Treasury Management Services Agreement. Terms & Conditions. Posted January 5, Effective January 5, 2015

Transcription

1 Treasury Management Services Agreement Terms & Conditions Posted January 5, 2015 Effective January 5, 2015 For Customers who agreed to Treasury Management Services before these updated Terms & Conditions were published, please be aware that although the name of the original forms have been changed, the process remains similar and your current forms are valid under these updated Terms & Conditions. For example, the prior process involved Master Authorizations, Online Banking Profiles, Exhibits, and Forms. Under the updated Terms & Conditions, the process will include Master Authorizations, Authorizations to Link Company and Related Consumer Accounts, and a Designation of Services (DOS) Form that will include the information previously found on the Online Banking Profiles, Exhibits and Forms.

2 TABLE OF CONTENTS INTRODUCTION...1 PART I: GENERAL TERMS AND CONDITIONS Authority, Representations and Warranties Related Companies Designation of Authorized Accounts Eligible Accounts Designation of Authorized Company Representative(s) Deposit Account Terms and Conditions Required Deposit Balance Services Effective Dates Data and Information Supplied by Company Update Notice Security Procedures Physical and Electronic Security Electronic Communications Hardware and Software Internet Disclaimer Service Limits Financial Information and Audit Notices, Changes, and Amendments Deadlines Statements Checks and Other MICR Documents Remotely Created Checks Payment for Services Security Interest/Right of Set Off No Obligation to Lend Money Stop Payment Orders Bank Shall Not Examine Items Confidential Information Bank Liability Company Liability ii

3 1.32 Representations and Warranties Information Sharing Compliance with Laws, Rules, and Regulations Prohibited Transactions Relationship of Parties Force Majeure Reimbursement Termination Suspension of Services Arbitration and Waiver of Jury Trial Governing Law Attorneys Fees Miscellaneous Provisions PART II: ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO SERVICES...15 SECTION ONE: INTERNET SERVICES SECTION TWO: SOUTHWEST BANK ONLINE BILL PAYMENTS SECTION THREE: ACH ORIGINATION SERVICE SECTION FOUR: POSITIVE PAY SECTION FIVE: REMOTE DEPOSIT CAPTURE SECTION SIX: WIRE TRANSFER OF FUNDS SECTION SEVEN: LOCKBOX SECTION EIGHT: TARGET/ZERO BALANCE ACCOUNTS SECTION NINE: COMMERCIAL CASH SWEEP SECTION TEN: LINE OF CREDIT SWEEP SERVICES SECTION ELEVEN: FEDI INFORMATION SECTION TWELVE: RELATED CONSUMERS SECTION THIRTEEN: CD ROM ENROLLMENT SECTION FOURTEEN: VAULT SERVICES iii

4 INTRODUCTION Thank you for choosing Southwest Bank s Treasury Management Services. This document, the Treasury Management Services Agreement (the Agreement ), provides product information, disclosures, and descriptions of Treasury Management Services ( Services ) available at Southwest Bank (the Bank ). Other documents may become part of our Agreement depending on the Services you select. Please read all documents carefully; they will govern the Services provided to you. By signing and returning the Treasury Management Master Authorization Form and Certification ( Master Authorization Form ), you agree to the terms and conditions outlined for all Services selected by you, the Company ( Company ) in the Designation of Services Form ( DOS Form ). The Master Authorization Form, the DOS Form, and any Form, Exhibit, or Schedule are hereby incorporated herein and made a part of this Agreement. As used in this authorization, you, your, or Company means the Company. We, us, or Bank means the Bank. Capitalized terms not otherwise defined in the Agreement are defined in Schedule A at the end of the Agreement. The General Terms and Conditions and separate sections for the Services within this Agreement also contain capitalized terms which are defined therein. This Agreement, including all terms and conditions, will also serve as disclosure for any Services you add in the future. This Agreement will be located on the internet page at or through the business banking log in (the Website ) and may be updated or amended from time to time. By signing the Master Authorization Form, you consent and agree that your Agent(s) may authorize and enroll in any Service and any applicable Form, Exhibit or Schedule electronically, including through the DOS Form. Part I below are the General Terms and Conditions that apply to all the Services. Following the General Terms and Conditions are the Service Sections which contain the terms and conditions applicable to each Service. Some Services require Company to complete additional forms which shall be attached to and made part of this Agreement, and which provide Bank with necessary information to set up the Service. The DOS Form, and in some cases additional forms, must be completed by you before using the applicable Service. You may begin using the Service when we have received the necessary forms. By completing the request for the applicable Services designated on the DOS Form and signing the Master Authorization Form or using a Service you are agreeing to be bound by the terms and conditions contained in Part I and the Services used by you in Part II, as amended from time to time, and to follow the procedures of each Service. This Agreement was updated in If you used a Service before this time, you should be aware that certain defined terms have changed names. Please see the attached Schedule A Definitions for details. Thank you for choosing Southwest Bank for your Treasury Management business needs. We appreciate the opportunity to serve you. If you have any questions about our Treasury Management Services or about this Agreement, please contact your treasury management representative at or TMS@southwestbank.com. 1

