the Deposit Agreement, which is incorporated herein by reference and made a part hereof (Checks described in clauses (a) through (h) each a “Prohibited Check” and, collectively, “Prohibited Checks”).  Bank shall not be liable for the negligence of any clearing agent.  Collection of Checks is also subject to the Rules and the terms of the Deposit Agreement.
8. Scanning of Checks and Transmission of Files. Company shall properly install and use all software and hardware required by this Agreement or otherwise required for, or related to, the use of the Service.  Company shall (a) endorse each Check to be deposited in accordance with the Procedures, (b) scan the front and back of each Check to be deposited and thereby capture the image of the front and back of each Check and capture the MICR encoding on, and any other required data from, each Check (“Image”) and (c) transmit the file containing the images of, the MICR line from and all other required data and information from or pertaining to, such Checks and all batched ACH data and other information (“File”)to Bank or its Processor in accordance with the Procedures, a copy of which Procedures have either heretofore been, or are herewith, provided to Company by Bank, and Company acknowledges receipt thereof.  Bank reserves the right to amend the Procedures, with or without prior notice to Company.  Bank may also provide Company with, or require Company to establish, a User ID, a personal identification number (“PIN”) and/or passwords and other procedures (collectively, “Security Procedures”) to access the Service.  The specific Security Procedures will be described in the Procedures.  Company agrees to, at all times, (a) comply with the Procedures, (b) safeguard the confidentiality and security of the Procedures, Security Procedures and all other proprietary property or information Bank provides to Company in connection with the Service and (c) notify Bank immediately if Company has any reason to believe the security or confidentiality required by this provision has been or may be breached.  Company acknowledges, understands and agrees the Security Procedures are not designed for the detection of errors.  Bank is not, and will not be, obligated to detect errors by Company or others, even if Bank takes certain actions from time to time to do so.
9. Processing Deadline.  All deposits must be submitted by 4:00pm central time (the “Cut-Off Time”) to receive same Business Day credit.  To ensure accuracy, Company shall balance the dollar amount of each deposit to the sum of the Checks prior to transmitting the File in accordance with the Procedures.  Company may send multiple Files to Bank or Processor throughout the day, not to exceed the number of Files specified in Schedule A.  The total dollar value of the Files sent by Company to Bank on any day shall not exceed the dollar amount specified in Schedule A (the “Deposit Limit”).  If the total dollar value of the Files sent by Company to Bank on any day exceeds the Deposit Limit, Bank may, at its option, refuse to accept the File that exceeds the Deposit Limit, or Bank may accept and process the File.  Company agrees not to exceed the Deposit Limit.    To be eligible for processing on the day transmitted, Files must be received by Bank no later than the Cut-Off Time .  A File is considered received by Bank when a complete copy of such File has been written on a Bank electronic storage device in conformity with Bank’s technical and operational requirements.  To meet the Cut-Off Time, the entire File must be received by Bank prior to the Cut-Off Time, and the File must successfully pass the edits for conformity with the technical requirements.  For purposes of determining when a File has been delivered and received, Bank’s records shall be determinative.  A File which is not balanced in accordance with the Procedures or which is received after the Cut-Off Time shall be deemed to have been received on the business day following the business day on which the File is actually received by Bank.  Bank reserves the right to change the number of Files that may be transmitted in a day, the Deposit Limit and the Cut-Off Time.  All such changes shall be effective immediately and may be implemented prior to Company’s receipt of notice thereof.  Company may contact Bank at any time to verify the current number of Files that may be transmitted in a day, the Deposit Limit and the Cut-Off Time.
10. Provisional Credit and Availability of Funds. Upon acceptance of the File, Bank shall grant Company’s Account Provisional Credit (as herein defined) for the total amount of the Corrected File (as herein defined) or the Accepted File (as herein defined), as applicable.  As used herein, “Provisional Credit” means that the credit is made to Company’s Account subject to final payment of the Checks and subject to the terms of the Deposit Agreement.  For the purpose of determining availability of funds, Bank may hold funds for the period of time permitted by Reg CC.  For the purposes of determining the time for which funds may be held by Bank under Reg CC, the place of deposit shall be New Orleans, Louisiana
11. Laws, Rules and Regulations. Company agrees to comply with all existing and future operating procedures used by Bank for processing of transactions.  Company further agrees to comply with, and be bound by, all applicable state or federal laws, rules, regulations, orders, guidelines, operating circulars and pronouncements, affecting checks and drafts and ACH transactions, including, but not limited to, all rules and procedural guidelines established by the Federal Trade Commission (“FTC”), the Board of Governors of the Federal Reserve, Electronic Check Clearing House Organization (“ECCHO”) and any other clearinghouse or other organization  in which Bank is a member or to which rules Bank has agreed to be bound.  The Rules are incorporated herein by reference.  These procedures, rules, and regulations (collectively the “Rules”) and laws are incorporated herein by reference.  In the event of conflict between the terms of this Agreement and the Rules, the Rules will control.
