REQUEST FOR PROPOSALS
FOR
BANKING SERVICES
(FIVE-YEAR CONTRACT)
BID FILE NO. 9412
AUGUST 7, 2017
PROPOSAL SUBMISSION DEADLINE:
Prior to 3:00 p.m., September 29, 2017
PRO
POSAL CONTACT:
Laura Rapp
Phone: (559) 621-1169
FAX: (559) 488-1069
EXHIBIT A
CITY OF FRESNO
PROPOSAL SPECIFICATIONS
REQUEST FOR PROPOSALS
BANKING SERVICES
TABLE OF CONTENTS
Page
I. INTRODUCTION
Notice Inviting Proposals ....................................................................................3 Proposal Process ...............................................................................................4 Instructions to Proposers ....................................................................................7
II. PROPOSAL AND CONTRACT DOCUMENTS
Required Services and Format of Proposal…………………………………….…13 Statement of Acceptance of Agreement Requirements………………………… 19 Various City of Fresno Forms:
Local Preference Certification ……………………………………………………....20 Non-Collusion Affidavit.……………………………………………………………….21
Business License.……………………………………………………………………..23
Proposal Signature Page.…………………………………………………………….24
Sample Agreement……………………………………………………………………27
ATTACHMENT A: PRICING MATRIX
EXHIBIT A
RFP 6-9-2017 PAGE 2
I - INTRODUCTION
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RFP 6-9-2017 PAGE 3
NOTICE INVITING PROPOSALS
Sealed proposals or electronic proposals via Planet Bids will be received at the Office of the Purchasing Manager, 2600 Fresno Street, Room 2156, Fresno, California 937 21, all in accordance with the Specifications for:
REQUEST FOR PROPOSALS
BANKING SERVICES
Bid File No. 9412
The City of Fresno is soliciting proposals for professional banking services. This request is for a five (5) year Contract with two (2) one (1)-year extensions.
Proposals are to be
submitted at the Office of the Purchasing Manager, 2600 Fresno St.
Room 2156, Fresno, California 93721 prior to opening at 3:00 PM on Friday, September 29, 2017, at which time they will be publicly opened and recorded.
The City of Fresno hereby notifies all Proposers that no person shall be excluded from participation in, denied any benefits of, or otherwise discriminated against in connection with the award and performance of any contract on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation or on any other basis prohibited by law.
A pre-proposal conference will be held at 10:00 a.m. on Monday August 21, 2017 at the Fresno City Hall, 2600 Fresno Street , Room 4017N, Fresno, California. Prospective Proposers are encouraged to attend.
The City of Fresno reserves the right to reject any and all proposals.
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RFP 6-9-2017 PAGE 4
PROPOSAL PROCESS
Timetable
Distribution of RFP August 7, 2017
Pre-Proposal Conference August 21, 2017
Proposal Submission September 29, 2017
Interviews To be determined
Notification-Intent to Negotiate October 27, 2017
Finalize Contract November 30, 2017
Contract Approved by Council December 14, 2017
Every effort has been made to include sufficient information within this Request for Proposal for a financial institution to prepare a responsive, comprehensive proposal. In order to achieve an equitable dissemination of information, a pre-proposal conference will be held to allow all interested financial institution representatives to ask questions for the mutual benefit of all involved. The timing of the proposal process is as follows:
1. Distribution of Request for Proposals: August 07, 2017
2. Pre-Proposal Conference:
City staff will meet collectively with financial institution representatives seeking additional information about the proposal process and the RFP. All financial institutions interested in submitting a proposal are encouraged to attend t he pre-bid conference. The conference is scheduled for August 21 , 2017, beginning at 10:00 a.m. at Fresno City Hall, 2600 Fresno Street, Room 2120.
Contact Laura Rapp by email at [email protected] or by FAX at (559) 488-1069 with any questions you may have prior to this Pre-Bid Conference.
Staff requests that participating financial institutions notify the City of their attendees in advance of the Conference in the same manner.
