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Contract 45064 (2)
art aTR7FARY r CONTRACT Lk9 1-7)0. BANKING SERVICES AGREEMENT This Banking Services Agreement (this "Agreement") is made under the auspices of Chapter 105 of the Texas Local Government Code, Depositories for Municipal Funds, and entered into this the lot day of ,,, , 2013, by and between the City of Fort Worth, Texas, hereinafter referred to as CITY, whose address is City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, and JPMorgan Chase Bank, N.A., hereinafter referred to as BANK, whose principal office for the purpose of this Agreement is located at 420 Throckmorton, Fort Worth, Texas 76102. PURPOSE OF AGREEMENT The purpose of this Agreement is to state the terms and conditions under which the BANK will serve as a depository and provide banking services for the CITY. I. SERVICES TO BE PROVIDED The BANK will perform the following services required of the CITY's depository as described in the following schedules: A. CITY's Request for Proposal for Banking Services, RFP 13-0166, hereafter "RFP," which is incorporated herein for all purposes B. BANK's Banking Services Bid Response Package dated June 20, 2013, hereafter "Bid Response," which is incorporated herein for all purposes C. Specific Banking Services Agreements, hereafter "Service Agreements" which are attached hereto and incorporated herein for all purposes These schedules, along with this Agreement shall collectively be referred to as the Contract Documents. In the event of a conflict between the Contract Documents, the order of precedence shall be this Agreement, the RFP, the Bid Response and the Service Agreements. The BANK shall further provide such banking services related to the scope of this Agreement but not specifically listed herein and at such reasonable prices as may be mutually agreed upon in writing between the BANK and CITY through the City Manager. II. COMPENSATION In consideration of the services to be performed by the BANK, CITY shall pay for the banking services provided in the manner specified in BANK's Bid Response. Payments under this Agreement shall not exceed One Million Three Hundred Thousand Dollars ($1,300,000.00) during the Initial Term, and shall be based on actual monthly volume times the single unit cost as specified in BANK's Bid Response. Payments will be made quarterly. JPMorgan Chase_CFW Banking Services Agreement Page 1 of 4 REMVED OCT 312013 OFFICIAL RECORD CITYSECRFTAPY b70 MI RTH, TX III. TERM OF AGREEMENT This Agreement and the Contract Documents shall govern all services for a period beginning October 1, 2013, and shall continue until September 30, 2016 (the "Initial Term '), unless terminated sooner by a 90-day written notice by either party. The Agreement may be renewed for up to two additional, one-year periods by mutual written agreement. CITY and BANK further agree that in the event a different bank is selected to provide banking services for the year following the expiration of this Agreement, BANK will assist in the transition and provide such banking services as CITY may request in the same manner and at the same cost as provided in the Agreement, for a period of up to 90 days after the expiration of the Agreement. Should either CITY or BANK breach the terms of this Agreement or default on any of its obligations hereunder, after due notice this Agreement may be terminated for cause upon 30 days written notice by the other party. IV NOTICES Any notices to be given hereunder by wither party to the other may be effected, in writing, either by personal delivery or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the address of the parties as they appear in the introductory paragraph of the Agreement, but each party may change this address by written notice in accordance with this paragraph. V. COMPLIANCE WITH APPLICABLE STATUTES, ORDINANCES AND REGULATIONS In performing the services required under this Agreement, the BANK shall comply with all applicable Federal State and local laws, ordinances and regulations that by their terms are applicable to BANK as provider of the services hereunder. VI. ASSIGNMENTS Except as otherwise provided in this section, the BANK shall not assign this Agreement or any interest or obligation hereunder without prior written consent of the CITY through its City Manager. The CITY's consent shall not be required where the assignment is due to a reorganization, merger, or consolidation of BANK's business, provided, however, that BANK shall provide CITY with written notice of such an action within a reasonable period of time after the action taking effect. JPMorgan Chase_CFW Banking Services Agreement Page 2 of 4 VII. MISCELLANEOUS 1 The City is a governmental entity under the laws of the state of Texas and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by Governmental Units," is self -insured and therefore is not required to purchase insurance. To the extent the Contract Documents require the City to purchase insurance, the City will provide a letter of self -insured status as requested by Bank. 2. To the extent the Contract Documents require the City to indemnify or hold Bank or any third party harmless from damages of any kind or character, such obligations are binding upon the City only to the extent permitted by law. 3. To the extent the Contract Documents require the City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, such obligations are binding upon the City only to the extent permitted by law. 4. Nothing herein constitutes a waiver of the City's sovereign immunity. To the extent the Contract Documents require the City to waive its rights or immunities as a government entity, such provisions are hereby deleted and shall have no force or effect. 5. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of the City hereunder are subject to the availability of funds. If such funds are not appropriated of become unavailable, the City shall have the right to terminate this Agreement 6. This instrument contains the entire Agreement between the parties relating to the rights herein granted and obligations herein assigned. Any oral representations or modifications concerning this instrument shall be of no force or effect excepting a subsequent modification in writing and signed by the parties. This Agreement may be amended only upon written consent of both parties. 7. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Tarrant County, Texas. 8. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives and successors. 9. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions thereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained. JPMorgan Chase_CFW Banking Services Agreement Page 3 of 4 10. This Agreement and the schedules constitute the sole and only agreement of the parties hereto and supersedes any prior understanding or written or oral agreement between the parties respecting the within subject matter. Executed on the day and year first above written, Tarrant County, Texas. FOR T TY OF FORT WORTH: FOR JPM ii R�NHASE BANK, N.A.: BY: /4.0C-- a _C_O Susan Alan Assistant City Manager APPROV a C O ' F BY: Uk, Denis McElroy Assistant City Attor e s -k Cr ATTES BY:// / Mary` J.kayse City Secretary JPMorgan Chase_CFW Banking Services Agreement Page 4 of 4 RM AND LEGALITY: 15ec LJ lson, Senior Vice President range OFFICIAL ,0, �=-#3 CI f-)10,©idiTillAW Ft WORTn1, fl V1.3 0is 24 13 INTRODUCTION This document (the 'Account Terms"), contains the general terms, conditions and other disclosures for the accounts and services selected by the Customer and constitutes an agreement between the Bank and the Customer. References to "the Bank", when used in the Account Terms, shall mean JPMorgan Chase Bank, N.A., and any of its affiliates or subsidiaries. References to the "Customer" in the Account Terms mean the governmental, nonprofit, or business entity to which the Bank, as an independent contractor, provides accounts and services. All accounts subject to the Account Terms are, regardless of their location, referred to in this document as "Accounts . The Account Terms may be supplemented or amended by existing or future agreements, terms, conditions and notices, including, but not limited to any terms contained in an account application, country addendum, signature card or similar document for an Account or arrangements regarding specific types of Accounts or services ("Services") offered by the Bank, as described herein or which by their terms ("Service Terms") are subject to the Account Terms. By signing the signature card, account application or similar document or by using or continuing to use any of the Accounts or Services, the Customer agrees to the Account Terms and such supplements, amendments, agreements, terms, conditions, notices or Service Terms, as applicable. The Accounts established with the Bank are subject to the Account Terms and relevant Account documentation, which shall include jurisdiction specific provisions set forth in an account application or country -specific addendum for the jurisdiction in which the Accounts are held (collectively, "Account Documentation"). The Customer shall not transfer any of its rights and obligations in an Account or with respect to a Service, or create any form of security interest over such rights and obligations in an Account, without the prior written consent of the Bank. The Account Terms or Service Terms may vary applicable law or regulation to the maximum extent permitted under any such law or regulation. Any provision of applicable law or regulation that cannot be varied shall supersede any conflicting term of the Account Terms or Service Terms. 1. Authorized Persons. 1.1 The Bank is authorized to rely upon any document that indicates the person authorized to act on behalf of the Customer (Authorized Person") with respect to the Accounts and Services, until the authority for such Authorized Person is withdrawn by the Customer upon written notice to the Bank, and the Bank has had a reasonable opportunity to act on the termination instruction. The Customer will provide specimen signatures of such Authorized Person to the Bank in the manner requested by the Bank 1.2 Each Authorized Person, subject to any written limitation provided by the Customer and received and accepted by the Bank, is authorized on behalf of the Customer to: open, operate and close Accounts; overdraw Accounts as permitted by the Bank; appoint and remove Authorized Persons; execute or otherwise agree to any form of agreement relating to the Accounts or Services, including, without limitation, Account Documentation; execute guarantees, indemnities or other undertakings to the Bank in relation to guarantees, letters of credit or other financial transactions or in relation to missing documents draw, accept, endorse or discount checks, drafts, bills of exchange, notes and other financial instruments ( Items"); receive materials related to security procedures; and give instructions ("Instructions"), including, without limitation, requests and payment orders, by means other than the signing of an Item, with respect to any Account transaction. Without limitation, such Instructions may be given singly or otherwise regarding (i) the payment, transfer or withdrawal of funds by wire, computer or other electronic means or otherwise; (u) money, credits, items or property at any time held by the Bank for account of the Customer; or (iii) any other transaction of the Customer with the Bank. 1.3 If the Customer provides the Bank with facsimile signature specimens, or if the Customer issues Items with a facsimile signature on one or more occasions, the Bank is authorized to pay Items signed by facsimile signature (including, but not limited to computer generated signatures) if the actual or purported facsimile signature, regardless of how or by whom affixed resembles the specimens filed with the Bank by the Customer, or resembles a specimen facsimile signature otherwise employed for the Customer's benefit. 1.4 The Customer represents that, prior to submitting any document or information, including through any electronic transmission, which designates the persons authorized to act on the Customer's behalf, including as a user of the Bank's electronic access systems, the Customer shall obtain from each individual referred to in such document all necessary consents to enable the Bank to process the data set out therein for the purposes of providing the Service. 2. Instructions; Security Procedures. 2.1 The Bank and the Customer may from time to time agree upon a security procedure to be followed by the Customer upon the issuance of an Instruction and/or by the Bank upon the receipt of an Instruction, so as to enable the Bank to verify that such Instruction is effective as that of the Customer. A security procedure may require the use of algorithms or other codes, identifying words or numbers, encryption, call back procedures or similar security devices. It is understood that such security procedure is designed to verify the authenticity of, and not to detect errors in, Instructions. The Customer agrees to safeguard such security procedure and to make it available only to persons duly authorized Any Instruction, the authenticity of which has been verified through such security procedure, shall be effective as that of the Customer, whether or not authorized. An authenticated SWIFT or host -to -host (secure communications channel for data transfer) message issued to the Bank in the name of the Customer shall be deemed to have been given by an Authorized Person. The Customer shall be bound by and adhere to the security procedures for use of the Service advised to it in writing or electronically by the Bank, as may be revised from time to time upon notice to the Customer. Page 1 of 8 2.2 If the Customer, other than with respect to security procedures, chooses to confirm an Instruction, any confirmation must be clearly marked as such, and, if there is any discrepancy between an Instruction and a confirmation, the terms of the Instruction shall prevail. Subject to Section 5.6, the Bank may, at its option, use any means to confirm or clarify any request or Instruction, even if any agreed security procedure appears to have been followed. The Bank is not obligated to confirm any Instructions. If the Bank is not satisfied with any confirmation or clarification, it may decline to honor the Instruction. 2.3 This Section 2.3 shall govern arrangements where the Customer authorizes the Bank to allow a third party (a "Third Party") to access and provide Instructions against an Account, including, without limitation, to initiate payments and transfers against an Account. The Customer may request that the Bank provide access to an Account to a Third Party by submitting an access request in a form acceptable to the Bank (an 'Access Request"). (a) The Customer confirms that the Third Party, as set forth in the Access Request, is authorized by the Customer to issue Instructions to the Bank and to access and receive balance and transaction information (including without limitation account statements, information reporting and transaction advices) in relation to an Account via any method of communication including but not limited to the Bank's electronic channels, facsimile transmission, in writing, by telephone and SWIFT (each a "Delivery Method"). (b) Subject to the Third Party's completion of appropriate documentation (as may be required by the Bank), the Third Party may issue Instructions and access the Account as contemplated hereunder. The Bank is authorized to act upon any Instruction that it receives from the Third Party on behalf of the Customer, regardless of the identity of the individual transmitting the Instruction and without any further authority from or reference to the Customer, provided that the Instruction is verified pursuant to the agreed upon security procedures, and notwithstanding that the Instruction may result in an overdraft of an Account The Customer acknowledges that the Bank is authorized to act upon any Instructions purported to be given by any signatory of the Third Party who has been nominated by the Third Party in a form acceptable to the Bank, and such signatory of the Third Party shall be deemed an Authorized Person with respect to the provisions of these Account Terms relating to the use of Accounts and the giving of Instructions with respect to the Accounts. The Bank is authorized to act upon any Instructions received via any of the SWIFT BIC codes specified in an Access Request whether or not such SWIFT BIC codes are associated with the Customer or the Third Party. (c) Instructions given by the Third Party with respect to an Account pursuant to the terms of this Section 2.3 shall be deemed to be Instructions or communications given on behalf of the Customer for all purposes of these Account Terms. (d) The Customer may revoke an Access Request at any time by giving the Bank written notice of such revocation. The notice of revocation shall be sent to the address of the Bank officer or service representative managing the Account or to any other address notified by the Bank to the Customer from time to time. The Bank shall have a reasonable time to act on any notice received. 3. Deposits. 3.1 All Items deposited or cashed are received for collection only, and are received subject to final payment. The Bank may agree with other banks and clearing houses to vary procedures regarding the collection or return of Items and deadlines to the extent permitted by applicable law or practice. The Bank chooses the method of collecting Items and may use other banks in the process. The Bank will present Items in accordance with the custom and practice of the jurisdiction in which the Items are collected. The Bank is not responsible for actions taken by other banks, nor for the loss or destruction of any Item in the possession of other banks or in transit. The Customer agrees to use reasonable efforts to assist the Bank in locating or obtaining replacements of Items lost while in the Bank's possession. 3.2 Credits and deposits to an Account will be available in accordance with the Bank's availability policy and in accordance with applicable laws. If the Bank credits an Account: (i) in contemplation of receiving funds for the Customer's credit and those funds are not actually received by the Bank, or (ii) in reliance on a transaction which is subsequently returned, reversed, set aside or revoked, or if the Bank does not receive funds for the Customer s credit for value on the date advised by or on behalf of the Customer, or if final settlement is not received by the Bank for any reason, then the Bank shall be entitled to debit any Account of the Customer with the amount previously credited and/or with any other charges incurred, even if doing so creates or increases an overdraft. 3.3 If an Item is processed by the Bank on a collection basis, the Bank may defer credit or payment for a reasonable time, in accordance with its practices, without dishonor; and the Bank shall not be obligated thereon until it has remitted final payment. 4. Payment of Items. 4.1 The Bank is authorized to pay any Item drawn on the Account, in accordance with the Bank's usual procedures, including, without limitation, any item that purports to be a substitute check. The Bank is authorized to debit the Account on which the Item is drawn on the day the Item is presented certified or accepted, or at such earlier time that the Bank receives notice by electronic or other means that an Item drawn on an Account has been deposited for collection. The Bank may determine Account balances in order to decide whether to dishonor an Item for insufficient funds at any time between receiving such presentment or notice and the time of the return of the Item, and need make no more than one such determination. 4.2 The Bank is authorized to pay all Items presented to it or cashed at the Bank, regardless of amount and without inquiry as to the circumstances of issue, negotiation or endorsement or as to the disposition of proceeds, even if drawn, endorsed or payable to cash, bearer or the order of the signer or any Authorized Person or to a lender in payment of that individual's obligations. Page 2 of 8 4.3 The Customer shall immediately notify the Bank if it becomes aware that any Items (whether completed or blank) are lost or stolen. The Customer shall not use its Account to allow any third party to issue checks or otherwise use the Account unless specifically agreed to in writing by the Bank. The Customer shall not issue Items that are post-dated and the Bank shall not be liable for any damages caused by premature payment or certification of a post-dated Item. Further, the Customer shall not put any condition, restriction or legend on any Item and the Bank is not required to comply with any such condition, restriction or legend. 4.4 The Bank may process any Item by electronic means. All Items the Customer draws against any Account must comply with the Bank's check specifications and image standards, published from time to time, and industry standards. The Bank shall not be liable for damages or losses due to any delay or failure in procuring, collecting or paying Items not conforming to such specifications or standards except to the extent such losses or damages are the direct result of the Bank's gross negligence or willful misconduct. 5. Funds Transfer Instructions. 5.1 The Customer may issue funds transfer Instructions against Accounts, subject to the Bank's acceptance. Funds transfer Instructions will be received, processed and transmitted only on the Bank's funds transfer business days, and within the Bank's established cut-off hours on such days. Communications requesting cancellation or amendment of payment orders must be received at a time and in a manner affording the Bank a reasonable opportunity to act on the communication. The Customer may reverse, amend, cancel or revoke any Instructions only with the consent of the Bank and the beneficiary's bank. The Bank will debit the Account for the amount of each funds transfer Instruction accepted by the Bank, and the Customer authorizes the Bank to debit the Account for all fees associated with any funds transfer Instruction, including debit and credit processing charges or to otherwise deduct such fees from the amount of the payment order. In processing the funds transfer, other banks may deduct fees from the payment order issued to them. No restrictions upon the acceptance of funds transfer Instructions by the Bank or upon the Accounts that the Bank may debit shall be binding unless agreed to by the Bank in writing. The Bank shall not be required to inquire into the circumstances of any transaction. 5.2 Notwithstanding any Instructions by the Customer to the contrary, the Bank reserves the right to use any funds transfer system and any intermediary bank in the execution of any funds transfer Instruction and may otherwise use any means of executing the funds transfer Instruction which the Bank deems reasonable in the circumstances. 5.3 In connection with any funds transfer, the Bank and other financial institutions may rely upon the identifying number of the beneficiary, the beneficiary's bank or any intermediary bank included in the funds transfer. Also, the beneficiary's bank in the funds transfer Instruction may make payment on the basis of the identifying number even though it identifies a person different from the named beneficiary. Accordingly, the Customer shall be responsible for the consequences of any inconsistency between the name and identifying number, as instructed, of any party in such a funds transfer Instruction. 