5 PART I: GENERAL TERMS AND CONDITIONS The following terms and conditions apply to all the Treasury Management Services provided by Bank. These Services currently include, but are not limited to, Internet, online Bill Payment, ACH Origination, Positive Pay, Remote Deposit Capture, Wire Transfer of Funds, Lockbox, Target/Zero Balance Accounts, Commercial Cash Sweep, Line of Credit Sweep Services, and FEDI Information Services (individually the Service, collectively the Services ). Bank and Company agree that this Agreement shall also govern all new Treasury Management Services used by Company in the future. Bank agrees to provide and Company agrees to purchase certain Services provided for and described in this Agreement and agrees to such terms and conditions of this Agreement. Company agrees as follows: 1.1 Authority, Representations and Warranties. Company hereby warrants that it has full right, authority and power to enter into this Agreement and that execution of the Master Authorization Form has been duly authorized by necessary governing bodies or executive officers, as the case may be. Company agrees to supply Bank any information that the Bank may reasonably request including, but not limited to, such documents as may be satisfactory to the Bank which establish the authority of any representative to enter into or act on behalf of Company in regards to this Agreement or to enter into the Services and or to perform any other act contemplated under this Agreement. Company further warrants that it is validly existing and in good standing under the laws of the applicable state and any consent or authorization of any governmental authority or third party required to be obtained by Company in connection with this Agreement or any Treasury Management Service used or performed has been obtained. Unless you have executed the Authorization to Link Company and Related Consumer Account(s) ( Authorization to Link Form ), you acknowledge, represent and warrant that the Services will not be used for accounts established primarily for personal, family or household purposes. Specifically, you acknowledge, represent and warrant that the transfer of funds from your Accounts is for business purposes and not for personal, family or household purposes. Accordingly, the provisions of the Federal Electronic Fund Transfer Act, as amended, and the Consumer Financial Protection Bureau s Regulation E, as amended, and any other laws or regulations, as well as any terms or provisions of this Agreement, intended for the protection of consumers or governance of transactions involving consumers or consumer accounts do not apply to any Service transactions affecting your Accounts. 1.2 Related Companies. If you have designated a Main Company as your Authorized Representative in the Master Authorization Form, you are a Related Company. Notwithstanding any provision of this Agreement to the contrary, by authorizing the Main Company as the Authorized Representative of Related Company, Related Company will not have access to the Services provided under this Agreement unless Related Company is designated as a User by Main Company. The Main Company shall designate the Administrator and the Administrator appointed by Main Company shall perform all functions and responsibilities of the Administrator under the terms of this Agreement. The Master Authorization Form contains the authority granted by Related Company to the Main Company and other representations and warranties made by Related Company. The Master Authorization Form shall control over any inconsistencies or conflicts between the terms of the Master Authorization Form and this Agreement. As a Related Company, you agree Bank may share information with affiliates, including but not limited to the Main Company, about your Authorized Accounts or Services for regulatory compliance, credit decision making, marketing company products and services, administrative and other banking purposes. As a Related Company, you agree that Main Company may authorize and enroll you in any Service and any applicable Form, Exhibit or Schedule executed by Electronic Signature, including through the DOS Form. In the event Main Company requests Bank to provide Services to you, Main Company and you agree to be jointly and severally liable for such obligations under this Agreement. You hereby represent and warrant to Bank that any and all transfers and commingling of funds required or permitted by any Service or requested by Main Company, and all other aspects of the performance hereby by Bank and Main Company, have been duly authorized by all necessary parties, including, without limitation, the account holder of each account, and that you have obtained and shall maintain in your regular business records and make available to Bank upon reasonable demand, for a period of seven years after termination of the Service, adequate documentary evidence of such authorization from the account holder of each account, executed by the duly authorized officer(s) of each account holder, and further represents and warrants that each transfer or commingling of funds authorized hereunder is not in violation of any agreement, by law or board resolution of your Company or any of its affiliates or subsidiaries, nor is it in violation of any applicable federal, state, local law, regulation, of any decree, judgment, order of any judicial or administrative authority. Each representation and warranty contained in this Agreement shall be continuing and shall be deemed to be repeated upon Bank s performing each transfer and commingling of funds authorized hereunder. 1.3 Designation of Authorized Accounts. Company shall designate on the DOS Form the Authorized Account(s), at Bank or other financial institutions to which Company wishes the Services to apply. Any changes in the designation of Authorized Accounts will be by Electronic Signature on the DOS Form and will provide reasonable prior notice of such change to Bank. The Authorized Account(s) with Bank affected by this Agreement shall continue to be 2

