BUSINESS ONLINE BANKING AGREEMENT

Transcription

1 BUSINESS ONLINE BANKING AGREEMENT THIS BUSINESS ONLINE BANKING AGREEMENT (this Business Online Banking Agreement ), dated (the Effective Date ), is between Valley National Bank (the Bank or VNB ) and the Customer signing below as the customer ( Customer, and in the case of multiple persons or legal entities, such persons or entities (including any person or legal entity that may be later added as a party to the Agreement as defined below by an amended Application) are collectively and jointly and severally referred to herein as the Customer ). In consideration of the mutual covenants and agreements contained in the Agreement, the Bank and the Customer, intending to be legally bound by the Agreement, hereby agree that the Agreement shall govern the legal relationship between the Bank and the Customer regarding the Customer s use of the services now or hereafter, from time to time, offered by the Bank and which are selected by the Customer, (i) by completing a Business Online Banking Application (the Application ), (ii) by completing an amended Application or (iii) by requesting in writing any other cash management and business services that may hereafter be offered by the Bank that do not require a separate agreement or which were not initially selected when the Agreement was executed (collectively, the Services ). 1. Services. In connection with entering into the Agreement, the Customer, or any legal entity thereof, shall submit to the Bank an Application which shall, among other things, designate the Customer s accounts which will be covered by the Agreement (the Accounts ) and the Services selected by the Customer. From time to time during the term of the Agreement, the Customer, or any legal entity thereof, may complete and submit to the Bank an amended Application, for the purpose of adding or removing Services, Accounts or adding a new person or legal entity as party to the Agreement. Upon review and acceptance of an amended Application, the Bank will sign it and it shall, upon signing by the Bank, become an applicable Application under the Agreement and shall modify or replace any prior Applications with respect to each Service and to the extent set forth in the amended Application. Any Application that is signed by a legal entity of the Customer shall be binding on the Customer, including each legal entity thereof, whether or not such Application is signed by such legal entity. The detailed terms of the Services are set forth in Section 3 below, with respect to the VNB Connect Service, in Exhibit A and B for the ACH Processing Services and Funds Transfer (Wire) Services, respectively, and in reference documentation relating to the Services, including, without limitation the product descriptions and the All About Your Accounts Account Disclosures and Rules ( Reference Supplements ). The applicable Reference Supplements will be provided or made available to the Customer by the Bank prior to the Customer s initial use of any applicable Service. The Application, the Reference Supplements and all Exhibits hereto are hereby incorporated by reference into this Business Online Banking Agreement (collectively referred to as the Agreement ). In the case of any conflict or inconsistency between any term, condition or provision of this Business Online Banking Agreement, the Application, an Exhibit and/or the Reference Supplements, documents shall control in the following order of priority, first the Application shall control, then the Exhibits, then this Business Online Banking Agreement, and finally the Reference Supplements. 2. Services Provided by Others. The Customer understands and agrees that the Bank may, in its sole discretion, either provide itself or engage one or more third parties ( Vendors ) to provide some or all of the Services. Each Vendor shall have, as applicable with respect to the Service provided by such Vendor, all of the rights, protections, limitations of liability, and indemnification rights provided to the Bank under the Agreement, as if such Vendor is substituted for the Bank under the Agreement and all applicable references in the Agreement to the Bank shall be deemed references to the Bank and/or the Vendor, as applicable, whether or not the term Vendor is expressly stated. 3. VNB Connect Services. a. System. The Bank will make available to the Customer an online banking system known as VNB Connect (the System ) which will enable the Customer to gain direct computer access to account balances and other information regarding the Accounts and to perform such other functions as described, from time to time, in the VNB Connect Reference Supplement. The Bank will allow the Customer to have electronic access to such information regarding the Accounts as the Bank shall determine from time to time. b. User Documentation. The Services are subject to its user guide, procedures, security instructions, and other information (collectively User Documentation ) provided to the Customer by the Bank from time to time either directly in paper form or by making access available thereto on the VNB Connect web site ( The Customer agrees to follow and comply with and assume the obligations described in the User Documentation. c. Terms of Use. The Customer acknowledges and agrees that the Customer s use of the Service is subject to, and the Customer agrees to comply with, the terms and conditions of use as posted, from time to time, on the VNB Connect web site ( and the terms of use or similar terms and conditions of use posted from time to time on the web site of each Vendor whose service is made available to and used by the Customer on such Vendor s web site, including, without limitation by direct connection or by means of any link or other interface from the VNB Connect web site. Notwithstanding the foregoing and any terms of use posted on a Vendor s web site or in any agreement with a Vendor (collectively, the Vendor Terms ), in the event of conflict between the terms of the Agreement and the Vendor Terms, the Agreement shall govern and control. d. Internal Transfers. The Customer may initiate transfers of funds between Accounts ( Internal Transfers ). The Bank may assume that all Internal Transfers are properly authorized and shall have no obligation to verify, by telephone or by any other means, any such transfers. By initiating any Internal Transfer of funds from an Account, the Customer represents and warrants to the Bank that the balance of collected funds in the Account is equal to or greater than the amount of the Internal Transfer. The Bank has no obligation to verify the availability of collected funds in the Account at the time of the transfer request. If the amount of an Internal Transfer requested by the Customer exceeds the balance of collected funds in the Account, the Bank may reject the Internal Transfer, However, if an overdraft is created as a result of an Internal Transfer request, the Customer R. 02/ Valley National Bank. Member FDIC. Equal Opportunity Lender. All Rights Reserved.

