HomeMy WebLinkAbout2010-194 Agrmt - BofA Gov Banking Srvcs
Umbrella Agreement for Government Banking Services
This Agreement for Government Banking Services (the "Agreement") is made as of this cZ (o day of October, 2010, between the
City of Ashland (the "Client") and Bank of America, N.A., a national banking association.
WHEREAS, Client issued a Request for Proposal ("RFP") for providing banking services identified in the RFP (the "Services"), and
more fully identified as: Request for Proposals, Banking and Merchant Services, Date of Issuance February 26, 2010; and
WHEREAS, the Bank was the successful bidder under the RFP, having submitted its bid response on or before May 13, 2010 (the
"Bid Response"); and
WHEREAS, the parties wish to enter into this Agreement for the purpose of specifying the term and constituent documents of the
agreement between Client and Bank regarding the Services;
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the parties hereby agree as
follows:
1. Integrated Agreement. The entire and integrated agreement between Client and Bank related to the Services shall consist of this
Agreement, Bank's Treasury Terms and Conditions booklet (including user documentation and set-up forms), Bank's Bid
Response and Client's RFP as modified by the Bid Response. In the event of conflict among any of the preceding documents,
such documents shall govern in the following order of precedence: (1) this Agreement, (2) Bank's Treasury Terns and Conditions
booklet (including user documentation and set-up forms), (3) the Bid Response and (4) the RFP. The integrated agreement
supersedes all prior negotiations, representations, statements and agreements, whether written or oral, regarding the Services.
Specifically, the following clarifications to the Client's RFP are to be noted as controlling:
• Mutual non-indemnification - the State and Bank agree to mutual non-indemnification, where neither party is
responsible for indemnification of the other.
2. Commencement of Performance. Except as otherwise agreed by the parties, Bank shall begin performing each Service upon
execution and delivery of this Agreement, the pertinent service-level agreement and the related set-up forms. Bank shall continue
to perform such Services during the term of this Agreement.
3. Term. This Agreement is for an initial term of three (33) years, commencing effective as of July 1, 2010. The Agreement may be
extended by mutual consent of the parties, as set forth in the Bid Response and RFP.
4. Notices. Except as may otherwise be specified in the applicable service-level agreement or set-up form, notices to Client and
Bank shall be sent to the addrdlMsIefibrybel®F
Client: /O-
~ pprpved as
Bank: Bank of America, N.A. g
Documentation Management (CA4-706-04-07)
P.O. Box 27128 /
Concord, CA 94527-9904
Changes in the respective address set forth above may be made-from time to time by any party upon written noti to the other
party.
In witness whereof, the parties have executed this Agreement as of the date first written above.
City of Ashland Bank of America, N.A.
(CLIEN 'S LEGAL ) (BANK NAME)
By: r ' By: ~J
(Si atur
Name: Name: sA r)
441 2-2- C-)
//JJ~~ r Tyg~ (Pn to Type).
Title: Title: 547, e. PAXICi :1 dvt `r"--
(Print or Type) (Print or Type)
00-35-3112NSBW 03-06-2006 Page 1 of 1
TREASURY SERVICES
Terms and Conditions
t--
BankofAmeric OM
City of Ashland -Negotiated - 101510 '
0 2006 by Bank of America Corporation
All rights reserved. None of the enclosed material
may be reproduced or published without permission.
City of Ashland - Negotiated - 101510
AUTHORIZATION AND AGREEMENT FOR
TREASURY SERVICES
1 am an authorized representative of the organization specified below (the "Client"). The Client has received
Bank of America's Treasury Services Terms and Conditions Booklet (the "Booklet") and agrees to adhere to
the Booklet and any applicable User Documentation from Bank of America ("Bank"). The Services covered
by the Booklet and the banks providing Services are listed on the accompanying List of Banks and Services,
which we may change from time to time. Capitalized terms used in this Authorization and Agreement form,
not otherwise defined, have the meanings given to them in the Booklet.
After I sign below on behalf of the Client, the Client may from time to time request the Bank to provide any of
the Services described in the Booklet. The Client may begin to use any such Service once Bank has approved
such use and has received all required and properly executed forms and the Client has successfully completed
any testing or training requirements. The Booklet supersedes other agreements between the Client and the
Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services.
I warrant that the Client has taken all action required by its organizational or constituent documents to
authorize me to execute and deliver on behalf of the Client this Authorization and Agreement form and any
other documents the Bank may require with respect to a Service. I am authorized to enter into all transactions
contemplated by the provision of Services to the Client. These may include, but are not limited to, giving the
Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to
act in the name and on behalf of the Client.
Guidelines for completion:
If Client is a: Who must sign:
corporation any authorized officer
limited liability company all members, or any authorized offrcer*
partnership (general or limited) any general partner*
limited liability partnership the managing partner*
sole proprietorship the sole proprietor
governmental entity the Treasurer*
* Includes any individual authorized under Client's charter or organizational or constituent documents. The
legal name of any member, managing member, manager or general partner who is signing and who is not an
individual must appear in the signature block. Note that in most cases the Client must also complete the
Certification form which follows. -
Dated:/Z&11d
City of land
(ORG IZATION'S/CLIEP"FS LEGAL NAME)
Si f [t wtive [Signature of Authorized Representative, if two are
required by Client]
[P ' ti of A onzed Re esentgtive]
(/V [Print Name of Authorized Representative]
[Print Ti 6c of Authorized Representative (include the legal
name of any member, managing member, manager or [Print Title of Authorized Representative (include the legal
general partner who is signing and who is not an name of any member, managing member, manager or
individual)] general partner who is signing and who is not an
individual)]
City of Ashland - Negotiated - 101510 ii
The following addresses may be used for giving notices in connection with this Booklet except as you or we
provide the other different addresses to be used in conjunction with your accounts or particular Services.
Address for Client Notices: Address(es) for Bank Notices:
af Bank of America, N.A.
co-kOe/L Documentation Management (CA4-706-04-07)
020 ~g t~ -t- . 4:57-,~cee- - P.O. Box 27128
Concord, CA 94527-9904
Telephoner h~88 - S 0-7
Fax: (~y~ Sa't - O S Fax: (925) 675-7131
and, if filled in, the following:
Telephone:
Fax:
t
City of Ashland - Negotiated - 101510 iii
AUTHORIZATION AND AGREEMENT
CERTIFICATION
I certify that each signature appearing on the previous page for Client is the true signature of a person authorized to
execute the form on behalf of Client, and I further certify that I have full authority to execute this certification. The
Bank is entitled to rely upon this certification until written notice of its revocation is delivered to the Bank.
Guidelines for completion: This Certification should not be signed by the individual who signed the
Authorization and Agreement
If Client is a: Who must sign:
corporation any authorized officer
limited liability company any member or authorized officer
limited liability partnership any partner
partnership (general or limited) any general partner
sole proprietorship no signature required
governmental entity the entity's counsel, or any other individual as
permitted by the entity's organizational documents
The legal name of any member, managing member, manager or general partner who is signing and
who is not an individual must appear in the signature block.
Note: If Client is not a U.S. based entity, it is not required to complete this certification, but must provide
authorizing certificates or mandates.
Dated: to%Z1jQ
City of Ashland
(OR IZATION'S/CLIENT'S LEGAL NAME)
[Sign ffC~Ce,rtifying Representative]
~~~(n_ /
[Print Name of Certifying Representative]
[Print Title of Certifying Representative (include the legal
name of any member, managing member, manager or '
general partner who is signing and who is not an
individual)] "
City of Ashland -Negotiated - 101510 iv
Treasury Services Delegation of Authority Form
This form is optional and is to be used when you wish to delegate authority to sign various authorization forms to
someone other than the person who signed the Authorization and Agreement form in the front of this Booklet.
By signing below, you authorize the incumbent of the specified position listed in Section A or each person listed in
section B below, acting alone, to execute documents that we may request, and any amendments or renewals thereof,
pertaining to the use of Services, including but not limited to designating one or more persons (which may include
himself or herself) authorized to initiate, amend, cancel, confirm or verify the authenticity of instructions to us for
Services, whether given orally, electronically or by facsimile instructions, and to revoke any authorization granted to
any such person, as he or she deems appropriate. The signer of this form has the same authority described above for
each Service with us, unless otherwise specified. We are entitled to rely upon this delegation until written notice of
its revocation is received by us.
Guidelines for Completion: Fill out either section A or section B, or both, depending on your needs.
• To delegate authority to any person holding a specific title, fill out section A.
• To delegate authority to specific individuals by name, fill out section B.
For each name or title, indicate "All" in the "Service" column if the person or title has authority to sign documents
for all Services which you receive from us. Otherwise, indicate specific Services for which the person or title has
authority. For each name or title, indicate the entity or entities for which the person or title has authority to sign
documents.
A. TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITIONS
JI/M Service Entity
B. TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS
Name. Ie Service Entity Specimen signature
PIV MY-,
CLIENT AUTHORIZATION
Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury
Services form must sign this Treasury Services Delegation of Authority form.
Date l0/~ City of Ashland 14 (ORGANIZATION'S/CLIENT'S LEGAL NAME)
[Sign a of Aut rized Repre~~al/'Vt~7`~
(OrmNa~mee of A thorized Re resentati
[Print Title of Authorized Representative (include the legal name
of any member, managing member, manager or general partner who
is signing and who is not an individual)]
City of Ashland - Negotiated - 101510 v
TABLE OF CONTENTS
INTRODUCTION I
TREASURY SERVICES 2
ACCOUNT RECONCILEMENT ..........................................................................................................................2
AUTOMATED CLEARING HOUSE (ACH) ........................................................................................................2
AUTOMATED CLEARING HOUSE (ACH) BLOCKS AND FILTERS .............................................................5
AUTOMATED CLEARING HOUSE (ACH) CUSTOMER-INITIATED PAYMENTS .....................................6
CASHPAY® ..........................................................................................................................................................6
CHECK ISSUANCE ..............................................................................................................................................7
CHECK TRUNCATION ........................................................................................................................................8
CLIENT-PRINTED DRAFTS ................................................................................................................................9
COIN AND CURRENCY ORDERS ...................................................................................................................10
COLLECTION LETTERS I 1
COMMERCIAL AND CORPORATE CARD .....................................................................................................I1
COMMERCIAL DEPOSITS ................................................................................................................................17
COMMERCIAL PREPAID CARD ......................................................................................................................17
CONTROLLED BALANCE ACCOUNTS .........................................................................................................19
CONTROLLED DISBURSEMENT ....................................................................................................................20
DISBURSEMENT IMAGE ..................................................................................................................................22
ELECTRONIC BILL PAYMENT CONSOLIDATION ......................................................................................22
ELECTRONIC DATA INTERCHANGE (EDI) .................................................................................................23
ELECTRONIC FOREIGN EXCHANGE ............................................................................................................24
INFORMATION REPORTING ...........................................................................................................................26
LOCKBOX ...........................................................................................................................................................27
ONLINE STOP PAYMENT ................................................................................................................................28
POSITIVE PAY ...................................................................................................................................................29
RECLEAR ............................................................................................................................................................31
RE-PRESENTMENT CHECK (RCK) .................................................................................................................31
TAX PAYMENTS ...............................................................................................................................................32
WIRE TRANSFER AND INTERNATIONAL ELECTRONIC FUNDS TRANSFERS .....................................35
ELECTRONIC TRADE SERVICES 39
ADVISED STANDBY LETTERS OF CREDIT .................................................................................................39
COLLECTIONS ...................................................................................................................................................40
EXPORT LETTERS OF CREDIT .......................................................................................................................40
INFORMATION REPORTING ...........................................................................................................................42
OPEN ACCOUNT ...............................................................................................................................................43
STANDBY AND IMPORT LETTERS OF CREDIT ..........................................................................................43
SUPPLEMENTAL LIMITATION OF LIABILITIES AND INDEMNIFICATION
FOR ALL ELECTRONIC TRADE SERVICES ..................................................................................................46
GENERAL PROVISIONS 47
CHANGES TO A SERVICE ................................................................................................................................47 .
COMMUNICATIONS .........................................................................................................................................47
CONFIDENTIALITY ..........................................................................................................................................47
City of Ashland - Negotiated - 101510 vi
CURRENCY EXCHANGE RATES ....................................................................................................................49
FACSIMILE SIGNATURES ...............................................................................................................................50
GENERAL MATTERS ...........................................................................................................................:............50
GOVERNING LAW ............................................................................................................................................52
LIMITATION OF LIABILITIES .........................................................................................................................52
OVERDRAFTS ....................................................................................................................................................53
PAYMENT FOR SERVICES ..............................................................................................................................53
REPRESENTATIONS AND WARRANTIES .....................................................................................................54
RESOLUTION OF DISPUTES ...........................................................................................................................55
SOFTWARE LICENSE .......................................................................................................................................55
TERMINATION ......................................:...........................................................................................................59
GLOSSARY OF TERMS 61
City of Ashland-Negotiated - 101510 vii
INTRODUCTION
Thank you for choosing the Bank of America Corporation group of financial
institutions for your worldwide treasury management business needs. We
appreciate the opportunity to serve you. If you have any questions about our
extensive array of treasury services (including the locations where each
service is available) or about this Booklet, please contact your treasury
services representative.
Capitalized terms used in this Booklet are defined in the Glossary. The
terms "we", "us" and "our" refer to each of the Bank of America
Corporation subsidiary banks which provide you a particular Service under
the terms of this Booklet. The terms "you" and "your" refer to each Client
identified on the Authorization and Agreement for Treasury Services.
This Booklet contains the terms and conditions under which we provide you
worldwide treasury services. It is used in conjunction with the Account
Agreement which covers account terms and conditions. Please read this
Booklet carefully and keep it for your records.
By signing and returning the Authorization and Agreement form in the front
of this Booklet, you agree to the General Provisions section of this Booklet
(which contains terms and conditions applicable to all Services), except that
you agree to the Software License Section of the General Provisions only to
the extent we provide you Software in connection with one or more
Services. You also agree to those portions of the Treasury Services and
Electronic Trade Services sections of this Booklet which contain the specific
terms and conditions that relate to the Services we provide to you. If you
would like an additional Service, it will be covered by the terms and
conditions of this Booklet once we have approved your use of the Service.
You may begin using the Service when we have received all required and
properly executed forms and you have successfully completed any testing or
training requirements.
Whenever you use any of the Services covered by this Booklet, you agree to
be bound by these terms and conditions, as amended from time to time, and
to follow the procedures in the applicable Materials.
City of Ashland - Negotiated - 101510 1
TREASURY SERVICES
We offer a wide variety of treasury services. Each Service has many features
and options. Your treasury services representative will be happy to describe
these to you and to recommend those that will best meet your needs.
A List of Banks and Services is enclosed with this Booklet. This list includes
the names of each Bank of America Corporation subsidiary bank offering
Services under this Booklet and the names under which we currently offer those
Services. Please contact your treasury services representative at any time if you
wish to receive an updated list.
ACCOUNT RECONCILEMENT
Our Account Reconcilement Services will help you reconcile and manage the
credit and debit activity in your accounts. Detailed information regarding such
Services is available in the applicable User Documentation.
Your use of an Account Reconcilement Service does not affect any of your
obligations, which are described in the applicable Account Agreement, to
discover and report with respect to your accounts (including joint accounts
where permitted): (i) unauthorized signatures, alterations or endorsements on
checks and (ii) unauthorized Requests and other discrepancies. Your use of this
Service or our receipt of information associated with this Service does not
increase our duty with respect to accounts or the payment of checks.
AUTOMATED CLEARING HOUSE (ACH)
This section applies only to ACH Services within the United States of America
and does not apply to cross-border ACH transactions and other International
Electronic Funds Transfers which are covered by the "Wire Transfers and
International Electronic Funds Transfers" section in this Booklet.
Our ACH Services allow you to transfer funds to or from your accounts by
initiating Entries which may be sent through the ACH system or processed
directly to accounts with us.
We may send Entries to any ACH processor selected by us or directly to another
bank. Each ACH Service is described.in the applicable User Documentation.
You authorize us to issue Depository Transfer Checks (DTCs), as instructed by
you or as reasonably determined by us to be appropriate. The capitalized ACH
terms appearing in italics below are defined in the NACHA Rules.
COMPLIANCE WITH NACHA RULES AND LAWS
You agree to comply with the NACHA Rules for all Entries, whether or not an
Entry is sent through the ACH network. You act as Originator and we act as
Originating Depository Financial Institution (ODFI) with respect to Entries.
You will deliver Entries to us as provided in the User Documentation and the
NACHA Rules. The NACHA Rules govern if they conflict with this Booklet,
City of Ashland - Negotiated - 101510 2
except that the file specification requirements in the User Documentation govern
if they conflict with the NACHA Rules.
Where a preauthorized debit Entry from a consumer's account varies in amount
from the previous debit Entry, you will comply with the notice requirements set
forth in the NACHA Rules, the Electronic Funds Transfer Act and Regulation E
of the Board of Governors of the Federal Reserve System, as applicable.
AUTHORIZED PERSONS
Before using an ACH Service, you give us a written list, in a form acceptable to
us, of the persons authorized by you to verify the authenticity of Entries and
Reversal/Deletion Requests in accordance with the Security Procedure and to
perform certain other duties in connection with such Service.
SECURITY PROCEDURE
You agree to use the Security Procedure, if any, when you deliver Entries or
Reversal/Deletion Requests to us. The purpose of the Security Procedure is to
verify the authenticity of Entries and Reversal/Deletion Requests delivered to us
in your name and not to detect any errors in the transmission or content of
Entries. Each time you use a Service, you represent and warrant that, in view of
your requirements, the Security Procedure is a satisfactory method of verifying
the authenticity of Entries and Reversal/Deletion Requests. You agree we may
act on any Entries or Reversal/Deletion Requests after we have verified its
authenticity through use of the Security Procedure.
WARRANTIES
Each time you use an ACH Service, (i) you warrant that you have obtained
appropriate authorization from each Receiver and that Entries conform to such
authorization and comply with the NACHA Rules, and (ii) you make the same
warranties to us as we make under Section 2.2 (or any successor section) of the
NACHA Rules.
PAYMENT WITH RESPECT TO ENTRIES
We generally debit your account on the settlement date for credit Entries
(including debit Reversals), unless you are prefunding your Entries. Prefunding
means that you are required to pay for all credit Entries before the settlement
date as we may specify. We may, at our discretion, without prior notice to you,
require prefunding before we process your credit Entries. We are not obligated
to process any credit Entries, even if we have done so in the past, without having
first been paid by you, but, if we do, the amount is immediately due and payable
without notice or demand.
You will pay us for the amount of any returned debit Entries (including rejected
debit Entries), any adjustment Entries or any returned DTCs, which we have
previously credited to your account. Such amounts shall be immediately due
and payable. You agree that we do not need to send a separate notice of debit
Entries or DTCs which have been returned unpaid. You may request reports
containing information regarding returned debit Entries and DTCs.
City of Ashland - Negotiated - 101 510 3
ACTING ON ENTRIES
We send Entries to the ACH processor for settlement on the Effective Entry
Date shown on the Entries, if we receive the Entries by the applicable processing
deadlines specified in the User Documentation for the ACH Service being used.
We may treat Entries that we receive for processing after a deadline as if
received on the next Business Day. Entries will be deemed received by us when
we receive the complete file at the location specified in the User Documentation.
REJECTION OF ENTRIES
We may reject any Entry that does not comply with the requirements of this
Booklet or the applicable User Documentation, including any ACH processing
limits described in the User Documentation, or that we are unable to verify
through use of the Security Procedure. We may also reject any Entry that may
be returned for any reason under the NACHA Rules or if you have breached
your payment obligations for any ACH Service we provide to you.