3. Proposal Submission:
Proposals must be delivered or electronically submitted via Planet Bids, directly to the Office of the Purchasing Manager, 2600 Fresno Street, Room 2156, Fresno, California 93721 by 3:00 PM on Friday, September 29, 2017. Submissions received after the deadline or proposals delivered via fax will not be accepted. A total of one original and seven (7) copies of the proposal must be submitted and labeled as follows:
REQUEST FOR PROPOSALS
BANKING SERVICES
Bid File No. 9412
Office of the Purchasing Manager
2600 Fresno Street, Room 2156
FRESNO, CA 93721
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RFP 6-9-2017 PAGE 5
4. Interviews:
Selected financial institutions may be requested to make a presentation to the Banking Services Proposal Review Committee concerning their institution’s proposal for services.
5. Notification:
The City anticipates sending written notification of the City’s intention to either enter into negotiations in good faith with the financial institution selected, or to accept one bank’s proposal in its entirety, by October 27, 2017.
The intention to enter into negotiations does not commit the City t o award a contract to the selected institution. The City reserves the right to select another Proposer, in the event that the City is unable to successfully conclude negotiations with the bank initially selected.
6. Finalize Contract:
The City expects to conclude the RFP process by December 01, 2017. The finalized contract will be submitted to the Fresno City Council for approval on December 14, 2017.
The City will make every effort to administer the proposal process in accordance with the terms and dates discussed in this RFP. However, the City reserve s the right to modify the proposal process and dates as necessary.
Ma
ndatory Proposal Requirements
To be eligible to submit a proposal, the financial institution must have the following:
1. Bank Charter:
The financial institution must have a federal or State of California charter branch with banking facilities located within the City. A qualified institution must have an operations center located within the State of California. A qualified institution must be a member and insured by the Federal Reserve System and insured by the Federal Deposit Insurance Corporation (FDIC).
2. Local Branch:
A branch of a qualified institution must be maintained within the City during the duration of the contract and be a qualified depository for public funds.
3. Automatic Clearing House Capabilities:
The financial institution must have and maintain Automatic Clearing House (ACH) originating capabilities. The financial institution must conform to National Automated Clearing House Association (NACHA) and Uniform Commercial Code Article 4A (UCC4A) rules.
4. On-line Services:
The financial institution must be able to furnish daily on- line balance and prior day
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RFP 6-9-2017 PAGE 6
transaction reports to the City, as well as account reconcilement information. The financial institution must be able to receive electronic files for Direct Deposit payroll processing, and other payment transactions.
5. Transmittal Requirements:
The financial institution must have an industry standard way of securely receiving electronic files containing check issue, cancel and void information.
6. Collateral Requirements:
As a City depository, the financial institution will be required to post collateral in compliance with Section 53651 of the Government Code. The collateral must have a market value of at least 110% of the City funds on deposit. In addition, this collateral must be “marked to market” no less than weekly.
7. Current Reference:
The financial institution must be currently providing equivalent banking services as outlined in this proposal to comparably sized public agencies within California, and be in good standing.
8. Community Reinvestment Act:
The financial institution must have a Satisfactory CRA rating. Aside from this, CRA activities will be evaluated very carefully. See Instructions to Proposers, Paragraph 11.h. and Required Services and Format of Proposal, Tab XXVIII.
9. Customer Service:
The financial institution agrees to assign an experienced and specific staff member who is committed to and capable of servicing the City’s account.
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RFP 6-9-2017 PAGE 7
INSTRUCTIONS TO PROPOSERS
1. No proposal will be considered for award unless it is prepared completely, properly signed by the Proposer and delivered, under sealed cover , plainly marked or electronically submitted:
REQUEST FOR PROPOSALS
BANKING SERVICES
Bid File No. 9412
to the Office of the Purchasing Manager, 2600 Fresno St. Room 2156 Fresno, California 93721, prior to the date and time specified in the Notice Inviting Proposals. The time stamp in the Purchasing Unit will be the official clock for documenting the time of filing.