5.4 If the Bank accepts a funds transfer Instruction issued in (i) the Customer's name for payment in a currency (the "Non -Account Currency") other than the currency (the "Account Currency") of the Account or (ii) a Non -Account Currency where the Customer is the beneficiary, the Bank is authorized (unless otherwise agreed in writing and subject to any restrictions under applicable law or regulations) to enter into a foreign exchange transaction with the Customer to convert the relevant amount of Non -Account Currency into an amount of Account Currency at a foreign exchange rate and spread, and at such date and time, as the Bank determines in its discretion. In the case of an Instruction for payment in a Non Account Currency, the Bank is authorized to debit the Account for the converted amount of Account Currency The applicable foreign exchange rate may differ from rates at which comparable transactions are entered into with other customers or the range of foreign exchange rates at which the Bank otherwise enters into foreign exchange transactions on the relevant date. Any such foreign exchange transaction will be between the Bank and the Customer as principals, and the Bank will not be acting as agent or fiduciary for the Customer. Notwithstanding any prior action or course of dealing, subject to applicable law and regulations, the Bank has no obligation to cancel, reverse or otherwise buy back foreign currencies purchased by the Customer under a Service and the Bank makes no commitment to buy back currencies. The Customer acknowledges that it may not be able to sell back certain foreign currencies once purchased. 5.5 If the Customer elects to settle foreign exchange transactions by draft, the Customer acknowledges and agrees that in the event the draft is not presented for payment within one hundred eighty (180) calendar days from the date of issuance, the Bank, subject to any restrictions under applicable law or regulations shall have the right to cancel the draft and the Customer authorizes the Bank to reconvert the funds and re -credit the Customer's Account in- the Account Currency at a foreign exchange rate and spread, and at such date and time, as the Bank determines in its discretion. If the remitter is no longer a customer of the Bank, the Bank may, in its discretion, transfer balances to an unclaimed moneys account, or issue a cashier's check, sending it to the address of the Customer on the books and records of the Bank. In the event that the payee, holder or other third party claims against the Bank on a cancelled draft, the Customer agrees that it shall be responsible for any losses in connection with such cancellation including any amount recredited or otherwise paid to the Customer. The Customer acknowledges and agrees that applicable service charges and expenses, including stop payment and periodic maintenance fees, may be charged to the Customer's Account or otherwise deducted from the amount to be paid to the Customer 5.6 Unless the Customer and the Bank have agreed in writing to an alternate security procedure, the authenticity of oral or written (including those transmitted by facsimile) funds transfer Instructions may, at the Bank's discretion be verified by telephonic call-back confirmation with an Authorized Person. The Customer agrees that this security procedure is commercially reasonable for such Instructions. The Customer further agrees to be bound by such funds transfer Instructions, whether or not authorized, if issued in the name of the Customer using such security procedure 6. Interest; Fees; Taxes. Page 3 of 8 6.1 The Bank may pay interest on certain balances in interest -bearing Accounts at a rate determined by the Bank. The Bank may adjust interest paid (or principal, if permitted by law) and/or impose any charges on time deposit Accounts or fixed term Accounts from which withdrawals are made prior to maturity. Early withdrawal charges may require a reduction in the principal amount if the amount of accrued and unpaid interest on the deposit is less than the charge. Where the Bank makes a payment of interest to the Customer, the Bank is authorized to deduct or withhold any sum on account of any tax required, or which in its view is required, to be so deducted or withheld or for which it is in its view liable or accountable by law or practice of any relevant revenue authority of any jurisdiction and in each case in accordance with the Bank's usual and customary business practice and the Bank shall pay the net amount of the interest to the Customer. 6.2 (a) The Bank may impose, charge, pass -through and modify fees and/or charges for Accounts and Services provided by the Bank, including, but not limited to, transaction, maintenance, balance -deficiency, and service fees and other charges, including those levied by any governmental authority and taxes (collectively "Fees"). The Customer will pay all Fees. The Bank may from time to time receive commission, rebate or similar payments from other banks or third parties which may derive from a portion of the Fees ultimately borne by the Customer. The Bank may debit any Account for Fees, whether or not such debit may result in an overdraft of the Account. (b) All payments (inclusive of, but not limited to, Fees and interest on overdrafts) from the Customer to the Bank shall be in full, without set-off or counterclaim, and free of any deduction or withholdings related to any tax or other claim, unless a deduction or withholding is required by law. If any deduction or withholding is required by law in respect of any payment due to the Bank, the Customer shall: (i) ensure that the deduction or withholding is made; (ii) pay the full amount deducted or withheld applicable authority in accordance with the applicable law; (iii) if the payment is to be made by the Customer, increase the payment in respect of which the deduction or withholding is required so that the net amount received by the Bank after the deduction or withholding shall be equal to the amount which the Bank would have been entitled to receive in the absence of any requirement to make any deduction or withholding; and (iv) deliver to the Bank, within thirty days after it has made the payment to the applicable authority, a certified copy of the original receipt issued by the authority, evidencing the payment to the authority of all amounts required to be deducted or withheld. 6.3 In addition to any Fees or other amounts due, the Customer will pay or reimburse the Bank for any taxes (including, but not limited to, value added taxes, sales taxes and similar taxes), levies, imposts, deductions, charges, stamp, transaction and other duties and withholdings (together with any related interest penalties, fines and expenses) in connection with the Account or Services (including payments or receipts to an Account) except if imposed on the overall net income of the Bank The Customer will provide the Bank such documentation, declarations, certifications and information as the Bank may require in connection with taxation and warrants that such information is true and correct in every respect and shall immediately notify the Bank if any information requires updating or correction. 7. Account Statements. The Bank will issue Account statements, confirmations, or advices ("Account Statements") at the frequency and in the manner advised to the Customer from time to time. The Customer is responsible for ensuring that an Authorized Person promptly examines each Account Statement and any accompanying Items which it receives or is made available to it by the Bank, and reporting any irregularities to the Bank in writing, including any claim of improper or unauthorized funds transfer activity. The Bank shall not be responsible for the Customer's reliance on balance, transaction or related information that is subsequently updated or corrected or for the accuracy or timeliness of information supplied by any third party to the Bank. Internet Account Statements or electronic Account Statements, if applicable, shall be deemed by the Customer and the Bank to be available to the Customer when the Account Statements are posted on the Internet and the Bank sends an electronic mail notification of availability to the Customer, or when the Bank sends the electronic Account Statement to the Customer. For purposes of determining when an Item is sent to the Customer, an image of an Item or information identifying the Item (i.e. Item number, amount and date of payment) is a sufficient substitute for the actual Item. 8. Overdrafts. 8.1 The Bank may debit the Account even though the debit may bring about or increase an overdraft. Unless otherwise agreed in writing, any overdraft shall be immediately due and payable by the Customer to the Bank. If the Bank permits an overdraft, the Bank is authorized to charge interest on the amount of the overdraft as long as the overdraft is outstanding, at the rate determined by the Bank, up to the maximum rate permitted by law at the time of the overdraft or at the specific rate agreed in writing between the Customer and the Bank. Subject to applicable laws and regulations, interest shall remain applicable to any negative balance in the Account notwithstanding closure of the Account and/or termination of these Account Terms. Whether or not the Bank pays an Item that bangs about or increases an overdraft, the Bank may deduct the applicable fees and expenses from the Account without notice. Unless agreed in writing, the Bank is under no obligation to permit any overdraft or to continue to permit overdrafts after having permitted an overdraft, notwithstanding any prior action or course of dealing. 8.2 When Items and other debits to the Account are presented to the Bank for payment on the same day and there are insufficient available funds in the Account to pay all of these transactions, the Bank may choose the order in which it pays transactions, including, without limitation, the largest transaction first or any other order determined by the Bank, in its sole discretion Set Off. Page 4 of 8 The Bank may at any time, without prejudice to any other rights which it may have, and without prior notice or demand for payment combine, consolidate or merge all or any of the Accounts of the Customer or may retain, apply or set off any money, deposits or balances held in or standing to the credit of any Account in any currency towards payment of any amount owing by the Customer to the Bank or any of its affiliates. The Bank shall be entitled to accelerate the maturity of any time deposit or fixed term deposit. For the purposes of this Section the Bank may effect currency conversions at such times or rates as it may think reasonable and may effect such transfers between any Accounts as it considers necessary. The Customer grants to the Bank a lien and security interest in any Accounts of the Customer at the Bank, in order to secure arty and all obligations and liabilities of the Customer to the Bank or any of its affiliates. 10. Agents; Information. The Customer authorizes the Bank to retain agents to perform data processing, collection and other services in connection with the Accounts and Services. The Customer authorizes the Bank and its affiliates to disclose Account Documentation, information with respect to accounts and services provided to the Customer, any banking transaction, or the Customer itself, if such disclosure is: (i) necessary or desirable, in the Bank's opinion, for the Bank to perform its duties or exercise its powers and rights; (ii) to a proposed assignee of the rights of the Bank; (iii) to a branch, affiliate, subsidiary employee or agent of the Bank or to its auditors, regulators or legal advisers; (iv) to the auditors of the Customer; (v) to branches, subsidiaries and affiliates for compliance with 'know your customer" requirements for purposes of providing products and services to the Customer; or ( vi) permitted or required by applicable law, regardless of whether the disclosure is made in the country in which the Customer resides, in which the Account is maintained or in which the transaction is conducted. For the avoidance of doubt, the Bank may disclose, or may instruct its affiliates to disclose such documentation and information in accordance with the terms set out herein. The Customer agrees that such disclosures by the Bank and its affiliates may be transmitted across national boundaries and through networks, including those owned by third parties. 11. Liability Limitation; Force Majeure. 11.1 The Bank, its agents, employees, officers and directors, shall not be liable for any damage, loss, expense or liability of any nature which the Customer may suffer or incur, except to the extent of direct losses or expenses attributable to the gross negligence or willful misconduct of the Bank, its agents, employees, officers or directors. The Bank, its agents employees, officers and directors shall not, in any event, be liable for indirect, special, consequential or punitive loss or damage of any kind (including, but not limited to lost profits), whether or not foreseeable, even if the Bank, its agents, employees, officers or directors have been advised of the likelihood of such loss or damage and regardless of whether the claim for loss or damage is made in negligence, gross negligence, for breach of contract or otherwise; provided, however, that the foregoing shall not apply to the extent such loss or damage is caused by fraud on the part of the Bank, its agents, employees, officers or directors. 11.2 Neither the Bank nor the Customer shall be liable for any loss or damage to the other for its failure to perform or delay in the performance of its obligation resulting from an act of God, act of governmental authority, de jure or de facto, legal constraint, war, terrorism, catastrophe, fire, flood or electrical, computer, mechanical or telecommunications failure, or failure of any agent or correspondent, or unavailability of a payment system, or any cause beyond its reasonable control. 12. Indemnity. The Customer agrees to indemnify and hold the Bank, and its agents employees, officers and directors, harmless from and against any and all claims, damages, demands judgments liabilities, losses, costs and expenses (including attorneys' fees) resulting directly or indirectly from: (i) the Bank's acceptance or execution of any request or direction including, without limitation, Items and Instructions (a) issued in the name of an Authorized Person, (b) issued in accordance with the agreed upon security procedures or (c) on which the Bank is otherwise permitted to rely; (ii) the Bank's payment of any taxes, interest or penalty otherwise due from the Customer paid on the Customer's behalf, or for which the Bank has no responsibility under the Account Terms; or (iii) any action taken by the Bank in accordance with or as contemplated by Section 2.3 of these Account Terms. 13. Notices. All Account Statements and notices may be sent to the Customer by ordinary mail, courier, facsimile transmission, electronic transmission (including but not limited to SWIFT communication), through Internet sites, or by such other means as the Customer and the Bank agree upon from time to time, at the address of the Customer on the books and records of the Bank. Unless otherwise arranged, all notices to the Bank must be sent to the Bank officer or service representative managing the Account, and must be sent by ordinary mail by courier, by facsimile transmission, by electronic transmission or by such other means as the Customer and the Bank agree upon from time to time. The Bank shall have a reasonable time to act on any notices received. 14. Termination. Unless otherwise agreed, either the Bank or the Customer may close an Account or terminate a Service by giving the other party not less than thirty (30) calendar days' prior written notice of intent to close or terminate. Notwithstanding the foregoing, either party may terminate an Account or a Service upon written notice to the other party in the event of: (i) a breach of the Account Terms or Service Terms by the other party; (ii) the other party's inability to meet its debts as they become due, receivership administration, liquidation, or voluntary or involuntary bankruptcy; or the institution of any proceeding therefor, any assignment for the benefit of the other party's creditors, or anything analogous to the foregoing in any applicable jurisdiction, or a determination in good faith by the terminating party that the financial or business condition of the other party has become impaired; (tit) a determination by the terminating party, in its sole opinion, that termination is necessary or required by law or regulation, Page 5 of 8 15. or as a result of a court or regulatory agency order or proceeding; or (iv) a good faith belief by the terminating party that the other party is engaged in activities that are inconsistent with the terminating party's policies. The Bank shall have a reasonable opportunity to act upon any termination request. The Bank may (but shall not be obliged to) complete all requests and Instructions received by it prior to receipt of the termination request, in addition to any request or Instruction accepted on the day termination is to become effective. Notwithstanding anything to the contrary in any Service Terms, upon the closing of an Account, all Services linked to such Account are simultaneously terminated (unless otherwise specifically agreed to by the parties) and the Bank's obligations in respect of such Account or Services will terminate. However, any such closing or termination shall not affect the Customer's liabilities to the Bank arising prior to, or on, such closing or termination, all of which shall continue in full force and effect. Interest on overdrafts as provided for in Section 8 1 of the Account Terms shall remain applicable to any negative balances on the Account after termination hereof. In the absence of Instructions from the Customer, the Bank may transfer balances to an unclaimed moneys account, or issue a cashier's check, sending it to the address of the Customer on the books and records of the Bank. Account Disclosures. 15.1 The Bank may return or refuse to accept all or any part of a deposit or credit to an Account, at any time, and will not be liable to the Customer for doing so, even if such action causes outstanding Items to be dishonored and returned, or payment orders to be rejected. Refused deposits will be returned to the Customer. 15.2 The Bank may refuse to allow a withdrawal from any Account in certain cases including, but not limited to, cases where: (i) there is a dispute about the Account (unless a court or other competent authority has ordered the Bank to allow the withdrawal); (it) a legal garnishment or attachment is served, including, but riot limited to, a levy, restraining notice or court order; (in) the Account is being used as collateral to secure a debt; (iv) Account Documentation has not been presented; or (v) the Customer fails to pay a Bank loan or other debt or obligation to the Bank on time. 15.3 Any amount standing to the credit of any Account with the Bank is payable exclusively at a branch in the country at which the Account is held; however, payment may be suspended from time to time in order to comply with any law, regulation, governmental decree or similar order, in any jurisdiction, for the time period affecting the Bank its officers, employees, affiliates, subsidiaries, agents or correspondents. The Customer acknowledges that deposits held in a branch of the Bank located outside the United States are not payable in the United States and: (i) are not insured by the Federal Deposit Insurance Corporation or any other United States governmental agency; (ii) are subject to cross -border risks; and (ni) have a lesser preference as compared to deposits held in the United States in the event of a liquidation of the Bank. 16. Governing Law. 16.1 The Account Terms, the relevant Account Documentation and the rights and obligations of the Customer and the Bank in respect of each Account shall be governed by and construed in accordance with the laws of the country in which the branch holding the relevant Account is located. 16.2 The Customer and the Bank hereby irrevocably waive all right to, and will not seek, trial by jury in any action, proceeding or counterclaim, of whatever type or nature, arising out of these Account Terms or the relationship established hereby. Any claim in connection with Accounts which are the subject of these Account Terms or any Services, unless a shorter period of time is expressly provided, must be brought against the Bank within two (2) years of the occurrence of the cause of action, except as prohibited by applicable law 16.3 In relation to each Account, the courts of the country or state in which the branch of the Bank at which the relevant Account is held shall have exclusive jurisdiction to settle any disputes that arise out of or are connected with the Account Terms the relevant Account Documentation and/or the relevant Account. This section is for the benefit of the Bank only and does not prevent the Bank from taking proceedings in the courts of any other country or state with jurisdiction including, to the extent allowed by law, concurrently in any number of countries or states. 17. Miscellaneous. 17.1 If the Account Terms, Account Documentation including, without limitation, Service Terms, are translated into, or appear in a language other than English, the English language version shall control. 17.2 The term Bank shall include any successors of the Bank including, without limitation an assignee or successors of JPMorgan Chase Bank, N.A. or any affiliate or subsidiary of such bank or any person who, under the laws of the jurisdiction of incorporation or domicile, has assumed the rights and obligations of the Bank, affiliate or subsidiary hereunder or to which under such laws the same have been transferred. 17.3 Any terms of any supplement, amendment, agreement, Service Terms or notice that are inconsistent with a provision of the Account Terms shall supersede the Account Terms provision for purposes of the particular account or Service which is the subject thereof. The Account Terms supersede and replace any other account conditions previously sent to the Customer. 17.4 Section headings are for convenience only and shall not affect the meaning of the Account Terms. If any provision of the Account Terms shall be held to be illegal, invalid, or unenforceable the validity of the remaining portions of the Account Terms shall not be affected. 17.5 The Customer represents and warrants that it shall comply with all applicable laws and regulations. The Bank is required to act in accordance with Bank policies, the laws and regulations of various jurisdictions relating to the prevention of money laundering and the implementation of sanctions, including but not limited to regulations issued by the U.S. Office of Foreign Assets Control. The Bank is not obligated to execute Page 6 of 8 payment orders or effect any other transaction where the beneficiary or other payee is a person or entity with whom the Bank is prohibited from doing business by any law or regulation applicable to the Bank, or in any case where compliance would, in the Banks opinion, conflict with applicable law or banking practice or its own policies and procedures. Where the Bank does not execute a payment order or effect a transaction for such reasons, the Bank may take any action required by any law or regulation applicable to the Bank including, without limitation, freezing or blocking funds. Transaction screening may result in delays in the posting of transactions and/or funds availability. 