12. Warranty.   Bank warrants that, upon delivery, the Equipment provided will conform to Bank’s then current applicable standards.  Bank at its own expense, will repair or replace any nonconforming Equipment during the initial term of this Agreement, provided that: (1) the deficiency is attributable solely to Bank and (2) Company notifies Bank of the alleged deficiency within fifteen (15) days of its occurrence.  Bank will not be responsible in any manner for any deficiency caused in whole or in part by inaccurate or otherwise deficient data programs, equipment or communication facilities provided by Company or third parties other than Bank.   Company shall bear the entire risk of loss, theft, damage or destruction of Equipment from the date of installation until return shipment FOB to Bank.  Such loss, theft, damage or destruction of Equipment shall not relieve Company of the obligation to make payments or to comply with any other obligation under this Agreement.
13. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14. Confidentiality. Company, its employees, vendors and clients each recognize, acknowledge, and hereby agree that all information or data provided through the Service will be treated as confidential and propriety and shall not be used or disclosed, in whole or part, to any person, firm, corporation, association, or other entity, except as provided for in this Agreement or as required by law.
15. Third Party Services. Company acknowledges that, in providing the Service hereunder, Bank may utilize and rely upon certain third party service providers (“TPSPs”) to provide database storage, database access, switching and other data communications services to Bank.  The Company further acknowledges and agrees that the Company’s rights under this Agreement shall be solely and exclusively against Bank, and the Company shall have no right or recourse against any TPSP hereunder whatsoever, and hereby waives any and all such rights or recourse, directly or indirectly, against any TPSP, the State of Louisiana and the Federal Deposit Insurance Corporation.
16. Remedies.  The remedies set forth in this Agreement constitute the sole and exclusive remedies for the Company at law and in equity.  Bank’s maximum liability for damages to Company, from any cause whatsoever, and regardless of the form of action, whether in contract or in tort, including negligence, will be limited to the lesser of (1) $25,000; (2) the total amount payable for the Service during the 12 months before the cause of action arose; or (3) the damages incurred. In no event will Bank be liable for any damages caused by Company’s failure to perform Company’s responsibilities, or for any indirect or consequential damages, including, but limited to, loss of profits or anticipated savings, or for any claim made against Company by an employer, employee, agent, or any other party.
17. Indemnification. Each party shall (1) indemnify the other party and all its TPSPs for any damage or claim, including, but not limited to, reasonable attorney’s fees and court costs, arising out of a cause of action whereby a party, its agents, employees, or subcontractors, are either directly or indirectly responsible for such action, be it error or omission, under this Agreement, and (2) notify anyone asserting such claims in writing that such other party, and all its TPSPs, have no liability for such actions. Company indemnifies and holds harmless the State of Louisiana and the Federal Deposit Insurance Corporation, their agents and employees, and any commercial database holder, its agent and employees, from any and all claims, including fees, costs, attorney’s fees and penalties incurred by or on behalf of Company or any recipient, arising from the use of and information received from the Service as provided in the Agreement.  Should Company receive bad data, Company must notify Bank within 24 hours of its discovery in order for Bank to provide timely response and prompt resolution thereof. This indemnification provision shall survive the termination of this Agreement.
18. Contingency. Company agrees to notify Bank’s customer service department in the event they are unable to process deposits, so that Bank may make other arrangements to collect the deposit(s) and/or deposit data (e.g. courier service, express mail, etc.).
19. Company Responsibilities.
    1. Maintenance and Destruction of Original Check. Company shall stamp the original Check “Processed” before or during the process of scanning the Check in accordance with this Agreement.  Company shall securely store all original Checks for a period of   60   days after Company has received notice from Bank that the File containing the images of such Checks has been accepted (such period the “Retention Period”).  During the Retention Period, Company shall take appropriate security measures to ensure that: (a) only authorized personnel shall have access to original Checks, (b) the information contained on such Checks shall not be disclosed, (c) such Checks will not be duplicated or scanned more than one time and (d) such Checks will not be deposited or negotiated in any form.  Company shall also implement proper security procedures and internal controls to ensure the confidentiality of any information that is considered to be confidential personal information that is retained by Company.  Company shall destroy original Checks upon the expiration of the Retention Period applicable to such Checks.  Company will use commercially reasonable methods of destruction approved by Bank to destroy original Checks after expiration of the Retention Period.  Company will promptly (but in all events within 5 business days) provide any retained Check (or, if the Check is no longer in existence, a sufficient copy of the front and back of the Check) to Bank as requested to aid in the clearing and collection process or to resolve claims by third parties with respect to any Check.