6 governed by the deposit agreement issued by Bank on such types of accounts, as it may be amended from time to time, except to the extent such agreement may be inconsistent with these terms. 1.4 Eligible Accounts. Bank will provide Company with Services through and using Commercial Analyzed Checking Accounts and Commercial NOW Account. Bank will provide Company with limited Services for Business Select Checking and Professional Checking. Business Essential Checking, Business Savings, Business Money Market Savings, Business Premier Savings, Line of Credit and Loan Accounts are not eligible for Services without one of the above referenced checking accounts. 1.5 Designation of Authorized Company Representative(s). Unless otherwise provided in this Agreement, the persons authorized to initiate a Service are designated on the Master Authorization Form. Bank shall be entitled to rely on any written notice or other written communication believed by it in good faith to be genuine and to have been signed by the person or persons authorized, and any such communication shall be deemed to have been signed by such person. Any changes in the designation of persons so authorized shall be in writing by the delivery of a new Master Authorization Form and Company will provide reasonable prior notice of such change to Bank. 1.6 Deposit Account Terms and Conditions. Company acknowledges and agrees that Company's deposit accounts maintained with Bank (individually Account, collectively Accounts ) 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 including without limitation, the arbitration provisions. The Deposit Account Agreement is expressly incorporated herein by reference. The terms and conditions of this Agreement shall control over any inconsistent terms and conditions of the Deposit Account Agreement. Company acknowledges that it has signed and executed all agreements, resolutions, signature cards and forms governing Company's deposit account required by Bank. If Company has not signed the foregoing forms required by Bank, by signing the Master Authorization Form, Company acknowledges that it has read the contents of and agrees to be bound by the terms of those forms, agreements and documents, and adopts and ratifies, as an authorized signatory(s), the signature(s) of any person(s) who has signed a signature card or any check on Company's account. Company also agrees to establish all accounts that must be opened in conjunction with the Service provided by Bank. 1.7 Required Deposit Balance. Company agrees to maintain the minimum collected balance ( Required Deposit Balance ) in the amount and in the account specified in the Service terms and conditions of the specific Services selected and designated by Company. 1.8 Services. Upon Company s execution of the Master Authorization Form for this Agreement, and the DOS Form and any applicable schedules ( Schedules ), forms ( Forms ), and exhibits ( Exhibits ), Bank shall perform the Services selected by Company in accordance with the Service terms and conditions contained herein and the DOS Form governing the selected Service. Any instruction provided by Company to Bank, which may be communicated within the terms and conditions of the Service, by online screen instructions, Schedules, Forms, Exhibits, or other forms of written notice permitted by this Agreement, are made a part hereof. Some of the Services require Company to complete and provide to Bank information or documentation in, or as part of, Exhibits, Schedules, addenda, set up forms, in put forms or other documents required in connection with these Services. Company s use or continued use of each of such Services will be conditioned on and subject to Company entering into, or completing and providing to Bank, the foregoing when Bank so requests. Use of a Service under an existing agreement for such treasury management service will constitute affirmation that Company agrees to and is bound by the terms and conditions of this Agreement and the applicable Service terms and conditions and not the existing agreement. Certain Services included in this Agreement may not be available or may not be provided in certain market areas. 1.9 Effective Dates. The effective date of this Agreement shall be the date upon which the Master Authorization Form is executed by Company and accepted by Bank. Once the Company has signed the Master Authorization Form, the Company may request the Bank to provide Services which are provided for in this Agreement. Company may begin to use any such Service once Bank has approved such use and has received all required properly executed forms. Bank shall have no obligation to deliver or render the Service(s) until Bank has approved such use and received all required and properly executed forms. The effective date of the terms of a Service contemplated in Part II of this Agreement shall be the date upon which Bank approves Company's use of the Service or the date on which Company uses the Service Data and Information Supplied by Company. Company shall transmit or deliver data and other information in the format and on the media as provided for in each Service terms and conditions contained herein and the instructions ( Operating Instructions ) or as otherwise required by the Bank in conjunction with rendering the Service(s) selected by Company. 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 3