Notice of rejection will be given to you by telephone, by electronic means, by
facsimile or by mail within the time period specified in the User Documentation
and will be effective when given. We are not liable for the rejection of any
Entry and are not obligated to pay you interest for the period before you receive
the notice of rejection. If an Entry is rejected for any reason, it is your
responsibility to correct the Entry you intend to resubmit.
REVERSAL OR DELETION
We have no obligation to cancel or amend any Entry after we have received it.
If you send us a Reversal/Deletion Request and we are able to verify the
authenticity of the Reversal/Deletion Request using the Security Procedure, we
will make a reasonable effort to act on your Reversal[Deletion Request. We will
not be liable to you if such Reversal/Deletion Request is not effected. You agree
to indemnify us in connection with any such Reversal/Deletion Request as
provided in UCC 4A. Your obligations under this provision will survive the
termination of any ACH Service.
PROVISIONAL PAYMENTS
You agree to be bound by the provision of the NACHA Rules providing that
- payment of a credit Entry by the Receiving Depository Financial Institution
(RDFI) to the Receiver is provisional until the RDFI receives final settlement for
the Entry. If final settlement is not received, the RDFI is entitled to a refund
from the Receiver of the amount credited. This means that the Receiver will not
have been paid.
Our payment of any debit Entry, returned credit Entry or credit Reversal is
provisional until we receive final settlement for the Entry or Reversal. If final
settlement is not received, we are entitled to a refund and we may charge your
account for the amount previously credited. We may delay the availability of
any amount credited for a debit Entry or credit Reversal if we believe that there
may not be sufficient funds in your account to cover any chargeback or return of
the Entry or Reversal.
City of Ashland - Negotiated - 101510 4
INCONSISTENCY OF NAME AND NUMBER
An RDF1 can make payment to a Receiver based solely on the account number,
even if the name in the Entry differs from the name on the account. We will
send an Entry to an RDF! based solely on the bank identifying number you
provide, even if you provide us with a different RDF/ name.
NOTICE OF ACCOUNT STATEMENT DISCREPANCIES
Information concerning Entries will be reflected in your account statements and,
in some cases, in the form of written or electronic advices or reports that are
produced by one of our Information Reporting Services. You must send us
written notice, with a statement of relevant facts, within 14 days after you
receive the first notice or statement indicating a discrepancy between our
records and yours. If you fail to give the required notice, we will not be liable
for any loss of interest or for compensation for any other loss or cost relating to
an unauthorized or erroneous debit to your account or any other discrepancy
reflected in the notice or account statement. You must notify us promptly by
telephone or other electronic means approved by us for such purpose, and
confirm such notice in writing, of information concerning an unauthorized or
erroneous debit to your account if you learn about or discover it from any source
other than a statement, advice or report from us.
AUTOMATED CLEARING HOUSE (ACH) BLOCKS AND FILTERS
This section applies only to ACH Blocks and Filters Services for Entries
received in the United States of America.
With the ACH Blocks and Filters Services, you provide us with the
authorization criteria for Entries you desire to receive for debit or credit to your
account. We will automatically return any Entry which does not meet your
authorization criteria.
We may also term an Entry that would be returned for any reason under the
NACHA Rules. The ACH Blocks and Filters Services do not apply to
transactions between you and us, and we may pay Entries which.you have
authorized us to originate against your account (e.g., loan or credit card
payments), whether or not you have included these in your authorization criteria.
We may also pay any Entries, reversals or adjustments which we are required to
accept under the NACHA Rules, operating circulars or any other applicable rule,
guideline or regulation.
You provide authorization criteria in a manner and form acceptable to us. In
your authorization criteria you may specify a maximum amount for authorized
Entries, in which case you must specify the amount in dollars and cents.
You agree to comply with the NACHA Rules for all Entries. Under the NACHA
Rules, credit Entries are provisional and may be revoked prior to final
settlement. If the credit Entry is revoked before final settlement and final
settlement is not received, we may charge your account for any amount
previously credited to your account. The person who originated the credit Entry
City of Ashland - Negotiated - 101510 5
is considered not to have paid you. If this happens, we do not send a separate
notice.
If an ACH Blocks and Filters Service is terminated for any reason, we will no
longer be obligated to monitor Entries against your authorization criteria and
will receive and accept or return Entries to your account in accordance with our
normal procedures. You still have the right to return Entries in accordance with
the NACHA Rules.
AUTOMATED CLEARING HOUSE (ACH) CUSTOMER-INITIATED PAYMENTS
Our ACH Customer-Initiated Payments Service allows your consumer or
business customers to pay you for goods or services by using your website.
Your customers can authorize payments to you through commands on your
website or by touch-tone or voice commands on the telephone. Detailed
information regarding this Service is available in the applicable User
Documentation.
Payments will be made by creation of an ACH Entry to credit your account with
us and will be subject to the provisions of our Automated Clearing House
Services. You act as the Originator, your customer acts as the Receiver and we
act as the ODFI with respect to the Entries. You warrant that you have obtained
appropriate authorization from each Receiver and that Entries conform to such
authorization and comply with the NACHA Rules. You also make to us the
same warranties as we make with respect to Entries under the NACHA Rules.
CASHPAY®
Our CashPayg Service allows you to pay your employees and other payees by
directly depositing payments to their CashPay accounts. Your payees can
immediately access their money through ATMs and point of sale (POS)
terminals.
CASHPAY FUNDING OPTIONS
You may fund the CashPay accounts in one of two ways: by initiating Entries
through the Automated Clearing House (ACH) system or, upon our approval, by
instructing us to transfer funds from a deposit account you maintain with us.
(ACH Services are governed by the ACH section of this Booklet.)
If you choose to pay by the transfer of funds from your account with us, we will
debit your account following receipt of your payment instructions in a mutually
agreed-upon format and method. You must have sufficient Collected and
Available Funds in your account to cover the transfer amount. In the event that
sufficient funds are not available at the time of settlement, you agree that we
may take steps to protect ourselves, including refusing to fund CashPay accounts
and terminating the CashPay Service (which will not affect funds previously
transferred to CashPay accounts), without incurring any liability to you or your
payees.
CERTIFICATION OF ENROLLMENT INFORMATION
You must provide us information for each payee who wishes to open a CashPay
account. Each time you provide us with such information or initiate a transfer of
City of Ashland - Negotiated - 101510 - 6
funds to a CashPay account, you certify that the following statements are true
and accurate as of such date:
• The payee is entitled to receive payments issued by you, and is otherwise
qualified to participate in the CashPay program.
All information provided by you about the payee is correct, including but
not limited to the payee's date of birth, address, and social security number
or other identifying information contained in another form of identification
issued by a governmental entity.
If the payee is to receive wage payments through a CashPay account, the
payee is legally employable in the United States of America.
• You have provided the payee the explanatory CashPay Service information
that we have provided to you for that purpose, and the payee has authorized
the transfer of wages to the CashPay account.
• The payee has not cancelled the authorization to transfer the wages to the
CashPay account.
You agree to notify us promptly of any changes to the payee enrollment I
information you have provided to us for this Service.
ADDITIONAL LIMITATION OF LIABILITY
As a general rule, ATMs cannot dispense cash in increments other than $5, $10
or $20. This means that your payees may not be able to withdraw at an ATM all
funds paid by you to the payees' CashPay accounts. We will wire the difference
to any payee who requests such payment; however, we will not be responsible if
your payees or others assert a claim against us due to this inability to withdraw
all funds at an ATM.
PROMOTIONAL MATERIALS
We will provide you with a CashPay agreement and other explanatory
documentation for you to give your payees. You must obtain our prior written
consent if you elect to promote the CashPay service using materials (in any
format) other than the documentation we provide to you for that purpose.
CHECK ISSUANCE
With our Check Issuance Services, you may request us to create checks on your
behalf that are drawn on either (i) accounts maintained by you with us or another
bank or (ii) accounts designated and owned by us.
AUTHORIZED PERSONS
Before using a Check Issuance Service, you give us a written list, in a form
acceptable to us, of the persons authorized by you to perform certain duties in
connection with such Service.
City of Ashland - Negotiated - 101510 7
SECURITY PROCEDURE
You agree to use the Security Procedure when you deliver Check Issuance
` Requests or electronically transmit Stop Payment Requests to us. The purpose
of the Security Procedure is to verify the authenticity of Check Issuance
Requests and Stop Payment Requests delivered to us in your name and not to
detect any errors in the transmission or content of these messages. Each time
you use a Check Issuance Service, you represent and warrant that, in view of
your requirements, the Security Procedure is a satisfactory method of verifying
the authenticity of Check Issuance Requests and such Stop Payment Requests.
You agree we may act on any Check Issuance Request and any electronically
transmitted Stop Payment Request the authenticity of which we have verified
through use of the Security Procedure.
STOP PAYMENT REQUESTS
Generally, you may send us a Stop Payment Request with respect to a check
drawn on an account designated and owned by us only if the check is lost, stolen
or destroyed. In such case, you must complete and provide us with a declaration
of loss and indemnity agreement reasonably acceptable tows. If you wish to
stop payment on a check drawn on an account you maintain with us, you must
make your request as provided in the applicable Account Agreement.
YOUR RESPONSIBILITIES
You must create and transmit to us a Check Issuance Request for each check
you want us to issue on your behalf. You must make certain that each Check
Issuance Request conforms in form and substance to the requirements, including
cutoff times on a Business Day, described in the applicable User
Documentation.
You must retransmit any Check Issuance Request or other message initially
transmitted to us through a Service if you have not received an acknowledgment
message from us within the time period specified in the applicable User
Documentation.
In the case of checks drawn on accounts designated and owned by us, you must
ensure that Collected and Available Funds, sufficient to cover the total of all
checks issued, are on deposit in your accounts. We will debit your account to,
cover such checks when we receive your Check Issuance Request. In the case
of checks drawn on accounts designated and owned by you, you will be
governed by the applicable Account Agreement.
CHECK TRUNCATION
With our Check Truncation Service, we store copies of your canceled checks on
microfilm or other media and destroy the checks. You do not receive your
canceled checks. We will provide a copy of any check that you request for up to
seven years from the date the check was paid against your account. To request a
copy, you must provide us with sufficient information for us to identify the item,
including the Magnetic Ink Character Recognition (MICR) serial number,
account number, exact amount (dollars and cents) of the check, statement
reference number, if any, and posting date. We may also ask you for additional
identifying information.
City of Ashland - Negotiated - 101510 8
Special services such as microfilm or review of dates, dollar amounts, serial
numbers or signatures may not be available in connection with the Service.
Notwithstanding the Limitation of Liabilities section of this Booklet, if we are
unable to provide a copy of a check as requested by you under a Service, our
liability will be limited to your actual damages but will not, in any event, exceed
the amount of the check.
CLIENT-PRINTED DRAFTS
With our Client-Printed Drafts Services, you use your computer (using Software
we provide or by accessing our treasury management website) to print drafts
(which may include drafts denominated in a currency other than the currency in
which the relevant account is denominated) drawn on either (i) accounts
maintained by you with us or another bank or (ii) accounts designated and
owned by us.
AUTHORIZED PERSONS
Before using a Client-Printed Drafts Service, you give us a written list, in a form
acceptable to us, of the persons authorized by you to perform certain duties in
connection with such Service.
SECURITY PROCEDURE
You agree to use the Security Procedure when you deliver Payment Advices or
electronically transmit Stop Payment Requests to us. The purpose of the
Security Procedure is to verify the authenticity of Payment Advices and Stop
Payment Requests delivered to us in your name and not to detect any errors in
the transmission or content of these messages. Each time you use a Client-
Printed Drafts Service, you represent and warrant that, in view of your
requirements, the Security Procedure is a satisfactory method of verifying the
authenticity of Payment Advices and such Stop Payment Requests. You agree
we may act on any Payment Advice or electronically transmitted Stop Payment
Request the authenticity of which we have verified through use of the Security
Procedure.
STOP PAYMENT REQUESTS
Generally, you may send us a Stop Payment Request with respect to a draft
drawn on an account designated and owned by us only if the draft is lost, stolen
or destroyed. In such case, you must complete and provide us with a declaration
of loss and indemnity agreement reasonably acceptable to us. If you wish to
stop payment on a draft drawn on an account you maintain with us, you must
make your request as provided in your Account Agreement.
YOUR RESPONSIBILITIES
You must verify the contents of each shipment of blank draft stock and sign and
return to us the receipt accompanying each shipment or notify us of any
discrepancy. You must notify us immediately if any draft stock is lost or stolen.
You will be liable for any damages arising out of the loss or theft of any draft
stock received by you.
City of Ashland - Negotiated - 101510 9
You must create and transmit to us a Payment Advice for each draft you issue
using a Service. You must make certain that each draft, Payment Advice and
electronically transmitted Stop Payment Request conforms in form and
substance to the requirements, including cutoff times on a Business Day,
described in the applicable User Documentation.
You must retransmit any Payment Advice, electronically transmitted Stop
Payment Request or other message initially transmitted to us through a Service
if you have not received an acknowledgment message from us within the time
period specified in the applicable User Documentation.
OUR RESPONSIBILITIES
When we receive the Payment Advice, we will transfer funds from your account
with us to the bank account on which the draft is drawn.
We will provide you with blank draft stock and with the necessary Software
and/or access to our treasury management website.
PAYMENT WITH RESPECT TO DRAFTS
You agree you will not issue any drafts using a Service which would cause your
applicable account balance, according to your records, to be exceeded. If your
records and ours disagree regarding the account balance, our records will control
for purposes of these Services. You must ensure that Collected and Available
Funds, sufficient to cover the total of all drafts issued, are on deposit in your
account each Business Day before the time stated in the applicable User
Documentation.
COIN AND CURRENCY ORDERS
Our Coin and Currency Order Services allow you to place orders for coin and
currency with our cash vaults and, where available, to exchange paper currency
for rolled coins and currency at certain banking centers or our automated
business centers.
Before using a Coin and Currency Order Service, you give us a written list at
our request, in a form acceptable to us, of the persons authorized by you to place
coin and currency orders and to perform certain other duties in connection with
a Service.
If you pick up your coin and currency order from one of our cash vaults, you
must contract separately with an armored carrier service that is acceptable to us
to provide for the transportation of cash orders. Armored carriers are your
agents.
You authorize us to act upon any request for coin or currency made in
accordance with this Booklet and the procedures described in the applicable
User Documentation.
In connection with any coin and currency you order from our cash vaults using a
Service, you authorize us to debit your account on the day the coin and currency
order is released to your authorized agent or to the depository facility you and
we have agreed upon. Each time you use a Coin and Currency Order Service,
City of Ashland - Negotiated - 101510 10
you represent and warrant with each coin and currency order that you have
sufficient Collected and Available Funds in your account which, when added to
funds that are available under a line of credit, are sufficient to cover your coin
and currency order. We have no obligation to release a coin and currency order
unless there are sufficient Collected and Available Funds in the designated
account and available under a line of credit to pay for such order at the time
scheduled for release of the cash to you or your agent.
COLLECTION LETTERS
Our Collection Letter Services allow you to forward us drafts, checks and
travelers checks (as used in this section, "items") drawn on Canadian banks and
denominated in U.S. dollars or drawn in specified foreign currencies (as
described in the applicable User Documentation) for collection.
You must prepare and forward a transmittal letter, in a form acceptable to us,
along with those items you want us to process for collection in accordance with
the applicable User Documentation. You agree that you will only request
collection on items which are drawn on Canadian Banks in U.S. dollars or
foreign currency items drawn in currencies specified in the applicable User
Documentation.
We will send each item you forward to us for collection to the bank on which
such item was drawn or to an appropriate correspondent bank. We will credit
your account for each item on the Business Day on which we receive payment
for each such item at our then-prevailing buy rate for the applicable currency.
We will deduct all service fees and charges, plus any correspondent bank fees
and charges, from the amount of any payment credited to your account for such
items.
We will send you a written advice showing the applicable buying rate and fees
and charges for each item we process as a collection item through use of a
Collection Letter Service.
COMMERCIAL AND CORPORATE CARD
Our Commercial and Corporate Card Services allow you to open Card Accounts
for your business purposes, as described below. With our Commercial Card
Services, which are designed principally for medium-sized companies, you may
obtain a single Card for managing purchases, travel and fleet spending. With
our Corporate Card Services, which are designed for large companies, you may
obtain separate purchasing, travel or fleet Cards or a Card combining all three
functions. Accounts payable payment functionality is also available. Detailed
information regarding such Services is available in the applicable User
Documentation.
OUR OBLIGATIONS
We will open Card Accounts upon your request which Cardholders or you may
use to conduct Transactions for your business. We will assume that all
Transactions made on a Card Account are authorized by you until we receive
and have had a reasonable period of time to act upon written notice from you
that the Cardholder is no longer authorized to use the Card, Convenience Checks
City of Ashland - Negotiated - 101510 11
or the Card Account. Pursuant to your instructions, each Card Account we open
shall have one or more of the following features:
• travel and entertainment
• purchasing
. • accounts payable payment
• fleet/automotive
We may also provide Convenience Checks on your request with respect to your
Card Accounts. We can also establish a Card Account for which we assign only
a Card Account number, but we do not issue a Card or Convenience Checks. If
you so request, we will provide to the Cardholder, at the address you or the
Cardholder specifies, a monthly billing statement reflecting the use of the
relevant Card Account. We may deny authorization of any Transaction if we
suspect fraudulent activity or Unauthorized Use or for any other reason.
Notwithstanding anything to the contrary in the "Limitations of Liability"
section of this Booklet, we will not be liable for any failure to authorize a
Transaction.
YOUR OBLIGATIONS
You shall use each Card Account solely for your business purposes.
You shall pay for each Transaction, regardless of its purpose or whether you
signed a sales draft or received a receipt, in addition to our fees and charges.
You represent and warrant to us that each Cardholder is a current employee or
agent of your company. You will promptly furnish such financial and other
information as we request for the purpose of reviewing your ability to perform
your obligations to us. You represent and warrant to us that all such information
about your employees, agents or your company is accurate, sufficiently
complete to give us accurate knowledge of your financial condition and in
compliance with all applicable rules, regulations and laws.
You and each Cardholder will check to ensure that the information embossed on
each new Card or printed on each Convenience Check is correct, and you will
contact us immediately if there is an error.
CHARGE LIMITS
We will give you one total charge limit for all your Card Accounts. We will
also assign an individual charge limit for each Card Account. We may increase
or decrease the total charge limit or any individual limit at our discretion. You
agree not to incur obligations which would cause the total charge limit for all
your Card Accounts to be exceeded. If you do exceed this limit, or if any
Cardholder's individual charge limit is exceeded, we may deem the entire
balance owing to be immediately due and payable, and/or we may refuse any
Transactions on all Card Accounts or the individual Card Account until a
payment is made to reduce the balance below the total charge limit or the
individual charge limit.
City of Ashland - Negotiated - 101510 12
TRANSACTIONS IN OTHER CURRENCIES
MasterCardo or Visa® will convert to U.S. Dollars any charge made in a
currency other than U.S. Dollars at a rate determined under MasterCard or Visa
regulations, as applicable. The conversion rate may be different than the rate in
effect on the date of the Transaction. We will post to the Card Account the
converted U.S. Dollar amounts.
DISPUTES WITH MERCHANTS AND SUPPLIERS
We will have no liability for goods or services purchased with, or for a
merchant's or supplier's failure to honor purchases made with, a Card Account,
Convenience Check or Card. You agree to make a good faith effort to resolve
any dispute with a merchant or a supplier arising from a Transaction. In a
dispute with a merchant or supplier, we will be subrogated to your rights and
each Cardholder's rights against the merchant or supplier and you will assign
(and cause the Cardholder to assign) to us the right to assert a billing error
against the merchant or supplier. You will, and will cause the Cardholder to, do
whatever is necessary to enable us to exercise those rights. We may reverse
from any Card Account any Transactions relating to the dispute.