    2. Image and MICR Quality.  Each File transmitted by Company to Bank shall contain Images of the front and the back of the Checks scanned and remotely deposited by Company.  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:
       1. the amount of the Check;
       2. the payee of the Check;
       3. the signature of the drawer of the Check;
       4. the date of the Check;
       5. the Check number;
       6. the information identifying the drawer and the paying bank that is preprinted on the Check, including the MICR line; and
       7. 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 endorsements applied to the back of the Check.
       8. 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 or any other regulatory agency, clearing house or association.
       9. Company shall also capture and transmit to Bank the full-field MICR encoding on each Check.  In accordance with the Procedures, Company shall ensure that the following information is captured from the MICR line of each Check:
       10. the American Bankers Association routing transit number (“RTN”);
       11. the number of the account on which the Check is drawn;
       12. when encoded, the amount of the Check; and
       13. when encoded, the serial number and the process control field of the Check.
    3. Receipt of File.  Company agrees that Company shall be solely liable for, and Bank shall not have any liability whatsoever to Company for, any File or the Images or other information contained therein that are not received by Bank or for any File or the Images or other information contained therein that are intercepted or altered by an unauthorized third party.  Company agrees that Bank has no obligation to accept a File and, therefore, may reject any File or the Images or other information contained therein submitted by Company.  Bank has no obligation to notify Company of the rejection of a File or the Images or other information contained therein.  Bank shall have no liability to Company for the rejection of a File or the Images or other information contained therein or for the failure to notify Company of such rejection.  Upon receipt of a File submitted by Company, Bank may examine such File and the Images and other information contained therein to ensure that Company has complied with this Agreement and followed the Procedures.  If Bank determines that Company has not complied with this Agreement or followed the Procedures or if errors exist in the Images or other information contained in the File, Bank, in its sole discretion, may either reject the File or elect to correct the error and accept and process the corrected File (a “Corrected File”).  As a form of correction, Bank may credit Company’s Account for the full amount of the deposit and make any necessary adjustments to the Account to correct the error.  Bank may, at its option, also perform a risk management analysis of one or more Files submitted by Company to detect potentially fraudulent Checks, and, in its sole discretion, Bank may reject any such File or the Images or other information contained therein.  If after examination of a File and the Images and other information contained therein, Bank determines that Company has complied with this Agreement and processed and transmitted the File in accordance herewith and with the Procedures, the File is balanced and the Images meet the requirements of this Agreement, then Bank shall accept the File (an “Accepted File”) for deposit to Company’s Account.  Upon acceptance of the File, Bank shall electronically notify Company of receipt and acceptance of the Accepted File for deposit.  Notwithstanding the fact that Bank has accepted a File for deposit, any credit made to Company’s Account shall be provisional, and Company shall remain liable to Bank for any errors, inaccuracies, breach of warranties and any other loss sustained by, or claim made against, Bank.
20. Warranties.  Company represents, warrants and covenants the following to Bank:
    1. Checks Deposited.  Company shall only deposit Checks that are authorized by this Agreement, the Procedures and the Deposit Agreement;
    2. Image Quality.  Each Image transmitted by Company to Bank contains an accurate representation of the front and the back of each Check and complies with the requirements of this Agreement;
    3.  Accuracy of Information.  All data and other information submitted by Company to Bank, including but not limited to data contained in the MICR line of each Check, is complete and accurate and complies with the requirements of this Agreement;
    4. Business Purpose Only.  Company is not a consumer, and the Service shall be used for business purposes only;
    5. No Duplicates.  Company will not: (i) create duplicate Images of the Checks, (ii) transmit a duplicate Image or File to Bank, or (iii) deposit or otherwise negotiate the original of any Check of which an Image was created.  Company further warrants that no subsequent transferee, including but not limited to Bank, a collecting or returning bank, drawer, drawee, payee or endorser, will be asked to pay the original Item from which the Image(s) was created or a duplication (whether paper or electronic, including ACH entries) of the Item(s);
    6. No Loss.  No Subsequent transferees of the Item(s), including but not limited to Bank, a collecting or returning bank, drawer, drawee, payee or endorser, shall sustain a loss as the result of the fact that the Image was presented for payment or returned instead of the original Check;