7 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 the Service terms and conditions and the instructions Update Notice. Company shall provide written notice to Bank of any changes to the information previously provided by Company to Bank, including, but not limited to, any additional locations, any change in business, any new business, the identity of principals or owners, the form of business organization, type of goods and services provided and method of conducting sales. Such notice must be received by Bank within 5 Business Days of the change. Company shall provide any additional information requested by Bank within 5 days of such request Security Procedures. Bank shall provide Company with one or more of the following: a Company ID, User ID or passwords (collectively, a Security Code ) to access certain Services. The use of the Security Code, in addition to other authentication methods described below, is a security procedure established by Bank to authenticate the identity of the person attempting to gain access to the Service ( Security Procedure ). The Security Procedure is not designed for the detection of errors. We may require you to change your Security Code from time to time for security reasons. You should keep your Security Code in a secure location. Any person having access to your Security Procedures will be able to access these Services and perform all transactions, including reviewing Account information and making Transfers to other Accounts and to other persons. You are responsible for safeguarding the Security Procedures. Providing these Security Procedures to another person effectively constitutes a grant of authority to access your accounts You agree to comply with the Security Procedures and any other procedures Bank directs you to use, and you acknowledge and agree that the Security Procedures, including (without limitation) any code, Security Code, password, personal identification number, user identification technology, token, certificate, layered security, or other element, means, or method of authentication or identification used in connection with a Security Procedure ( Security Devices ), constitute commercially reasonable security procedures under applicable law for the initiation of the Services you utilize, including without limitation, transfers and access to confidential information. You authorize us to follow any and all instructions entered and transactions initiated using applicable Security Procedures unless and until you have notified us, according to notification procedures prescribed by us, that the Security Procedures or any Security Device has been stolen, compromised, or otherwise become known to persons other than you or your representative(s) and until we have had a reasonable opportunity to act upon such notice. You agree that the initiation of a transaction or instructions using applicable Security Procedures constitutes sufficient authorization for Bank to execute such transaction or instruction notwithstanding any particular designation by you of authorized persons or signature requirements identified on any signature card or other documents relating to this Agreement or your deposit account maintained with Bank, and you agree and intend that the submission of transactions and instructions using the Security Procedures shall be considered the same as your authorized written signature in authorizing us to execute such transaction or instruction. You acknowledge and agree that you 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 by you, to the fullest extent allowed by law. You further acknowledge and agree that the Security Procedures are not designed to detect error in the transmission or content of communications or transactions initiated by you and that you bear the sole responsibility for detecting and preventing such error You agree to appoint and designate, in the DOS Form, an administrator (the Administrator ) who will be authorized and responsible for creating and maintaining subsequent User IDs, Passwords and tokens on your behalf, including assigning and revoking access privileges for persons to use the Service, ( User ) and providing new and subsequent Security Devices to those Users. The Administrator can appoint a User with Administrator rights. Bank will provide Company s designated Administrator, through United States postal mail or other delivery service selected by Bank at Bank s option, with a Company ID, User ID number and Password (and token if applicable). Bank also may provide Administrator or User with temporary token codes. ONCE YOU APPOINT THE ADMINISTRATOR, THE ADMINISTRATOR WILL HAVE COMPLETE RIGHTS TO EVERY DESIGNATED SERVICE IN THIS AGREEMENT AND MAY DELEGATE SUCH RIGHTS TO ANY USER. Company understands that the Administrator has the capability of providing administrative privileges identical to that of the Administrator to any User (real or fictional), including the ability to create and maintain subsequent User accounts and assigning and revoking access privileges. Company acknowledges that any Administrator shall have the ability to control security levels such as Service access and Service transaction limits, including without limitation the ability to assign dollar amount limits to transfers of funds. You also agree that the Administrator or any User shall also have the authority on behalf of Company to electronically accept and approve any and all agreements and amendments to agreements by and between Bank and Company, including but not limited to this Agreement You agree to keep all Security Procedures and Security Devices protected, secure, and strictly confidential and to provide or make available the same only to your authorized representative(s). You agree not to disclose or provide any Security Procedures or Security Devices to any unauthorized person. You also agree that Users shall not share Security Devices with each other. Where you have the ability to change or modify a Security Device from time to time (e.g., a password or User Name), you agree to change Security Devices frequently in order to ensure the security of the Security Device. You agree to notify us immediately, according to notification procedures 4