17.6 The Bank may change or update these Account Terms or impose other restrictions on the Accounts or Services, as the Bank deems necessary in the course of its business, at any time, by the sending of notice by means of ordinary mail or through electronic channels. Changes to the Account Terms which are required by law may be implemented immediately or as required by law The Bank may waive any of these Account Terms, but such waiver shall apply only on that occasion. Such waiver shall not constitute a waiver of any other provision of the Account Terms or Account Documentation. Any such waiver shall not affect the Bank's right to enforce any of its rights with respect to other customers or to enforce any of its rights with respect to later transactions with Customer and is not sufficient to modify the terms and conditions of this Agreement. 17.7 To the extent that the Customer has or hereafter may acquire any immunity (including sovereign, crown or similar immunity) from jurisdiction of any court, suit or legal process (whether from service of notice, injunction, attachment, execution or enforcement of any judgment or otherwise) the Customer irrevocably waives and agrees not to claim such immunity. 17.8 The Customer agrees at its sole expense: (i) to advise each of its employees, officers, agents or other persons accessing any Service by or on behalf of Customer ("Users") of their obligations under the Account Terms or under any Service Terms or ancillary Service material, including, but not limited to, the obligation to refrain from using the Service via the Internet in the countries identified by the Bank; and (ii) to provide the Bank with all information reasonably necessary to setup and provide Services for the Customer, including, but not limited to, advising the Bank of the countries from which Users will access any Service via the Internet. Customer shall promptly provide the Bank with a notice of any claims it receives regarding a Service 17.9 The Bank or the Customer, at its sole discretion, may make recordings and retain such recordings of telephone conversations between the Customer and the Bank. 17.10 All payment Instructions, whether Items, payment orders or otherwise, are subject to applicable law and payment system rules. 17.11 The Bank may retain copies (paper, electronic or otherwise) of any documents or Items relating to the Accounts and Services in a form preserving an image of any such documents or Items, including signatures, or a regular business record and discard the original documents or Items. The Customer hereby waives any objection to the use of such records in lieu of their paper equivalents for any purpose and in any forum, venue or jurisdiction, including, without limitation, objections arising from the Bank's role or acquiescence in the destruction of the ariginals. 17.12 All intellectual property rights in or relating to a Service, including any trademarks, service marks, logos, and trade names used in conjunction with a Service are the property of the Bank or its licensors and are protected by applicable copyright, patent, trademark and other intellectual property law Except as provided herein the Customer shall not reproduce, transmit sell display, distribute, establish any hyperlink to, provide access to, modify, or commercially exploit in whole or in part any part of a Service, without the prior written consent of the Bank. 17.13 To assist in the fight against the funding of terrorism and money laundering activities, applicable law or regulations may require financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for the Customer: When the Customer opens an account, the Bank may ask for the Customer's name, address, date of birth (for individuals) and/or other information and documents that will allow the Bank to identify the Customer. The Customer agrees that the Bank also may request and obtain certain information from third parties regarding the Customer. For purposes of this provision, the Customer to the extent required by law or regulation, shall include any signatory on an Account. If the Customer fails to provide or consent to the provision of any such information, the Bank may close any Account or discontinue providing any Service without further notice. 17.14 The Customer agrees that the Bank may deliver make available and/or make accessible terms and conditions applicable to Accounts and Services to the Customer via electronic means and channels (including but not limited to by posting such terms on a Bank website). The Bank may request that the Customer "click' its approval of such terms. Subject to applicable law and regulations, the Customer agrees that the act of "clicking" its approval (or any similar act which has the same effect) with respect to any such terms will be evidence of Customer's acceptance of the applicable terms and conditions, to the same extent, and with the same force and effect, as if Customer had manually executed a written version of such terms and conditions. 18. Disputes over Account Funds. The Bank may refuse to pay out any money from an Account until any dispute over the deposits or funds (including, without limitation any dispute over what persons are authorized to represent or act for the Customer) has been resolved by a court, or by agreement of the parties that is documented to the Bank's satisfaction. The Bank may file an action in interpleader with respect to any money where the Bank has been notified of disputed claims to that money. If any person asserts that a dispute exists, the Bank is not required to determine whether that dispute has merit in order to refuse to pay funds or interplead the funds. The Customer agrees to reimburse the Bank for any expenses including legal and attorneys' fees that the Bank incurs because of any such dispute. 19. Provisional Recredit. Page 7 of 8 In connection with any dispute regarding an Account, the Bank may choose to credit the Account pending completion of the Bank's investigation of the dispute. If the Bank determines that the Customer is not entitled to such credit, then, the Bank may reverse the provisional recredit to the Account, even if that reversal results in an overdraft. Page 8 of 8 v J.P. Morgan Chase provrdes an array of treasury services to meet your business needs. This booklet contains important information about J.P. Morgan Chase solutions that we provide. If you would like to add a service that is covered in this booklet, please contact your Commercial Banking Representative TREASURY SERVICES (United States) Commercial Bank 09 24 13 Welcome to JPMorgan Chase Bank, National Association ("J.P. Morgan', "Chase", or "Bank"). We are pleased that you have decided to maintain a banking relationship with us. This Consolidated Service Terms booklet (Booklet') contains the terms and conditions for certain cash management services ("Service Terms') J.P. Morgan may provide to you. By executing the Account Terms Acceptance Letter, Certificate Regarding Accounts, Business Signature Card, service implementation form or similar document, or by using or continuing to use any of the services referenced herein after receipt of this Booklet, you agree that the Service Terms included in this Booklet, in addition to the Account Terms and such supplements, amendments, notices and additional service terms provided to you from time to time will govern your existing and future deposit accounts maintained with us in addition to those services that the Bank provides to you as applicable. This booklet includes Treasury Services Service Terms applicable to all Commercial Banking customers All Service Terms are subject to the Bank's Account Terms. Any modifications to this Booklet, including but not limited to any changes, amendments, deletions, and/or additions, will not be binding upon the Bank unless such modifications are acknowledged and agreed to it wnting by an officer of JPMorgan Chase. We look forward to serving your business needs and thank you again for choosing Chase. SERVICES FOR COMMERCIAL BANKING CUSTOMERS A. ACH Origination B. ACH Debit Block and Transaction Review C. USD Funds Transfer D. USD Funds Transfer By Check E. Lockbox F. Coin & Currency G. Positive Pay, Reverse Positive Pay & Payee Verification H. Controlled Disbursement I. Image Cash Letter J. Check Print K. ACH Tax Payment Service Terms L Client Access M. Foreign Exchange Payment 0...... n ..G n A The services described herein (each a "Service") are subject to the Bank's Account Terms (as may be amended from time to time), which are hereby incorporated by reference into each Service Terms By using any of the Services described hereunder, the Customer acknowledges that it has received and agreed to the Account Terms, as supplemented by these Service Terms. Capitalized terms in the Service Terms, unless otherwise defined herein, shall have the meanings set forth in the Account Terms Service Terms - Consolidated Service Terms Booklet A. ACH Origination The Automated Clearing House (ACH) is a batch processing payment system that U.S. banks use to exchange and settle credit and debit transactions on behalf of their clients or themselves. The origination of ACH Entries and the transmission and issuance of related transactions and information will be pursuant to these terms and the Operating Rules and Guidelines (collectively the "Rules") of the National Automated Clearing House Association Capitalized terms used in this subpart, unless otherwise defined in this subpart shall have the same meanings as set forth in the Rules. The Customer and the Bank agree to comply with and be bound by the Rules as in effect from time to time, including without limitation, the provision making payment of a Credit Entry by an RDFI to the Receiver provisional until receipt by the RDFI of final settlement for such Credit Entry and the Customer acknowledges that it has received notice of such rule and of the fact that if such settlement is not received, the RDFI will be entitled to a refund from the Receiver of the amount credited and the Customer will not be deemed to have paid the Receiver the amount of such Credit Entry. 1. Service The Bank provides ACH origination Services that will enable the Customer to do one or more of the following: (1) originate ACH Debit Entries; (2) originate ACH Credit Entries; and (3) issue paper drafts in lieu of ACH Debit Entries ("Drafts") In conjunction with originating Entries or Drafts, the Customer may instruct the Bank to issue or transmit pre -notifications requests for reversal or return, notifications of change or other information pertaining to the Entries. Origination of ACH credit Entries and origination of ACH Debit Entries (or Drafts) are two separate Services and approval or setup of one ACH Service does not automatically create the ability to utilize the other. The Rules and these Service Terms shall apply to all Entries, whether or not transmitted through an ACH Operator It is the Customer's responsibility to provide Entries and instructions to the Bank with all the necessary information to complete the Customer's requested transactions. Customer agrees to transmit Entries to Bank in the manner at the times and in accordance with approved media content and format as agreed by Bank and Customer. The Bank may reject or delay processing transactions or information if instructions are not complete or are inaccurate, contain an inactive Company ID or otherwise do not meet the criteria the Bank specifies for acceptance. All instructions to the Bank must be received by the Bank before the Bank's established cutoff time in order for processing to commence on that ACH processing day. Any instruction that is incomplete or that the Bank finishes receiving after the relevant cutoff time will be processed by the Bank on the next day the Bank processes ACH transactions. All transactions are subject to acceptance by the Bank. The Bank will notify the Customer of any transactions or other transmissions that are rejected or returned. If the Customer wants the Bank to reprocess those transactions or transmissions, the Customer must correct them and resubmit them. The Customer agrees to furnish the Bank with copies of any authorizations or notifications, if requested, as well as any other information reasonably requested by Bank relating to Entries originated by the Customer. Customer shall provide Bank's auditors and other personnel with reasonable access at all reasonable times to the Customer's facilities, data and records relating to the initiation of Entries for the purpose of auditing Customer's compliance with these Service Terms and the Rules. 2. Security and Data Protection Procedures; Examination. If the Bank follows agreed upon security procedures, the Bank may process and transmit transactions or information in the Customer's name. Unless the Customer and the Bank otherwise agree, transmissions to the Bank will be authenticated and/or encrypted using commercially reasonable security technologies meeting standards acceptable to the Bank. If the Customer uses a security procedure other than as described in the preceding sentence, the Customer acknowledges that the Customer chose such other security procedure after the Bank offered, and the Customer declined, the option of authenticating or encrypting and the Customer agrees to be bound by any transaction whether or not authorized, issued in the Customer's name and accepted by the Bank in compliance with the security procedure the Customer chose. If the Customer elects not to utilize recommended message authentication and/or encryption technology the Customer assumes all responsibility for unauthorized disclosure or unauthorized access to the Customer's data that occurs during transmission or while such data is in storage. Customer shall not disclose any Receiver's account number or routing number to any third party for such third party's use directly or indirectly, in initiating a separate Debit. The Customer shall provide the Bank with ongoing access, at Bank's request to all Originators' files. Further, upon notice from Bank, the Customer shall provide such auditors and other Bank personnel as Bank may, from time to time, designate in writing with reasonable access at all reasonable times to the Customer's facilities, data and records relating to the initiation of Entries for the purpose of performing audits to verify the Customer's compliance with these Service Terms and the Rules. The Customer shall provide, and shall cause its subcontractors to provide, such auditors and personnel any assistance that they may reasonably require. 3. Settlement and Exposure Limits. Subject to this subpart, on the settlement date, the Bank will credit the Customer's account with the Bank that the Customer specifies for the total of: (1) the Customer's debit Entries that the Bank processed for settlement that day; (2) drafts issued for deposit to the Customer's account on that day and (3) any returned or reversed Credit Entries. The Bank may delay the availability of funds deposited into the Customer's account by debit Entry or draft until those transactions cannot be reversed in accordance with the Rules or applicable law. The Bank will debit the Customer's Account with the Bank that the Customer specifies for the total of credit Entries processed in the Customer's name and for any returned Debit Entries and Drafts. The Bank may require the Customer to pay the Bank the amount of any credit Entries on the date of transmission to the Bank or otherwise prior to the settlement date. The Bank also may require the Customer to maintain collateral with the Bank in an amount the Bank specifies. The Bank may from time to time establish or revise maximum dollar limits for the total value of all outstanding files of credit Entries and/or debit Entries and Drafts that the Bank will release on the Customer's behalf. The Bank may change or cancel the limits at any time without prior notice to the Customer, although the Bank will try to notify the Customer before the Bank does that. 4. Warranties; Indemnity. Except as specified below, the Customer will be deemed to make the same warranties to the Bank as the Bank makes pursuant to the Rules. In the case of an Entry originated to another account with the Bank, warranties will be deemed to be given as of the time the Bank first processes the Entry. The Customer will not be deemed to warrant the power of the Bank under applicable law to comply with the requirements of the Rules or the conformity of Entries and other data the Bank transmits to the file specifications contained in the Rules. The Customer further represents, warrants and covenants that (a) each Entry and Draft it originates will comply with all applicable U.S. laws and regulations and acknowledges that Entries may not be initiated that violate the laws of the United States (b) unless Customer has identified itself to Bank as a Third Party Sender (as defined in Section 7) and obtained Bank's express consent to originate Entries as a Third Party Sender Customer will not originate any Entries, or use any of its Company IDs to originate Entries, on behalf of third parties (including without limitation, any affiliate of Customer), and (c) Customer will not permit a third party to originate Entries using a Customer account as the offset account unless Customer obtains Bank's express consent to do so. The Customer agrees to indemnify the Bank and the Bank's employees, officers directors and agents and hold all of them harmless from and against any and all claims, demands, losses, liabilities or expenses (including attorneys' fees and costs) resulting directly or indirectly from (1) the Customer's breach of any warranty made under this section and (2) compliance by Bank and the RDFI with any request the Customer makes for a cancellation, stop payment, reversal or recall of any Entry Bank shall have no responsibility for any delay by any ACH Operator or RDFI in processing any Entry the Bank transmits to the ACH Operator or failure to process or credit or debit any such Entry. 5. Stop Payments; Reversals and Recalls. Customer's instruction to cancel, stop payment of reverse or recall one or more Entries must be received by Bank in such time and manner as Bank specifies. Bank will process these transactions in accordance with Bank's procedures advised to Customer. Any reversal or recall initiated by Bank is subject to acceptance by the RDFI Entries or other instructions may not be amended or modified. 6. Third -Party Service Providers. The Customer may choose to use a third -party service provider or service bureau to issue Entries or other instructions, handle returned Entries or perform other functions for and on the Customer's behalf. If the Bank accepts such Entries or other instructions, the Customer will be bound by them. The Customer is responsible for all actions taken or not taken by the Customer's provider, and the Customer is responsible for all costs and expenses of the Customer's provider. 7. Third -Party Sender. If the Customer is a Third -Party Sender, as such term is hereafter defined, (a) the Customer warrants that the Originator has agreed to be bound by the Rules and has satisfied the obligations of an Originator under the Rules; (b) in any case where the Originator fads to perform its obligations under the Rules as an Originator, the Customer shall indemnify, defend and hold the Bank harmless from and against any and all claims, demands, losses, liabilities and expenses, including attorneys fees and costs, that result directly or indirectly from the failure of the Originator to perform its obligations as an Originator under the Rules (c) the Customer agrees to cooperate with the Bank regarding any request for information concerning the identity of any Originator; and (d) the Customer represents, warrants and covenants that neither these Service Terms nor anything related to the ACH Origination Services violates, contravenes or is inconsistent with any of the terms conditions or provisions of any agreement, understanding or arrangement between the Customer and the Originator. Further, the Bank will rely on the Customer to evaluate the legitimacy of the Originators and their transactions originated by the Customer and for ensuring that instructions do not involve illegal activities The Customer hereby represents and warrants to Bank that Customer (a) conducts due diligence on each Originator for which the Customer is initiating Entries in accordance with "Know Your Customer" policies and procedures maintained by Customer that provide for the gathering of information relating to the originator's principal business activities and geographic location and verification that the Originator is operating a legitimate business and (b) regularly monitors its Originator's transactions for suspicious activities. Upon request by the Bank, the Customer shall promptly provide to the Bank Customer's written due diligence policies and procedures and results of monitoring activities. The Customer must notify the Bank immediately if the Customer suspects or becomes aware of any activity or transaction of an Originator that the Customer believes may be of an illegal or illegitimate nature or that involves the proceeds of illegal activity or that was conducted in part or whole, for the purpose of disguising the source of funds. The Bank will be entitled at any time upon notice to the Customer to decline to provide the ACH Origination Services, or terminate the provision of ACH Origination Services, for any Originator on whose behalf the Customer is originating Entries if the Bank determines that there are excessive returns or reversals of Entries originated on behalf of such Originator or if the Bank becomes aware of any information indicating suspicious fraudulent or illegal activity related to such Originator or for any other reason. Customer shall provide the Bank with ongoing access at Bank's request, to all Originators' files. Further, upon notice from the Bank, the Customer shall provide such auditors and other Bank personnel as the Bank may, from time to time, designate in writing with reasonable access at all reasonable times to the Customer's facilities, data and records relating to the initiation of Entries for the purpose of performing audits to verify the Customer's compliance with this section. As used herein, "Third Party Sender' means an entity that is not an Originator, that has authorized an ODFI or another Third Party Sender to transmit, for the account of the Third Party Sender or another Third Party Sender, (i) a credit entry to the account of a Receiver in order to effect a payment from the Originator (i e., the third party on whose behalf the Third Party Sender is transmitting the entry) to the Receiver or (it) a debit entry to the account of a Receiver in order to effect a payment from the Receiver to the Origmator(i.e., the third party on whose behalf the Third Party Sender is transmitting the entry). Without limitation of the foregoing, Third Party Senders include U.S. regulated financial institutions, brokers and other financial intermediaries as well as any other regulated or unregulated payment processors that are customers of the Bank and use their accounts to process payments for third parties (including affiliates of the customer) IAT Entries. If Customer is originating Entries that are required to be formatted under the Rules as IAT Entries, Customer will comply with all applicable Rules relating thereto, and Customer will originate such Entries only through one of Bank's ACH origination channels that support IAT origination. Some of Bank's ACH origination channels do not accommodate IAT Entries; upon request, the Bank will advise Customer as to which of Bank's ACH origination channels can be used for IAT origination. If a foreign currency conversion is performed by Bank in connection with an IAT Entry, Customer acknowledges that the foreign currency exchange rates fluctuate, and accepts the risk of such fluctuation, including fluctuations in rate between the time Customer submits the Entry Data Instructions and the time the transaction is executed and/or reversed, returned or recalled. Any payment returns and/or reversals will be credited to Customer's account in the currency in which Customer's account is denominated, and Customer is responsible for any rate fluctuations. In the event of an erroneous or duplicate IAT Entry originated for payment to a receiving bank outside the United States, the rights of Bank and Customer with respect to reversal or recall of such Entry are subject to the laws, regulations and payment system rules of the receiving bank's jurisdiction. Customer acknowledges and agrees that IAT Entries may be delayed in processing or posting due to the Bank's or RDFI's review of such Entries for OFAC compliance Further, Customer understands and acknowledges that unlike PPD Credit Entries, there is no requirement under the Rules that IAT Credit Entries that are made available to an RDFI by its ACH operator by 5:00 pm on the banking day prior to the Settlement Date be made available to the Receiver at the opening of business on the Settlement Date; cleared IAT Credit Entries must be made available no later than the Settlement Date of the entry, but funds are not required to be available at opening of business on the Settlement Date. 9. Termination. In addition to Bank's termination rights under the aforementioned documentation, Bank shall have the right to terminate or suspend these Service Terms and the Services upon notice to Customer in the event of the Customer s breach of the Rules. B. ACH Debit Block & ACH Transaction Review ACH Debit Block is a Service that allows a customer to return ACH debit entries originated to the Customer's account with the Bank. ACH Transaction review allows the Customer to review ACH debit and credit entries originated and posted to the Customer's account with the Bank and to instruct the Bank to return some or all of these transactions. 