    7. Information.  All information provided by Company to Bank is true, complete and accurate and properly reflects the business, financial condition and principal partners, owners or officers, of Company.  Company is not engaged in, or affiliated with, any businesses, products or methods of selling other than those disclosed by Company to Bank;
    8. Authority and Legality.  (i) Company is authorized to enter into, and perform its obligations under, this Agreement; (ii) the person signing this Agreement on behalf of Company is duly authorized to execute this Agreement; (iii) this Agreement is valid and enforceable against Company in accordance with its terms; and (iv) the entry into, and performance of, this Agreement by Company will not violate any law, or conflict with any other agreement, to which Company is subject;
    9. No Litigation.  There is no action, suit or proceeding pending or, to Company’s knowledge, threatened which, if decided adversely, would impair Company’s ability to carry on its business substantially as now conducted or which would adversely affect Company’s financial condition or operations.
    10. Transactions.  All Checks and business transactions of Company are, and will be, bona fide.  All signatures on Checks are authentic and authorized.
    11. Rule Compliance.  Company conducts its business, and submits Checks and Files in compliance with this Agreement, the Procedures, applicable law and the Rules.
    12. Computer Virus.  No Files or Checks contain any computer viruses or other harmful, intrusive or invasive codes.
21. Returned Checks.
    1. Chargeback of Returned Checks.  If Images of Checks deposited by Company 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, Company understands and agrees that, since Company either maintains the original Check or has destroyed the original Check in accordance with this Agreement, the original Check will not be returned, and Bank may charge back an Image of the Check to Company’s Account.  Company 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, Company agrees not to deposit the original Check if an Image or other debit as previously described is charged back to Company.
    2. Special Instructions.  Company may request that Bank re-present returned Images of Checks to the drawee or process returned Images of Checks according to instructions provided by Company to Bank (the “Special Instructions”).  These Special Instructions may be given to Bank in a separate document in conjunction with or subsequent to the execution of this Agreement.  Bank shall not be bound by such Special Instructions until such time as Bank has agreed in writing to accept the Special Instructions.  Notwithstanding the fact that Bank has agreed to accept the Special Instructions, Bank may, in its sole discretion, disregard the Special Instructions and charge the returned Check back to Company Account to which the Checks were deposited.  In the event that Company has requested that returned Images of Checks be re-presented, in no event will Bank re-present an Image of a Check or an ACH entry in excess of the limit established or permitted for the number of times that an Check or ACH entry may be re-presented by the Rules.  Company may change or amend the Special Instructions by providing Bank a written request to change or amend the Special Instructions.  Changes or amendments to the Special Instructions shall not become effective until acknowledged and accepted in writing by Bank.  Company hereby agrees to pay Bank the fees for processing returned Checks and Special Instructions contained in Bank’s then current schedule of fees for such services.
22. Dual Control Process. The Bank recommends that the Company which transmits any and all Files does so under a Dual Control Process.  The Dual Control Process requires that one employee serve as an originator and a second employee serve as an approver.  The originator will be responsible for adding templates, adding and maintaining participants (payees), and submitting batches.  The approver will be responsible for approving the batches.  By default, you agree to perform your file submissions via this process. If you disagree with implementing a dual control process, please “Opt – out” by submitting a request to the Bank in writing.  By opting-out, the Company will not be required to transmit any and all Files under a Dual Control Process.  By waiving the Dual Control requirement, the Company  does hereby waive, release and relinquish the Bank from any  and all rights, claims, demands, claims for relief, causes of action and the like arising at law, under a contract, in tort, in equity or otherwise, which  occur during the Company transmission process.
23. Financial Information and Right to Audit.  Bank can suspend service at any time, without notice.
    1. Company acknowledges that applicable law requires a credit evaluation as a condition of using the Service, and Company agrees to comply with requests for information or other requests related to Bank’s execution of its credit evaluation process, both at the time of implementation of the Service and during periodic renewals.
    2. Company acknowledges that applicable law requires a periodic review of Company’s procedures related to the Service to ensure compliance with regulatory standards, and agrees to provide Bank with access to its facilities from time to time upon reasonable advance notice for the purpose of conducting such procedural reviews.
    3. Company acknowledges that the credit reviews and audits described herein may reveal conditions that require Bank to take corrective action, up to and including the termination of the Service. In such event, Company agrees to hold bank harmless from any costs or liabilities arising from such action.
24. General. This Agreement is not assignable or transferable by either party without the other party’s prior written consent.