A merchant or supplier may seek prior authorization from us before completing
a Transaction. If you advise us in writing that you desire to restrict Transactions
to merchants falling within certain categories we designate in our User
Documentation, we will take reasonable steps to prevent authorization of
Transactions from other types of merchants. We, however, will not be liable to
you if merchants or suppliers nonetheless accept a Card, Convenience Check or
Card Account for other types of Transactions, or if authorization for a
Transaction is not given.
CONVENIENCE CHECKS
If we provide Convenience Checks with regard to a Card Account, they may not
be used to make payment on the Card Account. We may pay a Convenience
Check and post its amount to the Card Account regardless of any restriction on
payment, including a Convenience Check that is post-dated, that states it is void
after a certain date or that states a maximum or minimum amount for which it
may be written. Once paid, Convenience Checks will not be returned to you or
the Cardholder.
If you wish to stop payment on a Convenience Check, you must call us at the
customer service number shown on your billing statement and provide such
information as we request or is required under the relevant User Documentation.
We will stop payment if we receive your request on or before the Business Day
before the Business Day on which we would otherwise pay the Convenience
Check. The date on which we would pay a Convenience Check may be prior to
the date it would post to your Card Account. A stop payment order will remain
in effect for up to six months.
CARDLESS ACCOUNTS; ACCOUNTS NOT IN NAME OF INDIVIDUAL
If you use our Corporate Card Services, we may, at your request, establish a
Card Account for which no Card is issued or establish a Card Account with a
City of Ashland - Negotiated - 101510 13
designation which is not an actual individual, including, without limitation,
designation of a vehicle identification number, license number, department
name or "Authorized Representative" on the Card Account. Notwithstanding
any other term in this Booklet, you agree to be solely responsible for the use of
any such Card Account, including, without limitation, any Unauthorized Use,
and you agree not to make any claim or request related to any Unauthorized Use
of such a Card Account.
PAYMENT OF CARD ACCOUNTS; SECURITY INTEREST
We will provide to the Card Administrator, or other person you designate in
writing to us, a monthly billing statement which will identify each Transaction
posted during the billing cycle and the date of the Transaction. Unless otherwise
determined by us, the official billing statement will be in paper, not electronic,
form. The billing statement will also list any applicable fees and charges for the
Services. If you have requested a Card Account for travel and entertainment
Transactions, we will provide an additional copy of the monthly billing
statement covering such use of the relevant Commercial Card to the appropriate
Cardholder at the address which you or the Cardholder provides to us.
You will pay to us the total amount shown as due on each billing statement on or
before the due date shown on the statement. If you do not make a payment in
full by the specified due date, in addition to our other rights, we may assess a
late fee and finance charge as set forth in our schedule of fees and charges. You
have no right to defer any payment due on any Card Account.
Unless otherwise agreed by us, payments must be made using an ACH service.
As specified by you, we may initiate ACH debits to any deposit account at any
financial institution. All payments must include the complete Card Account
number in order to be processed and for you to be credited with making
payment. If you arrange for direct payment by Cardholders, such an
arrangement will not change your responsibilities under this Booklet, including
your obligation for payment.
You grant to us a security interest and contractual right of setoff in and to
all deposits now or subsequently maintained with us or any of our affiliates
or Subsidiaries. In connection with that grant, you authorize us to enter
into a master control agreement with our affiliates authorizing, upon the
occurrence and continuance of any default, the disposition of any such
deposits to satisfy all liabilities incurred in connection with these Services,
without your further consent. The grant of this security interest shall
survive termination of these Services.
LOST OR STOLEN CARDS; UNAUTHORIZED USE
In the event of a possible loss or theft of a Card, Convenience Check or Card
Account or possible Unauthorized Use, you will give us notice by telephone or
telefax to the numbers set forth in the User Documentation. You agree to give
us this notice as soon as practicable but in any event within 24 hours after
discovery of the known or suspected loss or theft or Unauthorized Use. If notice
as provided in this paragraph is given within the first 24 hours and you assist us
in investigating facts and circumstances relating to the loss, theft or possible
Unauthorized Use, including without limitation obtaining an affidavit or similar
City of Ashland - Negotiated - 101510 14
written, signed statement from the Cardholder, then you will not be liable for
Transactions resulting from Unauthorized Use. If we have issued fewer than ten
Card Accounts to you, your liability for Transactions by a person who does not
have actual, implied or apparent authority to use the Card or Convenience Check
and whose use does not result in a direct or indirect benefit to you will not
exceed $50 on each Card.
LICENSE TO USE YOUR MARKS
Upon your request, we may place your trademark, tradename, service mark
and/or designs ("Company's Marks") on the Cards and collateral materials. You
will provide the graphics to us in sufficient time to allow for review and
approval by us and, if necessary, the respective card association. You grant to
us a non-exclusive license to use, during the term of the Services, Company's
Marks on the Cards and on other materials related to the Card Accounts. Your
indemnity under the "Protection from Third Parties" section of this Booklet
covers any claim that the use of any Company Marks infringes the intellectual
property right of any third party.
EXTENSION OF CORPORATE CARD SERVICES TO AFFILIATES
Upon your request and submission of a Participant Account form, we may
approve one or more affiliates of which you are majority owner for participation
in the Corporate Card Services. Each participating affiliate will have the same
rights and obligations as you except that no separate charge limit will be
assigned. Your charge limit will apply to Transactions on all Card Accounts,
including those of your participating affiliates.
You may terminate an affiliate's participation by giving us written notice and a
reasonable time to act on such notice. If an approved participant is, or will no
longer be, majority-owned by you, you agree to notify us immediately, and we
may immediately terminate the Card Accounts of such participant.
SUPPLEMENTAL GOVERNING LAW AND RESOLUTION OF DISPUTES
PROVISIONS
Notwithstanding anything to the contrary in the Governing Law provision in the
General Provisions section of this Booklet, the Commercial and Corporate Card
Services are governed by the laws respecting national banking associations and,
to the extent not covered by those laws, by the laws of the State of Delaware,
without reference to that state's principles of conflicts of law, regardless of
where you reside or where a Cardholder uses a Card Account.
Notwithstanding anything to the contrary in the Resolution of Disputes
provision in the General Provisions section of this Booklet, you agree to submit
to the personal jurisdiction of any state or federal court in Delaware and to
binding arbitration in Delaware with respect to disputes regarding the
Commercial and Corporate Card Services.
ADDITIONAL TERMINATION PROVISIONS
We may immediately terminate these Services if there occurs (i) a termination
event set forth in the "Termination" section of this Booklet with respect to you,
City of Ashland - Negotiated - 101510 15
a participating affiliate or a guarantor of obligations under any Card Account,
(ii) a change in your ownership, if you are a privately-held entity, in excess of
50% or (iii) any of the following with respect to you, a participating affiliate or a
guarantor of obligations under any Card Account:
the failure to pay or perform any obligation, liability or indebtedness to
us or any of our affiliates or subsidiaries, whether under this Booklet or
any other agreement, as and when due (whether upon demand, at
maturity or by acceleration);
■ the failure to pay or perform any other obligation, liability or
indebtedness to any other party;
■ death (if an individual) or resignation or withdrawal of any partner or
material owner (of a privately-held entity);
■ merger or consolidation with or into another entity;
■ the determination by us that any representation or warranty made to any
of our affiliates or subsidiaries in any agreement is or was, when it was
made, untrue or materially misleading;
■ the failure to timely deliver such financial statements, including tax
returns, other statements of condition or other information, as we shall
request from time to time;
■ the entry of a judgment which we deem to be of a material nature;
■ the seizure or forfeiture of, or the issuance of any writ of possession,
garnishment or attachment, or any turnover order for any property;
■ the determination by us that we are insecure for any reason;
■ the determination by us that any such person fails to meet credit criteria
initially used by us to approve the Card Services; or
■ the failure to comply with any law or regulation controlling its
operation.
Upon any termination of the Card Services, (i) the entire balance outstanding on
all Card Accounts shall, at our option, become immediately due and payable and
(ii) you will immediately destroy, and will instruct all Cardholders to
immediately destroy, all Cards and Convenience Checks. Your responsibility to
pay for all Transactions regarding each Card Account will continue until a
reasonable period of time after you notify us to close the Card Account or until
you pay for all Transactions entered into before we close the Card Account to
future use, whichever occurs later. After termination, you and all Cardholders
will make no new Transactions on any Card Account. If, however, such
Transactions are made, you will be liable for each of them.
City of Ashland - Negotiated - 101 510 16
COMMERCIAL DEPOSITS
With our Commercial Deposits Services, you may make deposits of coin and
currency, checks and other payment instruments at one of our designated
banking centers (which may include an automated business center), depository
facilities (which may include a night depository facility), processing centers or
cash vaults. If these deposits are delivered by you or your agent before the cutoff
time specified in the applicable User Documentation, we will give you same-day
provisional credit for such deposits, subject to later verification by us and our
availability schedule. Banking center deposits that are immediately verified are
covered under your Account Agreement.
YOUR RESPONSIBILITIES
You agree to prepare all deposits accurately and in good faith and to follow the
procedures for preparation, packaging and delivery of deposits as provided in
the applicable User Documentation.
For deposits made to an automated business center, you will automatically be
provided a receipt. In all other cases, in order to receive a receipt of deposit,
you must provide a duplicate deposit slip in addition to the number of original
deposit slips required by us to process the deposit. We will stamp this duplicate
deposit slip and return it to you. In all cases, deposits are subject to later
verification by us. ,
If you use an armored carrier to transport your deposits, you must contract
separately with an armored carrier service that is acceptable to us. For deposits
made to one of our cash vaults, we may require that you use an armored carrier.
Armored carriers are your agents.
OUR RESPONSIBILITIES
We receive your deposit and issue provisional credit to your account for the
amount you declare on the deposit slip. The declared amount is subject to later
verification by us.
If we find an error when we verify your deposit, we will debit or credit the
amount of the error to the deposit account listed on the deposit slip, unless you
and we have agreed otherwise in writing; provided, however, we reserve the
right to set a standard adjustment amount (which we may change from time to
time), in which case we will not make a correction to a deposit when the error is
less than our current adjustment amount.
We give you same-day provisional credit for deposits delivered before the cutoff
time on a Business Day. For deposits delivered after the cutoff time or on a non-
Business Day, we give you provisional credit on the next Business Day.
COMMERCIAL PREPAID CARD
Our Commercial Prepaid Card Services enable you to distribute Commercial
Prepaid Cards to your employees and others that permit them access to a
predetermined amount of funds. Commercial Prepaid Cards may be used to
withdraw cash at any ATM displaying any of the logos displayed on the
City of Ashland - Negotiated - 101510 17
Commercial Prepaid Card and to make purchases at any merchant displaying the
Visa logo. Detailed information regarding such services is available in the
applicable User Documentation.
OUR OBLIGATIONS
We will issue Commercial Prepaid Cards to you on your request after you have
provided us such information regarding the Commercial Prepaid Card as we
may require at that time. Before we issue each Commercial Prepaid Card, we
will debit funds from a deposit account you maintain with us for the value
amount of the Commercial Prepaid Card issued.
We will mail the Commercial Prepaid Cards to the address or addresses you
provide us, together with a copy of the agreement between us and the
Cardholder, our privacy policy for consumers (if applicable) and instructions for
activating the Commercial Prepaid Card.
We will deduct the amount of each Transaction, which may include fees added
by the ATM owner or the applicable network, from the value amount with
respect to the Commercial Prepaid Card. We will also deduct applicable
Cardholder fees.
You may request us to add value to previously issued Commercial Prepaid
Cards by providing such information as we may require at that time. Upon
receipt of your request and the required information, we will debit your deposit
account with us for the amount to be added to the existing Commercial Prepaid
Cards.
If there are insufficient Collected and Available Funds in your account, we have
no obligation to issue or activate any Commercial Prepaid Card or to add value
to any existing Commercial Prepaid Card.
COMMERCIAL PREPAID CARD CREATION
All Commercial Prepaid Cards shall identify us as the issuer and shall include
such other names and trademarks as we require. If you elect to customize the
Commercial Prepaid Cards, you will be responsible for any additional costs in
the design or production of the Commercial Prepaid Cards. You will provide
graphics, promotional material and wording to us for review and approval and
you must comply with all the rules of Visa USA, Inc. and other systems or
organizations, as applicable. You will allow us to use your artwork on the
Commercial Prepaid Cards, provided that you shall have first reviewed and
approved such use. You will indemnify and hold us harmless from any and all
liabilities, claims, costs, expenses and damages of any nature (including Legal
Expenses) arising from any claim that the artwork you supplied infringes the
intellectual property rights of any third party.
COMMERCIAL PREPAID CARD ACTIVATION
Each Cardholder will be instructed to call a toll-free (in the U.S.A.) number and
use an interactive voice response system to authenticate the Cardholder by using
a number unique to the Cardholder in order to activate the Commercial Prepaid
Card. During this call, the Cardholder will receive their PIN, if applicable. The
City of Ashland - Negotiated - 101510 18
J
Cardholder can change the PIN at that time to any four digit number. Once the
call is successfully completed, the Commercial Prepaid Card will be activated.
You will be responsible for informing each Cardholder of any other restrictions
you may impose on the use of the Commercial Prepaid Card, and we will not
have any responsibility for enforcing those restrictions.
COMMERCIAL PREPAID CARD USAGE
We may refuse to issue or add value to any Commercial Prepaid Card if we
believe the Commercial Prepaid Card will or may be used in violation, or may
cause us to be in violation, of any law or regulation, or any rule of any payment
system.
We will use reasonable efforts to prevent any overdraft with respect to a
Commercial Prepaid Card or any unauthorized use of a Commercial Prepaid
Card, but cannot ensure we will be able to do so. You will reimburse us for the
amount of any overdraft or for the amount of any loss resulting from such
unauthorized use.
The value amount on any Commercial Prepaid Card does not constitute a
deposit account, is not insured by the Federal Deposit Insurance Corporation or
any other government agency, and does not accrue interest for your benefit or
the benefit of the Cardholder.
CONTROLLED BALANCE ACCOUNTS
Our Controlled Balance Accounts Services let you control the transfer of funds
between accounts with us. These Services may be restricted to certain account
types.
Transfers you make from a U.S.-domiciled money market account using these
Services are considered preauthorized transfers, are counted toward the number
of transactions you are legally permitted each month, and may not be made to a
checking account with an overdraft credit facility.
You may instruct us to make either date-related (where available) or balance-
related (where available) transfers as described below. Once you instruct us to
transfer funds between accounts, transfers begin on a mutually agreeable date or,
for accounts domiciled in the United States of America, either immediately or
on the date you specify.
With a date-related transfer, funds can be transferred in either direction between
certain types of accounts on the date and in the amount you specify. Both
interstate and intrastate funds transfers are permitted as long as you meet the
requirements for the account type(s), transfer date and account location(s). If
the transfer date you specify is a non-Business Day, we make the transfer on the
next Business Day.
With a balance-related transfer, you may have funds transferred to an account
when the balance falls below a certain amount, or from an account, when the
balance rises above a certain amount, or both. We transfer the amount required
to meet the account balance you specify.
City of Ashland - Negotiated - 101510 19
You may elect to have funds transferred to or from accounts of another
company/organization using a Service. You agree that for each such account,
the company/organization will provide us with its written authorization, in a
form acceptable to us, for such transfers. However, you do not need to provide
us such written authorization if (i) the other company's accounts are domiciled
in the United States of America and (ii) you represent and warrant that such
other company is a U.S. Subsidiary and that it has authorized us to transfer funds
between its accounts and your accounts.
CONTROLLED DISBURSEMENT
Our Controlled Disbursement Services provide information to you each
Business Day so that you can fund the total amount of (i) controlled
disbursement checks presented that Business Day and (ii) where the option is
available, controlled disbursement ACH debits and any other electronic debits to
which we agree and which are posted that Business Day.
ACCOUNTS
We make the Controlled Disbursement. Services available through multiple
Controlled Disbursement Points in different parts of the United States of
America. These Points are identified on the List of Banks and Services. Subject
to our approval in each case, you may use such Service through one or more of
those Points. For each Controlled Disbursement Point you use, you maintain
one or more Deposit Accounts with us.
For certain Controlled Disbursement Points, as more fully described in the
applicable User Documentation, you may (i) draw checks bearing those
respective Points' routing numbers directly on a Deposit Account and (ii) where
the option is available, initiate or authorize third parties to initiate ACH debits
and, subject to special agreement, other electronic debits to the Deposit Account.
(For electronic debits to a Deposit Account, you must use the appropriate funds
transfer Service approved by us.)
For a certain other Controlled Disbursement Point, we authorize you to draw
checks on accounts we maintain at such Point, then we debit your Deposit
Account(s) in the amount(s) of the checks which are paid. With these Services,
you have no account or contractual relationship with such Controlled
Disbursement Point. You will not access our accounts maintained at such Point
in any other manner, including but not limited to automatic debit arrangements
cleared through an automated clearing house network or through wire transfers.
On each Business Day, we will inform you by the time specified in the
applicable User Documentation of the total amount of debits presented for
payment that day at or through a Controlled Disbursement Point and any other
amounts required to be deposited in the corresponding Deposit Account(s) to
cover such debits. On each such Business Day, prior to the time stated in the
applicable User Documentation, you must ensure that sufficient Collected and
Available Funds are on deposit in the Deposit Account(s) to cover such
amounts. If we attempt to post a debit to a Deposit Account for the amount due
and determine there are insufficient funds in the Deposit Account, we may
dishonor or instruct the pertinent Controlled Disbursement Point to dishonor
some or all of the checks then pending payment and/or, as appropriate, return or
reject any electronic debit pending settlement. We may, however, in our sole
City of Ashland - Negotiated - 101510 20
discretion, allow an overdraft so some or all of such checks or electronic debits
will be paid or settled. If we do so, we are not obligated to allow any such
overdraft in the future.
If, for any reason, we fail to provide you timely notice of the required funding
amount for a Deposit Account, and if you fund such Deposit Account according
to the procedures (including funding amount and time) described in the
applicable User Documentation, we will post to the Deposit Account, or instruct
the Controlled Disbursement Point to post to your account, all checks presented
for payment, and electronic debits received for settlement, that day. If the
required funding amount nonetheless exceeds the amount funded by you and
you have insufficient funds in the Deposit Account to cover the required
amount, we will'overdraw the Deposit Account and advance funds to cover the
excess.
If we advance our own funds, repayment is immediately due and payable, and
you will repay us on or before the next Business Day along with interest on such
funds as specified in our schedule of charges for business account services or as
otherwise agreed. If you do not, we may dishonor, or instruct the Controlled
Disbursement Point to dishonor, some or all of the checks then pending final
payment and/or, as appropriate, return or reject any electronic debit pending
settlement even if the Deposit Account has sufficient Collected and Available
Funds to cover such debits.
We may require you to maintain a specified minimum amount in any Deposit
Account for which we permit you to use automated clearing house transfers to
fund that Account.
If you use facsimile signatures on checks drawn on an account at a Controlled
Disbursement Point, your use of such signatures is subject to the Facsimile
Signatures section of this Booklet.
STOP PAYMENTS
You may request stop payments on checks drawn under a Controlled
Disbursement Service by following the procedures specified in the applicable
User Documentation or applicable Account Agreement. Also, you may use an
Online Stop Payment Service, which is subject to the Online Stop Payment
section of this Booklet. If you use telephone, mail or facsimile transmission to
request a stop payment, you agree that your stop payment request is subject to
the terms described in the Account Agreement for requesting stops by telephone
or mail.
If some, but not all, of the information in your stop payment request matches a
check which has been presented for payment (for example, the Magnetic Ink
Character Recognition (MICR) serial numbers match and the dollar amounts do
not match), we may contact you to request a decision on whether or not to pay
the check. If any such suspect check is not to be paid, you must promptly
instruct us not to pay, or to direct a Controlled Disbursement Point not to pay,
the suspect check. If you do not, the suspect check may be paid.