1. ACH Debit Block: (a) Service. The Customer can select from a variety of authorization or blocking criteria and advise the Bank in a manner and form acceptable to the Bank. The Bank will return any blocked transaction indicating that the ACH debit was not authorized. (b) Company ID Numbers. If the Customer elects an option that blocks or allows ACH debits from specified companies, the Customer must supply the Bank with the applicable ACH Company ID Number of the Originator as it appears on the Company/Batch Header Record. The Company ID Number will be the sole criterion for blocking Debit Entries (unless Customer has also set maximum dollar limits) and Bank will have no obligation to take any other steps to determine the identity of the Originator. The Customer will be solely responsible for obtaining the correct Company ID Number for each such Originator. The Customer understands that Company ID Numbers are not unique and that a Company ID Number may identify more than one Originator and one Originator may have multiple Company ID Numbers. The Customer understands that Company ID Numbers are not a perfect filter and that transactions from Originators may be blocked or allowed if the Originator uses a Company ID Number other than the one Customer identifies. The Bank will not be responsible for transactions blocked or allowed in accordance with the instructions the Customer provides for the Company ID Number. (c) Debits Not Affected by Blocking. ACH debit blocks do not apply to certain transactions. The following types of ACH-related debits will not be blocked: • debits to the Customer's account to offset any ACH credit Entries originated by the Customer through Bank; • reversals of previously received ACH credit Entries* • returns or reversals by the RDFI of ACH Debit Entries originated by the Customer through the Bank; • Reclamation Entries; • debits to the Customer's account initiated by the Bank or Bank's agent to correct processing errors, effect back valuations, make other adjustments or for fees, charges or other amounts the Customer owes the Bank; and • debits to the Customer's account that the Bank posts pursuant to its internal procedures in order to comply with applicable law, regulations or payment system rules or guidance 2. ACH Transaction Review: (a) The Customer shall use filter criteria available through the service to select the types or categories of incoming ACH debit and/or credit transactions to be reviewed or the Customer may elect to review all incoming ACH transactions subject to Section 2(d) below. (b) Based upon the filter criteria selected by the Customer, ACH transactions meeting that criteria will be made available for the Customer to review not later than a designated time on the banking day following the day on which the transactions are posted to the Customer's account. The details provided by the Bank for each Entry will include account number, dollar amount, company ID, receivers name, standard entry class code and settlement date. (c) The Customer shall advise the Bank by means of an agreed upon transmission method not later than the Bank's designated cutoff time on the same day as transaction information is made available for those transactions if any, that are unauthorized and that the Customer wishes to return. The Bank is entitled to rely on any instructions that it receives and that it reasonably believes to be genuine. The Bank shall return all such transactions and make corresponding adjustments to the Customer's account to which the transactions had been posted. All transactions reported to the Customer as to which Bank does not receive a timely return instruction from the Customer will remain posted. (d) The following types of ACH transactions will not be made available for the Customer's review and decisioning: • debits or credits to the Customer's account to offset any ACH Entries originated by the Customer through the Bank; • reversals of previously received ACH Entries; • returns or reversals by the RDFI of ACH Entries originated by the Customer through the Bank; • Reclamation Entries' • debits or credits to the Customer's account initiated by the Bank or Bank's agent to correct processing errors, effect back valuations, make other adjustments, or to comply with legal requirements or for fees or charges the Customer owes the Bank; and • if the Customer is also subscribing to the ACH Debit Block service, any transactions blocked and returned pursuant to that service. (e) Certain transactions reviewed and approved by the Customer may nevertheless be returned by the Bank. This will happen if (i) there are insufficient funds in the Customer's account to cover the amount of an ACH debit or other charge, (ii) a stop payment was previously placed on the transaction or (uq the Bank determines the transaction must be returned for legal or regulatory reasons Certain transactions that the Customer advises should be returned may nevertheless be posted by the Bank; these include ACH debits or credits to the Customer's account that the Bank posts pursuant to its internal procedures in order to comply with applicable law regulations or payment system rules or guidance. C U.S Funds Transfer J.P. Morgan's Funds Transfer Service enables the electronic transfer and settlement of funds between the Customer and a beneficiary of the payment to destinations around the world. Customers use USD funds transfer services (as opposed to checks or ACH payment services) when they seek same -day settlement with intraday finality and irrevocability of payments. 1. Service. The Customer may issue payment orders against its accounts with the Bank by means of SWIFT, electronically, by telephone or by such other method as the Customer and the Bank may agree upon. All funds transfer instructions sent to the Bank shall be in the format specified by the Bank and must be received by the Bank no later than such time as may be established by the Bank upon notice to the Customer The Bank will determine the order in which it processes payment orders. If the Customer's payment order bears the codeword "PRIORITY" or "TIMED" in such field as the Bank specifies the Bank will use reasonable efforts to move such payment order to the front of the Bank's processing queue, and such payment shall be handled in accordance with the Bank's procedures for processing such payments Security Procedures. All payment orders and communications requesting amendment of payment orders issued in the Customer's name are subject to verification by the Bank in accordance with the security procedures agreed upon between the Customer and the Bank. Such security procedures may be set forth in written agreements between the Customer and the Bank. 3. Advices. The Customer may subscribe to Bank services for the delivery of account -related activity and information ("Advices"), to a party designated by the Customer, including but not limited to information relating to credits and debits to a Customer account, and the return or rejection of certain payments. Advices may be sent via SWIFT or to devices capable of receiving text messages, such as alphanumeric pagers and cellular phones, or as otherwise agreed upon by the parties. The Customer is responsible for maintaining the accuracy of the information that is required to deliver such Advices, including but not limited to the address and/or telephone number of the recipient and, if applicable, the messaging components and conditions that will trigger the transmission of the Advices. 4. Processing. The Bank reserves the right to use any funds transfer system and any intermediary bank in the execution of any funds transfer Instruction and may otherwise use any means of executing the funds transfer Instruction which the Bank deems reasonable in the circumstances. The Bank and other financial institutions may rely upon the identifying number of the beneficiary, the beneficiary's bank or any intermediary bank included in the funds transfer. Also, the beneficiary's bank in the funds transfer Instruction may make payment on the basis of the identifying number even though it identifies a person different from the named beneficiary. 5. Same -Day Amendment and Cancellation Service. The Customer may subscribe to a service to enable same -day amendment and cancellation of payment orders. Once the Bank has expressly approved the customer's use of the service, all cancellation or amendment messages sent to the Bank shall be in the format specified by the Bank and must be received by the Bank no later than such time as may be established by the Bank upon notice to the Customer. Reference Pattern Search. The Customer may subscribe to a service to enable the Customer to instruct the Bank to repair information on incoming and outgoing payment orders, and to perform additional services related to beneficiary deduction services. The Customer shall comply with such formatting requirements specified by the Bank in connection with such services. In connection with beneficiary deduction services, the Customer represents and warrants that it has obtained all necessary authorizations to enable the Bank to deduct transaction charges from the funds transfer amount payable to the beneficiary. D. U.S Funds Transfer by Check J.P. Morgan's U.S. Funds Transfer by Check Service allows the Customer to instruct the Bank (as the Customer's agent) to draw U.S. dollar checks ("Disbursement Checks") payable to the order of payees and in amounts designated by the Customer for distribution. 1. Requests for Disbursement Checks. All requests for Disbursement Checks must be transmitted to the Bank via authenticated SWIFT transmission, or one of the Bank's proprietary access mechanisms. The Customer shall transmit the requests in such format as the Bank specifies from time to time. The Bank may (but shall have no obligation to) process requests that do not conform to these Service Terms and may impose additional fees for such processing. 2. Issuance. Unless the Customer specifies a future issuance date in the Customer's request, each Disbursement Check will be issued within one banking day of the day on which the Bank receives the issuance request. The Bank will not honor requests to draw Disbursement Checks to any person or entity with whom or with which the Bank is prohibited to do business by law or regulation, or in any case where compliance would, in the Bank's judgment, conflict with applicable law or good banking practice. Disbursement Checks will be signed by the Bank on the Customer's behalf substantially as follows: Drawer: [Customer Name] By: JPMorgan Chase Bank, N.A. as Agent for the Above -Named Drawer As of the day a Disbursement Check is issued, the Bank will debit the Customer's designated demand deposit account in the amount of the issuance instruction 3. Stop Payments Orders. The Customer may issue a stop payment order in respect of any Disbursement Check only by a message sent via authenticated SWIFT to a Bank location to be designated by the Bank and in the format designated by the Bank from time to time. Any stop payment order must include the reference number assigned by the Bank to the Customer's request for the issuance of such Disbursement Check. The Customer shall pay a service fee for each stop payment order in the amount then in effect at such time the Customer issues the stop payment request. E. Lockbox Lockbox is a remittance processing Service offered to customers to support their accounts receivables business needs. Through this service, the Customer's remittance deposits are sent to a Post Office Box and picked up by the Bank and delivered to or via courier for further processing and posting to the Customer's deposit account. 1. Service. The Bank will maintain the Post Office Box for the Customer's remittances and will have unrestricted and exclusive access to the Post Office Box while providing the Lockbox Service Customers requiring Caller Service or Business Reply Mail Service for remittance collection must obtain prior approval from the Bank. Upon approval, the Customer will secure such services directly with the United States Postal Service (the "USPS") and ensure the Bank is authorized to collect the mail. The Bank shall not be responsible for delays in processing due to the Customer's failure to pay the USPS for such services or any other action taken or not taken by USPS. The Bank may direct clients to include specific codes or formats within their assigned address in order to ensure mail is identified correctly. The Customer is responsible for ensuring their customers' remittances are properly addressed in order to prevent delays in processing. 2. Deposit; Endorsement. The Bank will collect all mad delivered to the designated Post Office Box, and will open the mail, process the checks eligible for this service (the "Items") and credit the funds to the Customer account or process for collection the Items received, except: i) o...... _7 ..s nn Items which the Customer has instructed the Bank in writing, and the Bank has agreed not to process it) Items which the Bank believes should receive the Customer's special attention; iii) Items for which the Customer is not the payee, unless the Customer has provided proper authorization to process for credit or collection of such Items; and iv) any other matter or merchandise received. The Bank will not process such excepted Items or other matters or merchandise, but will forward them to the Customer unprocessed. The Bank assumes no responsibility for the inadvertent processing of Items excepted from processing The Bank will process credit card payments as point of sale transactions, obtaining authorization as required by applicable card rules; provided, however the Bank will not place phone calls for authorization of referrals or process credit transactions. The Bank shall not be deemed a merchant processor and shall not be liable for any data entry errors or any chargeback. The Bank assumes no liability for any matter or merchandise received through the Post Office which is not a depositable Item, including cash Any failure by the Bank to process an Item other than as provided herein does not constitute a failure by the Bank to exercise ordinary care The Customer shall be liable to the Bank as a general endorser on all Items processed by the Bank. 3. Differing Amounts. If the amount of an Item written in words and figures differ, the Item will be processed for amount written in words. If the Item is accompanied by an invoice or statement and the amount on the statement matches the amount written in figures, and the Customer has requested, and the Bank has agreed, to process such Item for the amount written in figures, the Item may be processed for the amount written in figures. In the event the Bank processes the Item for the amount written in figures, the Customer indemnifies the Bank for any claim which may arise from that action 4. Foreign Items. This Service is limited to Items drawn on domestic banks so to the extent the Bank notices that any Items drawn on foreign banks have been deposited, such Items shall be forwarded to Customer as unprocessable. 5. Returned Items; Re -presentment. If any Item is returned to the Bank unpaid for any reason or there is a claim involving an Item deposited to the Customer Account, the Bank will charge back that Item, together with any fees or other amounts allowed on such claims or for returned Items, against the Customer Account, regardless of whether such debit causes an overdraft to the Customer Account. If, however, the Bank has been instructed in writing by the Customer to re -present Items which have been dishonored or returned to the Bank unpaid for reasons other than account closed, the Bank may do so automatically and without notice to the Customer, and the Bank reserves the same rights to debit the Customer Account should any such Items remain unpaid after the re -presentment. 6. Security for Imaged Items. The Bank has specified Security Procedures for receiving and accessing Imaged Items, Imaged Documents and lockbox transaction data. The Bank is not obligated to send any images or data or allow access through the Delivery Media to any images or data which are not requested or accessed in accordance with the Security Procedures. The Customer acknowledges that once a CD-ROM is received, or it has accessed images by any Delivery Media, persons having access to the Customer's computers and image archives may have access to the Imaged Items, Imaged Documents and lockbox transaction data. 7. Image Option. If the Customer elects and this image option is available at the designated Bank processing location, the Bank will provide images of the Items ("Imaged Items") received together with images of related documents ("Imaged Documents') through the media (' Delivery Media") and at the intervals agreed upon between the Bank and the Customer The Customer may receive additional service material, including user guides software licenses and other terms in connection with the selection of this option. 8. Original Documents, Image Storage. Unless the Bank has agreed otherwise, the Bank will image all Items and associated remittances and retain original documents on site for no longer than 14 days. All original documents will be destroyed 14 days after processing. If the Customer uses the Bank's Regional Retail Lockbox product, associated original documents are retained on site no longer than 7 days. The Bank will store Imaged Items for a period of seven (7) years from the date of the applicable transaction regardless of any additional imaging service requested by the Customer. If the Customer elects storage of Imaged Documents, the Bank will store Imaged Documents for a period of thirty (30) days (Short Term Storage) to ten (10) years (Long Term Storage) from the processing date of the applicable transaction. per the Customer's selection If the Customer elects to image and not store Imaged Documents with the Bank, such images will be delivered to the Customer via daily Direct Image Transmission. 9. Accuracy; Legibility. The information delivered to the Customer through the Delivery Media will be the same as the information in the data entry file provided to the Customer for the applicable time period. If the data entry file contains errors those errors will also occur on the Delivery Media The Bank will provide images that are as legible as possible given the legibility of the underlying remittance documents and the selected Delivery Media. The Bank has no liability or responsibility for the condition of the original remittance items provided to the Bank, and it reserves the right to review and approve sample remittance items for legibility prior to providing this service. The Customer is responsible for reviewing images obtained through the Delivery Media and to promptly notify the Bank of any images that are not clear. 10. Disclosures. As between the Customer and the Customer's clients, if applicable, certain payments collected hereunder may be subject to various cut-off times and payment deadlines (the 'Disclosures'). The Customer acknowledges and agrees that the Bank has no duty to inquire as to the content of any such Disclosures is not bound by them and makes no representations or warranties, explicitly or implicitly, regarding same. The Customer is responsible for ensuring that the processing and payment cut-off times established by the Bank are in compliance with the Disclosures and Customer's responsibilities under applicable laws and regulations. The Customer further acknowledges and agrees that the data processed by the Bank belongs to the Customer or the Customer's clients. E. Coin & Currency Coin and Currency Services, also referred to as Cash Vault Services, provides coin and currency delivery and deposit services to companies that use large quantities of cash. With a nationwide vault network, Customers can place orders for currency, make deposits 24/7 and track activity by location through electronic reporting options. 1. Cash Orders. The Customer may issue written instructions for the Bank to deliver coin and currency to an armored courier service as designated by the Customer (the "Courier") in accordance with the Bank's guidelines ("Cash Order'). The Customer acknowledges that orders for cash can be transmitted to the Bank only during such time as set forth in the Cash Order. The Bank is authorized to debit the Customer's designated account for the amount set forth in the Cash Order (the 'Cash'). If the Bank has agreed to such an arrangement, the Customer may also place a Cash Order directly at one of its branch locations by issuing a check to debit the Customer's account at the Bank or as a "cash for cash" exchange. The Bank and the Customer may agree to a limit on the amount of Cash that may be delivered pursuant to a Cash Order ("Cash Limit"). 2. Cancellations and Amendments. A Cash Order may be cancelled by the Customer orally, telephonically, electronically or in writing by a person the Bank reasonably believes to be authorized to act for the Customer and only if the cancellation is received within a reasonable time before the Cash is delivered to the Courier ("Cancellation"). A Cash Order may only be amended orally or telephonically and the Bank will not be responsible for any change in a Cash Order it has received. Any attempt to amend a Cash Order electronically may result in duplicate Cash being delivered or other error, at the sole risk of the Customer. 