8 prescribed by us, if you believe that any Security Procedures or Security Device have been stolen, compromised, or otherwise become known to persons other than you or your authorized representative(s) or if you believe that any transaction or activity is unauthorized or in error. In the event of any actual or threatened breach of security, we may issue you a new Security Device or establish new Security Procedures as soon as reasonably practicable, but we shall not be liable to you or any third party for any delay in taking such actions. You agree to indemnify, defend all claims, and hold Bank harmless from any loss, damages, or expenses, including but not limited to attorney s fees, caused by your, your employees, or agents failure to keep the Security Procedures or Security Device confidential and secure You agree to notify us immediately, according to notification procedures prescribed by us, if the authority of any authorized representative(s) shall change or be revoked. You shall recover and return to us any Security Devices in the possession of any of your authorized representative(s) whose authority to have the Security Device has been revoked We reserve the right to modify, amend, supplement, or cancel any or all Security Procedures, or to cancel or replace any Security Device, at any time and from time to time in our discretion. We will endeavor to give you reasonable notice of any change in Security Procedures; provided that we may make any change in Security Procedures without advance notice to you if we, in our judgment and discretion, believe such change to be necessary or desirable to protect the security of our systems and assets. Your implementation and use of any changed Security Procedures after any change in Security Procedures shall constitute your agreement to the change and your agreement that the applicable Security Procedures, as changed, are commercially reasonable and adequate for the purposes intended Physical and Electronic Security Company is solely responsible for providing for and maintaining the physical electronic, procedural, administrative, and technical security of data and systems in Company s possession or under Company s control. Bank is not responsible for any computer viruses (including, without limitation, programs commonly referred to as malware, keystroke loggers, or spyware ), problems or malfunctions resulting from any computer viruses, or any related problems that may be associated with the use of an online system or any ACH Origination services. Any material downloaded or otherwise obtained is obtained at Company s own discretion and risk, and Bank is not responsible for any damage to Company s computer or operating systems or for loss of data that results from the download of any such material, whether due to any computer virus or otherwise. Company is solely responsible for maintaining and applying anti virus software, security patches, firewalls, and other security measures with respect to Company s operating systems, and for protecting, securing, and backing up any data and information stored in or on Company s operating systems. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of any software installed on Company s operating systems or accessed through an Internet connection Company acknowledges and agrees that it is Company s responsibility to protect itself and to be vigilant against e mail fraud and other internet frauds and schemes (including, without limitation, fraud commonly referred to as phishing and pharming ). Company agrees to educate Administrator(s), User(s), Agents, and employees as to the risks of such fraud and to train such persons to avoid such risks. Company acknowledges that Bank will never contact Company by e mail in order to ask for or to verify Account numbers, Security Devices, or any sensitive or confidential information unless Bank uses its Secured E Mail service. In the event Company receives an e mail or other electronic communication that Company believes, or has reason to believe, is fraudulent, Company agrees that neither Company nor its User(s), agents, and employees shall respond to the e mail, provide any information to the e mail sender, click on any links in the e mail, or otherwise comply with any instructions in the e mail. Company agrees that Bank is not responsible for any losses, injuries, or harm incurred by Company as a result of any electronic, e mail, or Internet fraud In the event of a breach of the Security Procedure, Company agrees to assist Bank in determining the manner and source of the breach. Such assistance shall include, but shall not be limited to, providing Bank or Bank s agent access to Company s hard drive, storage media and devices, systems and any other equipment or device that was used in breach of the Security Procedure. Company further agrees to provide to Bank any analysis of such equipment, device, or software or any report of such analysis performed by Company, Company s agents, law enforcement agencies, or any other third party. Failure of Company to assist Bank shall be an admission by Company that the breach of the Security Procedure was caused by a person who obtained access to transmitting facilities of Company or who obtained information facilitating the breach of the Security Procedure from Company and not from a source controlled by Bank Electronic Communications. Company may elect to send or receive instructions or reports from Bank related to Services via electronic means, including, without limitation, facsimile transmission, voice mail, unsecured e mail, pager, or other telephonic methods ( Electronic Transmission ). Company acknowledges that such Electronic Transmissions are an inherently insecure communication method due to the possibility of error, delay, and observation or receipt by unauthorized personnel. Bank may rely in good faith on Company s instructions regarding how and to what number or e mail address Electronic Transmissions should be sent and may rely on any Electronic Transmission that it reasonably believes to have been initiated by Company. Should Company elect to send or receive Electronic Transmissions to or from Bank, Company assumes all risks and Bank shall not be liable for any loss that results from the non receipt, disclosure, or alteration of any such Electronic Transmission. 5