2 agrees to reimburse the Bank for the amount of the overdraft immediately upon request and to pay such charges as may be imposed by the Bank as a result of the overdraft. To secure any such overdraft, the Customer hereby grants to the Bank a security interest in all of its assets in the possession of, or held for the account of, the Bank. Such security interest shall attach upon the creation of any such overdraft. However, the Bank is under no obligation to create an overdraft for any purpose. e. Stop Payment. The Bank offers a stop payment feature for checks drawn on an Account after the date such Account is added to the applicable Service. The Customer agrees that the stop payment order must be received by the Bank within a reasonable time for the Bank to act on the order prior to final payment of the check. With respect to the stop payment feature of the Services, the Customer may place the stop payments on-line using a computer process. The Customer may receive a confirmation form that must be executed and returned to the Bank. However, under no circumstances shall the Bank or any Vendor be responsible for any losses resulting from any delay in the Bank s receipt of stop payment orders transmitted by the Service. In order to place the stop payment on a check, the Customer must provide the Bank with the exact check number(s) (to the digit) and the exact amount of the check and any other information that may be required by a Vendor with respect to the applicable service. IF THE CHECK NUMBER OR CHECK AMOUNT IS INCORRECT, EVEN BY ONE DIGIT OR BY ONE CENT, OR IF THE REQUEST IS MISSING OR CONTAINS INACCURATE INFORMATION REQUIRED BY THE APPLICABLE VENDOR OR SERVICE PROVIDER, PAYMENT WILL NOT BE STOPPED AND THE BANK WILL NOT BE RESPONSIBLE FOR PAYMENT OF THE CHECK OR OTHER ITEM. All other information provided must be reasonably accurate. Stop payments using the Services are effective for 180 days. Except as otherwise provided by applicable law or rule, the Customer shall not have the right to cancel a stop payment request or recall any payment or transfer given hereunder after it has been transmitted to the Bank. g. Use of Service. In order for the Customer to use the Service, an Authorized User (as defined below) must log onto the Service s web site using the Security Items assigned to such Authorized User. Once logged onto the Service s web site, an Authorized User may, to the extent allowed by such Authorized User s designated access, access and utilize the Service available. In order to use certain services available from the Service, an Authorized User will complete a template available on the Service s web site, which completed template constitutes an order, origination or transfer instruction, check payment authorization, request or other applicable document, and then click on the applicable icon which appears at the end of the template and contains an applicable label such as save, sign, agree accept or submit. The Customer agrees that a user of the Service clicking on a sign,, agree, accept submit, or similar meaning icon after having gained access through use of any of the Customer s Security Items (as defined below), shall for all purposes serve as and constitute the Customer s signing, submitting, and delivering to the Bank, with the intent that the Bank rely thereon, the order, authorization, origination, request, or other document. 4. ACH Processing Services. If the Customer elects to receive ACH Processing Services on the Application, then the ACH Processing Services Additional Terms and Conditions set forth on Exhibit A attached hereto shall be incorporated into and constitute a part of the Agreement. If the Customer does not make use of the ACH Processing Services for ninety (90) consecutive days, the Bank reserves the right to cancel these Services at any time. If the Bank exercises its right to cancel these Services, then the Customer may reapply for this Service by completing an amended Application pursuant to Section 1 of this Agreement. 5. Wire Transfer Services. If the Customer elects to receive Wire Transfer Services on the Application, then the Funds Transfer (Wire) Service Additional Terms and Conditions set forth on Exhibit B attached hereto shall be incorporated into and constitute a part of the Agreement. If the Customer does not make use of the Wire Transfer Services for ninety (90) consecutive days, the Bank reserves the right to cancel these Services at any time. If the Bank exercises its right to cancel these Services, then the Customer may reapply for these Services by completing an amended Application pursuant to Section 1 of this Agreement. 6. Internal Procedures. The Customer acknowledges the importance of developing, and its obligation to the Bank to develop, internal procedures, systems and resources, to limit risk in connection with the Customer s use of the Services, which procedures, systems and resources will include, at a minimum: (a) De-activating user access rights for any person no longer authorized by the Customer to use the Services and notifying the Bank immediately when the person is no longer authorized as a user; (b) Not keeping lists of authorized user names and passwords together in any form; (c) Notifying the Bank immediately when compromise of any passwords is suspected; (d) Maintaining procedures, systems and resources, including fire-walls, anti-virus software, spyware and adware removal tools, and other industry recommended procedures, systems and resources to prevent breaches of Customer s system; (e) Notifying the Bank immediately when the Customer becomes aware of, or suspects, any loss, theft or unauthorized use in connection with any Service; and (f) Complying with all recommendations provided from time to time in the applicable Reference Supplement or notice from the Bank. 7. Security Procedures. The Customer must select and adopt a security procedure ( Security Procedure ) from those available with the Bank or the applicable Vendor. If the Bank or the applicable Vendor follows the Security Procedure selected by the Customer in acting on any Entry or Instruction believed by the Bank to be the Customer s Entry or Instruction: (a) the Customer shall be bound by such Entry or Instruction, whether or not such Entry or Instruction is authorized by the Customer and whether or not the Security Procedure is suitable or commercially reasonable for the Customer, and (b) the Bank shall be entitled to rely on, without investigation, such Entry or Instruction. If a signature comparison is used as a part of the Security Procedure, the Bank shall be deemed to have complied with that part of the Security Procedure if the Bank compares the signature accompanying an Entry or Instruction (or request for cancellation or amendment of an Entry or Instruction), or file of Entries, with the signature of an Authorized Person and, on the basis of such comparison, believes the signature accompanying such Entry or Instruction, or file of Entries, to be that of such Authorized Person. Security Procedures are intended to confirm the authenticity of Entries and not to detect errors in the content or transmission of Page 2 of 16 R. 02/11