Electronically filed is defined as by means of electronic equipment or devices.
In the event that both a paper and electronic proposal for the same project are submitted, the City will use and accept the electronic version as the authorized submittal.
2. The City will endeavor to award a Contract or reject any or all proposals within the time stated in the Specifications, and no proposal may be withdrawn within that period of time.
Any award of a Contract exceeding $50,000, shall be subject to the approval of the City Council.
3. The City reserves the right to reject any and all proposals.
Submittal of Propos
al
4. Each Proposer shall carefully examine each and every term of this Request for Proposal; and each Proposer shall judge all the circumstances and conditions affecting his/her proposal. Failure on the part of any Proposer to make such examination and to investigate thoroughly shall not be grounds for any declaration that the Proposer did not understand the conditions of this Request for Proposal.
5. The Proposer shall comply with any and all federal, state or local laws, now in effect or hereafter promulgated, which apply to the services and products herein specified.
6. Proposers will submit an original and seven (7) copies of their proposal in a sealed container or envelope, marked on the outside ”REQUEST FOR PROPOSALS BANKING SERVICES” and will include the name of the Proposer and the date and time of proposal submittal deadline. If proposals are filed electronically the above copies are not applicable.
7. This solicitation for proposals does not commit the City of Fresno to enter into a Contract or to pay any costs incurred in the preparation of responses to the request. The City of Fresno reserves the right to accept or reject any proposals, and to negotiate with any qualified source, or to cancel in part or in its entirety this Request for Proposal. It may accept the proposal that it considers to be in the best interest of the City of Fresno, with or without negotiation.
8. The City reserves the right to waive any informality or minor irregularity when it is in the best interest of the City to do so, to negotiate for the modification of any proposal with mutual consent of the Proposer, to re-advertise for proposals if desired, and to accept the proposal which in the judgment of the City, even though it does not offer the lowest cost, i s nevertheless deemed to offer the best value for the public and City. Any proposal which is incomplete, conditional, obscure, or which contains irregularities of any kind, may be cause for rejection.
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RFP 6-9-2017 PAGE 8
Local Preference
9. Fresno Municipal Code Section 4- 109, LOCAL PREFERENCE IN CONTRACTS FOR CONSULTANT SERVICES AND OTHER CONTRACTS, provides for a local preference.
Portions pertinent to this Agreement are paraphrased as follows:
Except for those contracts funded by the federal or state government when such funding would be jeopardized because of this preference, the City of Fresno shall contract for professional consulting services by giving a primary preference to local firms, when such firms have the necessary qualifications, experience and expertise to complete the project(s) being proposed for work, as determined by the city. A secondary preference shall be similarly given to non-local firms which form an association for pecuniary profit with local firms for the projects being proposed wherein the benefit to the local firm(s) is an amount greater than fifteen (15) percent of the total contract price for the project(s). Notwithstanding the preceding, the preference given for local firms, or non-local firms which associate with local firms, shall not be applicable whenever, to the best knowledge of the City, the number of local firms providing the specific consulting service within the area of expertise for the subject matter of the work is less than three. The Proposer shall certify, under penalty of perjury, that the Proposer qualifies as a local firm. The preference is waived if the certification does not appear on the proposal.
Local firm shall mean a firm with a fixed primary or branch office either (i) within a twenty-five mile radius of Fresno City Hall, located at 2600 Fresno Street in the City of Fresno or (ii)within the County of Fresno: and which fixed primary or branch office was established prior to the City inviting bids for the respective purchase. and a majority of the work on the project will be performed by employees who are permanently assigned to such office prior to the city requesting proposals for the project and whose regular duties would include local work on other than city projects.
Proposers shall submit the form CERTIFICATION FOR LOCAL PREFERENCE with their proposal if they seek the benefit of local preference.