City of Ashland - Negotiated - 101510 21
DISBURSEMENT IMAGE
Our Disbursement Image Services will make available to you digital images of
checks and drafts paid against specified accounts. Such images may be made
available to you by online transmission or by CD-ROMs containing images you
may access using image CD-ROM Software.
Check and draft images will be made available to you at such times as you.
request and we agree. If an image of a check or draft is missing or is illegible,
we will provide you a microfilm copy upon your request. Your request must
include the account number, the check serial number, the exact amount (dollars
and cents) of the payment and the date the payment was made. We may assess a
fee for copies provided to you. We will not be liable for failure to provide copies
by a given time or for failure to provide copies we are not reasonably able to
provide.
Notwithstanding the Limitation of Liabilities section of this Booklet, we will not
be liable for damages arising under any Disbursement Image Service in excess
of the amount of the check, draft or miscellaneous debit giving rise to your
damage claim. Any such claim must include the account number, the check
serial number, the exact amount (dollars and cents) of the payment, the date the
payment was made, the name of the payee, a detailed explanation of how the
claimed loss occurred and the name, address and phone number of the payee to
whom you cannot prove payment was made.
Notwithstanding the Termination section of this Booklet, in the case of a
Disbursement Image Service using CD-ROMs, termination of such Service upon
30 days notice may not be effective earlier than the first day of the statement
period immediately following the statement period during which such notice is
given.
ELECTRONIC BILL PAYMENT CONSOLIDATION
Our Electronic Bill Payment Consolidation Service consolidates, reformats and
delivers remittance information and other data related to payments received
from Bill Payment Service Providers for credit to your account. Detailed
information regarding the Service is available in the applicable User
Documentation.
You agree that you will authorize Bill Payment Service Providers to deliver
payments, remittance information and other related data to us for us to provide
this Service to you.
You may also elect to have information of another company/organization
reported through this Service. If you do so, you agree that you and the other
company/organization will authorize the Bill Payment Service Providers to
deliver payments, remittance information and other related data to us for us to
provide this Service to you.
Remittance information and other data related to payments will be delivered to
you in a mutually acceptable form and manner.
City of Ashland - Negotiated - 101510 22
If you are unable to post any payments to your customers' accounts, you must
promptly return such payments to us. You shall pay us immediately for the
amount of any returned payments which we previously credited to your account.
ELECTRONIC DATA INTERCHANGE (EDI)
Our EDI Services allow you to disburse funds and/or deliver payment-related
information to your receivers, electronically or by paper, by sending payment
requests or payment-related information to us as described in the applicable
User Documentation. These Services also allow you to access payments-related
and remittance-related information in mutually acceptable formats received from
your receivers or customers and, where available, to match specified receivables
and payables against payments.
For the web-based remittance advice delivery service, you are responsible for
enrollment of your receivers on the service. During enrollment you will review
and verify the accuracy of all enrollment information provided by your receivers
on the specified website. Upon completion of enrollment, you authorize us to
deliver the confidential passwords and identifiers to your enrolled receiver to
access the specified website. Your receiver must keep such passwords and
identifiers confidential. We will be fully protected in relying on the correct user
identification codes and passwords.
SENDING PAYMENTS AND RELATED INFORMATION
When you wish to pay your receivers, you transmit a data file to us, containing
instructions for your payments, in the format and by the cutoff times specified in
the applicable User Documentation. When we receive a file from you under an
EDI Service, we perform certain edits on the data, translate it into the
appropriate format and/or medium and send the data to the payment system
specified by you, except that we may use any means of transmission, funds
transfer system, clearing house or intermediary bank we reasonably select. On
the specified dates, we issue your payments in the required formats.
You control the content of any payment-related information you send to us and
are solely responsible for the accuracy of such information. You are solely
responsible for storage of all data relating to such information so that it can be
made available to individual receivers upon request.
For the web-based remittance advice delivery service, we act as an intermediary
to make data and information available to or from you or your enrolled trading
partners reasonably promptly after receipt of such information. We make the
information available to your enrolled receivers on the specified website within
one Business Day of receipt. The information will be available on the specified
website for the time periods specified in the applicable User Documentation.
We will not alter the content of any information that we receive from you or the
trading partner. We are not responsible for the accuracy of any of the
information that we receive.
Payment requests originated via the EDI Services will be subject to the terms
and conditions for the underlying payment Services (Check Issuance, ACH
and/or Wire Transfer and International Electronic Funds Transfer) as described
in their respective sections of this Booklet.
City of Ashland -Negotiated - 101510 23
RECEIVING REMITTANCE INFORMATION
Remittance information can be delivered to you in a mutually acceptable form
and manner and will be covered under the Information Reporting section of this
Booklet.
ELECTRONIC FOREIGN EXCHANGE
Our Electronic Foreign Exchange Service allows you to initiate FX Requests
over the intemet or by telephone. By accessing our website, you can request
that we provide an FX Transaction quotation, and by accepting our quotation
you can electronically enter into FX Transactions, all in accordance with the
instructions provided in the applicable User Documentation.
AUTHORIZED PERSONS
Before using an Electronic Foreign Exchange Service, you give us, by
completing the applicable Application, a written list of the persons authorized by
you, including the Security Administrators, to perform certain duties in
connection with the Electronic Foreign Exchange Service.
SECURITY PROCEDURE
You agree to use the Security Procedure, if any, when you send us FX Requests.
The purpose of the Security Procedure is to verify the authenticity of FX
Requests delivered to us in your name and not to detect errors in the
transmission or content of the FX Requests. Each time you use an Electronic
Foreign Exchange Service, you represent and warrant that, in view of your
requirements, the Security Procedure is a satisfactory method of verifying the
authenticity of FX Requests.
You agree that we may act on FX Requests, even if they are unauthorized, if we
act in good faith and comply with the applicable Security Procedure and any
written agreement with you restricting our action on FX Requests. In such
cases, we may enforce or retain your payment to us for such FX Requests;
provided, however, we may not enforce or retain payment if you prove that the
unauthorized FX Requests were not caused by a person (i) entrusted at any time
to act for you with respect to FX Requests or the applicable Security Procedure,
(ii) who obtained access to your premises, computer equipment or transmitting
facilities or (iii) who obtained, from a source controlled by you, information
(such as keys and passwords) which facilitated breach of the applicable Security
Procedure.
EFFECTIVENESS OF FX TRANSACTIONS
You deliver FX Requests to us through the Service and we send you a quotation
that you can accept electronically. You must follow all system instructions,
procedures and warnings delivered to you on the website provided for the
Service. Once we receive your acceptance of our quote, we send you our deal
acknowledgment in accordance with the applicable User Documentation, and
the FX Transaction will be binding and effective. The FX Transaction is not
completed until we send this acknowledgment. You are responsible for
contacting us outside the Service if you have not received our electronic
acknowledgment within the time specified in the applicable User
Documentation (or in the absence of such specification within a reasonable
City of Ashland - Negotiated - 101510 24
time). We will book FX Transactions at our New York office. Notwithstanding
anything to the contrary in this Booklet, we reserve the right to withdraw the
Service or terminate your access to the Service at any time without notice.
ACCOUNT DEBITS
You must have Collected and Available Funds in your account which, when
added to funds which may be made available under a line of credit, are sufficient
to cover your FX Requests. You may initiate an FX Request only if the
offsetting debit to your account, including the available line of credit, will not
cause you to exceed the account balance according to your records. If your
records and ours disagree regarding the account balance, our records will control
for purposes of our processing the FX Request.
Unless you have available funds under a line of credit with us, you are obligated
to pay us the amount of any FX Request once we receive your FX Request. We
will debit the account you specify for the amount of your payment before we
process your FX Request. If, for any Business Day, we receive more than one
FX Request and/or other items payable from your account, we may debit your
account for such FX Requests and items in any sequence we determine in our
sole discretion.
If you have available funds under a line of credit with us, we will debit your
specified account for the amount of your payment on the settlement date of the
FX Transaction. Prior to the settlement date, you can request a change to the
specified settlement account for the FX Transaction by using the website for the
Service. We will not be obligated to implement such a change, and the change
will not be effective until we have had a reasonable opportunity to review and
act upon your request.
REJECTION OF FX REQUESTS
We may reject any FX Request which does not comply with the requirements of
this Booklet or the applicable User Documentation, including any processing
limits described in such User Documentation, or which we have been unable to
verify through use of the Security Procedure. We also may reject any FX
Request which exceeds the Collected and Available Funds (including funds
made available under a line of credit) on deposit with us in the applicable
account. Notice of rejection is given to you by telephone, by electronic means,
by facsimile or, in event such notice cannot be given by any of those means, by
mail. Notices of rejection will be effective when given.
CONFIRMATIONS AND SETTLEMENTS
You agree that FX Transactions effected through the Service are automatically
confirmed and do not require any further confirmation. Foreign exchange
transactions effected by a method other than the Service may also be confirmed
on the website for the Service in accordance with the User Documentation.
Your electronic confirmation of each such foreign exchange transaction shall
have the same effect as if you had received a written confirmation from us and
had reviewed, manually signed and returned the signed confirmation to us.
City of Ashland - Negotiated - 101510 25
INTERRUPTION OF COMMUNICATIONS
In the event of a service interruption involving the Service, you may effect FX
Transactions, confirm FX Transactions, and specify settlement instructions by
contacting one of our trading rooms or operations centers by telephone as
designated in the applicable User Documentation.
INFORMATION REPORTING
Our Information Reporting Services make certain account, transaction and
related information available to help you control and manage your accounts and
in connection with any questions raised by you via such Services. This may
include information generated from other Services you use. You may have
information reported directly to you or, with certain of our Information
Reporting Services, reported at your direction to another financial institution or
other entity. Detailed information regarding an Information Reporting Service
is available in the applicable User Documentation.
ACCOUNTS OF OTHER COMPANIES/ORGANIZATIONS
You may elect to have accounts of another company/organization reported to
you with any of our Information Reporting Services. You agree that, for each
such account, the company/organization will provide us with its written
authorization, in a form acceptable to us, for us to make that company's account
information available to you. However, you do not need to provide us such
written authorization if the other company is a U.S. Subsidiary and its accounts
are domiciled in the United States of America. In that case, you represent and
warrant that such other company is a U.S. Subsidiary and that it has authorized
us to make its account information available to you.
ACCOUNTS AT OTHER BANKS
You may also elect to have your accounts, or accounts of another
company/organization, maintained at another financial institution reported
through certain of our Information Reporting Services. If you do so, you agree
that you and the other company/organization will authorize the other financial
institution to make the reporting information available to us and to take all other
actions necessary for us to provide Information Reporting Services to you.
THIRD-PARTY INFORMATION
If you gain, through your use of one or more Services, access to any information
relating to any person other than us, you or any of your Subsidiaries which have
authorized your receipt of such information, you agree that you will treat such
third-party information as strictly confidential and you shall not disclose it to
any person outside your company or to any persons within your company except
those who have a need to know. Further, you shall ensure that adequate
measures have been taken to prevent the unauthorized use of any such third-
party information. You agree that you will not use any such third-party
information for your own purposes other than in a communication to us relating
to the Service.
City of Ashland - Negotiated - 101510 26
LOCKBOX
Our Lockbox Services involve the processing of checks and other payment
instruments, such as drafts, that are received at a Lockbox Address or by special
arrangement with us, excluding without limitation the processing of cash, stock
certificates and tangible valuables. With a Lockbox Service, you instruct your
customers to mail checks and other payment instruments you want to have
processed under a Service to the Lockbox Address. We are not liable to you for
losses you suffer if anything other than checks or other payment instruments are
sent to the Lockbox Address. We and/or our agents will have unrestricted and
exclusive access to the mail sent to the Lockbox Address.
If we receive any mail containing your lockbox number at our lockbox
operations location (instead of the Lockbox Address), we may handle the mail
as if it had been received at the Lockbox Address.
PROCESSING
We will handle checks received at the Lockbox Address according to the
applicable Account Agreement, applicable User Documentation and our
availability schedule, as if the checks were delivered by you to us for deposit to
your designated account, except as modified by this Booklet.
We will open the envelopes picked up from the Lockbox Address and remove
the contents. Checks and other documents contained in the envelopes will be
inspected and handled in the manner specified in the set-up documents for the
applicable Lockbox Address. We capture and report information related to the
lockbox processing, where available, if you have specified this option in the set-
up documents. As appropriate, we will endorse all checks we process on your
behalf and deposit them in the account you designate for the applicable Service.
If we process an unsigned check as instructed in the set-up documents, and the
check is paid, but the account owner does not authorize payment, you agree to
indemnify us, the drawee bank (which may include us) and any intervening
collecting bank for any liability or expense incurred by us or such other bank
due to the payment and collection of the check.
If this option is available and if you instruct us not to process a check bearing a
handwritten or typed notation "Payment in Full" or words of similar import on
the face of the check, you understand that we have adopted procedures designed
to detect checks bearing such notations; however, we will not be liable to you
for losses you suffer if we fail to detect checks bearing such notations.
Unless we agree otherwise, each Business Day we will prepare and send
remittance materials (images via internet, electronic file and/or paper packages)
relating to the Lockbox Address to you at the address you specify for that
Lockbox Address. The material will include, but is not limited to, any checks
not processed in accordance with the set-up documents plus information
regarding the deposit for the day. For the wholesale Lockbox Service, the
package will also include invoices and other materials received at the Lockbox
Address.
City of Ashland - Negotiated - 101510 27
ACCEPTABLE PAYEES
For the Lockbox Address, you will provide to us the names of Acceptable
Payees. We will process a check only if it is made payable to an Acceptable
Payee and if the check is otherwise processable. In some jurisdictions outside
the United States, an Acceptable Payee is limited to you and limited variations
of your name. In all other jurisdictions, including the United States, you warrant
that each Acceptable Payee is either you or your affiliate. If an Acceptable
Payee is your affiliate, then you also warrant that such Acceptable Payee has
authorized checks payable to it to be credited to the account you designate for a
Lockbox Service. We may require written authorization from any such
Acceptable Payee. We may treat as an Acceptable Payee any variation of any
Acceptable Payee's name that we deem to be reasonable.
ONLINE STOP PAYMENT
Our Online Stop Payment Services allow you to electronically place or cancel a
Stop Payment Request. This is in addition to your ability to make stop payment
requests in person, by telephone or in writing as described in your Account
Agreement.
A Stop Payment Request will not be effective until we review our records for
the time period specified in the applicable User Documentation, determine that
the check has not been paid during that period and respond to you with an online
status of your request of "accepted" (rather than "rejected" or "pending").
A Stop Payment Request terminates at the end of the period designated in the
applicable User Documentation, unless the Stop Payment Request is renewed or
canceled earlier. A Stop Payment Request is canceled automatically when the
account on which the check is drawn is closed or transferred.
REQUESTING STOP PAYMENTS
You will include in each Stop Payment Request the Magnetic Ink Character
Recognition (MICR) serial number and exact amount (dollars and cents) of the
check for which payment is being stopped and the account number on which the
check is drawn. You understand and agree that we can only stop a check that
shows exactly the same MICR serial number and amount as that included in the
related Stop Payment Request since our computer system identifies a check on
the basis of the MICR serial number and the exact amount of the check.
You will review your account statements prior to transmitting any Stop Payment
Request. You will not transmit any Stop Payment Request relating to a check
that has been shown to be paid on such statements.
In some cases, we may pay a check even if a Stop Payment Request is in effect.
For example, if one of our branches (or banking centers) or affiliates becomes a
"holder in due course" of the check that you asked us to stop, we may still pay
the check.
The procedures for placing and acknowledging Stop Payment Requests are
described in the applicable User Documentation.
City of Ashland - Negotiated - 101510 28
If you use any Online Stop Payment Services with respect to an account
connected to a Controlled Disbursement Service, you must follow the
procedures in this section rather than the Stop Payment procedures in the
Controlled Disbursement Services section.
POSITNE PAY
Our Positive Pay Services allow you to identify exception items, to request
photocopies and/or electronic images of exception items and to instruct us
whether to pay or return those items. In many locations, if you send us an issue
file, your information may be made available at the teller line. This is called
"Teller Positive Pay", which helps identify fraudulent checks that are presented
for payment at many of our banking centers. With Teller Positive Pay, the
decision whether to pay such an item may be made by us at the teller line.
On each Business Day, we provide you a report of checks presented to us for
payment on the prior Business Day and which we have identified as exceptions
based on information you have provided to us and as more fully described in the
applicable User Documentation. Exceptions are determined by comparing
checks presented to us (either by other depository institutions or, where
applicable, for cashing at one of our banking centers) with lists of checks issued
or canceled by you which you transmit electronically to us each Business Day
by the time specified in the applicable User Documentation. Alternatively,
where available, you may choose an option under which we report all checks
presented for payment, in which case we will treat all such checks as exception
items.
On the same day we report exception items to you, you must notify us, by the
deadline specified in the applicable User Documentation, which checks you
want us to pay or which to dishonor and return. If you fail to notify us by the
deadline, we will handle the exception items in accordance with the prescribed
default procedure (which you may choose where the choice is available). Where
required, you will indicate which checks you want us to return, having been
deemed by you to be fraudulent. Our deadlines, default procedures and
procedures for acknowledging pay and return requests are described in the
applicable User Documentation. In order to assist you in making your decision
whether we should pay or return exception items, you may request a copy of any
exception item.
AUTHORIZED PERSONS
Before using a Positive Pay Service, you give us a written list, in a form
acceptable to us, of the persons authorized by you to perform certain duties in
connection with such Service.
ONLINE OPTION
You may access the daily reports of exception items via one of our online
systems. Using that system, you must then notify us which exception items to
pay or which to return.
City of Ashland - Negotiated - 101510 29
You may request photocopies of exception items, which we will fax to you, as
more fully described in the applicable User Documentation. Where available,
you may arrange to receive and display electronic images of exception items.
MANUAL OPTION
We provide you a report of exception items. You must then notify us which
items to pay or which to return.
ACKNOWLEDGMENTS
You authorize us to return checks or to pay checks in accordance with your
instructions and the default procedure in the applicable User Documentation.
We will have no liability for payment of a check which is unauthorized or
fraudulent if (i) the check is included in a report of exception items, (ii) you
have not selected a return default for exception items and (iii) you do not give us
timely instructions to return the check.
You acknowledge that our Positive Pay Services do not preclude our standard
check processing procedures, which may cause a check to be dishonored even if
your instructions or the default procedure do not otherwise require us to return
such check.
You acknowledge that, if you have our Teller Positive Pay Service, the decision
whether to pay or not pay an item may be made by us at a banking center.
If you decline to use a Teller Positive Pay Service offered by us or fail to meet
your applicable issue file deadlines in the User Documentation, you also
acknowledge that, as between you and us, you will bear the full loss on checks
which are drawn on your accounts with us and paid by us, in good faith if the
checks are counterfeits or bear unauthorized alterations to the amounts or
unauthorized maker signatures, even if such checks would otherwise be
exception items.
You acknowledge that our Positive Pay Services are intended to be used to
identify and return checks which you suspect in good faith are fraudulent. They
are not intended to be used as a substitute for stop payment orders on checks
which are not suspected in good faith to be fraudulent. If we suspect or deem, in
our sole discretion, that you are using these Services contrary to those intentions,
we may require you to provide evidence that checks we return pursuant to your
instructions or the return default, if applicable, were in fact fraudulent. In
addition, we may hold you liable for losses we sustain on checks which we are
requested to return under these Services and which you do not reasonably
establish as fraudulent checks.
We will use reasonable efforts under the circumstances to respond promptly to
proper requests for copies of exception items if image items are unavailable, but
you acknowledge that our failure to provide copies does not extend the deadlines
by which you must notify us of your pay/no-pay decisions.