3 Entries, and the Bank assumes no responsibility for doing so. The Bank shall not assume any responsibility to discover, audit, or report to the Customer any unauthorized disclosure or use of the Security Procedure or other breach of security by the Customer, its agents or representatives or any Third Party, and all losses resulting therefrom shall be solely the Customer s responsibility. The Customer shall promptly notify the Bank of any suspected breach of security (whether or not involving the Customer s employees or systems). The occurrence of any breach of security will not affect any transfers made in good faith by the Bank prior to receipt of such notification and within a reasonable time period thereafter to prevent unauthorized transfers. The Customer acknowledges and agrees that its selection of a Security Procedure for the Service shall for all purposes be deemed the Customer s acknowledgement that the Customer has been advised of the various Security Procedures employed by the Bank for the Service, that the Customer understands them, and that the Entries the Customer will issue to the Bank under the Agreement with respect to the Service will employ a Security Procedure suitable to the Customer s particular circumstances, and that the Customer agrees that such Security Procedures are commercially reasonable and meet the security requirements of the Customer. The Bank reserves the right to change the Security Procedure upon notice to the Customer. Notwithstanding the foregoing, the Bank reserves the right, without notice to the Customer, to take any security measure or employ any Security Procedure that it believes necessary without notice to the Customer. If an Entry or Instruction (or a request for cancellation or amendment of an Entry or Instruction) received by the Bank was transmitted or authorized by the Customer, the Customer shall pay the Bank the amount of such Entry or Instruction, whether or not the Bank complied with the applicable Security Procedure with respect to such Entry or Instruction and whether or not such Entry or Instruction was erroneous in any respect or that error would have been detected if the Bank had complied with the Security Procedure. Security Items. The Security Items will be specific to each individual Authorized User (as defined below) and may include, but not be limited to, such items as, the individual s login information such as the user s personal identification code ( User ID ), password, digital certificate and security token, which token will provide such individual a new access number periodically. Services provided by or in conjunction with Vendors may require separate Security Items for use of such Services. The Bank will deliver to the Customer s Authorized System Administrator(s) (as defined below) the Security Items which each Authorized User shall use to access the Service. The Customer s Authorized System Administrator(s) is responsible to deliver to each Authorized User the Security Items the Bank provides and which are required for that Authorized User to access the Service. The Bank may rely on the Customer s Authorized System Administrator(s) to correctly maintain and administer the access rights of all Authorized Users and to correctly distribute Security Items. The Customer further agrees to comply with such security measures as may be established from time to time by the Bank or by the applicable Vendor, to maintain the confidentiality of all Security Items, which the Vendor adopts or which are assigned to the Customer by the Vendor or by the Bank and to take such other measures as may be appropriate to prevent unauthorized access to the Service. The Customer shall notify the Bank immediately, by telephone and in writing, if it believes or suspects that any of its Security Items have become known to an unauthorized person or that an unauthorized person has gained access to the Service. THE CUSTOMER UNDERSTANDS, ACKNOWLEDGES, AND AGREES TO THE FOLLOWING: (A) THAT BY USING THE SECURITY PROCEDURES OR SECURITY ITEMS, ANY PERSON WILL BE ABLE TO CONDUCT TRANSACTIONS ON BEHALF OF CUSTOMER, USING THE SERVICE AT THE CUSTOMER S RISK AND LIABILITY; (B) THAT CUSTOMER S FAILURE TO PROTECT THE SECURITY ITEMS AND USE ITS SECURITY PROCEDURES MAY ALLOW AN UNAUTHORIZED PARTY TO (1) USE THE SERVICE; INCLUDING, BUT NOT LIMITED TO INITIATING TRANSFERS, CHECKS AND OTHER WITHDRAWALS ALL IN THE CUSTOMER S NAME AND AT CUSTOMER S RISK AND LIABILITY AS THE CUSTOMER, (2) ADD, CHANGE, OR SEND DATA USED WITH THE SERVICE, (3) SEND INFORMATION AND COMMUNICATIONS TO OR RECEIVE INFORMATION AND COMMUNICATIONS FROM THE BANK, AND (4) ACCESS CUSTOMER S COMMUNICATIONS AND FINANCIAL DATA; (C) THAT THE CUSTOMER IS RESPONSIBLE FOR THE ACTS OF EACH AUTHORIZED USER AND OF EACH PERSON, WHETHER OR NOT AUTHORIZED, WHO USES ANY SECURITY PROCEDURE OR SECURITY ITEM; AND (D) THAT THE CUSTOMER ASSUMES THE RISK OF LOSS FOR ALL SUCH ACTS AND FOR ALL FRAUDULENT OR UNAUTHORIZED ACTS AND/OR USE OF ALL SECURITY PROCEDURES OR SECURITY ITEMS. 