3. Notice of Rejection/Execution. If the Bank rejects a Cash Order request, it will promptly notify the Customer of the reason. The Bank will notify the Customer when it has executed a Cash Order. Unless, within three (3) business days after receipt of notification of the execution of a Cash Order, the Customer notifies the Bank in writing that a Cash Order was unauthorized or otherwise unenforceable against the Customer, the Bank shall not be liable for executing the Cash Order as notified, including any loss of interest. 4. Security Procedure. The Bank must receive a Cash Order using a touch-tone telephone, or other electronic communications device mutually agreed upon by the Customer and the Bank, based upon codes assigned by the Bank to the Customer that identify the Customer and the location (collectively, "Codes"). The Customer agrees that: (a) use of Codes constitutes a security procedure for verifying the authenticity of a Cash Order as being that of the Customer ("Security Procedure"); and (b) the Customer is bound by any Cash Order, the authenticity of which is verified as being that of the Customer by the Bank using the Security Procedure; and any Cancellation. The Customer and the Bank will maintain reasonable security and control of the Codes The Bank is not responsible or liable for detecting any error in the transmission or content of any Cash Order or Cancellation and the Security Procedure is not intended to detect any such error. No agreement or instruction of the Customer restricting acceptance of any Cash Order or Cancellation is binding on the Bank, except as set forth in these Service Terms or in a writing signed by the Customer and the Bank. These Security Procedures do not apply to Cash Order requests made by the Customer at one of our branch locations when the Customer is making a "cash for cash" exchange or issuing a check to debit the Customer's account at the Bank. Courier Service. The Customer may deliver and pick up shipments of cash or checks to or from the Bank by using the services of a courier that has been authorized by the Bank, who will act solely as the Customer's agent. The courier must comply with the Bank's guidelines, as amended from time to time, and must maintain all licenses and permits required by law in addition to adequate insurance to cover its liabilities in providing courier services. The Bank may refuse to permit any courier to enter its premises with or without cause, in which case the Bank will use reasonable efforts to promptly notify the Customer. With regard to Customer's couriers, Customer is responsible for any individual's actions while at the Bank's facilities including theft, property damage, intentional crimes and any other act or omission even if such actions would be considered outside the scope of their employment and whether the individual is impersonating an employee of the courier if the Bank has followed its customary procedures for identifying the individual. 6. Deposit Presentment and Processing. With regard to deposits delivered to one of the Bank's vault areas, the Customer must deliver deposits in sealed tamper -proof plastic security deposit bags that meet the standards described in the Bank's guidelines and contain only cash, coin and checks. The bags may also contain food stamps if the Customer provides proof satisfactory to the Bank of the Customer's authority to redeem food stamps. The Bank will open the bags and process the deposits. (a) Delivery to Vault. If the Bank agrees to accept the Customer deposits at a vault location, the Bank will provide a receipt indicating the number of bags it has received. This receipt is not an acknowledgment of the contents of any bag, nor is any telephonic or other acknowledgment of a deposit. (b) Delivery to Branch for Delayed Processing. If the Bank agrees to accept the Customer deposits at a branch location, the Bank will not verify the amount of the deposits at the time of receipt but will provide the Customer with a receipt showing the amount indicated in the Customer's deposit slip. This receipt is not an acknowledgment of the contents of any bag (c) Delivery to Unattended Facility. If the Bank agrees to allow the Customer to use one of the Bank's unattended facilities (including but not limited to a night depository or commercial ATM) the Bank may provide the Customer with an access device (such as a key or card that may require a personal identification number (' PIN'). The Customer must return all access devices to the Bank upon request. We will process any deposits delivered to an unattended facility as provided for in the Bank's guidelines. If the Customer receives a receipt from an unattended facility, the receipt is not an acknowledgment of the contents of any bag or of the receipt of any bag. While the Customer or the Customer's Courier is physically present at one of the Bank s unattended facilities, the Customer is a licensee only and the Bank has no responsibility for the safety of the Customer or its Courier while at such facility. 7. Discrepancies. All deposits are subject to verification. If there are differences between the amount credited by the Bank and the amount shown on the deposit slip prepared by the Customer or the receipt provided to the Customer or its Courier upon initial presentment the count will be recounted The Bank's determination and records as to its receipt of any bag and as to the contents of any bag is conclusive and binding on the Customer, and the Bank may correct any credit made to the Customer's account. The Bank will notify the Customer's representative designated in the service implementation questionnaire if the difference is more than the minimum amount specified in the Bank's guidelines. All Cash Orders must be validated by the Customer within 24 hours of receipt. If a currency strap, coin bag or wrapped coin difference is identified, contact Cash Services Customer Support at 888-872-0517 to request a Cash Order Claim Form. The completed form and proper documentation must be postmarked within 48 hours of receipt of the Cash Order. Any claims postmarked after the 48-hour period will be denied and Customer will have no right to request or receive an adjustment after such time period. 8. Relationship upon Delivery of Bags. Until the Bank recounts the contents of the bags and enters a final credit to the Customer's account as provided in these terms, the Bank is not responsible for any authorized contents or the value of any such authorized contents based upon any deposit ticket included with the bag. 9. Liability at Unattended Facility. The Customer assumes all risks of using any unattended facilities, including risks of theft, robbery and personal injury; the Bank is not responsible if a facility fads to operate properly in any way, including failing to open, close, lock or unlock. It is the Customer's responsibility to verify that its bags have dropped down completely into the facility and the Customer agrees that it will not leave any bags in any facility that does not appear to be operating properly. The Bank will not be liable to the Customer if any unattended facility, tele-entry or online system is closed or otherwise unavailable for use at any time. G. Positive Pay, Reverse Positive Pay and Payee Verification Positive Pay, Reverse Positive Pay and Payee Verification services help prevent check fraud on Customers accounts by identifying discrepancies between checks presented to the Bank for payment and those checks issued by Customers. With Positive Pay, the Customer sends check issuance information to the Bank and the Bank compares such information to checks being presented for payment. With Reverse Positive Pay, the Bank sends the Customer information on checks being presented for payment and the Customer does its own comparison. Payee Verification is an enhanced feature for Positive Pay whereby the Customer includes payee name information and the Bank compares such information against the payee names on checks being presented. As a condition precedent for receiving Payee Verification the Customer must be receiving Positive Pay in connection with the same Account. 1. Issuance Information. The following information is defined as "Issuance Information" for each Item: i) Account number; ii) Item serial number; uQ dollar amount; iv) issue date [for Positive Pay and Payee Verification only] and v) the payee name [for Payee Verification only] For Positive Pay and Payee Verification, the Customer will provide the Bank the Issuance Information by the Banking Day on which the Customer issues Items, by means of a mutually agreed upon transmission method the Issuance Information. The Bank will compare the Issuance Information with the Items presented to the Bank for payment against the Account For Reverse Positive Pay, the Bank will send the Customer the Issuance Information and the Customer will compare such information with the checks they have issued. 2. Discrepancies. For Positive Pay and Payee Verification, if Items are presented to the Bank for which it has not received timely Issuance Information or containing information different from the Issuance Information for that Item, the Bank will notify the Customer by means of a mutually agreed upon method, by the designated time of the Banking Day following the Banking Day the Item is presented. The Customer shall advise the Bank by means of a mutually agreed upon method by the designated time on that same Banking Day whether any such Item is authorized for payment ("Presentment Decision"). In the event that the Customer fails to timely inform the Bank about any Item for which a Presentment Decision is requested, as required above the Bank is authorized to return such Item unless otherwise agreed by the Customer and the Bank. For Reverse Positive Pay, the Bank will provide Issuance Information to the Customer of Items presented for payment; the Customer shall advise the Bank by means of a mutually agreed upon method by the designated time on that same Banking Day whether any such Item is authorized for payment; and in the event that the Customer fails to timely inform the Bank as required, the Bank is authorized to pay such Item(s) unless otherwise agreed by the Customer and the Bank. The Bank is entitled to rely on any instructions that it receives and reasonably believes to be genuine. 3. Payee Verification Additional Terms. For Payee Verification, Customer acknowledges that Items that have been converted to ACH transactions prior to being presented for payment will not be eligible for this service and the payee name information will not be compared to the Issuance Information for Items that have been converted to ACH transactions. If the Customer fails to provide the Issuance Information in the file format required by the Bank, the Bank will not be liable for not detecting any discrepancy between the Item and the Issuance Information or for processing such Item. The Bank reserves the right to set a threshold amount for Items (as may be revised by the Bank from time to time) to be reviewed under the Payee Verification (the "Threshold Amount"). The Items below the Threshold Amount will be handled according to the standard Account Documentation governing the Customer's Account; however, the Customer will not be liable for such Items if the discrepancy would have otherwise been detected under this Service. With regard to payee name comparison, the Bank will compare the payee name provided in the Issuance Information to the payee lines in the name/address block identified on the Item presented as provided for in the Bank's setup requirements and will be limited to those parameters specifically agreed to by the Customer and Bank. 4. Voided Items. The Customer agrees to place a void on an Item in the Issuance Information only with respect to Items that are not in circulation. If the Customer wants to stop pay on a check that has been issued, the Customer is required to issue any Stop Payment request pursuant to the Bank's Account Terms, outside of these services. 5. Item Payment. The Bank is not obligated to maintain signature cards for the Account and whether or not the Bank does maintain such signature cards; in no event shall the Bank be obligated to inspect any check for the presence or authenticity of any signature or to determine whether any signature is authorized. The Customer acknowledges that the Bank's adherence to these procedures in these terms, in lieu of signature examination, will constitute the exercise of good faith and ordinary care by the Bank in handling Items presented for payment against the Account. 6. Over the Counter Presentment. The Bank may, without liability to the Customer, refuse to pay any Item presented for encashment at any of the Bank's branch locations. If an Item is presented for encashment at one of the Bank's branch locations at the teller line, the Customer authorizes the Bank to pay such Item based upon the Positive Pay information at the teller line. The Bank may charge a person who cashes an Item drawn on the Customer's Account a fee at the time of encashment. H. Controlled Disbursements Controlled Disbursement Accounts help customers effectively manage the disbursement process to gain control over idle balances and automate funding transfers and is designed to provide disbursement totals early each business day. 1. Controlled Disbursement Account. Each Controlled Disbursement Account, except as set forth herein, shall be opened and maintained in accordance with the Bank's Account Documentation. Customer agrees that if it fails to utilize one of the Bank's positive pay services on the Controlled Disbursement Account, that failure will constitute Customer negligence contributing to the making of any unauthorized signature and Customer assumes the risk that Items presented against the Controlled Disbursement Account may be forged or altered, to the extent that the positive pay services the Bank offers may have prevented any loss The Bank will have no liability for any loss related to an Item presented against the Controlled Disbursement Account which would otherwise generally have been returned under such positive pay services. 2. Payment of Items. Bank, on each banking day, will advise Customer of the total amount of Items drawn against the Controlled Disbursement Accounts that are presented for payment, on that day, to the Bank by a Federal Reserve Bank or another depository institution pursuant to a same -day settlement arrangement. Bank will honor checks or drafts ("Items") which are properly payable, but shall have no obligation to pay any Item should sufficient immediately available funds to cover such Items not be transferred to the Controlled Disbursement Account in accordance with these Service Terms and the Account Documentation. Over -the -Counter Presentment. Bank may, without liability to Customer, refuse to pay any Item presented for encashment at any of the Bank's branch locations. 4. Funding Account for Controlled Disbursement. Customer will maintain with Bank a designated account for purposes of funding the Controlled Disbursement Account, or the funding account may be maintained at an affiliated bank or other financial institution (the "Funding Account"). Customer authorizes Bank to debit the Funding Account for the total amount of the Items presented and any funds transfers against the Controlled Disbursement Account, and to promptly transfer such amount to the Controlled Disbursement Account even though such a debit may bring about or increase an overdraft All funds transfers from the Funding Account to the Controlled Disbursement Account shall be in immediately available funds. Customer will maintain sufficient available funds in the Funding Account to cover Items and funds transfers presented against the Controlled Disbursement Account, and the Bank shall have no obligation to transfer funds, process Items for payment or complete any funds transfers unless there are sufficient available funds in the Funding Account. The Bank is authorized to debit the Funding Account for any obligations owed directly or indirectly on the Controlled Disbursement Account The Bank shall not be liable for failure to pay any Item presented for payment against any Controlled Disbursement Account due to insufficient funds in the Funding Account. Media. Bank will transmit to Customer by the transmission method or media agreed to by Customer and Bank information regarding Customer's Controlled Disbursement Account. 6. Routing Transit Number. Customer agrees to use the designated controlled disbursement account routing transit number on the Items it issues from the Controlled Disbursement Account Customer acknowledges that if it fails to use such designated controlled disbursement account routing transit number the Bank is authorized to terminate this Service or any Service feature upon notice to the Customer. Financial Condition. In the event of the deterioration of the financial condition of the Customer, as determined in the Bank's sole discretion, the Bank may immediately terminate the Service, any Service feature, and/or may convert any Controlled Disbursement Account to a stand-alone demand deposit account without prior notice to the Customer. 8. Third Party Usage. Customer agrees that it will not permit a third party to write checks on or otherwise issue payment transactions or instructions on Customer's Controlled Disbursement Account. Customer agrees to indemnify and hold Bank harmless from and against any and all actions, claims, demands, losses, liabilities or expenses whatsoever, including attorney's fees and costs, resulting directly or indirectly 0...... 44 re 7A from Customer's breach of this Section. This indemnity shall survive the termination of these Service Terms. Notwithstanding anything to the contrary, Customer acknowledges that, if Customer breaches this Section, Bank may immediately terminate this Service or any Service feature upon notice to the Customer. I. Image Cash Letter The Image Cash Letter Service allows the Customer to make certain deposits electronically by using a capture device to create an electronic image of a paper check and transmit it and related data to the Bank. As part of the Service, the Customer must use software and hardware provided by or acceptable to the Bank. 1. Transmission and Processing. The Customer shall provide through its own methods or devices the captured check images and check data, including the magnetic ink character recognition formatting (MICR) information through electronic transmissions (the Transmissions") in the format and specifications required by the Bank's File Standards and within the cutoff times provided by the Bank. The Customer authorizes the Bank to process the Transmissions as Substitute Checks, Electronic Images or Photos in Lieu, as may be applicable for further clearing through or with any other financial institution clearinghouse or Federal Reserve Bank. If the Customer has chosen to have items processed as ACH transactions, the Bank will convert eligible items to ARC or POP entries, as defined and provided for in the ACH Origination Service Terms. The Customer agrees that it is solely responsible for the creation and sending of these Transmissions to the Bank. If any Transmission (including any source document for purposes of these Service Terms) does not meet the Bank's or any transferee's standard requirements for processing the Customer assumes all risk of loss or delay in processing such Transmission and authorizes the Bank to either (a) return the Transmission to the Customer without further processing, (b) process the Transmission as sent from the Customer, (c) process the Items as photocopies in lieu of the originals or (d) repair or attempt to repair the Transmission for further processing. 2. Image Cash Letter File Deposit Time. The Transmissions must be sent to the Bank prior to the deposit deadline. Any Transmission will be deemed to have been received when the entire file has been written onto the Bank s system and made available for the Bank to validate Based upon the size of the Transmission file, there may be a significant delay between the time Customer begins to send the file and the completion of the transfer as stated above. As a result, the Customer will make every effort to send the Transmission file as early as possible. Files that are received after a deposit deadline will be considered deposited as of the next deposit deadline. Processing fees and funds availability will be assessed based on the deposit deadline that is met. 3. Customer Responsibility. The Customer shall be solely responsible if any Transmission for which the Customer has been given provisional credit is returned or reversed, and neither the Bank nor its subcontractors shall be liable or responsible for same. The Customer acknowledges that all credits received for deposit are provisional, subject to verification final settlement or return. Information and data reported hereunder: (a) may be received prior to final posting and confirmation and is subject to correction and (b) is for informational purposes only and may not be relied upon. The Customer agrees that the Bank shall have no liability for the content of payment -related information. The Customer shall be solely responsible for the original checks, including storage and retrieval. The Customer agrees to provide a legible copy of an image or the original check if requested by the Bank within five (5) business days of such request. If the Customer is unable to provide the original or legible copy, the Customer shall be liable for any associated loss or claim involving the check Suspension/Cancellation of Service. The Bank reserves the right to suspend or terminate the Service, in whole or in part if the Bank believes Customer is in breach of these Service Terms or is otherwise using or accessing the service in a mariner inconsistent with the rules and regulations relating to the service being provided and such breach. Further, this service will automatically terminate if the Customer's account with the Bank is closed for any reason. Either party may terminate the service upon thirty (30) days prior written notice to the other party; provided, however, that the terms of Section 10 will apply to any termination prior to the time period set forth in the pricing schedule. 