City of Ashland - Negotiated - 101510 30
RECLEAR
Our Reclear Service resubmits a check or other payment instrument to the
financial institution on which it was drawn if the check or payment instrument
has been returned to us unpaid with the notation "refer to maker", "nonsufficient
funds" or "uncollected funds". Generally, we will not notify you that such an
item has been returned to us unpaid before we reclear it. If a recleared item is
returned to us a second time, we will charge your account for the total amount of
the check or payment instrument. We generally total your returned items each
day, debit your account for the total amount and then send the retuned checks
and payment instructions to you. The items we send to you serve as your notice
of the nonpayments.
RE-PRESENTMENT CHECK (RCK)
Our RCK Services allow you to collect eligible RCK checks that have been
returned for insufficient or uncollected funds, using the ACH Services within the
United States of America, as described in the applicable User Documentation.
The creation of the RCK Entries on your behalf by us using the ACH Services
will be subject to the terms and conditions of the ACH Service section of this
Booklet, including but not limited to the Security Procedures requirements
described in that section. The capitalized ACH terms appearing in italics below
are defined in the NACHA Rules.
YOUR RESPONSIBILITIES
You authorize us to create RCK Entries on your behalf as provided in the User
Documentation and the NACHA Rules. You are deemed to be the Originator
under the NACHA Rules, and on each day you use a Service, you represent and
warrant that (i) you have obtained all necessary authorizations from the Receiver
prior to the initiation of any corresponding ACH Entry for a RCK and (ii) you
accept as Originator all liability corresponding to the representations and
warranties we as ODF/ make under the NACHA Rules regarding RCK.
You shall pay us for the amount of any returned debit Entries (including rejected
debit Entries) or any adjustment Entries accepted by us and which we have
previously credited to your account. Such amounts shall be immediately due
and payable by you to us. Returned debit Entries appear on your reports to the
extent agreed by you and us, and you agree that we do not need to send a
separate notice of debit Entries which are returned unpaid.
COMPLIANCE WITH NACHA RCK RULES AND LAWS
You agree to comply with the NACHA Rules for all Entries whether or not an
Entry is sent through the ACH network. You act as an Originator and we act as
an ODF/ with respect to Entries. The NACHA Rules govern if they conflict
with this Booklet, except that the file specification requirements in the User
Documentation govern if they conflict with the NACHA Rules.
Each time you use an RCK Service (i) you warrant that you have obtained the
appropriate authorization from each Receiver and the Entries conform to the
authorization and comply with the NACHA Rules and (ii) you make the same
City of Ashland - Negotiated - 101510 31
warranties to us as we make under Section 2.2 or any successor section of the
NACHA Rules.
TAX PAYMENTS
Our Tax Payment Services allow you to instruct us, using a touchtone telephone
or our Software on your computer, to pay any of your taxes which are reported
or filed using the tax forms as more fully described and specified in the
applicable User Documentation. Based on your Tax Payment Instructions, we
prepare and remit your tax deposits. Each of these Services is described in the
applicable User Documentation.
SECURITY PROCEDURE
You agree to use the Security Procedure, if any, when you deliver Tax Payment
Instructions and, as provided in the applicable User Documentation, cancellation
requests to us. The purpose of the Security Procedure is to verify the authenticity
of Tax Payment Instructions or cancellation requests and not to detect errors in
the transmission or content of these messages. You represent and warrant each
time you use a Tax Payment Service that, in view of your requirements, the
Security Procedure is a satisfactory method of verifying the authenticity of these
messages. You agree we may act on any Tax Payment Instructions or, as
provided in the applicable User Documentation, cancellation requests, the
authenticity of which we have verified through the use of the Security
Procedure.
CUTOFF TIMES
You must comply with the deadlines specified in the applicable User
Documentation for initiation of Tax Payment Instructions. If a Service allows
you to send instructions to us after the cutoff time, or on a non-Business Day,
we may treat these instructions as if we received them on the next Business Day.
COMMUNICATION EXPENSE AND RISK
Transmission of Tax Payment Instructions to us will be at your expense, except
that we may provide a toll-free number telephone service. If that service is
disrupted for any reason, you have the responsibility and risk of using
alternative means of communicating Tax Payment Instructions to us accurately
and in time for us to perform any Tax Payment Service.
REQUIRED INFORMATION
You will furnish us with all required information and authorizations at the times,
in the manner and with the content specified in the applicable User
Documentation.
TAX FORMS AND REMITTANCES
After we have received complete Tax Payment Instructions from you, we
prepare the related tax forms (which may be on a magnetic tape or by electronic
transmission as authorized by the Internal Revenue Service or other.tax
authority, as applicable) for submission to the appropriate tax authority.
City of Ashland - Negotiated - 101510 32
If permitted by the input method, you may specify a settlement date in
accordance with the User Documentation. If you use a touchtone phone as your
input method, you may request a specified settlement date by calling the
designated customer representative for the applicable Tax Payment Service.
For purposes of these Services, settlement date means the date you specify that
the taxing authority's account is to be credited. If you do not specify a
settlement date, we will pay the amount you specify on or before the tax due
date. If you specify the settlement date, payment will be made on the settlement
date.
ACCOUNT DEBITS
If you do not specify a settlement date, we debit your account for any tax
payment on the Business Day of transmission. If you specify a settlement date,
we generally debit your account on the settlement date unless you are
prefunding your tax payments. Pref ending means that you pay for all tax
payments by such time before the settlement date as we may specify. At our
discretion, we may at any time without notice debit your account on the
Business Day that Tax Payment Instructions are transmitted to us (or on any
other later date). If we debit the funds on the transmission date (or any other date
before the payment date), we hold the funds as a deposit liability to you, and not
as trust funds, until the date when we remit the funds to the appropriate tax
authority. We will not pay you interest on the funds.
We reserve the right to debit your account and to make a tax payment on your
behalf earlier than the tax due date if the information in your Tax Payment
Instruction is unclear or inadequate to permit us to determine the later due date
under the applicable Tax Payment Service or if we otherwise reasonably decide
that any delay in the payment of the tax may expose you to liability for a tax
penalty. In such case we will not be liable to you for any lost use of funds.
REJECTION OF INSTRUCTIONS
We may reject your instructions during or immediately after transmission to us
if they do not comply with the requirements of this Booklet or the applicable
User Documentation or which we have been unable to verify through use of the
Security Procedure. You will be informed of any such rejection only as
specified in the applicable User Documentation, and no other notice of rejection
will be provided.
In addition, we may decline to perform any Tax Payment Service or to report
any tax, file any tax form, or pay any related tax for you, even if we have
received instructions to do so, if the tax payment and our related service fees and
charges exceed the Collected and Available Funds on deposit in your account or
your ACH processing limit. If we reject a Tax Payment Instruction for that
reason, we will promptly notify you by telephone or facsimile transmission in
which case we will not be liable to you for the tax payment, any interest on the
amount of your tax liability, or for any tax penalty imposed on you in
connection with the tax liability. You agree these means of communication are a
reasonable means of notifying you.
City of Ashland - Negotiated - 101510 33
CANCELLATION
Subject to the provisions in the User Documentation, you may cancel a Tax
Payment Instruction prior to disconnection of the telephone call in the case of an
instruction initiated by touchtone telephone or prior to transmission to us of an
instruction initiated through your computer.
Thereafter, a Tax Payment Instruction may be canceled only if.
The tax payment has not been remitted, credited or otherwise made
available to a tax authority;
A request to cancel provides sufficient information for us to effect the
request; and
• The request is received by us by telephone or, at the option of either you or
us, in writing (including facsimile transmissions) in time (but in no event
later than the deadline specified in the applicable User Documentation) to
afford us a reasonable opportunity to effect the request.
OVERPAYMENTS
If we make an overpayment of your tax liability due to our error, we will
recredit your account for the amount of the overpayment, and you agree to take
such actions as we reasonably request to obtain a refund of the overpayment and
to arrange for payment of such refund to us. In any event, you agree to repay us
for any overpayment upon the earlier of (i) your recovery of such overpayment
or (ii) the application of the related tax credit to another of your tax payment
obligations.
RECORDS AND NOTICE OF ERRORS
We will provide you with statements and confirmations containing information
about your tax payments in accordance with and subject to the applicable User
Documentation.
Nothing in this Booklet relieves you of any duty imposed by law or contract
regarding the maintaining of records or from employing adequate audit, account
and review practices customarily followed by similar businesses. You will
promptly review for accuracy all records, information and statements delivered
from time to time to you by us.
You must send us written notice, with a statement of relevant facts, within 14
days after you receive the first notice or statement indicating a discrepancy
between our records and yours. If you fail to give the required notice, we will
not be liable for any loss of interest or for any compensation for any other loss
or cost relating to an unauthorized or erroneous debit to your account or because
of any other discrepancy in the notice or account statement. You must notify us
promptly by telephone, confirmed in writing, if you learn or discover from any
source other than a notice or statement from us of information concerning an
unauthorized or erroneous debit to your account.
City of Ashland - Negotiated - 101510 34
SUPPLEMENTAL LIMITATION OF LIABILITIES
For each Tax Payment Service, this section supplements the Limitation of
Liabilities section of this Booklet.
If any Tax Payment Service is interrupted for any reason and you are unable to
complete transmission of your Tax Payment Instruction to us, you will not be
relieved of your obligation to make any tax payment otherwise contemplated to
be made by such Service. We will not incur any liability if you fail to make any
required tax payment by other means in the event of such interruption.
WIRE TRANSFER AND INTERNATIONAL ELECTRONIC FUNDS TRANSFERS
This section applies to our U.S. domestic and worldwide wire and internal funds
transfer services and to our International Electronic Funds Transfer Services
outside the United States of America. It does not apply to ACH Services within
the United States of America, which are covered in the "Automated Clearing
House (ACH)" section of this Booklet.
Wire Transfer and International Electronic Funds Transfer Services permit you
to transfer funds electronically and, as appropriate, to transmit related messages
as more fully described in the applicable User Documentation. These transfers
are typically from your accounts with us to other accounts at our bank, at our
affiliated banks or at other eligible banks. These transfers may also include
transfers to your accounts with us from your accounts at other banks. These
transfers may be [Wade according to a specific request from you or according to
your standing instructions (which may include daily sweeps from your accounts
at our affiliated banks to your account with us). They also may be low-value
batch payments made according to multiple requests within a single electronic
data file for transfers to or from your accounts.
MULTIBANK
The Multibank Service permits you to relay through us your instructions to
another bank to wire transfer funds from one of your accounts held at that other
bank. Where feasible, we will reformat your instructions for SWIFT and relay it
by SWIFT to the appropriate bank, subject to the Business Day schedules for us,
SWIFT and the paying bank. Otherwise, we will use whatever means or
medium we deem appropriate, including use of third-party facilities, to relay
your instructions to another bank.
Before using the Multibank Service, you must provide us with the account
number and bank name for each account to be debited using this Service. You
also must provide the bank holding the debit account with express, written
authorization (with a copy to us where requested) to act on instructions we send
to it under this Service. You agree that we may rely on that authorization until
we have had a reasonable opportunity to act on notice that it has been revoked.
Multibank instructions are not payment orders to us, and we have no obligation
to execute, transmit or accept any payment orders made to us under the
Multibank Service. We reformat and transmit your payment order to another
bank, and we have no duty to do so if your request is defective, incomplete,
erroneous'or inconsistent with the terms of this Booklet. We may act on your
Multibank instructions as we reasonably consider appropriate notwithstanding
any error, omission, defect or lack of clarity in its terms and even if the
City of Ashland - Negotiated - 101510 35
instructions appear to duplicate other Multibank requests. You agree that your
indemnity of us, as set forth in the "Protection From Third Parties" section of
this Booklet, applies to any claims by another bank based on our sending a
Multibank instruction containing any error, omission, defect or lack of clarity.
If you wish to cancel or amend a payment order set forth in a Multibank
instruction, you must contact the bank to which the payment order is directed
and act in accordance with its procedures.
Reports on Multibank instructions which we have processed will be included in
an Information Reporting Service which you have arranged to use.
COMPLIANCE WITH RULES AND LAWS
You agree to comply with all applicable payment system rules, including the
national payment system rules and any other applicable laws and regulations of
the receiving country of your transaction. You also agree to comply with the
authorization and notice requirements applicable to any Request to debit another
person's account.
AUTHORIZED PERSONS
Before using a Wire.Transfer or International Electronic Funds Transfer Service,
you give us a written list, in a form acceptable to us, of the persons authorized
by you to perform certain duties in connection with such Service. I
SECURITY PROCEDURE
You agree to use a Service in accordance with the relevant Security Procedure,
if any. The purpose of the Security Procedure is to verify the authenticity of
Requests delivered to us in your name and not to detect errors in the
transmission or content of Requests. You represent and warrant each time you
use a Wire Transfer or International Electronic Funds Transfer Service that, in
view of your requirements, the Security Procedure is a satisfactory method of
verifying the authenticity of Requests.
You agree that we may act on Requests, even if they are unauthorized, if we act
in good faith and comply with the applicable Security Procedure and any written
agreement with you restricting our action on Requests. In such cases, we may
enforce or retain your payment to us for such Requests; provided, however, we
may not enforce or retain payment if you prove that the unauthorized Requests
were not caused by a person (i) entrusted at any time to act for you with respect
to Requests or the applicable Security Procedure, (ii) who obtained access to
your premises, computer equipment or transmitting facilities or (iii) who
obtained, from a source controlled by you, information (such as keys and
passwords) which facilitated breach of the applicable Security Procedure.
ACCOUNT DEBITS
You must have Collected and Available Funds in your account which, when
added to funds which may be made available under a line of credit, are sufficient
to cover your Requests. You may initiate a Request only if the offsetting debit
to your account, including the available line of credit, will not cause you to
exceed the account balance according to your records. If your records and ours
City of Ashland - Negotiated - 101510 36
disagree regarding the account balance, our records will control for purposes of
our processing the Request.
You are obligated to pay us the amount of any Request once we act on, other
than to reject, your Request. At our discretion, we may at any time without
notice require payment before we process your Request. Even if we have done
so in the past, we are not obligated to process any Request without having first
been paid by you, but, if we do, the amount is immediately due and payable
without notice or demand.
Prior to initiating any wire transfer Request to debit an account of a third party,
you must provide us with documents, in a form acceptable to us, evidencing the
third party's authorization.
You will pay us for the amount of any returned or rejected debit transactions, or
any adjustments, which we previously credited to your account.
If, for any Business Day, we receive more than one Request and/or other items
payable from your account, we may debit your account for such Requests and
items in any sequence we determine in our sole discretion.
ACTING ON REQUESTS
We will use any means of transmission, funds transfer system, clearing house or
intermediary bank we reasonably select to transfer funds.
After we receive a Request by the applicable processing deadline (as specified in
the applicable User Documentation), but no later than the value date stated in
your Request (if such date is not earlier than the day such Request is received),
we will act upon such Request by making applicable accounting entries or by
transmitting payment instructions to the applicable bank or other party. If
applicable, our acting on your Request will also be subject to the business day
schedule of any of our banking centers or affiliates holding an account to be
debited or credited under a Service. We may treat Requests we receive after a
deadline as if we received them on the next Business Day. International
Electronic Funds Transfers will be deemed received by us when we receive the
complete electronic data file at the location specified in the applicable User
Documentation.
REJECTION OF REQUESTS
We may reject any Request which does not comply with the requirements of this
Booklet or the applicable User Documentation, including any processing limits
described in such User Documentation, or which we have been unable to verify
through use of the Security Procedure. We also may reject any Request which
exceeds the Collected and Available Funds (including funds made available
under a line of credit) on deposit with us in the applicable account. We may
also reject any Request if it may be returned for any reason under the applicable
national payment system rules of the receiving country of your transaction.
Notice of rejection is given to you by telephone, by electronic means, by
facsimile or by mail. Notices of rejection will be effective when given.
City of Ashland- Negotiated - 101510 37
CANCELLATION OR AMENDMENT
We have no obligation to cancel or amend Requests after we receive them or to
cancel or amend any particular funds transfer requested by a standing instruction
which is in effect. If you send us a Request instructing us to cancel or amend a
prior Request and we are able to verify the authenticity of the cancellation or
amendment Request using the Security Procedure, we will make a reasonable
effort to act on that Request, but we will not be liable if it is not effected. You
agree to indemnify us against and hold us harmless from any and all liabilities,
claims, costs, expenses and damages of any nature, including Legal Expenses,
we incur in connection with your Request to amend or cancel. Your obligations
under this provision will survive termination of these Wire Transfer and
International Electronic Funds Transfer Services.
PROVISIONAL PAYMENTS
Payment by us for any transaction we credit to your account is provisional until
we receive final settlement for the transaction. If final settlement is not
received, we are entitled to a refund and we may charge your account for the
amount credited. We may delay the availability of any amount credited for a
transaction if we believe that there may not be sufficient funds in your account
to cover chargeback or return of the transaction.
INCONSISTENCY OF NAME AND NUMBER
A beneficiary's bank (including us when we are the beneficiary's bank) may
make payment to a beneficiary based solely on the account or other identifying
number. We or an intermediary bank may send a Request to an intermediary
bank or beneficiary's bank based solely on the bank identifying number. We,
any intermediary bank and any beneficiary's banks may do so even if the
Requests include names inconsistent with the account or other identifying
number as long as the inconsistency is not known by us or such other bank.
Neither we nor any other bank has a duty to determine whether a Request
contains an inconsistent name and number.
NOTICE OF ACCOUNT STATEMENT DISCREPANCIES
Information concerning payments made pursuant to your Requests will be
reflected in your account statements and, in some cases, in written or electronic
advices and reports produced through one of our Information Reporting
Services. You must send us notice, in writing or by electronic means approved
by us for such purpose, with a statement of relevant facts, promptly after you
receive the first notice or statement indicating a discrepancy between our
records and yours. If you fail to give the required notice within 14 days, we will
not be liable for any loss of interest or for any compensation for any other loss
or cost relating to an unauthorized or erroneous debit to your account or because
of any other discrepancy in the notice or account statement. You must notify us
promptly by telephone, confirmed in writing, if you learn or discover from any
source other than a statement, advice or report from us of information
concerning an unauthorized or erroneous debit to your account.
City of Ashland - Negotiated - 101510 38
ELECTRONIC TRADE SERVICES
Our Electronic Trade Services allow you to (i) initiate collections; (ii) instruct us
to advise you of our receipt or confirmation, or the payment, of Export Letters of
Credit and Advised Standby Letters of Credit received by us and naming you as
beneficiary; (iii) request full or partial transfers of your Export Letters of Credit
or full transfers of your Advised Standby Letters of Credit; (iv) prepare
documents in connection with your Export Letters of Credit; (v) access reports
on letter of credit transactions, open account transactions, collections and
banker's acceptances; (vi) initiate open account transactions; (vii) instruct us to
advise you of our receipt of purchase orders received by us and naming you as
the supplier; and (viii) instruct us to issue standby and import letters of credit
and guarantees. Detailed information regarding each Service is found in the
applicable User Documentation.
ADVISED STANDBY LETTERS OF CREDIT
Our Advised Standby Letters of Credit Service allows us to advise you by
electronic transmission of (i) our receipt of any standby letter of credit naming
you as beneficiary; (ii) the status of any documents or payments with regard to
any Standby Advised Letter of Credit; (iii) our confirmation of any such letter of
credit; and (iv) any payment made pursuant to a drawing under any such letter of
credit.
You may elect to have standby advised letters of credit of a Subsidiary or other
entity reported to you with our Electronic Trade Letters of Credit Service. You
agree that the Subsidiary or other entity will provide us with a written
authorization, in a form acceptable to us, for us to make that Subsidiary or other
entity's information available to you.