Public Records
10. The proposals received shall become the property of the City of Fresno and are subject to public disclosure. Those parts of a proposal which are defined by the Proposer as business or trade secrets as that term is defined in California Civil Code, Section 3426.1, and are reasonably marked “Trade Secrets,” “Confidential,” or “Proprietary” and placed in a separate envelope or container shall only be disclosed to the public if such disclosure is required or permitted under the California Public Records Act or otherwise by law. Proposers who indiscriminately and without justification identify most or all of their proposal as exempt from disclosure may be deemed non- responsive. Proposals, excluding confidential information, will be available for review after posting of staff recommendation.
Selection Process and Evaluation Criteria
11. Proposal Evaluation
The Selection Committee will review and evaluate all proposals after formal receipt. To receive proper consideration, the proposal must meet the requirements of these Specifications. The evaluation process will provide credit only for those capabilities and
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RFP 6-9-2017 PAGE 9
advantages which are clearly stated in the Proposer ’s written proposals. In other words, advantages which are not stated will not be considered in the evaluation process.
Proposers whose proposals include a failure to comply with or take exception to these Specifications may be considered nonresponsive and dropped from the evaluation process.
The Selection Committee may include at least one representative from a Department with no direct interest in the service(s) being requested by this Request for Proposals . The Committee may also include a representative from outside the City organization. It will be the responsibility of this committee to make recommendations advisory to the Controller and in accordance with the award criteria enumerated below.
The Selection Committee will evaluate the proposals on the following criteria:
a. Proper Submission of Proposal:
Receipt of proposal by due date as outlined in this RFP according to the specifications. Late submissions or delivery via facsimile will not be considered.
b. Comprehensiveness of Services Provided:
Overall capabilities of the financial institution to meet the required service levels described in this RFP
c. Public Sector Experience and Resources:
The financial institution’s experience in providing services to the public sector, as well as dedicated resources and personnel.
d. Strength and Stability of Financial Institution:
The financial institution’s comparative standing among its peers and the associated credit quality ratings.
e. Assigned Relationship Manager/Team:
The credentials and experience of the person(s) assigned to the City relationship.
f. Charges for Services:
The amount of proposed charges and pricing increases in subsequent years.
g. Service Enhancements:
The financial institution’s efforts to understand the City’s banking needs and goals, and the creativity the financial institution shows in introducing new technologies and ways to improve the City’s current practices and procedures.
h. Other Factors:
Any other factors that the City believe s would be in its best interest to consider, such as community involvement for example, which were not previously described.
The City reserves the right to accept or reject any or all proposals and may select, and negotiate with one or more Proposers concurrently, and enter into a Contract with such Proposer who is determined, by the City, to provide the services which are in the best interest of the City. The City may agree to such terms and conditions as it may determine to be in its best interest.
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Electronic Payments
12. Proposer shall provide complete and accurate billing invoices in order to receive payment. Billing invoices submitted must contain all information and supporting documentation required by the contract. Payment for invoices submitted by the contractor shall only be rendered electronically unless payment by paper check is expressly authorized by the Controller, in the Controller’s sole discretion, due to extenuating circumstances. Such electronic payment shall be made in accordance with ordinary City procedures and practices. The proposer shall comply with the Controller’s procedures to authorize electronic payments. Proposer acknowledges that it will not receive payment on any invoices submitted under this Contract if it does not comply with the Controller’s electronic payment procedures, except where the Controller has expressly authorized payment by paper check as set forth above.
ADA
Accessibility Requirements: Supplier warrants that it complies with California and federal disabilities laws and regulations; and the Ser vices will conform to the accessibility requirements of WCAG 2.0AA. Supplier agrees to promptly respond to and resolve any complaint regarding accessibility of its Services. The City may require bidder to comply with these accessibility requirements if they are awarded a contract.
1 3. The Selection Committee reserves the right to request additional information from Proposers, to negotiate terms and conditions of the Contract, to visit sites, to request demonstrations or oral presentations, or ask Proposers to appear before the Selection Committee to clarify points of their proposal.
14. Selection will be based on qualitative analysis and cost. Any award shall be on the basis of the criteria specified and made to the Proposer whose proposal is judged as providing the best value in meeting the best interest of the City and the objectives of the project. All Proposers should make their best and final pricing offers and offer their most favorable terms and conditions and not assume that there will be additi onal opportunities to lower their bids or modify their terms and conditions.