Company agrees to use the Equipment in a manner consistent with the terms of this Agreement.  Company is prohibited from utilizing any Equipment provided hereunder in another fashion, manner, or use.

Bank reserves the right, with the appropriate governmental approval, if applicable, to change the Service as it may deem necessary or desirable.  Bank reserves the right, without penalty or liability, to withdraw or discontinue any Service from a Company who causes a system to malfunction or from a Company who fails to make changes which Bank determines, in it’s sole discretion, would prevent future malfunctions.  Bank reserves the right to service, repair, exchange, test, and perform reasonable and occasional quality assurance exams on all Equipment, if deemed necessary by Bank, both on and off the Company’s premise(s) throughout the duration of the Agreement.  Such exams shall not exceed a frequency of one (1) per month unless mutually agreed upon by both parties.  Bank reserves the right to process test system inquiries on Company’s behalf and at Company’s expense in order to monitor network performance and Quality Assurance.  After the initial installation of the Equipment, any relocation thereafter must be approved and/or performed be an authorized Bank representative.  Failure to comply will constitute grounds for termination of this Agreement and immediate repossession of all Equipment.

Bank shall not be liable for delays in performance under this Agreement or for failure to perform hereunder by reason of any third party’s failure to provide Bank with the data necessary for complete and proper transmission of the Service.  In the event that Bank shall be delayed, hindered in or prevented from the performance of any work, service of other acts required of Bank under this Agreement due to strikes, walk-outs, telecommunications equipment and power failures, government restrictions, civil commotion, riots, acts of terrorism, acts of war, fire, or acts of God, all of such activities being beyond the control of Bank, then performances of such work, service, or other acts shall be excused for a period of such delay and the period for the performance of such work, services, or other acts shall be extended for a period equivalent to the period of such delay.