Full Transfers. You may request the transfer, without substitution of invoices,
of all of your rights as beneficiary of Advised Standby Letters of Credit by
submitting to us, for each transfer, a request providing the following
information:
■ Standby Letter of Credit number
■ name of issuing bank
our advice number
■ name and address of second beneficiary's advising bank
■ name and address of second beneficiary
■ date of application -
If we approve the transfer, we will place the appropriate endorsement on the
Advised Standby Letter of Credit and send it to the second beneficiary or send
the second beneficiary a transferred letter of credit document prepared by us.
The second beneficiary will have sole rights as beneficiary, whether existing
now or in the future, including sole rights to agree to any amendments, including
increases or extensions or other changes.
General. The Advised Standby Letter of Credit and the transfer must be subject
to UCP or ISP98, and our rights hereunder are in addition to rights we have
under UCP or ISP98, as applicable.
You must provide us the original advised Standby Letter of Credit and any
existing amendments. You understand that we may, at our sole discretion,
City of Ashland - Negotiated - 101510 39
refuse to approve any full or partial transfer to a second beneficiary. You
acknowledge that due to conditions of the original Advised Standby Letter of
Credit, certain proprietary information maybe disclosed to the second
beneficiary and/or to the applicant under the original Advised Standby Letter of
Credit. We will have no liability to you in the event of such disclosure and, in
such event, you will indemnify and hold us harmless from all claims of third
parties. You acknowledge that your rights as beneficiary in the original Advised
Standby Letter of Credit are irrevocably transferred to the second
beneficiary(ies) who shall have sole rights. In that connection, your approval is
not required for us to honor a discrepant presentation made by the second
beneficiary.
For our transfer fee, we may debit your account(s) with us, which you may
designate subject to our reasonable approval. You also agree to pay us on
demand any expenses which may be incurred by us in connection with this
transfer.
COLLECTIONS
Our Electronic Trade Collections Service allows you to initiate a collection (as
that term is defined in the Uniform Rules for Collections) by delivering an
instruction to a collecting bank.
The instruction will be on a form prescribed by us, but we will not have any
responsibility or liability for the terms and conditions of any instruction; you
accept all such responsibility and liability. Each collection will be governed by
the Uniform Rules for Collections. You will promptly transmit to us a copy of
the completed collection form and, upon our request, will provide to us copies of
the underlying documentation.
You represent and warrant to us as of the date you transmit the instruction form
to us that the collection is not prohibited under the foreign asset control or other
regulations of the United States of America or the applicable laws of any other
jurisdictions.
Upon our receipt of any payment of a collection, the amounts received (less
related charges, disbursements and/or expenses) will be paid to you, except that
if we are required to return any such payment received upon the insolvency,
bankruptcy or reorganization of the presenting bank or collecting bank or other
third party or for any other reason, you will repay to us the amount paid by you
together with interest thereon from the date we returned the payment and so
notified you at the rate specified by us in our schedule of charges. Unpaid items
and related documents received by us may be returned to you by regular mail at
the address specified in the Authorization and Agreement Certification form
which accompanied this Booklet or such other address as may be notified by
you in writing.
EXPORT LETTERS OF CREDIT
Our Export Electronic Trade Letters of Credit Service allows you to prepare
export documents using electronic data captured through our electronic advise
process and allows us to advise you by electronic transmission of (i) our receipt
of any Export Letter of Credit naming you as beneficiary, including the wording
of an Export Letter of Credit so you can prepare export documents as per the
Export Letter of Credit; (ii) the status of any documents or payments with regard
City of Ashland - Negotiated - 101510 40
to any Export Letter of Credit; (iii) our confirmation of any such letter of credit
and (iv) any payment made pursuant to a drawing under any such letter of credit.
You may elect to have export letters of credit of a Subsidiary or other entity
reported to you with our Export Electronic Trade Letters of Credit Service. You
agree that the Subsidiary or other entity will provide us with a written
authorization, in a form acceptable to us, for us to make that Subsidiary or other
entity's information available to you.
You may prepare shipping documents based on your Export Letter of Credit
advised details. You may then edit and locally print those documents and
courier them to us for presentation.
REQUESTS FOR TRANSFERS
Partial Transfers. You may request the partial transfer, with or without
substitution of invoices, of Export Letters of Credit by submitting to us, for each
transfer, a request providing the following information:
whether the transfer is with or without substitution of invoices
■ Export Letter of Credit number
■ name of issuing bank
■ our advice number
■ name and address of second beneficiary's advising bank
■ amount to be transferred
■ description of merchandise subject to the transfer
■ name and address of second beneficiary
■ unit price
■ expiration date of transfer Export Letter of Credit
■ latest shipment date
■ number of days after shipment within which documents must be
. presented
■ insurance percentage (if applicable)
date of application
If we approve the transfer, we will advise the second beneficiary of the terms
and conditions of the transferred credit by full text teletransmission, mail/airmail
or courier (as we deem appropriate).
With respect to all partial transfers, whether with or without substitution of
invoices, you may refuse to allow us to notify the second beneficiary(ies) of any
future amendment(s) received under the original Export Letter of Credit.
If you elect transfer with substitution of invoices, then, on our demand, you will
deliver to us within one (1) Business Day your draft, commercial invoice and
any other required documents in compliance with the terms of the original
Export Letter of Credit. The draft and documents are in substitution of those
presented by the second beneficiary. When (i) the documents of the second
beneficiary and the substitution documents from the first beneficiary are
determined to comply with the terms of the Export Letter of Credit or, if
determined to be discrepant, are taken up by the issuing bank and (ii) we are in
receipt of funds, we will pay you in accordance with your instructions for the
amount of the difference between your draft and the draft of the second
beneficiary, less any fees due and payable to us in connection therewith. If you
fail, at our demand, to deliver to us your drafts, invoices and other required
City of Ashland - Negotiated - 101510 41
documents as stated above, you acknowledge our right to present invoices and
other documents received from the second beneficiary in accordance with the
instructions of the original Export Letter of Credit. You also understand that we
will not pay you the difference between the amount of the draft of the second
beneficiary and the amount authorized to be paid to you under the original
Export Letter of Credit.
Full Transfers. You may request the transfer, without substitution of invoices,
of all of your rights as beneficiary of Export Letters of Credit by submitting to
us, for each transfer, a request providing the following information:
Export Letter of Credit number
■ name of issuing bank
■ our advice number
■ name and address of second beneficiary's advising bank
■ name and address of second beneficiary
■ date of application
If we approve the transfer, we will place the appropriate endorsement on the
Export Letter of Credit and send it to the second beneficiary or send the second
beneficiary a transferred letter of credit document prepared by us. The second
beneficiary will have sole rights as beneficiary, whether existing now or in the
future, including sole rights to agree to any amendments, including increases or
extensions or other changes.
General. The Export Letter of Credit and the transfer must be subject to UCP
and our rights hereunder are in addition to rights we have under UCP.
You must provide us the original Export Letter of Credit and any existing
amendments. You understand that we may, at our sole discretion, refuse to
approve any full or partial transfer to a second beneficiary. You acknowledge
that due to conditions of the original Export Letter of Credit, certain proprietary
information may be disclosed to the second beneficiary and/or to the buyer
under the original Export Letter of Credit. We will have no liability to you in
the event of such disclosure and, in such event, you will indemnify and hold us
harmless from all claims of third parties. You acknowledge that your rights as
beneficiary in the original Export Letter of Credit (up to the amount shown in
your request with respect to partial transfers) are irrevocably transferred to the
second beneficiary(ies) who shall have sole rights (but only up to the amount
shown in your request in the case of a partial transfer). In that connection, your
approval is not required for us to honor a discrepant presentation made by the
second beneficiary.
For our transfer fee, we may debit your account(s) with us, which you may
designate subject to our reasonable approval. You also agree to pay us on
demand any expenses which may be incurred by us in connection with this
transfer.
INFORMATION REPORTING
We will make available to you, subject to the terms of the Information Reporting
section of this Booklet, reports on import, export and standby letter of credit
transactions, banker's acceptances, collections and open account transactions, as
more fully described in the applicable User Documentation.
City of Ashland - Negotiated - 101510 42
OPEN ACCOUNT
Our Electronic Trade Open Account Service permits you electronically to (i)
inform us of your purchase order details, instruct us on examining import
documents for compliance with your purchase orders and instruct us to pay the
presenting party and (ii) receive notification of open account transactions
initiated through electronic means.
Purchase Orders. You will electronically transmit to us, in accordance with
applicable User Documentation, files of purchase orders you have sent to your
vendors with instructions to present documents to us. The electronic files will
be in such format(s) and transmitted through such channel(s) as you have
selected and we have approved. If you are not requesting us to issue an import
letter of credit, each transaction will be flagged as an "open account" payment
type.
When we receive import documents, we will review them according to your
purchase order terms. If and as provided by the open account payment type
selected by you, we will match the import documents against the pertinent
purchase orders housed on our electronic database in accordance with the
parameters established by you and accepted by us. We will pay the presenting
vendors as provided under the open account payment type selected by you from
the following three types:
• importer matching - you match the import documents against your
copy of the pertinent purchase order and instruct us how much to
pay to the presenter and when to pay;
• bank matching - we match the import documents against our
electronic file of the pertinent purchase order, following the
parameters established by you; we then electronically inform you,
indicating whether they are compliant or non-compliant, and await
your payment instructions; and
• auto-pay - we match the documents as described above, and, if we
determine they are compliant, make payment to the presenter, but
only if you have sufficient Collected and Available Funds in the
account you have designated for such purposes; if we determine
that the documents are non-compliant, we make payment only
upon your express instructions.
Notification of Open Account Transactions. With respect to open account
notification letters, we will notify you electronically of (i) our receipt of such
notices naming you as vendor and (ii) any payments made pursuant to drawings
under such open account transactions. We will notify your vendors by Trade
Direct, fax, courier or mail as instructed by you.
STANDBY AND IMPORT LETTERS OF CREDIT
Our Electronic Trade Letters of Credit Service allows you to request us, by
electronic or fax transmission, to issue an import or standby letter of credit or a
guarantee. Each letter of credit or guarantee which we agree to issue will be for
your account or the account of another entity you designate. Each commercial
letter of credit we issue will be subject to the UCP and, when applicable, the
eUCP, and each standby letter of credit we issue will be subject to the ISP98.
City of Ashland - Negotiated - 101510 43
As a condition to our agreement to issue a letter of credit or guarantee, we may
require you at any time to make with us a cash deposit, which may not accrue
interest or earnings credit, and to grant us a security interest in the underlying
goods and documents of title and/or any other property or accounts as we
reasonably determine as security for your obligations to us. A letter of credit
may be issued by any of our authorized offices within or outside the United
States of America. A guarantee may be issued by any of our authorized offices
outside the United States of America.
YOUR RESPONSIBILITIES
You represent and warrant to us as of the date of issuance of each import letter
of credit and each drawing that: '
• You or the importer has obtained all import and export licenses,
registrations, filings and approvals required by any governmental
authority for the goods and documents described in the letter of
credit.
• The transactions underlying the letter of credit are not prohibited
under the foreign asset control or other regulations of the United
States of America or the applicable laws of any other jurisdiction.
You will obtain, or cause to be obtained, insurance covering fire and other usual
risks on all goods described in each import letter of credit issued by us.
You will reimburse us upon demand all monies paid by us under or in respect of
each such letter of credit or guarantee, including payments on any draft,
acceptance, order, instrument or demand drawn or presented under the letter of
credit or guarantee. You will pay us on demand interest on all amounts paid by
us or any other drawee under each letter of credit or guarantee from the date of
such payment until we receive reimbursement at a rate per annum specified in
the applicable User Documentation. You will reimburse us in the currency in
which the letter of credit or guarantee is denominated (or, at our option, the
equivalent of the denominated currency amount in U.S. Dollars or the currency
of the country in which the letter of credit or guarantee was issued at the rate of
exchange quoted by us in the city in which the letter of credit or guarantee was
issued for the sale of the denominated currency against U.S. Dollars or such
other currency on the date on which the denominated currency amount is paid
by us). Regardless of the expiration of the letter of credit or guarantee, you will
remain liable for all such amounts until we are released from liability to all
persons entitled to draw or demand payment under the letter of credit or
guarantee.
You will pay us Legal Expenses incurred by us in connection with each letter of
credit or guarantee including without limitation our defense of any proceeding
initiated by you to enjoin payment or negotiation by us of a letter of credit or
guarantee even if you are awarded such relief, provided only that we have acted
in good faith in defending such action.
If you request the issuance of a letter of credit or guarantee listing one of your
Subsidiaries or another entity as the account party, each such request will be
considered a request by you for the issuance of a letter of credit or guarantee,
and you will assume all liabilities and obligations with respect to such letter of
credit or guarantee. You represent and warrant to us that you will derive
substantial economic benefit from each underlying transaction relating to each
City of Ashland - Negotiated - 101510 44
request for the issuance of a letter of credit or guarantee listing your Subsidiary
or another person as the account party. Your obligations under each letter of
credit or guarantee will not be released or discharged if:
• We attempt to collect any payment under such letter of credit or
guarantee directly from the Subsidiary or such other entity.
• Any bankruptcy, reorganization, insolvency, receivership,
moratorium or other such action effecting creditors generally is
filed by or against the Subsidiary or such other entity.
• We receive payment from the Subsidiary or such other entity, but it
is subsequently rescinded or must be returned by us.
OUR RESPONSIBILITIES
If we accept your request, we will issue the import or standby letter of credit as
described in your electronic or fax transmission and pursuant to this Booklet and
the UCP (with regard to import letters of credit) and ISP98 (with regard to
standby letters of credit). If we accept your request, we will issue the guarantee
as described in your electronic or fax transmission and pursuant to this Booklet.
We will pay each commercial letter of credit pursuant to its terms, this Booklet
and the UCP. We will pay each standby letter of credit pursuant to its terms,
this Booklet and the ISP98. We will pay each guarantee pursuant to its terms
and this Booklet.
CHANGE OF LAW OR REGULATION
If, subsequent to the issuance date of a letter of credit or guarantee, we
determine that the introduction of or any change in the interpretation of any law,
rule, regulation or guideline or the request of a central bank or other
governmental authority will increase our costs relative to our providing the
Electronic Trade Letters of Credit Service, as set forth below, then, on demand,
you will pay us additional amounts sufficient (as determined by us) to
compensate us for such increased cost. Such increased costs could include: (i)
reserve, deposit, assessment or similar requirements or (ii) increases in capital
adequacy requirements.
DEPOSIT ON TERMINATION EVENT
If there occurs an event which permits us, under the Termination section of this
Booklet, to terminate this Service immediately, you will deposit with us, on
demand and as cash security for your obligations to us, an amount equal to the
aggregate undrawn amount of the letters of credit and guarantees issued by us in
the same currency as the letter of credit or guarantee, or, at our option, its
equivalent in U.S. Dollars or the currency of the country in which the letter of
credit or guarantee was issued. You will not withdraw any amount so deposited
except to the extent such amount exceeds the undrawn and unreimbursed
amount of the letter(s) of credit and guarantees. If the amount deposited by you
under this Booklet for a letter of credit is in a currency different than the
currency in which the letter of credit or guarantee is payable and the amount so
deposited becomes less than the value of the undrawn amount of the letter of
credit or guarantee because of any variation in rates of exchange, you will
deposit with us additional amounts in such other currency so that the total
City of Ashland - Negotiated - 101510 45
amount deposited by you under this Booklet is not less than the equivalent value
of the undrawn amount of the letter of credit or guarantee, determined by using
the rate of exchange quoted by us on the date of our latest demand.
SUPPLEMENTAL LIMITATION OF LIABILITIES AND INDEMNIFICATION
FOR ALL ELECTRONIC TRADE SERVICES
For each Electronic Trade Service, this section supplements the Limitation of
Liability section of this Booklet.
You have sole responsibility for determining the level of security you require
and assessing the suitability of the security procedures for these Services. We
have no duty to investigate the authenticity of any application, instruction or
other communication you provide us using an Electronic Trade Service. Also,
we will have no liability to you for acting upon any application, amendment or
other communication purportedly transmitted by you, even if such application,
amendment or message:
• Contains inaccurate or erroneous information.
• Constitutes unauthorized or fraudulent use of an Electronic Trade
Service.
• Includes instructions to pay money or otherwise debit or credit any
account.
• Relates to the disposition of any money, securities or documents.
• Purports to bind you to any agreement or other arrangement with
us or with other persons or to commit you to any other type of
transaction or arrangement.
We are authorized, but not obliged, to rely upon and act in accordance with any
application, instruction, consent or other communication by fax or other
electronic transmission (including without limitation any transmission by use of
our Software or the Internet) received by us purporting to be a communication
on your behalf without inquiry on our part as to the source of the transmission or
the identity of the person purporting to send such communication. We are also
authorized, but not obliged, to rely upon and act in accordance with any
application, instruction, consent or other communication by telephone,
purporting to be a communication on your behalf by an authorized person
designated by you.
City of Ashland - Negotiated - 101510 46
GENERAL PROVISIONS
CHANGES TO A SERVICE
You may request us at any time to change the processing instructions for any
Service. We are not obligated to implement any requested changes until we
have had a reasonable opportunity to act upon them. In making changes, we are
entitled to rely on requests purporting to be from you. For certain changes, we
may require that your requests be in writing, in a form and manner acceptable to
us, or be from an authorized person you designate. In addition, certain requests
for changes may be subject to our approval.
We may change, add or delete any of the terms and conditions applicable to any
or all Services upon 30 days prior notice to you in writing or by electronic
means. Your continued use of or failure to terminate any Service, after the
effective date of the change, will indicate your agreement to the change.
COMMUNICATIONS
Any written notice or other written communication to be given under the terms
of this Booklet will be addressed to the applicable address specified on the
Authorization and Agreement form you return to us, except as you or we specify
otherwise in writing in conjunction with your accounts or particular Services.
Notices are effective upon receipt, except as otherwise provided in this Booklet
or any Materials.
You agree that we may electronically monitor and/or record any telephone
communications with you in those countries which permit that practice. If our
records about any such communication are different from yours, our records will
govern.
If you choose to use unencrypted electronic mail to initiate payment requests or
other instructions or otherwise communicate with us, your use of such electronic
mail with respect to a Service will be subject to the terms and conditions of this
Booklet and will comply with the applicable User Documentation. In addition,
you agree to bear the risk that such electronic mail may be corrupted, modified,
garbled or hacked or its confidentiality may be breached by a third party and the
risk that we will rely on such mail, which appears to be from you but which is
unauthorized, and that such reliance will result in a loss.
CONFIDENTIALITY
OUR OBLIGATION
We acknowledge that information we obtain from you in connection with any
Service we provide to you under the terms of this Booklet may be confidential.
We will maintain the confidentiality of such information in accordance with our
normal procedures for safeguarding customer information and the policy
reflected in the Bank of America Corporation Code of Ethics.
City of Ashland - Negotiated - 101510 47
YOUR OBLIGATION
You acknowledge our claim to proprietary rights in the Materials and that the
Materials constitute our "trade secrets" or trade secrets of our licensors or
vendors. You understand that all Materials are confidential and you will:
• Safeguard the Materials at all times.
Establish and maintain procedures to assure the confidentiality of the
Materials and any password or code subsequently changed by you.
• Use the Materials only for the purposes for which we provide them.
• Notify us promptly by telephone, confirmed in writing, if any Materials are
lost or their confidentiality is compromised.
You will not, nor will you allow anyone else to, do any of the following without
our prior consent:
• Disclose any Materials to any person or entity, except to your employees
and agents with a need to know the Materials.
• Make any copies, in whole or in part, of any Materials in whatever form or
medium (electronic, printed or otherwise) in which they may exist from
time to time, except as provided in the Software License section.
• Translate, reverse engineer, disassemble or decompile any Software or
security devices.
These confidentiality obligations continue after a Service you are using is
terminated.
You have sole responsibility for the custody, control and use of all Materials.