8. Authority. Concurrent with the delivery to the Bank of the Agreement, the Customer will provide the Bank evidence satisfactory to the Bank of the Customer s authority (corporate, partnership, association or otherwise) to execute, and perform its obligations under the Agreement and of each Authorized System Administrator (as defined below). The Bank is entitled to rely upon such evidence, and upon any additions or amendments thereto or replacements therefore, executed by an Authorized System Administrator and upon the instructions of an Authorized System Administrator until such time as the Bank shall have received from the Customer written notice to the contrary and has had a reasonable opportunity to act on such notice. The Bank shall be entitled to rely upon any and all information and instructions submitted by any Authorized System Administrator. The Customer understands and agrees that (i) each individual designated an Authorized System Administrator shall have full power and authority to act for and on behalf of the Customer with respect to the applicable Services selected under the Application and (ii) Customer assumes the complete risk of loss and liability for any and all acts or omissions by each Authorized System Administrator, including those that are negligent, fraudulent, or otherwise outside the Authorized System Administrator s scope of authority. The Bank shall have no duty to inquire as to the propriety of any act or omission of any Authorized System Administrator. Authorized System Administrator. The Customer shall, by completing and returning to the Bank an Application, designate an individual as the Customer s authorized system administrator, which individual may be an employee of the Customer or of an authorized agent or independent contractor of the Customer (an Authorized System Administrator ) who shall have access to the Services designated in such Application. The Customer may, from time to time, change or delete individuals as Authorized System Administrators by submitting an amended Application or by otherwise notifying the Bank in writing. The Customer shall notify the Bank at once of Page 3 of 16 R. 02/11

4 any change in, or revocation in authority of, an Authorized System Administrator Authorized Users. Each Authorized System Administrator shall be an authorized user and shall have the authority to designate one or more authorized users, which individuals may be employees of the Customer or of an authorized agent or independent contractor of the Customer (each an Authorized User ) to initiate transactions and act for the Customer with respect to the Services and shall establish the level of access to the Services for each Authorized User. An Authorized System Administrator may, from time to time, add or delete individuals as Authorized Users or change the level of access for any Authorized User. The Customer acknowledges and agrees that any addition, change or revocation is not effective until received and processed by the System. The Customer assumes the complete risk of loss for all acts and omissions by any Authorized User. The Bank is entitled to rely on any information or direction submitted by any Authorized Users or through use of any Security Items. Access Rights. The Bank will establish access rights for each Authorized System Administrator designated by the Customer in the Application, including by providing for each Authorized System Administrator the Security Items required for such individual to access the Service. An Authorized System Administrator may establish access rights for additional Authorized System Administrators and will establish access rights for each Authorized User. The Customer is responsible to monitor and control the Authorized System Administrator(s) and each Authorized User and to ensure that the Security Items are known only to, and used only by, the person or persons the Customer authorized to originate transactions using the Service. 9. Confidentiality. All computer programs, data bases, equipment, trade secrets, processes, proprietary data, documentation, user manuals and related materials or information provided by the Bank to the Customer in connection with the Agreement are confidential and are owned exclusively by the Bank or by the Vendors or other third parties from whom the Bank has secured the right to use such items (collectively, Confidential Information ). The Customer shall treat the Confidential Information as confidential and not copy (except for back-up purposes), disclose or otherwise make the Confidential Information available in any form to any person or entity except to the Customer s employees on a need to know basis. The Customer shall instruct those employees that they should not disclose the Confidential Information to anyone. The Customer shall establish and maintain procedures to assure the confidentiality of the Confidential Information. Upon termination of the Agreement, the Customer shall return all Confidential Information to the Bank. The Customer recognizes that portions of the Service are owned and/or provided by Vendors and agrees to comply with such procedures and requirements as may be established from time to time by such Vendors or by the Bank. The Customer agrees not to disclose any information regarding the Service to any third party unless such third party is authorized to use the Service or unless the information is generally made available by the owner of the Service to parties that are not authorized to use the Service. Any breach or threatened breach of this section will cause immediate irreparable injury to the Bank and the Customer agrees that injunctive relief, including preliminary injunctive relief and specific performance (without the requirement or need to post a bond or other security) should be awarded as appropriate to remedy such breach without limiting the Bank s right to other remedies available in the case of such a breach. The Bank may apply to a court for preliminary injunctive relief, permanent injunctive relief and specific performance but such application shall not abrogate the Bank s right to proceed with an action in a court of competent jurisdiction in order to resolve the underlying dispute. 10. Fees. The Customer agrees to pay the Bank the fees and other charges for the Services as established by the Bank in accordance with the Bank s fee schedule, as may be amended from time to time by the Bank upon notice to the Customer, annexed to the Application, the Agreement or otherwise furnished to the Customer. The Customer shall be solely responsible for the payment of all fees, charges and other expenses, which may be imposed as a result of the Services. The Customer authorizes the Bank to charge the account designated in the Application or any other deposit account maintained by the Customer, for any such fees and charges which have not been offset by account balances in the applicable account. 