9 1.15 Hardware and Software. Company understands it must, and hereby agrees to, at its sole cost and expense, use computer hardware and software that meets all technical requirements for the proper delivery of the Service and that fulfills Company s obligation to obtain and maintain secure access to the Internet. Company understands and agrees it may also incur, and shall pay, any and all expenses related to the use of the Services, including, but not limited to, telephone service or Internet service charges. 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 Services. 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 Services 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. Bank is not responsible for, and Company hereby releases Bank from any and all claims or damages resulting from, or related to, any computer virus or related problems that may be associated with using electronic mail or the Internet to deliver Services. Bank is not responsible for any errors or failures resulting from defects in or malfunctions of Company s computer hardware or software. In addition to installing antivirus software, Company hereby agrees to scan its computer hardware and software on a regular basis (one or more times per month) using a reliable computer virus detection product in order to detect and remove computer viruses. In connection with its use of the Services, Company shall only use the hardware with systems in compliance with the requirements set forth by the Bank. All right, title and interest in and to (a) any and all computer programs, including, but not limited to, the object and source codes therefore, and any and all updates, upgrades, fixes and enhancements thereto, together with any and all documentation, user guides and instructions pertaining thereto (everything in this clause (a), collectively, Software ), and (b) any and all users guides, instructions and other documentation provided to, or used by, Company in connection with the Services (everything in this clause (b) collectively, the Documentation ) shall be, and remain, the property of Bank or any third party Software provider, as applicable. Unless otherwise expressly authorized, Company may not (a) copy, reproduce, transmit, retransmit, disseminate, display, publish, sell, broadcast, circulate, distribute, transfer, assign, commercially exploit, reverse engineer, reverse compile or create derivative works of, the Software in any form or (b) copy, reproduce, transmit, retransmit, disseminate, display, publish, sell, broadcast, circulate, distribute, transfer, assign, commercially exploit the Documentation. Company agrees not to: (a) put to issue the scope, validity, or ownership of the Bank's (or its licensors') intellectual property rights in any Proprietary Data or Service, (b) perform any act which could reasonably be expected to impair the scope, validity, or ownership of such intellectual property rights, (c) assert any ownership rights to any Software, Documentation or Service, or (d) remove or alter any copyright, trademark, or other intellectual property or proprietary right notices, legends, symbols, or labels appearing on or in any Software, Documentation, or Service. Company agrees to: (a) cooperate with the Bank and its licensors to protect the Software, Documentation, and Services, including in connection with any lawsuits or disputes involving the Software, Documentation and Services, (b) promptly notify the Bank and provide relevant information and facts upon becoming aware of any actual or potential claim made by a third party regarding infringement, misappropriation, imitation, illegal use or misuse, or reasonable likelihood thereof, by the Software, Documentation, or Service, and (c) in the event of any actual or potential infringement, misappropriation, imitation, illegal use or misuse, or reasonable likelihood thereof of the Software, Documentation, or Service by others: (1) grant to the Bank and its licensors the sole right to determine the course of action with respect to such infringement and to bring any proceeding with respect thereto, and to settle, and collect any settlement amount or judgment for any such proceeding, and (2) agree that such licensors shall be solely entitled to any proceeds of any such proceeding, including, without limitation, any settlement proceeds, insurance proceeds, arbitration award, judgment, or other consideration in any form. Company hereby assigns to the Bank or its licensors, as directed by the Bank, any rights, including any patent, copyright, mask work rights, trademarks, and trade secrets, which it may now have or may acquire at any time in the future to any Software, Documentation, or Service Internet Disclaimer. For any Service described herein utilizing the Internet, Bank does not and cannot control the flow of data to or from Bank's network and other portions of the Internet. Such flow depends in large part on the performance of Internet Services provided or controlled by third parties. Actions or inactions of such third parties can impair or disrupt Company's connections to the Internet (or portions thereof). Bank cannot guarantee that such events will not occur. Accordingly, Bank disclaims any and all liability resulting from or related to such events and in no event shall Bank be liable for any damages (whether in contract or in tort) that are attributable to the public Internet infrastructure, Company's ability to connect to the Internet, or Bank's ability to connect to the Internet on Company's behalf Service Limits. Company agrees that Bank may establish limits or restrictions on Services provided in this Agreement and that Bank may establish and amend those limits. The limits or restrictions may apply to transaction amounts, types of accounts that are eligible for the Service, the frequency of the transactions or any other limits or restrictions that Bank deems necessary. Company agrees to abide by and honor the limits or restrictions established by Bank. Company also agrees that Bank shall have no liability to Company for refusal to process any 6