5. Warranties. (a) Customer warranty. The Customer warrants and represents to the Bank that: (a) each Transmission contains accurate and legible images of all of the information on the front and back of the original checks at the time each check was truncated; (b) each Transmission also contains a record of all applicable micro -line information required for a substitute check and the accurate amount of the check; (c) each Transmission complies with the technical standards for an electronic item under Regulation J Federal Reserve Operating Circulars 3 and 5, and for a substitute check under Federal Regulation CC; (d) no person will receive a transfer, presentment or return of, or otherwise be charged for, the check (either the original check, or a paper or electronic representation of the original check) such that the person will be asked to make payment based upon a check it has already paid; (e) the Customer will not redeposit through this service any transmission representing a check previously deposited and returned to the Customer; (f) the Customer will employ commercially reasonable security measures and firewalis sufficient to protect the Transmissions and storage to ensure no unauthorized access to or use of the original checks or duplicate presentment; and (g) the Customer will only create transmissions for checks that originated as paper checks. (b) If the Customer is a financial institution or is otherwise transmitting Items payable to third parties, the Customer also represents and warrants to the Bank that: (1) In connection with each Item deposited through the service, the payee of the Item has authorized the electronic transmittal of the Item for deposit to Customer's account; if the Customer is scanning Items from a location outside of the United States, such authorization covers the cross -border transmittal of the Item; and (2) the Customer has established an anti -money laundering program in compliance with anti -money laundering laws and regulations applicable to it and such anti -money laundering program includes policies, procedures and controls designed to detect and prevent money laundering, including "know your customer policies and On.... l7 ...'IA procedures, monitoring of transactions for suspicious activities and reporting of suspicious activities, which the Customer believes effectively prevents the use of the Customer's operations, personnel or facilities for money laundering purposes. (c) The Bank and its subcontractors make no representations or warranties, whether express, implied or statutory regarding or relating to any of the technology or service and/or access to or use of the service or technology provided to the Customer hereunder. The Bank and its subcontractors specifically disclaim any and all implied warranties of merchantability, fitness for a particular purpose and noninfringement. The Bank and its subcontractors also do not guarantee that the Customer's access to the service provided under these terms will be uninterrupted, error free or secure. 6. Third -Party Service Provider. The Customer may choose to use a third -party service provider or service bureau to submit Items or perform other functions for and on the Customer's behalf. If the Bank accepts such Items or other instructions from the Customer's provider or service bureau, the Customer will be bound by them. The Customer is responsible for all actions taken or not taken by the Customer's provider including all costs and expenses incurred by the Customer's provider. 7. Pricing ScheduleNolume/Termination Penalties. The Bank and the Customer may agree to a pricing schedule incorporated herein by reference, including the length of time the service will be provided, the charges/fees and the volumes, as may be stated in the pricing schedule. If the Customer terminates the Service or the service is otherwise terminated without fault of the Bank prior to the period of time set forth in the pricing schedule the Customer shall pay the Bank a termination fee equal to twelve (12) times the average monthly transaction fee for the service for the period of time the service was provided to the Customer. Such termination fee shall be paid within thirty (30) days' after the effective termination date. 8. Limitation of Liability. In no event will the Bank s liability under these terms for any damages of any kind exceed an amount equal to the fees the Customer paid the Bank for the service during the twelve (12) months preceding the date on which the Customer made the corresponding claim. If the Customer makes a claim during the first twelve (12) months of the service, the Bank s liability will be limited to the average monthly fee the Customer paid during that time multiplied by 12. This limitation of liability is in addition to the terms set forth in the Account Terms 9. Indemnification. The Customer agrees to indemnify the Bank for any loss or expense (including attorney's fees and expenses of litigation) resulting from: breach of any of the warranties made by the Customer pursuant to these service terms or the Account Documentation; any claim pertaining to any warranty or indemnity that the Bank makes with respect to an Item under the Check Clearing for the 21st Century Act, Federal Reserve Board Regulations CC and J and all other laws, regulations and industry and clearinghouse rules applicable to Items. These indemnities are in addition to those in the Account Terms and relevant Service Terms. 10. Miscellaneous. The provisions of Sections 3, 5, 7, 8 and 9 shall survive termination of these Service Terms. J. Check Print The Check Print Service enables the Customer instruct the Bank to create and mail checks and/or documents on behalf of the Customer. 1. Print Orders. The Bank will execute each print order requested by the Customer which is received by the Bank in a manner described in these Service Terms or as otherwise provided by the Bank (the 'Print Order"). Print Order information shall include payee names and addresses Customer agrees that it will not include any other personally identifiable information or any protected health information in its Print Orders. Print Orders may include panting of non-payment documents (' Documents') if agreed to by the Bank based upon these Service Terms. 2. Check Pull Requests. For any Print Order received by the Bank the Customer may request the Bank to pull a check(s) from processing by completing the Bank's manual check pull request form ("Check Pull Request"); provided, however, that a Check Pull Request will not be effective unless and until it is received by the Bank in the form required and the Bank has had a reasonable time to act upon such request A Print Order may not be amended or modified. The Bank has no obligation to adjust or stop the payment or posting of a Print Order it has accepted. 3. Receipt of Print Orders. The Customer shall transmit Print Orders to Bank to the location and in compliance with the formatting and other requirements of the Bank set forth in its operating procedures. Bank may reject any Print Order that does not comply with these Service Terms. 4. Issuance of Checks/Documents. For each Print Order accepted by the Bank, the Bank will (a) cause a check to be printed and completed; (b) cause a laser facsimile signature authorized by the Customer to be placed on the check; (c) if agreed upon, cause other documents to be completed and included with the check issuance ("Documents"); and (d) mail or send the check by courier along with any Documents as agreed upon (collectively, the 'Issuance"). The Customer expressly grants the Bank the authority to create and process such Issuances. 5. Notice of Rejection. The Bank will promptly notify the Customer if a Print Order is rejected by the Bank and will advise the Customer as to the reason. The notice or advice shall be deemed commercially reasonable if made available through the Check Print Service or given e lectronically, orally, by telephone or facsimile transmission. Control. The Bank is not responsible or liable for the detection of errors contained in any Print Order as received from the Customer and is e ntitled to rely on the information contained therein. 7. Reliance Upon Instructions. The Customer is responsible for, and the Bank may rely upon, the contents of any notice or instructions that Bank believes in good faith to be from the Customer without any independent investigation. The Bank shall have no duty to inquire into the authority of the individual giving such notice or instruction. In the event the Bank receives conflicting notices or instructions, the Bank is authorized to act on either the notice or instruction, or it can refuse to act. No resetnctin on the Bank's acceptance of any Print Order will be binding on the Bank, except as set forth in these Service Terms unless agreed to in writing by the Bank and the Bank has had a reasonable o pportunity to act upon such change 8. Limitation of Liability The Bank s liability shall be limited to direct damages caused by the Bank's failure to use reasonable care. Reasonable care in providing the Check Print Service shall be measured by the relevant provisions of any service levels or business requirements and the standard of reasonableness of the procedures established for the transaction involved. Mere inadvertence or honest mistake of judgment shall not constitute a failure to perform such obligations or a failure to exercise reasonable care and in no case will be deemed wrongful. 9. Cashier's Checks. If the Bank creates cashier's checks under the Check Print Service, the following additional terms will apply: (a) Customer will send the cashier's check print file information ("File Information") to the Bank by the Bank's cut off time on a given day ("Day One'); (b) the Customer authorizes the Bank to debit the Customer's designated account ('Funding Account") for the amounts shown on the File Information on Day One; (c) as the cashier's checks from the File Information are being processed the account reconciliation issue file ("ARP File") must match the date of funding found in the File Information of the next banking day ("Day Two"); (d) for any cashier's check for which there is insufficient funds in the Funding Account on Day One to fund the purchase of the cashier's check, the Bank is authorized to reject the creation of such cashier's check; (e) fully funded cashier's checks will be printed on Day Two; (f) if the Customer is using one of the Bank's online services, Customer will be able to view information regarding the cashier's checks which were funded and created and those that were rejected; (g) any information from the File Information which can not be used to create a cashier's check will be communicated to the Customer for further research and reconciliation; (h) if any cashier's check is returned as undeliverable, the cashier s check will remain outstanding in the Bank's cashier's check account and escheated according to applicable laws and regulations. If the payee of a cashier's check claims that the cashier's check was lost, stolen or destroyed before the funds are escheated, such claim will be handled in accordance with the Bank's procedures 10. Network Check Truncation Feature. For any check the Bank is creating (other than a cashier's check) pursuant to these Service Terms the Bank may compare the check issuance address to the Bank's directory of lockbox addresses. If there is a match the Customer authorizes the Bank to truncate the check (including any Document) to an image and electronically transmit the images to the Bank's lockbox operations for further processing and deposit to the payee's account. The Customer will not be charged postage for any such check; however, there will be a conversion fee for such check which will be reflected in the Customer's account analysis statement. K. ACH Tax Payment 1. Service. Bank will provide a service (the "Service") whereby Customer can direct Bank, via touchtone telephone or Internet platform, to make tax payments through the automated clearing house (ACH) system from an account with Bank that Customer specifies. Customer may use the service to pay: • any federal taxes covered by the Federal Tax Deposit Coupons (Form 8109) that Customer has executed and delivered to Bank from time to time; • certain state taxes; and • certain municipal taxes. Bank may pay taxes from Customer's account in accordance with any instructions issued in Customer's name that Bank verifies pursuant to the security procedures specified in these Service Terms. In using the Service, Customer agrees to comply with and be bound by the Operating Rules of the National Automated Clearing House Association ("NACHA Rules"). 2. Receipt of Instructions and Cancellations. Customer may issue instructions and cancellations only during service hours that Bank specifies, and Customer acknowledges that Bank may change such service hours upon prior notice to Customer Bank must receive instructions, Including but not limited to payment cancellation instructions, not later than 6:00 p.m. ET (or such other time as Bank specifies) on the Business Day prior to the day on which the tax payment Is due. For purposes of this Section, "Business Day" means a day on which the Bank is open for business in its New York office Instructions received after such time shall not be processed until the following business day and Customer shall On.... -I A ..s 7A be liable for any charges, fees or costs associated with such payment. Bank may reject or delay processing of a tax payment if the request is not complete or is inaccurate or otherwise does not meet the criteria Bank specifies for acceptance herein or in the User Guide (as hereafter defined). The Service is not designed or intended to be used for any ACH tax payment that is required to be formatted as an "International ACH Transaction" (or IAT) under the NACHA Rules. Customer agrees not to use or attempt to use the Service to originate any ACH tax payment that is required to be formatted under the NACHA Rules as an "International ACH Transaction" (or IAT). Customer shall indemnify and hold Bank harmless from and against any and all claims, demands, losses, fines, penalties damages, liabilities and expenses, including, without limitation, legal fees and expenses, resulting directly or indirectly from any ACH tax payment processed or requested to be processed by Customer via the Service which should have been formatted under the NACHA Rules as an IAT. 3. Tax Payment Security Procedures. (a) A Bank -issued or approved access code and PIN and/or other security device ('Security Device") is required to access the Service. The Customer shall be bound by and adhere to the security procedures and other procedures for use of the Service advised to it in writing through any medium by the Bank as may be revised from time to time upon notice to the Customer (the 'User Guide' ). The Customer shall notify the Bank immediately of loss or theft of a Security Device, any unauthorized use of a Security Device or any other breach of security. The Bank may dishonor or disable any Security Device at any time and will inform the Customer of the same. The Customer agrees that any use of the Service with a Security Device is deemed to be carried out directly by and on behalf of the Customer. The Customer agrees to safeguard all Security Devices and to instruct each Authorized User (as defined below) to do the same. (b) This Section 3(b) applies to use of the Service through the designated Internet platform, but does not apply to touchtone telephone access. Customer shall designate an administrator (the 'Administrator") who shall have authority in accordance with the operational Instructions for the Service provided to Customer in the User Guide. Customer agrees to notify Bank of any change in Administrator in the manner and form designated by Bank. Any such changes shall be effective at such time as Bank has received such notice and has had a reasonable opportunity to act upon it. In accordance with the procedures contained in the User Guide, the Administrator shall be responsible for (i) designating individuals as users ("Authorized Users"); (ii) identifying the functions of the Service; (III) requesting creating, controlling, disseminating, and/or canceling user entitlements; (Iv) receiving and distributing materials, notices, documents and correspondence relating to the security procedures; and (v) advising each Authorized User of his/her obligations hereunder and under the User Guide. The Administrator shall provide to the Bank, upon the Bank's request, a list of Authorized Users. 4. Open Network Access. The Customer acknowledges that there are certain security corruption, transmission error and access availability risks associated with using open networks such as the Internet, and the Customer assumes all such risks. The Customer shall make an Independent assessment of the adequacy of the Internet and the Bank's security procedures. The Customer further acknowledges that the selection and use by it of any third party security and communications software and third party service providers is the sole responsibility of the Customer, and the Bank disclaims all risks related thereto, notwithstanding that the Bank may recommend certain security and/or communications software and services. The Customer agrees to, at its sole expense, procure and maintain all hardware, browsers, software and telecommunications equipment necessary to access the Service in accordance with the Bank's recommended system configuration. 5. Funding. Customer authorizes Bank to debit Customer's applicable account for the amount of each tax payment and for any applicable bank fees and charges when due. In the event Customer does not have sufficient funds In Customer's applicable account to cover the amount of a tax payment, Bank shall have no obligation to make the tax payment for Customer, but if Bank does make such payment Customer agrees to reimburse Bank immediately for the total amount of funds disbursed pursuant to the tax payment. Funds Bank receives and holds pursuant to the Service shall be held as a deposit liability to Customer and not in trust for Customer or the taxing authority. 6. Warranties; Indemnity. Except as specified below, Customer will be deemed to make the same warranties to Bank as Bank makes pursuant to the NACHA Rules although Customer will not be deemed to warrant the power of the Bank under applicable law to comply with the requirements of the NACHA Rules or the conformity of tax payments and other data Bank transmits to the file specifications contained in the NACHA Rules. Customer further represents and warrants to Bank that: (i) Customer shall not access the Service from any jurisdiction in which the Service is not authorized; and (ii) each tax payment Customer originates will comply with applicable U.S. laws and regulations and Customer acknowledges that payments may not be Initiated that violate the laws of the United States. Customer agrees to indemnify Bank and Bank's employees, officers directors and agents, and hold all of them harmless from and against any and all claims, demands, losses, liabilities or expenses (including attorney's fees and costs) resulting directly or Indirectly from (a) Customer's breach of any warranty made under this Section and (b) compliance by Bank with any request Customer makes for a cancellation, stop payment, reversal or recall of any tax payment Bank shall have no responsibility for any delay by any ACH Operator (as such term is defined in the NACHA Rules) or taxing authority in processing any tax payment Bank transmits to such entity or failure by such entity to process or apply any tax payment. Stop Payments; Reversals and Recalls. Customer's instruction to stop payment of reverse or recall one or more tax payments must be received by Bank In such time and manner as Bank specifies. Bank will process these transactions in accordance with Bank's procedures advised to Customer. Any reversal or recall initiated by Bank is subject to acceptance by the relevant taxing authority. Tax payment Instructions may not be amended or modified. 0......I C ..G n A 8. Payment Limits. Bank may from time to time establish or revise (a) maximum dollar limits for each payment to be made by the Customer to a specified taxing authority and (b) aggregate limits for all payments to be made by the Customer to a specified taxing authority within a 24-hour period. Bank may change or cancel the limits at any time without prior notice to Customer, although Bank will endeavor to give prior notice to Customer. Bank may require Customer to pay Bank the amount of any tax payment on the date of transmission to Bank or otherwise prior to the settlement date. Bank also may require Customer to maintain collateral with Bank in an amount Bank specifies. 9. Limitation of Liability. Bank's maximum aggregate liability in connection with the Service shall be limited as provided in the Account Documentation (as defined in Section 10 below) and shall be further limited to the lesser of the amount of any penalty or interest actually imposed by the applicable taxing authority or the total fees Customer paid Bank during the prior 12 months. 10. Incorporation of Account Documentation; Termination. The Bank's terms governing the operation of business accounts and services ("Account Documentation") are incorporated herein, as the same may be amended from time to time. If and to the extent that there is a conflict between the Account Documentation and these Service Terms the provisions of these Service Terms shall prevail. In addition to Bank's termination rights under the Account Documentation, Bank shall have the right to terminate or suspend these Service Terms and the Service upon notice to Customer in the event of Customer's breach of the NACHA Rules. L. Client Access 1. Service. The Bank will provide a service (the "Service") for electronic access to the Customer's account information, reports and data (collectively, "Data") and for the electronic transmission to the Bank of messages, service requests, and payment and non-payment instructions (each an ' Instruction') and from the Bank of messages, notifications and alerts, via online, host-to-host/file transfer and mobile channels. The Bank reserves the right to modify the applications and products (each an "Application") available via the Service, upon notice to the Customer. 2. Security Procedures. 2.1. The security procedure for accessing the Service via the online and mobile channels includes an identification code and confidential password, and for certain functions, the use of a Bank issued or approved security device ("Security Device") provided that the mobile channel allows for the use of a biometric identifier instead of a Security Device and identification code. The security procedure for accessing the Service via the host-to-host/file transfer channel includes the use of a Certificate, as set forth in Section 8 below. The Customer shall be bound by and adhere to the security procedures for use of the Service advised to it in writing through any medium by the Bank, as may be revised from time to time upon notice to the Customer including without limitation the procedures set forth herein. The Customer shall notify the Bank immediately of loss or theft of a Security Device, any unauthorized use of a Security Device, or any other breach of security, including the compromise of a Certificate (as defined below). The Bank may dishonor or disable any Security Device at any time and will inform the Customer of the same. The Customer agrees that any use of the Service in compliance with a Bank issued security procedure is deemed to be carried out directly by and on behalf of the Customer. The Customer agrees to safeguard all Security Devices and to instruct each Authorised User, as defined in Section 2.3 below to do the same. The Customer will be responsible for ensuring that the Security Devices are known to and used only by Authorised Users. 2.2. The Customer shall designate security administrators who shall have equal authority in accordance with the administrative control procedure for each Application and/or the authority to add update or delete security keys in connection with the host-to-host/file transfer channels. The Customer agrees to notify the Bank of any change in security administrators in the manner and form designated by the Bank. Any such changes shall be effective at such time as the Bank has received such notice and has had a reasonable opportunity to act upon it. 2.3. The security administrators shall be responsible for (i) designating individuals as users ("Authorised Users"); (u) identifying the functions of the Service, including the Mobile Application (as defined below), that each user may access; (iii) requesting, creating, controlling, disseminating and/or canceling user entitlements; (iv) receiving and distributing materials, notices, documents and correspondence relating to the security procedures and (v) advising each user of his/her obligations hereunder or under any of the applicable Account Documentation, as defined in Section 6 below The security administrators shall provide to the Bank, upon the Bank's request, a list of Authorised Users. In the absence of a valid designation of a security administrator at any time, the Bank may deliver Security Devices and materials to any person authorized to act on behalf of the Customer with respect to the accounts. 