11. Limitation of the Bank s Liability. The Bank will not be liable to the Customer for any damage arising out of or related to the Bank s performance or nonperformance of the Services or the Agreement other than damage actually incurred and caused directly by the Bank s gross negligence or willful misconduct. The Customer hereby releases the Bank, its Vendors, and their respective affiliates and each of their respective shareholders, members, directors, officers, employees, agents, and representatives from all liability in connection with the Agreement, for any loss or expense incurred by the Customer with respect to the Services or the Agreement unless such loss or expense is actually incurred and caused directly by the gross negligence or willful misconduct of the Bank or such Vendor. NOT IN LIMITATION OF THE FOREGOING, IN NO EVENT SHALL THE BANK OR ANY VENDOR BE LIABLE FOR ANY DIRECT (OTHER THAN FOR THE BANK S OR SUCH VENDOR S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, OR SIMILAR LOSSES OR DAMAGES, WHETHER ANY CLAIM FOR SUCH DAMAGES OR LOSSES IS BASED IN TORT OR IN CONTRACT (INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES) WHICH THE CUSTOMER MAY INCUR OR SUFFER BY REASON OF THE AGREEMENT OR ANY OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOSS, DAMAGE OR EXPENSE FROM ANY WRONGFUL HONOR, DISHONOR OR REJECTION OF ANY TRANSACTION (INCLUDING, WITHOUT LIMITATION, DISHONOR OF CHECKS OR OTHER ITEMS) WHETHER OR NOT THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGE WAS KNOWN OR CONTEMPLATED BY THE BANK. THE AGGREGATE LIABILITY OF THE BANK, ITS VENDORS AND AFFILIATES FOR DIRECT DAMAGES IN CONNECTION WITH THE BANK S OR SUCH OTHER ENTITY S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN CONNECTION WITH THE AGREEMENT OR ANY SERVICE, WILL NOT IN ANY EVENT BE GREATER THAN THE ACTUAL PRICE PAID TO SUCH ENTITY FOR THE PARTICULAR SERVICE WITH RESPECT TO WHICH SUCH CLAIMS ARE MADE. NO THIRD PARTY SHALL HAVE ANY RIGHTS OR CLAIMS AGAINST THE BANK, ITS VENDORS, OR AFFILIATES, AND THE BANK, ITS VENDORS, OR AFFILIATES, SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY ANY ACT OR OMISSION OF ANY THIRD PARTY. The fees and charges for providing the Services are unrelated to the value the Customer receives, or the potential for indirect, special, incidental, consequential or punitive damages even if the Bank or the applicable Vendor knows of the possibility of such damages. Neither the Bank nor any Vendor has any Page 4 of 16 R. 02/11

5 liability for failing to act sooner than required by the Agreement or applicable law or for failing to take action if they had discretion not to act. 12. Disclaimer. THE BANK DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, IN FACT, BY STATUTE, BY OPERATION OF LAW, OR OTHERWISE, ARISING OUT OF, BY VIRTUE OF, RELATING TO, OR IN ANY WAY CONNECTED TO THE SERVICES OR THE AGREEMENT OR ANY DOCUMENTS REFERENCED HEREIN OR IN ANY OTHER MATERIAL, PRESENTATION, OR OTHER DOCUMENTS OR COMMUNICATIONS WHETHER ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUSES, FREE FROM ERROR OR THAT THE SERVICES WILL BE CONTINUOUSLY AVAILABLE DURING THE SERVICES STATED BUSINESS HOURS, NOR DO THEY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF SUCH SERVICES OR THE ACCURACY OF INFORMATIONAL CONTENT. THE BANK DOES NOT ASSUME RESPONSIBILITY FOR TIMELINESS OF, DELETION OF, MISROUTING OF OR FAILURE TO STORE ANY COMMUNICATIONS OR DATA. THE BANK SHALL NOT BE RESPONSIBLE FOR ANY LOSS ARISING FROM OR IN CONNECTION WITH ANY INACCURACY, ACT OR FAILURE TO ACT ON THE PART OF ANY PERSON NOT WITHIN THE BANK S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, THE CUSTOMER, ANY FEDERAL RESERVE BANK OR TRANSMISSION OR COMMUNICATIONS FACILITY, ANY RECEIVING PARTY OR RECEIVING BANK, AND NO SUCH PERSON OR ENTITY SHALL BE DEEMED THE BANK S AGENT. THE CUSTOMER ACKNOWLEDGES THAT THE BANK HAS NOT ACTED AS THE CUSTOMER S ADVISOR OR AS A FIDUCIARY WITH RESPECT TO THE AGREEMENT OR THE SERVICES. THE CUSTOMER ASSUMES THE ENTIRE RISK OF LOSS AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE DOCUMENTATION. SERVICES ARE PROVIDED AS IS AND WITH ALL FAULTS. THE CUSTOMER EXPRESSLY AGREES THAT THE USE OF SUCH SERVICE IS AT THE CUSTOMER S SOLE RISK. 13. Representations and Warranties of the Customer. The Customer represents and warrants: (a) The Customer will not use any of the Services or any part thereof for personal, family, or household purposes; (b) The Customer is free to enter into the Agreement and has not made, and will not make, any agreement or commitment that would prevent or interfere in any manner with the Customer s fully performing and discharging all duties and obligations required of it hereunder; (c) In the making or performance of the Agreement, the Customer has not and will not knowingly violate any laws, orders or regulations, or the rights, legal or equitable, of anyone; (d) The Customer agrees to procure promptly any licenses or certificates that may be required in the performance of the Agreement or any contract, agreement, or understanding, which is required, necessary, or appropriate in connection with or underlying the Agreement and to provide the Bank, as the Bank may at any time require or request, with copies of documents, agreements or other information and evidence of the foregoing; (e) The Customer is duly formed, validly existing and in good standing under the laws of the state of its organization and has all requisite corporate power to own its properties and to conduct its business as currently conducted; (f) The Customer will use the Services in a safe, proper, and professional manner and not engage in any activity which may or is likely to injure or damage the Bank, any employee of the Bank, any third party, or any records, databases, software, equipment, files or information, and the Customer will not use the Services in any manner in violation of any law or regulation; (g) When signed by the Customer, the Agreement shall be a valid and binding obligation of the Customer, enforceable