You agree that no individual will be allowed to initiate a request or other
instruction contemplated in this Booklet or to have access to any Materials
without proper supervision and strict security controls. If a Service requires use
of user identification codes or passwords, we will be fully protected in relying
on the correct user identification codes and passwords, as described in the
relevant User Documentation.
GENERAL
This section does not limit either party's ability to disclose information (i) that
the other party has approved by prior writing for disclosure; (ii) that is disclosed
to its professional advisors or auditors; (iii) that becomes public other than
through a breach of these confidentiality obligations, (iv) that was in its
possession or available to it from a third party prior to its receipt of it in
connection with any Service, (v) which is obtained by it from a third party who
is not known by it to be bound by a confidentiality agreement with respect to
that information, (vi) as required or requested by any securities exchange or
regulatory body to which either party is subject or submits or (vii) as otherwise
required to be disclosed by law or by legal or governmental process.
In addition, you agree (i) that we may disclose to our offices, affiliates, officers,
employees and agents with a need to know any information we obtain about you
City of Ashland - Negotiated - 101510 48
and (ii) that those offices, affiliates, officers, employees and agents may disclose
such information as permitted under the immediately preceding paragraph.
You acknowledge and agree that data processing related to Services covered by
this Booklet and your associated accounts may take place in countries other than
those where you and your accounts with us are located. You further understand
that information concerning your relationship with us may be available on our
electronic data system both for information management purposes and in order
to enable you to benefit from our electronic banking services. You understand
and agree that, as a result, your banking relationship information may be
available to some of our officers outside the country or countries where you and
your accounts are located. You authorize us to transmit your banking
relationship information across national borders, notwithstanding the banking
secrecy laws of any of the countries involved, as necessary or appropriate to
provide any Services.
It is possible that in providing the Services we will transmit Personal Data. We
will only transmit Personal Data to our locations, to locations of our affiliates or
to others in order to provide the Services. We may contract with others to
provide data transmission or storage services to us. In that case, we will require
that they treat Personal Data solely in accordance with our instructions. You
agree to comply with any directions we may give you from time to time with
respect to the Personal Data.
Neither party will use the other's name or refer to the other party directly or
indirectly in any solicitation, marketing material, advertisement, news release or
other release to any publication without receiving the other party's specific prior
written approval for each such use or release, except that we may use your name
as a reference in service proposals if we obtain your prior oral approval for such
use.
This section also does not limit our ability or that of our affiliates to access and
use transaction data related to any Service provided to you in connection with
the management of our or their business.
These obligations continue after any Service you are using is terminated.
CURRENCY EXCHANGE RATES
If a Request, an Entry, a check issued under the Check Issuance Services or a
draft created under the Client-Printed Drafts Services involves a currency other
than the currency in which the relevant account is denominated, your funds will
be exchanged for such other currency at a current rate of exchange on or before
the transfer or debit date, as the case may be, in accordance with our normal
procedures (including applicable User Documentation). If we assign a currency
exchange rate to your transaction, such exchange rate will be determined by us
based upon market conditions. We consider many factors in setting our
exchange rates, including without limitation exchange rates charged by other
parties, desired rates of return, market risk and credit risk. You acknowledge
that exchange rates for retail and commercial transactions, and for transactions
effected after regular business hours and on weekends, are different from the
exchange rates for large inter-bank transactions effected during the business day,
as reported in The Wall Street Journal or elsewhere. Exchange rates offered by
other dealers, or shown at other sources (including online sources) may be
different from our rates. We do not accept any liability if our rates are different
City of Ashland - Negotiated - 101510 49
from rates offered or reported by third parties, or offered by us at a different
time, at a different location, for a different transaction amount, or involving a
different payment media (banknotes, check, wire transfer, etc.). Currency
exchange rates fluctuate over time, and you acknowledge and accept the risks of
such fluctuations: (i) in the case of Requests, between the time you initiate a
Request and the time the transfer is either completed or is unwound due to a
cancellation, amendment, rejection or return, (ii) in the case of checks, between
the time you request us to create a check and the time we debit your account to
cover such check and/or the time we re-credit your account if the check is
stopped in accordance with the applicable stop payment procedures and (iii) in
the case of drafts, between the time you print a draft, or request us to print a
draft, and the time we transfer funds from your account to cover such draft.
FACSIMILE SIGNATURES
In some countries, businesses use a variety of techniques to produce a facsimile
signature manually or by means of a device or machine (each generally called a
facsimile signature) as a convenient method for signing checks, documents and
other items. If you choose to use a facsimile signature, you must provide us
with a specimen of each facsimile signature.
You are responsible for any withdrawal from your deposit account that bears or
reasonably appears to us to bear your facsimile signature, regardless of by whom
or by what means the signature was placed on the check. If you choose to use a
facsimile signature, you are responsible even if you have not presented us with a
specimen facsimile signature, or if the size, color or style of the check, or the
size, color or style of the facsimile signature is different from that of the check
or facsimile signature you use. We may pay the withdrawal and debit your
account for it.
You agree to compensate us for all losses, claims, damages or expenses,
including Legal Expenses, that result from our payment of a withdrawal bearing
a facsimile that reasonably resembles your facsimile signature.
You are responsible for taking security measures and implementing procedures
to prevent the forgery, theft or fraudulent or unauthorized use of your facsimile
signature.
GENERAL MATTERS
AGREEMENT
Except with respect to a click-wrap online privacy policy to which you agree
when you use a Service through Bank of America Direct®, this Booklet
constitutes and represents the entire agreement between you and us regarding
the Services we provide you anywhere in the world and supersedes and
extinguishes all prior agreements, understandings, representations, warranties
and arrangements of any nature (including requests for proposals and other sales
material), whether oral or written, between you and us relating to any such
Service (including any International Treasury Services Terms and Conditions
booklet, but excluding the current Account Agreement). This Booklet will be
controlling in the event of any conflict between it and any relevant User
Documentation, any other document or written or oral statement (including but
not limited to any Account Agreement, except as applicable law requires
City of Ashland- Negotiated - 101510 50
otherwise), but excluding the click-wrap online privacy policy noted above.
Current User Documentation is available upon request.
This Booklet is binding upon each of your and our respective successors and
permitted assigns. You may with our prior written consent, assign any of your
rights or duties described in this Booklet. This Booklet is not for the benefit of
any other person, and no other person has any right under this Booklet against
you or us, and nothing contained in this Booklet creates any agency, fiduciary,
joint venture or partnership relationship between you and us.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
GENERAL OBLIGATIONS
We are responsible only for performing the Services expressly provided for in
this Booklet. We may contract with an outside vendor in providing any of these
Services.
With respect to any Service, we will provide you with assistance by telephone at
the numbers and during the hours specified by us in writing from time to time.
You are responsible for maintaining the security of your data and ensuring that it
is adequately backed-up. We are not responsible for your loss of your data.
ORAL INSTRUCTIONS
Except as otherwise provided in this Booklet with respect to compliance with
any applicable Security Procedure, we may rely on oral instructions from any
person who identifies himself or herself by a name which is included on a
written list from you of persons authorized to give such instructions. You will
update this list from time to time as necessary to reflect any changes in
authorized persons. Except as otherwise expressly stated in this Booklet, we are
not required to act on any instruction from any person or to give notices to any
person.
SEVERABILITY; NO WAIVER
If any provision of this Booklet or the application of any such provision to any
person or set of circumstances is determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Booklet, and the application
of such provision to persons or circumstances other than those as to which it is
determined to be invalid, unlawful, void or unenforceable, are not impaired or
otherwise affected and continue to be valid and enforceable to the fullest extent
permitted by law.
No delay or failure to exercise any right or remedy under this Booklet is deemed
to be a waiver of such right or remedy. No waiver of a single breach or default
under this Booklet is a waiver of any other breach or default. Any waiver under
this Booklet must be in writing.
City of Ashland- Negotiated - 101510 51
GOVERNING LAW
Except as otherwise expressly provided in this Booklet for a particular Service,
with respect to each Service, this Booklet is governed by and interpreted
according to (i) U.S. federal law and (ii) the law of (A) the state in the United
States of America in which the account (or the principal account, in the case of
multiple accounts) associated with such Service is located or, if there is no such
state or no account associated with such Service, (B) the State of New York,
without reference to the principles of conflicts of law of the U.S. and of such
state.
If you are headquartered, or are using a Service, outside the United States of
America, and if requested by us, you must appoint an agent for service of
process in England, Hong Kong, Singapore and/or the United States of America,
and you irrevocably agree that any writ, summons, order, judgment or other
document relating to or in conjunction with any proceeding, suit or action may
be served on you in such jurisdiction.
LIMITATION OF LIABILITIES
ALL SERVICES OTHER THAN ELECTRONIC
FUNDS TRANSFER SERVICES
We are liable to you only for actual damages incurred as a direct result of our "
failure to exercise reasonable care in providing a Service.
ELECTRONIC FUNDS TRANSFER SERVICES
For Requests and Entries which are subject to UCC 4A, we are liable only for
damages required to be paid under UCC 4A or the Fedwire Regulation, as
applicable, except as otherwise agreed in this Booklet.
For all Requests and Entries not subject to UCC4A and for all other obligations
under the Electronic Funds Transfer Services sections, our liability is limited to
actual damages, resulting directly from our willful misconduct or our failure to
exercise reasonable care, not exceeding the following, as applicable: (i) in case
of an excessive debit to your account, the amount of the excess plus
compensation equivalent to interest; (ii) in case of payment to an account not
specified by you, the amount of the payment plus compensation equivalent to
interest; (iii) in case of any delay in crediting a debit Entry or DTC to your
account, the amount of compensation equivalent to interest for the period of
delay; or (iv) id all other cases, the actual damages incurred by you. You will
use reasonable efforts to assist us in recovering the amount of any overpayment
for which we are liable.
If we are obligated to pay interest compensation, we will pay such compensation
or credit your account, as we determine, upon your written request. We
calculate compensation for the relevant period as specified in the Account
Agreement or as advised by your customer services representative.
If you transmit a Request to us by way of a funds-transfer system or other third-
party communications system not specifically required by us, the system is
deemed to be your agent for that purpose. We are not liable to you for any
discrepancy between the terms you transmit to such system and the terms it then
transmits to us.
City of Ashland - Negotiated - 101510 52
ALL SERVICES
In no event will we be liable for any indirect, consequential or punitive loss,
damage, cost or expense of any nature or any economic loss or damage, expense
and loss of business, profits or revenue, goodwill and anticipated savings, loss of
or corruption to your data, loss of operation time or loss of contracts, even if
advised of the possibility of such loss, damage, cost or expense.
We will not be responsible for the acts or omissions of you or your officers,
employees or agents (including but not limited to the amount, accuracy,
i
timeliness or authorization of any_instructions or information from you) or the
acts or omissions of any other person or entity, including but not limited to any
clearing house association or processor, any U.S. Federal Reserve Bank or any
other country's central bank, any other financial institution or any Supplier, and
no such person or entity will be deemed our agent.
If you permit any Subsidiary or other person to access one of our Service
installations on your premises through use of a remote access software package,
we will not be responsible or liable for such Subsidiary or person's use or
misuse of our Services or access to accounts owned by you and for which you
did not authorize that Subsidiary or person to have access via your installation.
We may and will treat all instructions and information received by us through
this arrangement as provided by and for the benefit of you and subject to all our
rights under this Booklet with respect to the pertinent Services.
We will not be liable for and will be excused from any failure or delay in
performing our obligations for any Service if such failure or delay is caused by
circumstances beyond our control, including any natural disaster (such as
earthquakes or floods), emergency conditions (such as war, riot, fire, theft or
labor dispute), legal constraint or governmental action or inaction, breakdown or
failure of equipment, breakdown of any Supplier, or your act, omission,
negligence or fault.
We also will not be liable for any failure to act on our part if we reasonably
believed that our action would have violated any law, rule or regulation.
OVERDRAFTS
With respect to a Service, we may, at our sole discretion, allow an overdraft to
occur in your account. Except as we agree or advise you otherwise in writing,
you must repay us immediately, without demand, the amount of such overdraft
plus any overdraft charges. In such cases, the fact that we previously allowed an
overdraft to occur does not obligate us to do so in the future. Additional terms
and conditions contained in your Account Agreement may apply.
PAYMENT FOR SERVICES
You must maintain and designate account(s) with us which we will use for
debiting or crediting with respect to all payments and deposits and related
adjustments and charges. Except as otherwise provided, you must have
Collected and Available Funds on deposit in your account(s) sufficient to cover
such obligations. For purposes of satisfying your payment obligations, we may
consider any overdraft line,of credit or other arrangement you have with us.
City of Ashland - Negotiated - 101510 53
SERVICE CHARGES
You will pay us for each Service you use according to our schedule of charges
currently in effect for you, except as we agree otherwise (in writing) from time
to time. At your request, we will provide you a copy of the current schedule of
charges for the applicable Service. All charges are subject to change upon 30
days prior written notice to you (unless otherwise agreed in writing), except that
any increase in charges to offset any increase in fees charged to us by any
Supplier for services used in delivering any Service may become effective in
less than 30 days.
You will pay us for Software support in excess of that contemplated in the
General Provisions sections of this Booklet. The charges for such extra support
will be as specified by us before such charges are incurred or as otherwise
agreed by you and us from time to time.
We will, on a monthly basis, debit your account with us for payment of charges
due, unless you arrange another payment procedure acceptable to us.
TAXES
All Service charges are exclusive of sales, value-added and use taxes, stamp and
other duties and other governmental charges imposed on any Service or
Materials and not based on our net income. Such taxes, duties and charges are
payable by you.
REPRESENTATIONS AND WARRANTIES
On and as of each day we provide any Service to'you, you represent and warrant
to us that:
• Your agreement to each provision contained in this Booklet is a duly
authorized, legal, valid, binding and enforceable obligation;
• The debiting of any account as provided in this Booklet is not inconsistent
with any restriction on the use of that account;
• All approvals and authorizations required to permit the execution and
delivery of the Agreement and Authorization form and any other necessary
documentation, and the performance and consummation by you of the
transactions contemplated under each Service, have been obtained,
including but not limited to due authorization from each applicable third
party to allow you to transfer funds and access information from such
party's account;
• Your performance of your obligations will not violate any law, regulation,
judgment, decree or order applicable to you; and
• There is no lawsuit, tax claim or other dispute pending or threatened against
you which, if lost, would impair your financial condition or ability to pay us
under the terms of this Booklet.
City of Ashland - Negotiated - 101510 54
RESOLUTION OF DISPUTES
We try to resolve our clients' Service problems or disputes as quickly as
possible. In most cases, we can resolve a problem by telephone.
Any dispute or controversy concerning your use of Services described in this
Booklet will be decided by binding arbitration conducted in the United States of
America (except as you and we expressly agree otherwise) in accordance with
the United States Arbitration Act (Title 9, U.S. Code) under the Commercial
Arbitration Rules of the American Arbitration Association. Under these
procedures, the dispute is submitted to a neutral person for determination in
place of a trial before a judge or jury. Judgment upon the award made by the
arbitrator may be entered in any court having jurisdiction.
Without regard to the foregoing, any dispute or controversy that arises from an
Electronic Funds Transfer Service will be decided by a judge without a jury in a
United States of America federal or state court (except as you and we expressly
agree otherwise in writing). This means that in these instances you waive any
right to a trial by jury in any action or proceeding and agree that such
action or proceeding will be tried before a judge without a jury.
Either you or we may exercise self-help remedies or obtain provisional or
ancillary remedies from a court. You or we may exercise or obtain these
remedies at any time, even while the arbitration or trial by a judge is pending.
By exercising or obtaining any such remedies, neither you nor we waive the
right to request that a dispute or controversy be decided by arbitration or trial by
a judge.
SOFTWARE LICENSE
This section applies to all Software we provide to you after you return the
Agreement and Authorization form unless we provide you a separate license
agreement for specific Software (including a "click-wrap" Software license you
may obtain from us by downloading from our website and including, in the case
of the Commercial and Corporate Card Services, the licenses for Visa InfoSpan,
MasterCard SmartData and any other third-party Software we provide you in
connection with such Services). Notwithstanding anything to the contrary in the
"General Provisions" section of this Booklet, the software licenses granted to
you under this Software License section are governed by and interpreted
according to the laws of the State of California without reference to its
principles of conflicts of law.
LICENSE
For each Software application we provide to you for one or more Services, we
grant you a non-exclusive, non-transferable license for the use of that Software
and its related Materials. Each license is granted solely for use in object code
form only in connection with one or more Services. You may use the Software
only in accordance with the applicable User Documentation.
The Software, its source code, the related Materials and all copyright, patent,
trademark, trade secret and other rights in them are and will remain the
exclusive property of us or our licensors. You will secure and protect the
Software (including all copies) in a manner consistent with the maintenance of
our rights and those of our licensors. In order to protect those rights, you will
City of Ashland -Negotiated - 101510 55
reproduce and incorporate copyright notices and all other proprietary legends
prescribed by us in any permitted copies. You may not remove, obscure or
otherwise tamper with or alter any such notices or legends affixed to or
otherwise contained in the Software or related Materials or copies. You will
also take appropriate action to instruct and obligate your representatives who are
permitted access to the Software (including copies) to comply with your
obligations to protect the Software.
We are obligated to provide you only with those updates, upgrades or new
releases of Software which we make generally available to our other customers
who license the same Software. Any corrections, updates, upgrades or new
releases that we provide to you must be installed by you promptly or by such
later time as we specify, and will be deemed part of the Software upon delivery
to you. We will provide support only for the most current version of Software
we have provided to you.
You will, at your expense, cause a computer to be installed and kept in good
condition and working order at your site for use of the Software. The computer
and its components must be equipment which is acceptable as specified by us
from time to time.
We may assist you with the installation of Software on your computer and with
the training of persons who will use the Software, but we will not bear any
responsibility for the proper installation and use of the Software. Except as you
and we may agree otherwise, you will be deemed to have accepted the Software
upon its installation and upon our having made such training available to you.
You may not (i) sell, assign, transfer, license, sublicense or publish the Software
or copies of the Software or (ii) disclose, display or otherwise make available
the Software or copies thereof to third parties without our express approval.
You may not copy, or allow anyone else to copy, the Software or related
Materials, except that you may make two copies for backup and archival
purposes. You may not electronically distribute, or allow anyone else to
electronically distribute, Software except from the network server on which it is
installed to workstations on that network.
You will provide us notice, in writing or by electronic means approved by us for
such purpose, each time you make a permitted copy of Software (except for
backup or archival copies) or electronically distribute it to a workstation,
indicating the location and date of the copy or distribution. We may audit your
site to confirm compliance with this Software License section if you fail to make
the reports called for or if we reasonably believe you are using unauthorized
copies of Software.
You may not alter, repair, modify or adapt any Software or related Materials,
including, but not limited to, translating, reverse engineering, decompiling,
disassembling or creating derivative works from it.
You agree to inform our client support unit of all errors, difficulties or other
problems with the Software of which you become aware. We will make
reasonable efforts to fix or provide workarounds for material reported errors and .
to provide you with support and consultation concerning the Software. The
reasonable effort, support and consultation will be such as we, in our sole
discretion, determine. You will cooperate with us in the expeditious resolution
of such errors, difficulties or other problems by providing us, on request, a
City of Ashland - Negotiated - 101510 56
listing of input, output and all other data which we may reasonably request in
order to reproduce operating conditions similar to those present when such
errors, difficulties or other problems were discovered.
You may move the Software to another computer replacing the one on which the
Software was originally installed or to another site, but only after you give us
notice, in writing or by electronic means approved by us for such purpose,
specifying the new computer and site. We will have reasonable access to
Software while it is at your site to provide assistance or to verify the status or
location of Software.
A license to Software and related Materials will terminate automatically if you
breach a material term of the license or if the Services for which you are using
the Software are terminated. In addition, in the event of a breach of your
confidentiality obligations with respect to the Software, we may seek any
remedy provided by law or equity.