10 transaction or to act on any request by Company that exceeds the limit or restriction. Company acknowledges and agrees that Bank shall have the right in its sole discretion to change any limit established by Bank. Company and Bank may from time to time agree to temporary increases for ACH, RDC or Wire Services by signing, either physically or electronically, a temporary increase approval form Financial Information and Audit. Bank may from time to time request information from Company in order to evaluate a continuation of the Service to be provided by Bank hereunder 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. Company authorizes Bank to investigate or reinvestigate at any time any information provided by Company in connection with this Agreement and the Services. Upon request by Bank, Company hereby authorizes Bank to enter Company s business premises for the purpose of ensuring that Company is in compliance with the terms of this Agreement, applicable laws and regulations, and the National Automated Clearing House Association ( NACHA ) Operating Rules and Guidelines ( NACHA Rules ) and Company specifically authorizes Bank to perform an audit of Company s operational controls, risk management practices, staffing and the need for training and ongoing support, compliance with the NACHA Rules and this Agreement, and information technology infrastructure. Company hereby acknowledges and agrees that Bank shall have the right to mandate specific internal controls at Company s location(s) and Company shall comply with any such mandate. In addition, Company hereby agrees to allow Bank to review available reports of independent audits performed at the Company location related to information technology, the Service and any associated operational processes. Company agrees that if requested by Bank, Company will complete a self assessment of Company s operations, management, staff, systems, internal controls, training and risk management practices that would otherwise be reviewed by Bank in an audit of Company. If Company refuses to provide the requested financial information, or if Bank concludes, in its sole discretion, that the risk of Company is unacceptable, if Company violates the Service terms and conditions or the NACHA Rules, or if Company refuses to give Bank access to Company s premises, Bank may terminate the Service and this Agreement according to the provisions hereof Notices, Changes, and Amendments Notices and communications from Bank to Company regarding any Service or any change to this Agreement may be oral, in writing, postage prepaid by first class mail, or hand delivered, or may be delivered electronically, by facsimile or e mail, or via the Website. Bank s Notice to any agent, signer on any Authorized Account, Administrator, Company Authorized Representative, or User is notice to the Company. You agree that we may send notifications regarding changes in the terms of this Agreement and other notifications regarding any applicable Service to you in electronic form, either by posting such information, disclosures, and notices at our Website or by transmitting them, or notice of the availability thereof at our Website, to any e mail address that you have provided in connection with your use of any Service. You shall be deemed to have received electronic notices one (1) day after we post them at our Website or transmit them, or notice of the availably thereof at the applicable website, to your e mail address, as applicable, whether or not you have retrieved them by that time. You agree to frequently and regularly retrieve your e mail and review posted messages and information at our Website to ensure that you are aware of current terms, conditions, and information relating to our Services. We reserve the right at any time, in our discretion, to mail to your address that appears in our records, or otherwise transmit to you pursuant to any other method to which you have agreed in connection with your account(s) with us, paper copies of any information, disclosures or notices relating to our Services in lieu of or in addition to electronic versions thereof. You may choose to accept or decline changes by continuing or discontinuing the Services to which these changes relate. Your use of any Service after any change is delivered in any of the ways detailed above constitutes acceptance of the change in this Agreement. You agree to notify us of any changes to your mailing or e mail address. If you do not notify us, you will hold us harmless from any consequences, including financial loss, resulting from your failure to notify us of the change in your mailing or e mail address. Bank may change, add, or delete any procedures established pursuant to this Agreement, from time to time. Such changes shall automatically become effective immediately. If the Company rejects any such change, in writing, then the affected Service shall automatically terminate E mail You can contact us by e mail at tms@southwestbank.com. Sending an e mail is one way to communicate with us. However, you agree and acknowledge that e mail is not a secure method of communication. You should not send an electronic mail message if you need to communicate with us immediately. Do not use e mail to send banking instructions or to request Services provided through the system. Do not send account information, transaction information, or other confidential information via e mail. If you e mail us or ask us to reply to you via e mail, you agree to hold us harmless from any consequences, including financial loss, resulting from any unauthorized use or disclosure of your account or personal information resulting from e mail. Also, if you send us an electronic e mail, it will be deemed to have been received on the following Business Day. The Bank will have reasonable time to act on your e mail. We are not required to act on any e mail received and we are not responsible for misdirected or lost e mails Telephone You can contact us by telephone at ; Facsimile You can contact us by fax at ; Postal Mail You can write to us at: Southwest Bank Treasury Management Dept. P.O. Box