No action, regardless of form, arising out of this Agreement may be brought by either party hereto more than one year after the event giving rise to the cause of action except in the case of nonpayment, in which the applicable statute of limitation for collection actions will be applicable.

*** End of Terms and Conditions for Remote Deposit Service ***

IV. ACH Positive Pay Services

The terms and conditions enumerated below apply solely to Bank’s ACH Positive Pay Services. The terms in this section apply to Customer if and only if Customer enrolls in the Service, as evidenced by the submission to Bank of an Enrollment Request signed by Customer’s duly authorized representative.

Definition of Service. The Bank’s ACH Positive Pay Services offer Customer a selection of fraud prevention measures that may be selected by Customer to protect Customer’s Accounts from unauthorized ACH debits. Customer may customize a solution to control the posting of ACH transactions to Customer’s demand deposit account(s) with Bank as an integral part of Customer’s process for validating that ACH transactions are authorized and serve a valid business purpose of the Customer. As used herein, "ACH transaction(s)" shall refer to electronic funds transfers that settle within a bank or between banks according to specified rules and procedures governed by the Federal Reserve Bank and the NACHA. "Debit Entry" shall refer to any ACH Transaction which has the intended result of removing funds from the Customer's demand deposit account(s).

The ACH Positive Pay module allows Customer to review and decision ACH Debit Entries. All incoming ACH Debits are posted to Customer‘s Accounts on a daily basis. Each morning, all ACH Debits will be presented to Customer for review and disposition. Customer instructs the Bank which ACH Debit Entries items to pay or return. Customer shall notify Bank prior to the deadline established by the Bank of Customer’s decision on any reported item that should be returned.

Accordingly, if no decision is made by Customer to pay or return ACH Debit Entries by the Bank’s established deadline, such ACH Debit Entries may not be processed and may be returned by Bank. Customer will be notified by e-mail per Account”. Customer selects the review and decision of all ACH Debit Entries individually.

Conveyance of ACH Fraud Prevention Instructions.

1. Customer’s authorized employee(s), representative(s) or agent(s) shall deliver ACH Fraud Prevention instructions to Bank from time to time in accordance with Customer’s business needs using a Bank-provided instruction form or a reasonable approximation of it accepted by Bank.
2. Bank provides a secure internet-based facility for Customer’s entry of the instructions.
3. Bank shall be allowed a reasonable period of time in which to process the instructions following their receipt from Customer.
4. Bank shall not be obligated to process instructions from Customer unless all of Bank's specified requirements and conditions with respect to the particular ACH Fraud Prevention service Customer wishes to utilize have first been satisfied or waived by Bank, in its sole and absolute discretion.
5. Customer may provide special instructions regarding specific allowed transactions, such as to limit them by factors such as monetary amounts or transaction dates. Bank may accept or reject such additional instructions in its sole discretion, and in the event a requested instruction is rejected Bank will notify Customer’s designated contact.
6. Unless otherwise agreed between Customer and Bank, all instructions shall apply to transactions of any amount and shall remain in effect until revoked or modified by Customer.

Limit of Liability. Limits on the liability of Bank and Customer remain in full force and effect as specified in the General Terms and Conditions and the following additional limits apply specifically to the ACH Fraud Prevention Services:

1. Dispute over Return of ACH Debit Entry. Customer acknowledges that the return of an ACH Entry is subject to dispute on the part of the Originator. In the event of such a dispute Bank must act according to applicable laws, regulations, and the rules of the National Automated Clearing House Association governing ACH transactions, for which the Customer hereby holds the Bank harmless and free of liability under this Agreement.
2. Identification of ACH Transactions to Block. Customer and Bank acknowledge that ACH transactions are originated according to certain processing rules which require the use of an Originator Name and Originator Identification Number imbedded in the transaction to identify its source, and this imbedded data is a critical component of Bank's ability to apply Customer’s instructions regarding the blocking or allowance of specific transactions. Bank shall act in good faith to process Customer's ACH Fraud Prevention Services instructions. However, if the identifying information in the transaction is inconsistent or is described inconsistently by Customer in its ACH Fraud Prevention Services instructions, Bank shall be held harmless for posting an ACH transaction to Customer's account and any dispute related to such a transaction shall be between Customer and the originator of the transaction.
3. Overdrafts. If a Customer is enrolled in ACH Positive Pay then any ACH Debit that would create an overdraft in such Customer’s Account may be included in Bank’s overdraft list that is presented to account officer’s for review and pay/return decisioning.  In such cases the account officer’s decision whether to pay or return the ACH Debit will override any decision made by Customer through ACH Positive Pay.  Bank shall have no liability to Customer for any loss to Customer arising from an account officer’s decision to pay or not pay any such overdraft.  It is Customer’s sole responsibility to coordinate decisions on such overdraft items with Customer’s account officer.

*** End of Terms and Conditions for ACH Positive Pay Services ***

V. Positive Pay Services

The terms and conditions enumerated below apply solely to Bank’s Positive Pay Services. The terms in this section apply to Company if and only if Company enrolls in any of these Services, as evidenced by the submission to Bank of an Enrollment Request for such Service(s) signed by Company’s duly authorized representative.