against it in accordance with its terms; (h) Neither the execution nor delivery of the Agreement by the Customer, nor the performance by it of any terms or provisions hereof, will constitute a breach of, or a default under (1) its certificate of incorporation, bylaws, partnership or other governing documents; (2) any agreement, contract, instrument or other arrangement to which it is a party or by which any of its assets or properties are bound or affected; (3) any judgment, order, ruling, writ or pronouncement of any court or other tribunal (judicial, administrative or arbitral) having jurisdiction; and (i) The Customer is duly authorized to execute and deliver the Agreement and to enter into the transactions contemplated under the terms of the Agreement, and that the individual signing the Agreement on its behalf is duly authorized to do so. 14. Indemnification. The Customer shall indemnify, defend, and hold harmless the Bank, Vendors, their respective affiliates and their respective shareholders, members, directors, officers, employees, agents and representatives ( Indemnified Parties ) from and against any and all claims, damages, losses, liabilities, expenses, demands, fines, penalties, and settlements (including, without limitation, settlement costs and any reasonable legal, accounting, or other expenses for investigating or defending any such actions or threatened actions) which any Indemnified Party may incur or which may be asserted by any person, entity or governmental authority (including any person or entity claiming derivatively on the Customer s behalf) against any Indemnified Party in connection with or arising out of the matters referred to in the Agreement, whether (a) arising out of, incurred in connection with, or resulting from any breach of, or failure to perform any of the Customer s obligations or warranties under the Agreement or any false representation under the Agreement, or (b) arising out of, incurred in connection with, or resulting from any suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, or tort, or contract or otherwise, before any court or governmental authority, which arises out of, by virtue of, relates to, or in any way connected to the Agreement or any Service; provided, however, that the foregoing indemnity agreement shall not apply to claims, damages, losses, liabilities, and expenses actually incurred and solely caused by an Indemnified Party s gross negligence or willful misconduct. The Customer may participate at the Customer s expense in the defense of any such action or claim. No such claim shall be settled or compromised by the Customer without the prior written consent of the Bank if such settlement or compromise in any manner indicates that the Bank or any Indemnified Parties contributed to or was responsible for the cause of any such claim, or if such settlement or compromise imposes any obligations upon the Bank or any Indemnified Parties, or requires the Bank or any Indemnified Parties, to take any action. 15. Prohibited Use. The Customer agrees that it shall not use any portion of the Service, including, without limitation, any service provided directly or indirectly by any Vendor, or any electronic communications associated with any service, for any unlawful purpose or in any manner that is libelous, defamatory, Page 5 of 16 R. 02/11

6 obscene, threatening, harassing, abusive or otherwise deemed offensive by the Bank. The Customer shall not use any of the Services to process or facilitate transactions for or on behalf of any third party without obtaining the Bank s prior written consent. 16. Customer Information. To comply with the requirements imposed under federal law that all financial institutions obtain, verify, and record information that identifies each person who opens an account or is an authorized signor on an account, anytime the Customer provides to the Bank an amended Application or an Authorized System Administrator adds a new Authorized System Administrator or Authorized User, the Bank will be deemed to have requested and the Customer shall provide the name, address, date of birth, and other information for each newly designated Authorized System Administrator or Authorized User that will allow the Bank to identify such individual and verify the information provided with respect to such individual. The Customer shall provide such information relating to each newly designated Authorized System Administrator or Authorized User prior to the Bank s delivery of the Security Items with respect to such individual and the Bank shall not be obligated to provide the Security Items for any individuals until it receives such information relating to such individual. 17. Actions On Instructions. The Customer understands that banks routinely rely on account numbers in executing payment orders, other fund transfers, and other transactions. Accordingly, if the Customer has designated to initiate draw-down requests to the Bank or has issued an instruction, authorization, request, notice, document, representation, warranty, direction, payment order, or other debit or credit order (collectively, an Instruction ) containing an identifying or bank account number of a beneficiary, the Bank and all intermediary and beneficiary banks may rely, without liability to the Customer, on such number without inquiry of the Customer or other verification, even though such Instruction also contains a name or other information that is inconsistent with such number, and the Bank is aware of such inconsistency. The Customer will be obligated to pay the amount specified in such Instruction if it is a payment order. Similarly, the Bank may rely on the identifying or account number as the correct identification of the beneficiary when the Bank receives incoming payment orders. If the Customer issues an Instruction to the Bank in which the Customer identifies a bank or other financial institution by a name and a number, and the name and number identify different banks or financial institutions or the number identifies a person other than a bank or financial institution, the Bank may rely upon the number in the Customer s Instruction as the correct designation of the bank or financial institution. Accordingly, the Customer agrees to compensate the Bank for any