11 Fort Worth, TX In Person You may visit us in person at: 4100 International Plaza, Suite 900 Fort Worth, TX In the event there is a change by Company to any Schedules, Forms, or Exhibits, such change shall be by Electronic Signature on the DOS Form and shall not be effective until such time as it is received and accepted by Bank and Bank has had a reasonable opportunity to act on it. Any other modification or amendments by Company to this Agreement shall be in writing and signed by Company and shall be effective when expressly accepted by Bank Changes to Authorized Accounts and authorization of Agents, etc. shall be made pursuant to this Agreement. If Bank so elects, fee changes may be implemented concurrently with the requested changes or modifications. The Company shall reimburse Bank for any such changes or modifications as necessary Unless applicable law provides otherwise, Bank may at any time, with or without notice, amend Bank's fees (sometimes referred to as Fee Schedules ) and this Agreement. No representation or statement not expressly contained in this Agreement or in any amendment shall be binding upon Bank or Company. Bank may amend this Agreement by replacing it in its entirety with a new agreement In the event performance of the Service provided herein in accordance with the terms of this Agreement would result in a violation of any present or future statute, regulations or government policy to which Bank is subject, and which governs or affects the transactions contemplated by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with such statute, regulation or policy, and Bank shall incur no liability to Company as a result of such violation or amendment Any practices or course of dealings between Bank and the Company, or any procedures or operational alternatives used by them, shall not constitute a modification of this Agreement, nor shall they be construed as an amendment to this Agreement Deadlines. Company shall deliver or transmit all data or information to Bank by the deadline(s) specified in the Service terms and conditions and the Exhibits. 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 Statements. All transactions which result in a debit or credit to the Authorized Account initiated by the Company using the Services will be reflected on the Company s monthly account statements. The Company will notify Bank, within thirty (30) days after account statements are made available to Company, of any discrepancies between the account statements and the Company s records of transactions initiated through the Services. Failure of the Company to notify Bank within said time period of any such discrepancies will preclude the Company from asserting any claims for damages or other liabilities against Bank by reason of such discrepancies. Should Company timely notify Bank of a discrepancy, compensation, if any, for the loss of interest or use of funds due Company as a result of a Bank's error or Bank's failure to execute a Transfer Order on the date received (if such order was received prior to Bank's deadline and was submitted to Bank s satisfaction within the Security Procedures and Bank s Internet procedures) and when such execution or error was within Bank's control, will be for a period not exceeding the lesser of thirty (30) days of the period between the date of the order and the date of actual transfer or error correction, and will be either of the following forms at the option of Bank: (a) adjust Company's account balance(s) at Bank to properly reflect the average balances that would have occurred; or (b) reimburse Company an amount equal to interest at a rate not exceeding the four (4) week average of the 91 day T Bill computed on a daily basis for the period and amount involved. In any event, Bank shall not be liable for payment of damages arising out of, or in connection with, any Entry, payment order, wire transfer, or any other transfer after one year from the date of such transfer Checks and Other MICR Documents. Company shall purchase all checks and other Magnetic Ink Character Recognition ("MICR ) documents from vendors selected or approved by Bank. In the event that Company selects its own vendor for checks or other MICR documents, Company must submit sample documents to Bank for testing before the Service is rendered. Checks and other MICR documents must meet the standards and specifications selected by Bank in its own discretion. If Company encodes the amount or other information on checks, deposits or other items in magnetic ink, Company warrants that the information encoded is accurate and correct. In the event that the information is not encoded correctly, Bank shall have no liability for any loss, claim, action, or expenses, including reasonable attorneys' fees, arising out of such error. Without regard to whether Company purchases MICR items from a vendor selected by Company or by Bank, whether the MICR items meet the Bank's specifications, or whether the Company encodes its own items, the reject rate of the MICR items shall not exceed the rate established by Bank as provided in the Service terms and conditions contained herein or in the Operating Instructions. If the reject rate of Company's MICR documents exceeds Bank's established reject rate, Company agrees that Bank may, at its option, discontinue rendering the affected Service Remotely Created Checks. 8