15. The City reserves the right to make the selection of a Proposer based on any or all factors of value, whether quantitatively identifiable or not, including, but not limited to, the anticipated initiative and ability of the Proposer to perform the services set forth herein.
Time to Award
16. The Proposer agrees that the City may have 180 days to accept or reject proposals. It is further understood that, if the Proposer to whom any award is made fails to enter into a Contract as provided in the Specifications, award may be made to another Proposer, who shall be bound to perform as if she/he had received the award in the first instance.
Documents required after Award
17. U pon City's acceptance of a proposal, the successful Proposer will be required to execute and return a Contract furnished by the City, and all certificates of insurance within thirty (30) calendar days from the date of Notice of Award issued by the City. S hould the successful Proposer fail or refuse to execute the Contract, the City reserves the right to accept the proposal of the Proposer offering the next best value to the City.
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Questions, Clarifications and Concerns
18. Any questions or concerns relating to these Specifications should be directed to Laura Rapp, Senior Procurement Specialist [email protected] or should be sent by facsimile to 559-488-1069*. An appropriate addendum if necessary will be issued to all Proposers stating revisions to be made to the Specifications as a result of questions or related matters.
Contacts with City Staff
19. Before an award is made, any contact with City staff, other than the aforementioned person, without prior written authorization, is strictly prohibited and may render the Proposer disqualified.
Regulated Communications in City Procurement Process Ordinance
20. The Regulated Communications in City Procurement Process Ordinance (Article 6, Chapter 4 of the Fresno Municipal Code) became effective May 7, 2004. With certain specified exceptions, the Ordinance provides that no Respondent, Bidder, Proposer (as the case may be) shall initiate, engage in, or continue any communication to or with any City elected official concerning or touching upon any matter which is the subject of this competitive procurement process.
Any Respondent, Bidder, Proposer or elected official (as the case may be) who initiates, engages in, continues in, or receives any regulated communication shall file the written disclosure required by the Regulated Communications in City Procurement Process Ordinance.
Any Respondent, Bidder, or Proposer violating the Regulated Communications in City Procurement Process Ordinance may be disqualified from participating in this procurement process. Additionally, the City may set aside the award of a contract, prior to its execution, to a party found to have violated the Ordinance.
Note: The full text of Fresno Municipal Code Chapter 4, Article 6 may be obtained by logging on to the City’s website at https://www.fresno.gov. U
nder “Government, City Attorney, Legal
Resources”. Or view the Fresno Municipal Code directly at http://www.municode.com/Resources/gateway.asp?pid=14478&sid=5.
Notification of Staff Determination
21. Once the City has reviewed and evaluated the proposals received and has determined which Proposer shall be awarded the Contract, or which Proposer has been selected for further negotiations, that determination will be posted on a public bulletin board outside the Purchasing Units Office and the City ’s website www.fresno.gov, B id Opportunities , Anticipated Awards. The bulletin board and website will generally be updated by Monday of each week, no later than 5:00 p.m. It is the sole responsibility of interested Proposers to seek this information from either of these sources.
F
or those Proposers that have concerns about or rebuttal of any determination of disqualification by City staff, there will be an opportunity to submit, in writing, within [5] days to the Purchasing Manager any concerns with the RFP process or staff’s decision. Such writing will be taken under consideration by the City Manager and may be acted upon within [5] days. If no action is taken within such [5] days, then there shall be no change in staff’s decision. The exercise of Proposer of its right to submit its written concerns shall be a condition precedent to seeking judicial review of any award of a contract hereunder.