3. Open Network Access; Equipment. The Customer acknowledges that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the Internet, and the Customer assumes all such risks. The Customer shall make an independent assessment of the adequacy of the Internet and the Bank s security procedures. The Customer further acknowledges that the selection and use by it of any third party security and communications software and third party service providers is the sole responsibility of the Customer, and the Bank disclaims all risks related thereto, notwithstanding that the Bank may recommend certain security and/or communications software and services. The Customer agrees to, at its sole expense, procure and mainta'n all hardware, browsers, software and telecommunications equipment necessary to access the Service in accordance with the Bank's recommended system configuration. Instructions; Data. 4.1. The Customer shall be solely responsible for the genuineness and accuracy, both as to content and form, of all Instructions properly received by the Bank. 4.2. The Customer acknowledges that Data may not have been reviewed by the Bank, may be inaccurate, and may be periodically updated and adjusted. The Bank is not obligated to assure the accuracy of Data and will not be liable for any loss or damage arising out of the inaccuracy of Data. Further, the Bank shall have no liability for the receipt or viewing by any party of Data sent to the destinations designated by the Customer, including but not limited to email addresses, fax and telephone number(s). 4.3. The Customer acknowledges that the Secure eMail Application is not intended for the transmission of Instructions to transfer cash, securities or other assets. The Customer shall not transmit, and the Bank shall have no obligation to act upon, any such Instructions transmitted through Secure eMail. 5. Customer Warranties. The Customer represents and warrants to the Bank that: (i) prior to submitting any document which designates Authorised Users, the Customer shall obtain from each individual referred to in such document all necessary consents to enable the Bank to process the data set out therein for the purposes of providing the Service; (ii) the Customer has accurately designated in writing the geographic location of its Authorised Users and shall provide all updates to such information; and (iii) the Customer shall not access the Service from any jurisdiction which the Bank informs the Customer or where the Customer has knowledge that the Service is not authorized. The Customer hereby represents and warrants to the Bank that these Terms constitute its legal and binding obligations enforceable in accordance with its terms. 6. Miscellaneous. The additional jurisdiction specific provisions set forth in the attached Exhibit are applicable to the Customer based on the domicile of the Customer. Where any local laws or regulations of any jurisdiction apply as a result of the Customer's users accessing the Service from such jurisdiction or as a result of the location of such accounts in such jurisdiction, the jurisdictional specific provisions of that jurisdiction shall apply to the use of the Service by such users. The Bank's terms governing the business accounts and services, including service terms that govern the Bank's processing of Instructions transmitted via the Service ("Account Documentation'), are incorporated herein, as the same may be amended from time to time. If and to the extent that there is a conflict between the Account Documentation and these Service Terms, the provisions of these Service Terms shall prevail. These Service Terms shall be governed by and construed in accordance with the laws of the State of Ohio, USA (without reference to the conflict of laws rules thereof). 7. Mobile Application. The Service is available via a Bank mobile application (any such application, including released modifications, updates upgrades, successor and substitute software programs as may have been provided by the Bank to the Customer, a "Mobile Application"). 7.1. Accepting use of the Bank's SMS Text Notification Service and/or the Mobile Application service constitutes the Customer s authorization for the Bank to send Data, message notifications and alerts through any communication service providers, including both Internet and telecommunications providers, which shall each be deemed to be acting as the Customer's agent. Such providers may not encrypt communications. 7.2. Authorised Users may be required to accept an application agreement or license in order to download the Mobile Application. The Customer acknowledges that the Account Documentation shall in all cases govern the provision of these services. 7.3. The Customer acknowledges that the Bank shall not be liable for any delays in any Data, message notification or alert delivered via any mobile device. 8. Host-to-Host/File Transfer Services. The Service is available via host-to-host/file transfer Services. The Customer and the Bank will use the following procedures for digital -signature public key management using a certificate ("Certificate"). 8.1. The Bank shall have the right to rely on any request relating to and in connection with the host-to-host/file transfer channels that the Bank believes in good faith to have been sent by a security administrator notwithstanding that such security administrator may be a third party agent acting on behalf of the Customer. 8.2. All requests to add, update or delete security keys will be coordinated through the Customer's Customer Service Officer (or other designated Bank representative as the Bank may direct). 8.3. Customer shall provide a request and supplementary material (such as a text file or other physical representation of the public security keys of the relevant Certificate) in accordance with the Bank's administrative control procedures of the action to be taken, a request for a suggested date and time the action is to be taken, and an attached file containing the Certificate. The Bank shall effect such change requests within a reasonable period of time; however, such requests must be received at least two U.S. banking days prior to the security key implementation date. 8.4. Upon receipt of Customer's request, the Bank will validate the request. Upon successful confirmation, the Bank will reply confirming receipt of the security key file and the scheduled date and time for the action to take place. Requests for security key additions, updates or deletions will be actioned during the course of normal business hours, Monday through Friday, 8:30 AM — 5 30 PM Eastern Time (United States). The Bank shall not take any action until a request has been received from the Customer which the Bank acting in good faith believes to be an authorized request, in the form the Bank advises the Customer. 8.5. The Customer agrees to abide by Bank's administrative control procedures for security Certificates, including the following: (i) Certificates must have a validity period of one to two years. (ii) No Certificate shall be accepted unless it adheres to the following cryptographic specification: • Message digest: SHA-1 • Asymmetric algorithm: RSA • Asymmetric algorithm key length: 2048 bits or more Notwithstanding any courtesy notifications from the Bank regarding the Customer's impending Certificate expiration, the Customer acknowledges that it is the Customer's sole responsibility to update the Certificate prior to its expiration date. The Bank shall have no liability for any loss or damage (including, for the avoidance of doubt, any indirect, special, punitive or consequential damages or losses) arising from the Customer's failure to timely update its Certificate. To allow for proper execution of administrative control procedures, and to prevent any lapse in service or emergency procedures, the Customer must request a Certificate change at least 30 days prior to actual Certificate expiration. Jurisdiction Specific Provisions Exhibit A. Australia & New Zealand - See further Paragraphs M and Q herein. The Bank's liability to Customer for loss or damage of any kind in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Customer and/or its subject matter, is reduced to the extent that Customer caused and/or contributed to the loss or damage. Fees: To the extent that any supply made by the Bank under these Service Terms is a taxable supply for the purposes of the Australian Goods and Services Tax, or that goods and services tax under the New Zealand Goods and Services Tax Act 1985 is payable in respect of any supply under this License Agreement, ("GST'), the fees payable in respect of that taxable supply ("original amount") will be increased by the amount of GST payable in respect of that taxable supply. Customer must pay the increased amount at the same time and in the same manner as the original amount. Consumer Warranties. (i) Australia The following provision applies if, despite the terms of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms, the proper law of this Agreement is the law in force in an Australian jurisdiction: The Warranty and Limitation of Liability provisions of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms are subject to the following and only apply to the extent permitted by law: Notwithstanding anything in this Agreement, consumers may have the benefit of certain rights and remedies pursuant to the Trade Practices Act 1974 (Cth) and similar state laws in Australia in respect of which liability may not be excluded. If so, then to the maximum extent permitted by law, such liability is limited, at the Bank's option, in the case of goods to either (a) replacement of the goods; or (b) correction of defects in the goods; and in the case of services to either (a) re -supply of the services; or (b) the cost of re -supply of the services. (u) New Zealand If the Customer is acquiring software in New Zealand, the Customer confirms it is acquiring the software for the purposes of a business (as that term is defined in the Consumer Guarantees Act 1993), and that the Consumer Guarantees Act does not apply to the software. Miscellaneous. The following provision shall apply if, despite the terms of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms, the proper law of these Service Terms is the law in force in the New Zealand jurisdiction: The Limitation of Liability and Warranty provisions of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms are subject to the following and only apply to the extent permitted by law: 17...... 4 0 ..i r1A Notwithstanding anything in these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms, a customer may have the benefit of certain rights and remedies pursuant to the Consumer Guarantees Act 1993 in respect of which liability may not be excluded. If so, then to the maximum extent permitted by law, such liability is limited, at the Bank s option to (a) re -supply of the Service; or (b) the cost of re -supply of the Service. B. Cambodia - See further Paragraphs M, N and Q herein. C. Peoples Republic of China - See further Paragraphs M and Q herein. The Customer undertakes to be bound by the Service Terms, the terms of which have been read and accepted by the Customer. IN PARTICULAR, THE CUSTOMER HAS READ, UNDERSTOOD, AND AGREED TO SECTION 4 (INSTRUCTIONS; DATA), THE SECOND PARAGRAPH UNDER SECTION C AND SECTION Q OF THE JURISDICTION SPECIFIC PROVISIONS EXHIBIT OF THE SERVICE TERMS. The Customer agrees that: (i) the Bank shall be liable only for direct damages which are the result of its failure to exercise ordinary care or its willful misconduct; and to the maximum extent permitted by law, (ii) the Bank shall not be liable for incidental, indirect, special, or consequential damages, regardless of the form of action and even if the Bank has been advised of the possibility of such damages. Nothing in these general terms shall limit any party's liability for fraud. Notwithstanding any other provision to the contrary, where an overdraft condition may exist to the extent permitted by law (including the law where the Customer is incorporated), the Bank may debit the Customer Account even though the debit may bring about or increase an overdraft. If any debit to the Customer Account brings about or increases an overdraft, such overdraft shall be immediately due and payable, to the extent permitted by law (including the law where the Customer is incorporated), without further notice or demand. The Customer represents that prior to submitting any document which designates the persons authorized to act on the Customer's behalf, including, but not limited to a security administrator designation form, Customer shall obtain from each individual referred to in such document all necessary consents to enable the Bank to process the data set out therein for the purposes of providing the Service. Laws, Rules, Regulations and Practices: The Customer agrees to and shall always abide by and comply with all laws, rules and regulations (whether or not having the force of law including without limitation rules from time to time made by the People's Bank of China and all determinations made thereunder) from time to time applying or relating to any or all of the Accounts and/or deposits the Customer may place with or through the Bank. The Bank has the right, without pnor notice to the Customer (or upon notice if a prior notice is required by law), to do such acts, deeds and things and adopt such practices as the Bank may in its absolute discretion consider necessary or appropriate to ensure due compliance with or implementation of any or all of such laws, rules and regulations, notwithstanding any contrary provisions of the Account Terms and the Account Application forms. The Customer further agrees to abide by and comply with such practices(s) as the Bank may from time to time in its absolute discretion adopt in connection with such compliance or implementation. These Service Terms shall be governed by and construed in accordance with the laws of the Peoples Republic of China. Any dispute arising from or in connection with these Service Terms, including any question regarding its existence, validity, breach or termination, between the parties, shall be submitted to the China International Economic and Trade Arbitration Commission (' CIETAC') in Beijing, for arbitration which shall be conducted in accordance with its arbitration rules in effect at the time of applying for arbitration. The language of the arbitration shall be in English. The tribunal shall consist of three arbitrators who must be able to conduct the arbitration in English. The parties hereby agree to the appointment of arbitrators who may not be on CIETAC s Panel of Arbitrators nor on any unofficial panel of arbitrators. The party initiating arbitration shall appoint one arbitrator and the party responding to the notice of arbitration shall appoint the other arbitrator. The third arbitrator (the "Presiding Arbitrator") shall not be a national of the PRC and shall be selected by agreement between the parties or, failing agreement within 20 Business Days after the date of appointment of the second of the two arbitrators appointed by the respective party, by the chairman of CIETAC. Any arbitral award a) shall be made in English and Chinese; b) shall be final and binding on both parties; and c) may be enforced in accordance with the provisions of the award. D. Hong Kong - See further Paragraphs M and Q herein. Nothing in these Service Terms shall limit any party s liability for death or personal injury caused by negligence of that party or its employees or for fraud Any contractual limitation of liability shall be modified so that such provision shall be applicable to the services provided hereunder to the maximum extent permitted by law. The Customer represents that prior to submitting any document which designates the persons authorized to act on the Customer's behalf, including, but not limited to a security administrator designation form, Customer shall obtain from each individual referred to in such document all necessary consents to enable the Bank to process the data set out therein for the purposes of providing the Service. E. India - See further Paragraphs M, N and Q herein. F. Indonesia - See further Paragraphs M, 0 and Q herein. The Bank and the Customer agree that, for the effectiveness of any termination of these Service Terms or the Services provided hereunder, they hereby waive any provisions, procedures and operation of any applicable law to the extent a court order is required for the termination of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms To the maximum extent permitted by law, the Bank may, at its sole discretion, make recordings and retain such recordings of telephone conversations and data transmissions between the Customer and the Bank. Section 7.3 shall be replaced by 'Except for losses directly resulting from errors or delay caused by the Bank's gross negligence or willful misconduct, the Customer acknowledges that the Bank shall not be liable for any delays in any Data, message notification or alert delivered via any mobile device." G. Malaysia/Labuan (i) The following terms shall apply in relation to the Service where it is provided in relation to accounts in Malaysia/Labuan and/or where the Service is provided in Malaysia/Labuan: (a) Paragraphs M and Q shall apply. (b) Any references in the Service Terms to the term "Bank," shall mean J.P. Morgan Chase Bank Berhad (for Malaysia) and J.P. Morgan Chase Bank, N.A., Labuan Branch (for Labuan). (c) The Bank shall give prior notice to the Customer of any change to these terms. (d) The Customer acknowledges that it may through its security administrators, create maximum limits (at a user entitlement level) in relation to funds transfers that may be conducted using the Service, to limit the Customer's risks. Notwithstanding anything to the contrary in these terms, the Customer shall not be liable for any loss which is not attributable to or contributed to by the Customer. (e) The Service Terms shall be governed by and construed in accordance with the laws of Malaysia (without reference to the conflict of laws rules thereof). (ii) If the Service is to be accessed by a Customer (1) who is domiciled or incorporated in Malaysia (other than Labuan), or (2) in Malaysia (other than Labuan), that Customer undertakes not to access or utilize or attempt to access or utilize the Service provided by J.P Morgan Chase Bank Berhad through any JPMorgan website other than http://www.jpmorganaccess.com.my H. Philippines- See further Paragraphs M and Q herein. Subject to giving reasonable notice in writing the Bank, may amend the Account Documentation. The Customer will be deemed to have agreed to any such amendment, if the Customer fails to object thereto within five (5) days from receipt of such notice. 1. Singapore - See further Paragraphs M and Q herein. Nothing in these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms shall limit any party's liability for death or personal injury caused by negligence of that party or its employees or for fraud. For the avoidance of doubt, to the maximum extent permitted by law, the Customer hereby expressly agrees that nothing done or omitted to be done by the Bank pursuant to this agreement shall amount to a breach of the Bank's obligations under the bank secrecy laws of any jurisdiction. The provisions in Paragraph M, as applicable to Singapore, shall be without prejudice and in addition to any other right of the Bank to disclose any information on the Customer under any applicable law. Republic of China (Taiwan) - See further Paragraphs M, 0 and Q herein. The Customer hereby acknowledges that the Account Documentation and other related documents have been delivered to the Customer for review for a period of at least five (5) days before the execution The Customer executes and delivers the Account Application after fully understanding the content of the above documents and hereby agrees to comply with the terms and conditions contained therein. Section 7.3 shall be replaced by "Except for losses directly resulting from errors or delay caused by the Bank's gross negligence or willful misconduct, the Customer acknowledges that the Bank shall not be liable for any delays in any Data, message notification or alert delivered via any mobile device." K. Thailand - See further Paragraphs M, N and Q herein. Nothing in of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms shall limit any party's liability for gross negligence of that party or its employees or for fraud. L. Vietnam - See further Paragraphs M and Q herein. These Service Terms shall be governed by and construed in accordance with the laws of Vietnam. f...... 71\ .. F°A Any dispute arising out of or in connection with the services provided pursuant to these Service Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause. The International Arbitration Act (Cap 143A) shall apply. The Tribunal shall consist of a single arbitrator to be appointed by the Chairman of the Singapore International Arbitration Centre. The arbitral proceedings shall be conducted in the English language and any award or awards shall be rendered in English. The award of the arbitrator shall be final and conclusive and binding upon the parties and the parties shall be entitled (but not obliged) to have judgment. Under no circumstances shall the arbitrator be permitted to award: (i) punitive damages; or (ii) damages of any nature in excess of the amount claimed. In addition, all statutes of limitation that would be applicable in any court proceeding involving the same subject matter shall apply in any arbitration proceeding brought hereunder. M. The following provisions are applicable to Customers (or where applicable, Authorized Users) located in the following jurisdictions: Australia, Cambodia, Peoples Republic of China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia (including Labuan), New Zealand, Pakistan, Philippines, Singapore, Sri Lanka, Republic of China, Thailand and Vietnam. The Customer hereby consents to the disclosure of any information relating to the Customer to (i) any bank examiner(s), governmental authority, the Bank's head -office and other branch offices its affiliates and associates, assignees or prospective assignees (ii) the Bank's auditors, counsel and other professional advisers and (iii) any other Bank's sub -contractors or agents , in each case whether in India or elsewhere as the Bank may, in good faith consider necessary or desirable including, without limitation: a) for the collation, synthesis, processing and management of data and the storing of data relating to any Accounts held or transactions undertaken by the Customer; b) the reporting of transaction details and other customer related information for global risk management, MIS and regulatory reporting and monitoring; c) the monitoring of the Bank's global credit exposure to its clients and others; d) for effecting any instruction by the Customer or any transaction for the benefit of the Customer, or effecting any disclosure which may be required of the Bank by any such party; e) enhanced operational, technology, finance and other support function efficiencies, or 0 as may be required by law, regulations or legal process, provided that the Bank shall take such measures as it considers reasonable to preserve the confidentiality of such information or documents. The Bank shall at all times maintain in confidence all confidential information and documents relating to the Customer which are in the Bank's possession subject to the Bank's right to disclose such information and documents or requirements under the applicable law. N. The following provisions are applicable to Customers (or, where applicable, Authorized Users) located in the following jurisdictions: Cambodia, India and Thailand Any dispute arising out of or in connection with the services provided pursuant to these Service Terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this clause The International Arbitration Act (Cap 143A) shall apply. The tribunal shall consist of a single arbitrator to be appointed by the Chairman of the Singapore International Arbitration Centre. The arbitral proceedings shall be conducted in the English language and any award or awards shall be rendered in English. The award of the arbitrator shall be final and conclusive and binding upon the parties, and the parties shall be entitled (but not obliged) to have judgment. The arbitrator shall in all instances be required to apply the substantive law of the State of Ohio, United States of America (without reference to the conflict of laws rules thereof) and to enforce and apply the terms of these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms. Under no circumstances shall the arbitrator be permitted to award: (i) punitive damages; or pi) damages of any nature in excess of the amount claimed. In addition, all statutes of limitation that would be applicable in any court proceeding involving the same subject matter shall apply in any arbitration proceeding brought hereunder. Nothing in this clause shall be deemed to exclude the right of either party to apply for interim injunctive relief from the State or Federal courts of the State of New York, United States of America, provided that any court proceedings shall be restricted to such purposes only, unless the parties agree otherwise. Notwithstanding the above, any disputes related solely to a Customer Account opened and maintained in a state or jurisdiction other than New York shall be governed by the laws of that state or jurisdiction (without reference to the conflicts of law rules thereof). 