loss and expense incurred by the Bank as a result of such reliance on such number in executing or attempting to execute the Customer s Instruction. The Bank is under no duty to determine independently whether the name and identifying bank account number in any Instruction is consistent with the name or other information contained in such Instruction. In the performance of the Services required by the Agreement, the Bank shall be entitled to rely solely on the information and Instructions, representations and warranties provided by the Customer pursuant to the Agreement, and shall not be responsible for the accuracy or completeness thereof. The Bank shall have no duty to inquire as to the propriety of any entry initiated by the Customer under the Agreement, even if it will result in payment to any officer, employee or agent of the Customer, or is otherwise tendered in payment of any such individual s obligations. Cancellation or Amendment. If the Customer asks the Bank to amend or cancel any Instruction and the Customer s request complies with the Bank s requirements, as in effect from time to time, the Bank will use reasonable commercial efforts to comply with the Customer s request prior to executing the Instruction. The Bank will not be liable to the Customer, however, if the Bank fails for any reason to amend or cancel the Instruction. No Action on Instruction. The Bank shall not be obligated to act upon any Instruction: (a) which is not in accordance with the Bank s requirements, as in effect from time to time; (b) for which the Bank is not able to obtain any necessary authentication; (c) which would result in a debit to any of the Customer s accounts with the Bank exceeding the available funds in such account and any pre-established credit limit; (d) which would exceed any credit or other limit established for the Customer by the Bank from time to time; (e) which is incomplete or ambiguous; (f) which, in the Bank s sole judgment, the Bank is unable to act on because of legal process, applicable law or regulation, or other government guidelines (including, without limitation if acting upon such Instruction would result in the Bank exceeding any limitation or not being in compliance with any present or future guidelines established by the Board of Governors of the Federal Reserve System or other regulatory body, or any rule or regulation of any other applicable governmental regulatory authority); (g) if, in the Bank s sole judgment, the Customer s financial condition is impaired or the Bank suspects fraud or unlawful activity in connection with any Service; or (h) acting upon such Instruction would in the Bank s sole judgment, expose the Bank to potential liability under the law. If the Bank rejects or does not act upon the Instruction, the Bank shall use reasonable commercial efforts to notify the Customer within a reasonable time by telephone, facsimile, electronic transmission or overnight mail, but the Bank shall have no liability to the Customer (whether for interest or otherwise) or any other person by reason of any delay in providing, or any failure to provide, such notice or the requested transaction. The Customer is responsible for verifying that the Bank has received each Instruction. The Bank will have no liability in connection with an Instruction the Customer attempts to issue to the Bank which is not received by the Bank. Instructions Received After Cut-Off Time. The Bank may establish deadlines or cutoff times for transactions as described in the applicable User Documentation. Instructions received after a deadline or cutoff time are deemed presented on the Bank s next Banking Day. The Bank may, in its discretion, accept and attempt to process Instructions after the deadline or cutoff time, but the Bank shall have no obligation to do so and shall have no liability for deeming the Instructions received on the next Banking Day. Changes. From time to time, the Customer may change information the Customer has provided to the Bank. The Bank may rely on the information previously supplied by the Customer until the Bank receives written notice of any change on forms prescribed by the Bank, signed by an Authorized Representative or Authorized User, as applicable, and has had a reasonable opportunity to act on such notice. Such changes will be subject to the Agreement. 18. AUTHORIZATION. ALL USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, EACH ACCESS TO THE SERVICE, EACH COMMUNICATION SENT USING THE SERVICE, EACH TEMPLATE COMPLETED, SAVED, SIGNED, OR SUBMITTED, INCLUDING, WITHOUT LIMITATION, EACH INSTRUCTION AND MESSAGE SUBMITTED OR OTHERWISE ORIGINATED USING THE SERVICE AND AUTHENTICATED BY A SECURITY ITEM OF THE CUSTOMER IS DEEMED ORIGINATED, AUTHORIZED AND SIGNED BY THE CUSTOMER AND IS BINDING UPON THE CUSTOMER. Page 6 of 16 R. 02/11

7 19. Electronic Communications. The Agreement, including the Application and the Reference Supplements may be provided to the Customer entirely or in part in paper form (including facsimile transmissions) or electronically. The Bank is authorized to act on any Instruction or portion thereof submitted by the Customer using the Service as if such Instruction or portion thereof is submitted on a printed form and signed by the Customer. The Bank has no other or greater responsibilities with respect to any such document submitted through the Service than with respect to documents submitted on paper. Any part of the Service, the Agreement, or documents related thereto sent electronically shall be considered to be a writing or in writing and shall constitute an original when printed from electronic files or records established or maintained in the normal course of business by the Bank. Although facsimile is permitted hereunder it does not replace the Bank s written confirmation or the Customer s requirement to provide written notice as required herein. The Customer will be able to use certain features of the Services to communicate directly over the Service with the Bank regarding that Service. If the Customer attempts to communicate with the Bank by such features or by electronic mail ( ), the Bank may not read the Customer s communication or immediately. The Customer should not rely solely on such features or if the Customer needs to communicate with