1. Statement of Service.   Bank shall provide Company with certain Positive Pay services as selected by Company in one or more written Enrollment Request (s) according to Company’s instructions or service selections in such documents. These various “Positive Pay” services are designed to aid in the detection of check fraud.    
2. Definitions.  In addition to the definitions contained in the General Terms and Conditions, the following definitions shall apply with respect to the Service:
   1. “Positive Pay” means a service in which Bank compares the check serial number and exact dollar amount of checks issued by Company against checks presented to Bank on a daily basis, reports to Company any discrepancies relative to Company’s acceptance criteria, and provides Company an Exception Report for review and a mechanism for accepting or rejecting final payment of the check.  All Positive Pay services include an automatic “teller line interface” which identifies potentially fraudulent items throughout the Bank’s branch network. Check Issue Files are updated hourly to the Bank’s Teller system.  Checks presented at the window for encashment are matched to the information in Company’s Check Issue File.  If the available information doesn’t match, the teller will refuse to cash the item and refer the presenter back to the issuer.
   2. "Check Issue File" means a record in an electronic readable format provided by the Company to Bank and describing checks drawn by the Company; the check details contained within the Check Issue File (for example, the check number) constitute Company’s acceptance criteria for payment of the check.
   3. "Exception Check" means a Presented Check that does not match a check included in a Check Issue File or appears to be a duplicate of another check in the Check Issue File.
   4. "Exception Check Item" means a record describing Exception Checks which is provided by Bank to the Company on each Banking Day, provided the Account the Check is drawn on is enrolled for Positive Pay or Enhanced Positive Pay services.
   5. "Presented Check" means a check drawn on an Authorized Account and presented to Bank for payment through the check collection system which provides for collection and payment of checks by automated processes. For purposes of this Agreement, a Presented Check includes the Company's written checks and does not include any other debits or credits to the Company's Authorized Account.
   6. “Disposition” means an instruction from the Company to Bank requesting the payment or return of an Exception Check reported under a Positive Pay service, whether entered by Company via Bank’s online banking service (“explicit disposition”) or in accordance with Company’s Default Disposition specified above.
3. Positive Pay Process and Data Transmission.   The Positive Pay process occurs daily and requires certain Company actions in order to work properly.  The first step is uploading the Check Issue File.  The Issue Import Module provides a means for loading issued check data plus any void and/or stop information exported from Company’s accounting system to the Bank's reconciliation system. The Issue Import Module also has a self-service feature to enable the Company to import data and reduce the amount of support needed.
   1. Positive Pay Exceptions – The Positive Pay system reports to Company any discrepancies relative to Company’s acceptance criteria.  An email is sent to the Company daily for any presented checks that post to their account that may be termed a ‘discrepancy’ and need an exception decision.  Exception Checks presented to the Bank that do not appear on or match to the Check Issue File are identified, presented to the Company and must be “decisioned” each day.
   2. Positive Pay Decisions – Online each morning, the Company will need to review Exception Checks and make pay or return decisions.  Decisions must be made by 12:30 PM central time.  If decisions are not made by 12:30 PM central time, the Bank will pay or return Exceptions Checks in accordance with the default selection (return default or pay default) selected by Company. In the event a check is rejected with a reason of "check outside of all ranges", a default to pay will not apply and each presented Check will be returned unless an explicit decision to pay is made by the Company.
   3. Holiday Schedule – Positive Pay customers need to monitor the Bank’s holiday schedule and be aware there are processing days on which the Bank may be open and the Company’s business is closed.  The Treasury Solution “welcome screen” will display alerts pertaining to this possibility. Exception Checks must be reviewed and decisioned by Company even on days when the Company may be closed. If Company fails to make decisions to pay or return items, then the system will utilize the default decision specified by the Company. Any presented Checks that are rejected as "check outside of all ranges" will be returned.
4. Limit of Liability.   In addition to the limits of liability set forth in the General Terms and Conditions, the following additional terms apply to the Service governed by this section:
   1. Without liability to any party, Bank shall be entitled to cease services 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.
   2. The term “Positive Pay” should not be construed as relieving Company of their normal due diligence responsibilities regarding the examination of account statements and individual checks to detect errors or alterations. Bank shall not be liable for any loss arising from Company’s failure to exercise due diligence.
   3. Pursuant to Bank’s provision of any Positive Pay service, Bank’s liability for wrongful honor or wrongful dishonor shall be as follows:
      1. Wrongful honor shall be deemed to have occurred if Bank pays any check for which Company’s explicit or default disposition was for the check to have been returned unpaid. In this event Bank shall be liable to Company for the lesser of the amount of the wrongfully paid item or the amount of actual damages incurred by Company as a result of the payment of the check.
      2. Wrongful dishonor shall be deemed to have occurred if Bank returns unpaid any check for which Company’s explicit or default disposition was for the check to have been paid. In this event Bank’s liability to Company shall be as specified by the normal provisions of the Uniform Commercial Code regarding the wrongful dishonor of checks.
      3. A valid check number range for an account on Positive Pay is 1 – 9999999999 unless otherwise specified.  When a check is presented as a suspect item with a reason of “Check outside of all ranges”, it will be returned unless an explicit decision to pay the check is made, regardless of your designated default disposition.
      4. Optional Dual Approval Security Procedure -- If Dual Approval for exception items is requested, every exception decision will require two approvals, regardless of the entitlement level of the approver.  If only one person makes the positive pay decision on the exception (even if they are an approver listed on the Positive Pay Service record), the exception will be processed based on the default decision.  If Dual Approval for issue uploads is requested, every upload file will require an approval prior to the submission to the bank. vi.
      5. While the Positive Pay Service has a  “Stop Payment“ feature, iIf a check listed in the Check Issue File has been lost or stolen or otherwise cannot be accounted for, Company must also place a timely Stop Payment order on such check through either the Bank’s branch system or through the Treasury Solution “Check Management“  feature. Unless Company properly places a timely Stop Payment order through these channels, Bank is not liable for any check that is paid from the Account even if a “Stop Payment” was indicated on a check through the Positive Pay Service.
      6. Bank shall be liable for any actual and direct losses, but no consequential, indirect, punitive or special losses or damages, proximately caused by its honor of a check that was not properly payable, or its dishonor of a check that was properly payable, if the honor or dishonor occurred because Bank should have reported the check as an Exception Check Item but failed to do so, or reported the check as an Exception Check Item but referenced the wrong check number, unless Bank provided the Company with timely information that disclosed the error.
      7. If Bank returns any check unpaid in accordance with a valid explicit or default disposition instruction from Company, such dishonor shall not be deemed wrongful and Company agrees to hold Bank harmless from any and all liability regarding such checks.

* * * End of Terms and Conditions for Positive Pay Services * * *

Appendix A