0...... ni ..G ']A O. The following provisions are applicable to Customers (or, where applicable, Authorized Users) located in the following jurisdictions: Indonesia and Republic of China (Taiwan). Notwithstanding anything to the contrary contained in these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms, the Bank shall have the right to proceed against the Customer in any other competent court in any other jurisdiction where the Customer's assets are situated from time to time and the Customer agrees to submit to the jurisdiction of any court so chosen by the Bank. The Customer further agrees to waive any objections on the ground of venue or forum non coveniens or any similar ground. The taking of proceedings in any jurisdiction shall not preclude the taking of proceedings in any other jurisdiction whether concurrently or not. The Customer irrevocably and unconditionally waives any objection it may now or subsequently have to the choice of venue of any legal action arising out of or relating to these Service Terms and the Account Documentation as applicable to the services provided under these Service Terms. The Customer also agrees that a final judgment against it in any such legal action shall be final and conclusive. P. European Union. The Customer acknowledges that it is not a "consumer" for the purpose of the European Union's Electronic Commerce Directive ("ECD") (Le. that it is not an individual) and agrees that the Bank shall not be required to make any disclosures or do any other thing which a non -consumer may agree not to require under the UK rules and legislation implementing the ECD. For further information on the Bank, please see "Notice regarding EU e-commerce information" in the Terms & Conditions on http://www.jpmorgan.com. (i) The Bank will collect information about the Customer and the Customer's employees and agents (such as, without limitation, authorized signatory details) which may constitute personal data for the purposes of the Data Protection Act 1998 (the "Act') and other relevant data protection legislation Such personal data may be collected by or on behalf of the Bank in a number of ways (the "Collection Methods"), including via documentation relating to the provision to or use by the Customer of electronic banking services, or via the Customer's use of such electronic banking services, and via other correspondence or communications between the Customer and the Bank. (u) The Bank will use personal data collected by it or on its behalf via the Collection Methods for the following purposes (the "Purposes"), namely for the purpose of providing the services to the Customer in accordance with these Terms and the Product Terms, for the Bank's internal administrative purposes for contacting the Customer about products and services which the Bank or other members of the Bank's group offer which the Bank believes may be of interest to the Customer, and as may be otherwise required by law or applicable regulatory or governmental authorities, and such purposes may include transfer of such personal data outside of the European Economic Area to the Bank's subsidiaries or other connected companies or to other organizations as may be required by law or other applicable regulatory or governmental authorities. (iii) The Customer shall ensure that any disclosure of personal data made by it or by its employees or agents via the Collection Methods which relate to the Customer's employees or agents is only made following notification by the Customer to data subjects of the Purposes for which their personal data may be processed by or on behalf of the Bank, and is otherwise fair and lawful. Q. As part of the Service, the Bank may (at its sole discretion, and subject to the Customer agreeing to any additional terms) make available an Application which allows the Customer to access information, issue Instructions and/or service requests in relation to and/or for the commencement of certain products which may include, without limitation, time deposits, call deposits, cash sweeping services, entrust loans, as applicable. Where the Service is used for the above purpose, the Customer agrees that all actions conducted, and Instructions and service requests issued shall bind the Customer and, where applicable, be subject to review and acceptance by the Bank. The Bank shall be under no duty to verify any Instructions, service requests or actions of the Customer. Where applicable, the Bank may confirm its acceptance of any service requests/Instructions through the applicable Application or through any other means acceptable to the Bank. M. Foreign Exchange Payment Foreign Exchange (FX) transactions are payments and receipts where the currency of the transaction is different from the currency of the underlying account. The funds transfer may consist of more than one transaction in order to move funds from an originator's account to a beneficiary's account. The FX Payment Service allows the Customer to purchase or sell foreign currency as principal or agent ('Trader Contracts") and to include related settlement instructions by means of an electronic communication system or a Bank access system (each an 'Access System") As used herein "Value Date" means the date specified in each Trader Contract for the delivery of the currency to be bought or sold. 1. Trading Currencies Trader Contracts will be limited to the sale or purchase of the lawful currency of such countries or any composite currency as the Bank shall determine and advise the Customer from time to time. The Value Date may not be more than one year after the date on which the Customer enters into the Trader Contract. If the Customer chooses to make payment by checks to be issued with respect to the settlement of Trader Contracts, such checks shall be limited to such currencies as the Bank may announce to the Customer from time to time; and such currencies are subject to change or termination without prior notice. 2. Contracting a Trade: (a) Data Input. The Customer shall enter into each Trader Contract by following the procedures set forth in the Service Material and by otherwise following the instructions provided through the Access System when using the Service. "Service Material" shall mean any administrative rules, clearing house rules payment system rules, service terms or service guides, software licenses, Internet "click wrap" terms or disclosures, user guides or implementation forms that may contain operating procedures, security procedures, specifications or other requirements applicable to the Services. (b) Foreign Exchange Rate. The Bank, in its sole and absolute discretion, will determine the foreign exchange rate and spread (which together shall constitute the ' FX Rate") applied by the Bank to transactions executed using the Services. FX Rates are determined by the Bank based on various factors, including but not limited to market information and information concerning the Customer and the proposed Trader Contract. The FX Rate may differ from rates at which comparable transactions are entered into with other customers or the range of FX Rates at which the Bank otherwise enters into foreign exchange transactions on the relevant date. (c) Offer by the Customer. 1. For interactive services, the Bank and the Customer agree that the information displayed through the Access System relating to the contract rate shall be deemed an invitation by the Bank to the Customer to submit an offer to the Bank to enter into a Trader Contract. If the Customer wishes to make such an offer to the Bank, the Customer will enter the required information prior to the expiration time set for the quoted rate. 2. For straight -through process services, the Customer shall enter into each Trader Contract by following the procedures set for in the Documentation for that Service. The Bank and the Customer agree that when the Customer electronically transmits the instructions specified in the Documentation to the Bank, and in the manner and format specified in the Documentation, the Customer will be deemed to have made an irrevocable offer to the Bank to enter into a Trader Contract at such rate as is applied to that transaction by the Bank. (d) Confirmation. The Bank may, but shall not be required to accept any offer of the Customer solely by transmitting to the Customer through the Access System a confirmation (the "Confirmation"). At the moment the Bank transmits (as evidenced by its records) the Confirmation, the Bank and the Customer will have entered into the Trader Contract. The Confirmation will be sent to the Customer's terminal (which depending on the Service used by Customer could be by return confirmation file), and the Customer may print the Confirmation, provided, however, that the Trader Contract will be valid notwithstanding the failure of the Customer to receive or print a Confirmation. Each Trader Contract will give rise to an obligation for the Customer to buy from the Bank, and for the Bank to sell to the Customer the currency shown by the Confirmation as being purchased by the Customer, or for the Bank to buy from the Customer, and the Customer to sell to the Bank, the currency shown by the Confirmation as being sold by the Customer, on the terms shown in the Confirmation, for settlement on the Value Date. (e) Buy Back of Currency. Trader Contracts, once entered into, are final and irrevocable. The Customer acknowledges and agrees that the Bank has no obligation to cancel, reverse or otherwise buy back foreign currencies purchased by the Customer under the Service. The Customer acknowledges that it may not be able to sell back certain foreign currencies once purchased (whether via the Client Access System, telephone with Bank representatives or otherwise). Although the Bank may elect to facilitate buy back of certain major currencies (in the Bank's sole discretion), the Bank makes no commitment to buy back currencies notwithstanding any prior action or course of dealing. 3. Settlement: (a) Processing Settlement Instructions. The Customer shall provide settlement instructions for each Trader Contract no later than 5:00 p.m. Eastern Time on the Value Date. If the Customer fails to provide settlement instructions by the Value Date as required herein, the Bank reserves the right to reconvert the currency into the original currency and the Customer will bear the risk of any change of currency rates. The Customer will enter settlement instructions pursuant to the procedures set forth in the Service Material and as provided to the Customer through the Access System. As a condition precedent to using this Service the Customer is required to complete documentation provided by the Bank applicable for each service used for settlement. (b) Funding Currency Transactions. Whenever purchasing a currency pursuant to a Trader Contract, the Customer shall make the requisite amount of available funds being used to make such purchase available to the Bank by depositing such funds into an account designated by the Bank no later than close of business for the currency being sold on the Value Date. Whenever selling currency, the Customer shall deposit such currency to an account designated by the Bank no later than close of business for the currency being sold on the Value Date. The Bank is authorized to reverse any payment orders transmitted by the Bank with respect to any Trader Contract if the Customer fails to deliver full and final payment to the Bank by the Value Date. Notwithstanding anything to the contrary in this Agreement, the Bank's obligation to process settlement instructions for purchases of currency in advance of the Bank's receipt of full and final payment from the Customer is subject to the limitation that the aggregate dollar value of Trader Contracts for purchases having the same Value Date shall not be in excess of an amount established by the Bank for the Customer from time to time; such amount shall be subject to revision or cancellation by the Bank at any time without prior notice, although the Bank will endeavor to notify the Customer prior to any revision or cancellation. (c) Cash Basis Customer. Customers who are established by the Bank as "Cash Basis" Customers may only execute spot transactions for the purchase of the lawful currency of such countries or any composite currency as the Bank shall determine and advise the Customer from time to time. The spot transaction will have a Value Date one or two business days from the "Transaction Date" (the date the Trader Contract is entered into) for most currencies, as established by the Bank. Cash Basis Customers will be debited on the Transaction Date instead of the Value Date. If the Customer's account does not have sufficient funds available to cover the Trader Contract on the f_],.,.,. 'V) ..f 7 A Transaction Date, the Bank, on the following business day, will cancel the Trader Contract and any associated payment order The Bank shall have no liability to the Customer in the event the Bank cancels a Trader Contract due to the Customer not having sufficient funds available to cover the Trader Contract on the Transaction Date. (d) Payment in Specified Currency. The receipt or recovery by either party of any amount in respect of an obligation of the other in a currency other than that specified for payment hereunder, whether pursuant to a judgment of any court or pursuant to a separate closeout agreement or otherwise, shall discharge such obligation only to the extent that on the business day Immediately following such receipt, the recipient shall be able, in accordance with normal banking procedures, to purchase the relevant currency specified for payment in the amount specified with the other currency so received. If the amount of the relevant currency specified for payment hereunder or under a Trader Contract so purchasable shall be less than the amount specified hereunder of such obligation, the obligor shall, as a separate obligation and notwithstanding any judgment of any court, Indemnify the recipient against any loss sustained by it The obligor shall in any event indemnify the recipient against any costs incurred by it in making any such purchase of the relevant currency specified for payment. (e) Settlement by Draft. For all Trader Contracts that the Customer elects to settle by draft, the Customer acknowledges and agrees that in the event the draft is not presented for payment within one hundred eighty (180) days from the date of issuance, the Bank shall have the right to cancel the draft, and the Customer authorizes the Bank to reconvert the funds into the original currency at the then -current rate and recredit the Customer's Account. If the remitter is no longer a customer of the Bank, the Bank may, in its discretion, transfer balances to an unclaimed monies account, or issue a cashiers check, sending it to the address of the Customer on the books and records of the Bank. In the event that the payee, holder or other third -party claims against the Bank on a cancelled draft, the Customer agrees that it shall be responsible for any losses in connection with such cancellation, including any amount recredited or otherwise paid to the Customer. The Customer acknowledges and agrees that applicable service charges and expenses, including stop payment and periodic maintenance fees, may be charged to the Customer's Account or otherwise deducted from the amount to be paid to the Customer. 4. General Provisions: (a) Representations and Warranties. The following representations and warranties shall be deemed to be made and repeated by the Customer upon entry into any Trader Contract. The Customer represents and warrants that: i) each Trader contract or other Bank currency contract is entered into by the Customer for the purpose of hedging its exposure to currency fluctuation and not for purposes of speculation; and ii) the Customer has sufficient knowledge and experience to be able to evaluate the merits and risks of entering into each Trader Contract or other Bank currency contract, is acting in light of its own judgment or upon professional advice it obtained independently of the Bank or any agent of the Bank as to those merits and risks including where relevant, its own judgment of the correct tax and accounting treatment of the Trader Contract or other Bank currency contract and it is not relying upon the view or advice by the Bank. (b) Master Foreign Exchange Agreements If the Customer and the Bank have entered or hereafter enter into any master agreement relating to foreign exchange contracts, Trader Contracts shall be subject to the cancellation and closeout provisions of any such agreement providing for liquidation of foreign exchange contracts upon the occurrence of specified events (including those provisions relating to closeout netting), but shall not be subject to the other provisions of such agreement such as those relating to the creation of foreign exchange contracts and (unless otherwise agreed) payment netting. ©2011 JPMorgan Chase & Co. All Rights Reserved. JPMorgan Chase Bank, N.A. Member FDIC. Eligibility for particular products and services is subject to final determination by J.P. Morgan and/or its affiliate& n...... fln ,.s r)n City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 10/22/2013 DATE: Tuesday, October 22, 2013 REFERENCE NO.: P-11595 LOG NAME: 13P13 0166 BANKING SUBJECT: Authorize Agreements with JP Morgan Chase Bank, N.A., for Banking and Depository Services for all City Departments with an Estimated Cost of $433 333.00 Annually for a Term of Three Years and up to Two One —Year Renewals (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize Agreements with JP Morgan Chase Bank, N.A., for banking and depository services for all City departments with an estimated cost of $433,333.00 annually for a term of three years and up to two one—year renewals. DISCUSSION: The Financial Management Services will administer these Agreements, which will be used to provide banking and depository services for all City departments. These Agreements include all banking and depository services needed by the City with the exception of services associated with trust and asset management for oil and gas revenues, which are provided by Wells Fargo (M&C P-11467). A Request for Proposals (RFP) for banking and depository services was issued May 15, 2013. The City received three responses to the RFP. The evaluation team consisted of representatives from the Water, Municipal Court, Police, and Financial Management Services Departments. Proposals were rated on responsiveness, ability to provide required services and reports, banking services costs, earnings potentials, experience, references, continuity of bank and bank officials, creditworthiness and stability of the bank. Through the evaluation process, JP Morgan Chase Bank, N.A., was determined to have submitted the best evaluated proposal. Under the proposed Agreements, fees are calculated on a per —service basis. Although total fees for the services that are forecast to be required during the initial three year period are estimated in the amount of $1,300,000.00, Chase is offering a competitive earnings credit rate on cash balances, which can be used to offset fees. Because of the City's financial policy to keep a certain amount of ready cash to maintain liquidity and current low returns in other investment vehicles, Staff anticipates that the liquid cash maintained at the bank will earn enough credit to offset fees in Fiscal Year 2014, resulting in little or no out—of—pocket cost to the City If the accounts do not earn sufficient credits to offset the fees in their entirety Staff will identify budgetary savings to offset the net banking expenses and plan accordingly in future budgets. ADVERTISEMENT — This RFP was advertised in the Fort Worth Star —Telegram on Wednesdays from May 15, 2013 through June 19, 2013. Proposals were received from Bank of America, Wells Fargo and JP Morgan Chase Bank, N.A. M/WBE OFFICE — A waiver of the goal for MBE/SBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. AGREEMENT TERM — Upon City Council approval, these Agreements shall encompass services beginning on October 1, 2013 and ending on September 30, 2016. RENEWAL OPTIONS — These Agreements may be renewed for up to two additional one—year periods at the City's option Renewal does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal terms. FISCAL INFORMATION: The Financial Management Services Director certifies that funds are available in the current operating budgets, as appropriated, of the General Fund and Water and Sewer Fund BQN\\ FUND CENTERS: TO Fund/Account/Centers FROM Fund/Account/Centers CERTIFICATIONS: Submitted for City Manager's Office bv: Originating Department Head: Additional Information Contact: ATTACHMENTS 1. GG01-5ZZZZZ—ZZZZZZZ.docx 2. PE45-5ZZZZZ-06040ZZ docx 3. PE45-5ZZZZZ-070ZZZZ.docx 4. Waiver.PDF Susan Alanis (8180) Susan Alanis (8180) Jenny Kerzman (6030)