LIMITED WARRANTY/DISCLAIMERS
You acknowledge that the Software has not been produced to meet your specific
requirements and has not been tested in every possible combination and
operating environment. You are responsible for satisfying yourself that the
Software is satisfactory for your purposes.
You further understand and agree that we make no representation concerning the
completeness, accuracy, operation or performance of the Software or its
compatibility with any hardware. You acknowledge that the operation of the
Software may not be uninterrupted or error-free.
We warrant that the Software will substantially conform to the documentation
provided with the Software for a period of 60 days after delivery to you
provided that: (i) the Software is used by you in strict compliance with the terms
of this Booklet and the related Materials, (ii) the Software is not modified in any
way by you and (iii) you promptly notify us and reproduce for us any defects,
errors or bugs in the Software. We will use reasonable efforts to correct or work
around any Software errors reported by you or, at our discretion, but in any
event if our efforts are unavailing, we will accept return of the Software and
refund any license fees paid by you.
You agree that the foregoing is your sole and exclusive remedy for breach of
warranty and our sole obligation in connection with the performance or
operation of the Software and related Materials.
Except as specifically stated above and in the Infringement Indemnity
subsection below and notwithstanding any other provision in this Booklet
or otherwise, we make no representation or warranty, express or implied,
written or oral, and, to the full extent permitted by law, disclaim all other
warranties including, but not limited to, the implied warranties of
merchantability or fitness for a particular purpose, regarding the Software,
the related Materials and all other property, services or rights covered by
this Booklet.
To the extent permitted by applicable law, and except as otherwise provided in
this section, we will not be liable for damages of any kind arising out of the use
of, or inability to use, the Software or accompanying documentation.
City of Ashland - Negotiated - 101510 57
You agree that the United Nations Convention on Contracts for the International
Sales of Goods will not apply to our provision to you or your use of any
Software.
Neither you nor we limit or exclude our liability to the other for death, personal
injury, willful misrepresentation, willful default or fraud.
INFRINGEMENT INDEMNITY
Notwithstanding your indemnity of us in the "Protection From Third Parties"
section of this Booklet, we will defend at our own expense or settle any action
brought against you to the extent it is based on a claim that your use of the
Software and/or Materials provided by us to you pursuant to this Booklet
infringes any Berne Convention country copyright or any United States of
America or United Kingdom patent, trade secret or trademark of any third party,
and we will pay all costs and damages finally awarded in any such action.
Our obligation is subject to (i) prompt notice from you of any such claim or
action, (ii) your not having made any admission of liability or agreed to any
settlement or compromise, (iii) your providing to us, in a prompt and timely
manner, the documents, information and assistance we reasonably request, (iv)
our having sole control of defending such claim or action, (v) your having used
the current version of the Software and Materials, as provided to you by us, in
compliance with the terms of this Booklet and the related Materials and (vi) our
obligations under this indemnity being our only obligations to you with respect
to any infringement claim in connection with your use of the Software.
EXPORT CONTROLS
You understand and acknowledge that our obligations to provide the Software,
technical assistance, any media in which any of the foregoing is contained,
training and related technical data (collectively "Data") will be subject in all
respects to all applicable laws and regulations as shall from time to time govern
the export or diversion of certain products and technology to and from certain
countries. You warrant and agree that you will comply in all respects with the
export and reexport restrictions applicable to the Data shipped to you and will
otherwise comply with all applicable laws and regulations governing export and
diversion of the Software and technical data in effect from time to time.
SUPPLEMENTAL IMAGE CD-ROM SOFTWARE LICENSE PROVISIONS
This subsection supplements this Software License section with respect to
Software we provide you for the Disbursement Image Service under which we
provide you with CD-ROMs and shall control in the event of conflict between it
and the balance of the Software License section.
We warrant for a period of 45 days after the CD-ROM creation date appearing
on the CD-ROM that such CD-ROM itself will be free of defects in material and
workmanship. If we provide you a CD-ROM which contains a media defect or is
unreadable in its entirety, you must notify us within the 45-day period.
Our disclaimer of warranties in this Software License section applies to CD-
ROMs as well as to the Software and related Materials.
City of Ashland - Negotiated - 101510 58
You may not electronically distribute the Image CD-ROM Software to any
workstation other than the one for which such Software is originally installed on
your site.
Notwithstanding anything to the contrary in the Termination section of this
Booklet, if a Disbursement Image Service under which we provide you with
CD-ROMs is terminated for a reason other than your breach of this Software
License section, you may continue to use the Software for such Service after
termination of such Service for six months, or for such longer period as we
approve, subject to the terms of this Software License section or such other
software license agreement as we, at our election, require you to sign for this
purpose. At the end of such six-month or longer period, the license for your use
of the Software for such Disbursement Image Service will then terminate
automatically.
SUPPLEMENTAL IMAGE (POSITIVE PAY) SOFTWARE LICENSE
PROVISIONS
This subsection supplements this Software License section with respect to
Software we provide you for the Image Positive Pay Service and shall control in
the event of conflict between it and the balance of the Software License section.
You may not electronically distribute the CCR (C Compression Routines)
Software for Windows 3.1 provided to you in connection with the Image
Positive Pay Service to any workstation other than the one for which such
Software is originally installed on your site.
TERMINATION
Either you or we may terminate any or all Services upon 30 (60 in the case of
Corporate Card Services) calendar days prior written notice to the other party.
Notwithstanding the foregoing sentence, we may terminate any or all Services
effective immediately, and we will send you notice of the termination, if any of
the following occurs:
• You breach any of the terms and conditions in this Booklet or any other
agreement with us;
• You terminate, liquidate or dissolve your business or dispose of a substantial
portion of your assets;
• You fail generally to pay your debts as they become due;
• You, voluntarily or involuntarily, become the subject of any bankruptcy,
insolvency, reorganization or other similar proceeding;
• You initiate any composition with your creditors;
• You experience a material adverse change in your financial condition or your
ability to perform your obligations under the terms and conditions in this
Booklet; or
• Any guaranty of your obligations to us terminates, is revoked or its validity
is contested by the guarantor, or any of the events set forth in the above five
bullet points attributable to you occur to the guarantor.
City of Ashland - Negotiated - 101510 59
If a Service you are using is terminated for any reason, you will do the
following:
Immediately stop using any Materials relating to the terminated Service;
Erase or delete any Software we have provided relating to the terminated
Service to the extent it is stored in your computers; and
At our option, either return to us or destroy all Materials relating to the
terminated Service and certify to us that you have done so.
These obligations will continue after a Service you are using has been
terminated.
Termination of a Service you use does not affect your payment obligations for
services we provide to you before the Service is terminated, and any such
termination is in addition to our other rights under applicable law and under the
terms of this Booklet. Also, termination of any Service you use does not release
you or us from any of our respective obligations which arose or became
effective before such termination. Upon termination, all amounts owed by you
and outstanding will become immediately due and payable.
City of Ashland - Negotiated - 101510 60
GLOSSARY OF TERMS
The following are some important terms that appear in this Booklet.
Acceptable Payee. Your name and any other payee name you provide to us as
an acceptable payee for checks to be processed under the Lockbox Service.
Account Agreement. The current signature card, International Account
Agreement or SAOTC and the publication(s), as amended from time to time, we
provide you containing terms and conditions applicable to each deposit, savings
or current account for which you use a Service.
Bill Payment Service Provider. Any entity, which may include us, you
authorize to deliver payments, remittance information and other related data
from your customers to us for the Electronic Bill Payment Consolidation
Service.
Business Day. Each day on which the bank or bank office providing or
facilitating a Service is open for business related to that Service.
Card. Each plastic charge card which we issue for your Card Account under
our Commercial or Corporate Card Services.
Card Account. Each MasterCard or Visa account which we issue to you or to a
Cardholder under our Commercial or Corporate Card Services, including an
account for which only an account number and no Card is provided.
Cash Advance. Use of a Card Account to obtain cash from a participating
financial institution, merchant or ATM, to write a Convenience Check or to
obtain items readily convertible into cash, such as money orders, travelers
checks, foreign currency, lottery tickets, casino chips and race-track wagers.
Card Administrator. One or more individuals designated by you in writing, as
our primary contact for the Card Accounts, who is authorized to take actions
necessary or appropriate to maintain the Card Accounts, including without
limitation designating persons to receive Card Accounts, receiving
communications from us related to the Card Accounts, requesting the closure of
Card Accounts and otherwise communicating with us with respect to the Card
Accounts.
Cardholder. Your employee or any other person who you designate in writing
and who we approve to receive a Card Account or a Commercially Prepaid
Card. If you or a Cardholder makes a Commercial Prepaid Card, a Card
Account number or Convenience Check available to another party, that person
will also be considered a Cardholder.
Check Issuance Request. Using the Check Issuance Service, a message
transmitted from you to us requesting us to issue a check on your behalf drawn
on either accounts you maintain with us or accounts designated and owned by
us.
City of Ashland - Negotiated - 101510 61
Collected and Available Funds. Funds in an account equal to the ledger
balance minus float which, in our reasonable determination, are not subject to a
hold, dispute or legal process preventing their withdrawal.
Commercial Prepaid Card. A pre-paid magnetic strip-based plastic card issue
by us for a Cardholder's purchase of goods or services or for cash withdrawals.
Controlled Disbursement Point. Each bank office designated by us through
which checks issued under the Controlled Disbursement Service will be cleared
or routed.
Convenience Check. A check which we may provide to you to draw on a Card
Account.
Deposit Account. One or more demand deposit accounts maintained by you
with us and used in connection with our Controlled Disbursement Service.
Depository Transfer Checks (DTCs). Depository transfer checks and
preauthorized checks to debit Receivers' accounts to accomplish the same
purpose as debit Entries. (Receiver is defined in the NACHA Rules.)
Effective Entry Date. The date specified, in accordance with the NACHA
Rules, on the Entry by the Originator on which the Originator intends the Entry
to be settled. (Originator is defined in the NACHA Rules.)
Electronic Funds Transfer Services. ACH Services, International Electronic
Funds Transfer Services and Wire Transfer Services.
Entries. Entries has the meaning provided in the NACHA Rules and also
includes any data for Entries and any prenotification.
eUCP. The rules for electronic presentation of documents under the UCP.
Fedwire. The funds transfer system owned and operated by the Federal Reserve
Banks of the United States of America, but excludes the system for making
automated clearing house transfers.
Fedwire Regulations. Subpart B of Regulation I of the Board of Governors of
the Federal Reserve System of the United States of America, as amended from
time to time.
FX Transaction. A transaction between you and us, permitted under the
Electronic Foreign Exchange Service, for the purchase of one currency in
exchange for the sale of another currency (including without limitation any
foreign exchange spot, swap or outright forward transaction or option),
including any transaction that effects the pre-delivery, extension, rollover or
splitting of such a transaction.
FX Request. A request by means permitted under the Electronic Foreign
Exchange Service to enter into an FX Transaction.
International Account Agreement. A form of Account Agreement used in
some countries.
City of Ashland -Negotiated - 101510 62
International Electronic Funds Transfer Services. Electronic payment
services for transfers to or from your account outside the United States of
America or to or from your account in the United States of America to or from
an account in a different country. These services include low-value batch
payments made according to multiple requests within a single electronic data
file. International Electronic Funds Transfer Services exclude ACH Services
within the United States of America and exclude Wire Transfer services.
ISP98. The "International Standby Practices 1998" developed by the Institute
of International Banking Law & Practice and endorsed and published by the
International Chamber of Commerce or such later revision as may be adopted
and be in effect on the date the subject standby letter of credit is issued.
Legal Expenses. Reasonable lawyer's fees, allocated costs of staff counsel
(unless prohibited by applicable law), fees and expenses of litigation and any
other fees and expenses incurred in enforcing any provision of this Booklet.
Lockbox Address. The post office address we assign to you or we accept from
you for the Lockbox Service.
Materials. The Software, user identification codes, passwords, codes, keys, test
keys, security devices, embedded algorithms, digital signatures and certificates,
other similar devices and information, User Documentation and related
documentation we provide to you.
NACHA Rules. The rules of the National Automated Clearing House
Association (including any other clearing house rules applicable to automated
clearing house transactions), as amended from time to time.
Payment Advice. Using the Client-Printed Drafts Services, an electronic
message transmitted by you to us advising us that you have created a draft.
Personal Data. Information we receive from you in connection with the
Services consisting of an individual's bank accounts or other financial data or
identifying a living individual.
PIN. A personal identification number which a Cardholder may receive when
activating a Commercial Prepaid Card.
RCK. A "Re-Presented Check Entry" as defined in the NACHA Rules.
Request. A request by means permitted under the relevant Wire Transfer or
International Electronic Funds Transfer Service to transfer funds to or from a
specified account or beneficiary (including standing instructions) or to amend or
cancel a prior request to transfer funds.
Reversal/Deletion Request. A request for a Reversal or a request to delete a
previously delivered Entry.
Reversals. Data for reversing Entries.
SAOTC. Each form of Standard Account Opening Terms and Conditions used
in certain countries as an Account Agreement.
City of Ashland - Negotiated - 101510 63
Security Procedure. Unless we agree otherwise with you, the applicable
security procedure described in the Materials for your data delivery type or
Service for verifying the authenticity of Entries, Requests, Reversal/Deletion
Requests, Payment Advices, Check Issuance Requests, Stop Payment Requests,
FX Requests or Tax Payment Instructions.
Service. With respect to a Bank of America Corporation subsidiary bank, a
treasury management service provided in a specific Bank location and covered
by this Booklet.
Software. The programs and data files provided by us for use on a computer in
connection with one or more particular Services.
Stop Payment Request. A message you send us using the Online Stop
Payment Services, the Check Issuance Services or the Client-Printed Drafts
Services to request that payment be stopped on a check or draft which, in the
case of the Online Stop Payment Services, must be drawn on an eligible account
you have with us.
Subsidiary. Any entity in which more than 50% of the ownership interest is
owned, directly or indirectly, by you. The term "Subsidiary" does not include
affiliates or other entities in which 50% or less of the ownership interest is
owned, directly or indirectly, by you.
Supplier. Any private or common carrier communication or transmission
facility, any time-sharing supplier or any mail or courier service.
SWIFT. The international electronic message-transfer service known as the
Society for Worldwide Interbank Financial Telecommunication.
Tax Payment Instruction. An instruction by means permitted under the
relevant Tax Payment Service to pay any taxes using any of the tax fomts
specified in the applicable User Documentation.
Transaction. The purchase or reservation of goods or services or a cash
advance made or facilitated by use of a Stored Value Card, a Commercial Card,
Convenience Check or Card Account.
UCC 4A. Article 4A of the Uniform Commercial Code - Funds Transfers, as
adopted by the state in the United States of America whose law applies to a
Service, as amended from time to time.
UCP. The Uniform Customs and Practices for Documentary Credits, 1993
Revision, ICC Publication No. 500 or such later revision as may be adopted by
the International Chamber of Commerce and be in effect on the date the subject
letter of credit is issued.
Unauthorized Use. Use of a Card Account, Card or Convenience Card by a
person (i) who is not your Cardholder, employee or agent, (ii) who does not
have actual, implied or apparent authority to use the Card Account and
(iii) whose use does not benefit you directly or indirectly.
Uniform Rules for Collections. The Uniform Rules for Collections, ICC
Publication No. 522, or such later revision as may be adopted by the
International Chamber of Commerce and be applicable to a collection.
City of Ashland - Negotiated - 101510 64
User Documentation. Any written information we provide you, including
information in electronic format, as amended from time to time, which contains
detailed instructions regarding the use of a Service, as provided by a particular
banking center or office. User Documentation may vary from one jurisdiction to
another. Current User Documentation is available upon your request.
I
City of Ashland - Negotiated - 101510 65
CITY OF ASHLAND
Agreement for Banking Services
This Agreement for Government Banking Services (the "Agreement") is made as of this 1st day of July,
2013, between City of Ashland (the "Client") and Bank of America, N.A., a national banking association.
WHEREAS, the parties wish to enter into this Agreement for the purpose of specifying the term and
constituent documents of the. agreement between Client and Bank regarding Banking Services; as set
forth and defined in the Bank's Treasury Terms and Conditions booklet.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the
parties hereby agree as follows:
1. Integrated Agreement: The entire and integrated agreement between Client and Bank related to
the Services shall consist of this Agreement, the City of Ashland General Banking Services RFP
Response and Agreement, 5/13/2010 and the Bank's Treasury Terms and Conditions booklet
(including user documentation and set-up forms). The integrated agreement supersedes all prior
negotiations, representations, statements and agreements, whether written or oral, regarding the
Services.
Bank of America's Treasury Terms and Conditions booklet:
http://corp.bankofamerica.com/public/public.portal? Pd Page label=moreAreasurvtermsconditions/default
2. Commencement of Performance: Except as otherwise agreed by the parties, Bank shall begin
performing each Service upon execution and delivery of this Agreement, the pertinent service-level
agreement and the related set-up forms. Bank shall continue to perform such Services during the
term of this Agreement.
3. Term: This Agreement is for a duration beginning this 1st day of July. 2013 to June, 30, 2014, unless
terminated sooner as set forth herein. The Agreement may be extended by mutual consent of the
parties, herein and signed by their authorized representatives.
4. Termination: This Agreement may be terminated by either party upon (45) days written notice to
the other party.
In witness whereof, the parties have executed this Agreement as of the date first written above.
CITY OF ASHLA BANK OF AMERICA MER L LYNCH
ti
Signature: Signature::
Name: Barbara Christensen Name: Pete Sullivan
Title: City Recorder/Treasurer Title: SVP, Senior Client Manager
Address: 20 East Main St, Address: 800 5m Ave, 34th Floor
City: Ashland, OR 9/7 0 / City: Seattle, WA 98104
Approved as to form: C7 c
City Attorney
loft
CITY OF ASHLAND
Agreement for Banking Services
This Agreement for Government Banking Services (the "Agreement") is made as of this 1st day of July.
2014 between City of Ashland (the "Client") and Bank of America, N.A., a national banking association.
WHEREAS, the parties wish to enter into this Agreement for the purpose of specifying the term and
constituent documents of the agreement between Client and Bank regarding Banking Services; as set
forth and defined in the Bank's Treasury Terms and Conditions booklet.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the
parties hereby agree as follows:
1. Integrated Agreement: The entire and integrated agreement between Client and Bank related to
the Services shall consist of this Agreement, the City of Ashland General Banking Services RFP
Response and Agreement, 5/13/2010 and the Bank's Treasury Terms and Conditions booklet
(including user documentation and set-up forms). The integrated agreement supersedes all prior
negotiations, representations, statements and agreements, whether written or oral, regarding the
Services.
Bank of America's Treasury Terms and Conditions booklet:
http://corp.bankofamerica.com/public/`pubfic.portal? Pd Page label=more/treasurvtermsconditions/default
2. Commencement of Performance: Except as otherwise agreed by the parties, Bank shall begin
performing each Service upon execution and delivery of this Agreement, the.pertinent service-level
agreement and the related set-up forms. Bank shall continue to perform such Services during the
term of this Agreement.
3. Term: This Agreement is for a duration beginning this 1st day of July. 2014 to June. 30, 2015, unless
terminated sooner as set forth herein. The Agreement may be extended by mutual consent of the
parties, herein and signed by their authorized representatives.
4. Termination: This Agreement may be terminated by either party upon (45) days written notice to
the other party.
In witness whereof, the parties have executed this Agreement as of the date first written above.
CITY OF /AISSD BANK OF ARRIL
SignatuSignature
Name: Barbara Christensen Name: Jeff Moore
Title: City Recorder/Treasurer Title: SVP, Senior Treasury Solutions
Officer
Address: 20 East Main St, Address: 300 S. Fourth St., 2nd Floor
City: _ Ashland, OR 97520 City: Las Vegas, NV 89101
Approved as to form:
City Attorney