the Bank promptly. If the the Customer sends to the Bank is not secure, the information contained in it may be read by unauthorized persons. The Bank is not responsible for the acts of unauthorized persons. The Customer understands that the equipment and software security levels the Bank requires and the use of the Security Items and security instructions the Bank requires are intended to minimize, but can not guaranty the elimination of the risk of access by unauthorized third parties. The Customer s failure to maintain the Bank s required security levels or the Customer s failure to use the Bank s required Security Items and to follow the Bank s required security instructions shall relieve the Bank of any liability to the Customer for unauthorized transactions initiated by reason of the Customer s failure and the Customer is liable and responsible to the Bank for any transactions so initiated. The Bank employs standard SSL encryption technology designed to keep the Customer s private banking information and transaction requests safe. Although the Bank s technology is designed to safeguard any information the Customer views or sends through the Bank s encrypted website, certain types of malicious code ( Malware ) may be present on the Customer s computer which compromises the confidentiality of the Customer s information, User ID and access number information. Some types of Malware log keystrokes as they are typed in, or otherwise enable third parties to collect or obtain access to information from Customer s systems, including User IDs, and access numbers in any online application that the Customer may use, and then make them available to others. To help keep the Customer s banking information safe from such threats, the Bank strongly advises that the Customer maintain current anti-virus software as well as firewalls, spyware and adware removal tools on every server, PC, lap top, and other computers that access the Bank s Service. Many ISPs now provide anti-virus software at little or no cost. The other programs mentioned can be downloaded from the internet, usually at no cost, however it is important for the Customer to verify that it is downloading this software from a reputable source. Most of these software packages are regularly updated to help keep computer assets safe from new threats. It is important that the Customer update these programs frequently, according to the vendor and/or product s instructions, or enable a live update option many software packages offer. If the Customer has any questions, the Customer should contact its ISP, the Software s service or helpline, or the Bank s help desk. The Customer is cautioned that such tools are intended to minimize Malware attacks and even if the Customer uses such tools, including such tools recommended or required by the Bank, the Customer must remain vigilant for indications that Customer s systems or security has been breached or any Security Item or Security Procedures compromised. The Service depends upon the Customer s and/or the Bank s ability to obtain and provide access to third-party networks including telecommunication networks. In the event any thirdparty network is unavailable or in the event the Bank determines, in the Bank s sole discretion, that the Bank is unable to continue providing any third-party network access, the Bank may discontinue the Service or may provide the Service through an alternate third-party network. In such situations, the Bank shall have no liability for the unavailability of access. The Customer understands that to use the Service, the Customer must have an Internet Service Provider ( ISP ) and the necessary equipment and software. The Customer must obtain its own ISP and the Customer is responsible for the ISP fees and for all actions and omissions of the ISP. The Bank does not endorse or provide an ISP. The Customer is solely responsible for the selection, acquisition, installation, maintenance, and operation of the Customer s equipment and software, which must be compatible with the Bank s systems and maintain at least the level of security the Bank requires. The Bank may change the security or system or both requirements from time to time and the Customer is responsible to meet the Bank s requirements. The Customer acknowledges that use of the Internet, or any other electronic means of communication, exposes the communication to the Bank or from the Bank to access by unauthorized third parties. The Bank is not responsible for any losses incurred by the Customer as a result of faulty hardware, software, web browser, internet service provider or telecommunications configuration utilized by the Customer in connection with the Service, including, without limitation, interruption of electric power or telecommunications services, and any deficiency in the quality of transmission or inability to access the Service. The Bank is not responsible for any losses incurred by the Customer as a result of the transmission of a computer virus by or through the Service. The Customer further acknowledges and agrees that access to the Internet and the Service are not within the control of the Bank and the Bank cannot guaranty access to the Service. 20. The Customer s Agents. Any third party including, without limitation, any Vendor or any third-party processor, used by the Customer to take any action in connection with a Service, including, without limitation, any third party appointed as an Authorized Representative, shall be deemed for all purposes under the Agreement to be the Customer s agent. All terms and provisions of the Agreement will apply to the acts and omissions of such Vendor or other third party (including, without limitation, those that are negligent, fraudulent, or outside the scope of the agent s authority) and the Customer will be legally bound thereby and Customer assumes the complete risk of loss and liability therefore. 21. Termination. Either the Customer or the Bank may terminate the Agreement or the Services at any time, with or without cause, upon thirty (30) days advance written notice to the other party. Termination by the Customer will not be effective until the Bank has received the signed written notice of the termination and has had reasonable time to act upon it. Page 7 of 16 R. 02/11