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Deb arment
22. A Bidder who has been determined by the Council to be nonresponsible may be debarred from bidding or proposing upon or being awarded any contract with the City or City of Fresno Successor Agency or to the Redevelopment Agency of the City of Fresno, or from being a subcontractor or supplier at any tier upon such contract, in accordance with the procedures in Resolution No. 2003-130 adopted by Council on April 29, 2003. The initial period of any such debarment shall not be less than one year or more than three years. A Bidder may request a hearing, in accordance with Resolution No. 2003-130, upon receipt of a notice of proposed debarment from the City Manager or his/her designee. A copy of the Resolution may be obtained from the City Clerk's Office, 2600 Fresno Street, Fresno, California 93721.
Ou
treach to Small Business Enterprises in Subcontracting
23. The City of Fresno hereby notifies all Proposers that it is the City’s policy to provide all small business enterprises, including minority, women, and disabled veteran business enterprises, equal access and opportunity for participation in the performance of all construction contracts, professional service contracts, procurement of supplies, equipment and other services. Therefore, the City requests that a Proposer who intends to subcontract a portion of the work seek out small business enterprises that are potential subcontractors, suppliers, or consultants, and actively solicit their interest, capability and prices.
This includes Disadvantaged Business Enterprises (DBE’s), where Federal Funding is involved. DBE’s by definition are Small Business Enterprises (SBE’s) and are covered in all references to SBE’s. Where applicable DBE goals are set for Federally Funded projects.
Good Faith Effort (GFE) also plays a role.
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II - PROPOSAL AND CONTRACT DOCUMENTS
REQUIRED SERVICES AND FORMAT OF PROPOSAL
The City intends that the final contract shall consist of an “Integrated Agreement” that includes a Master Agreement and three Attachments. The City’s Sample Agreement, starting at page 27, is a sample Master Agreement. Attachment A will be this RFP.
Attachment B will be the Proposer’s proposal. Attachment C will be the City’s Conflict of Interest Disclosure.
In order for the City to adequately compare and evaluate proposals objectively, all proposals must be submitted in accordance with this format.
Title Page Cover: One printed page maximum.
It should include the name of the financial institution, its principle business address where the relationship will be managed, and the local branch address that can meet daily banking needs.
Tab I -Table of Contents: Two printed pages maximum.
Tab II—Transmittal Letter: Two printed pages maximum.
The letter should address the financial institution’s willingness and commitment to provide the services and reasons why the financial institution believes it should be selected. The letter should be addressed to: Financial Services Manager, and signed by the Relationship Manager assigned to our accounts.
Tab III - Bank and Staff Profile: Five printed pages maximum.
Respond to the following sections:
a. Overview: Provide a corporate overview of your financial institution and present the financial institution’s Community Reinvestment Act programs. Also identify the number of branches within the City limits and the nearest full-service branch that can assist us with our immediate banking needs. The financial institution must have a full-service branch in the City.
b. Experience: Describe the financial institution’s experience in providing services to the public sector. Include exclusive resources dedicated for the public sector. (Provide three references that are comparable to our size and financial needs in order for us to verify quality of service). Include a brief description of the services provided, how long such services have been provided, and a cont act person (telephone number included) for each client described.
c. Relationship Management: Describe the relationship team that will be assigned to service our account. Describe individual roles and responsibilities, briefly detailing their credentials and related banking experience.
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d. Compliance and Exceptions: Include a statement to confirm your financial institution’s compliance with the City’s minimum qualifications. Also, list any exceptions to required services.
Tab IV - Deposit Processing: Four printed pages maximum.
The City deposits are decentralized, and each department or location prepares a deposit into their depository plus account. These accounts ZBA to the general account daily. Most locations deposit both cash and checks. However, some only deposit checks or rarely deposit cash. These locations currently use remote deposit for their checks. Utility Billings and Collections and Business License are currently using Image Cash Letter due to the volume of checks being processed. Utilities Billings and Collections also receive a payment concentrator file from our bank containing the online banking payments. Additionally, the City’s bus system and parking meters deposit coin only on a daily basis. Describe how the financial institution would handle the City deposits (i.e., retail branch, local cash vault, out of the area cash vault, as well as options to deposit electronically).
Tab V - FDIC Charges and Float: One printed page maximum.
Provide information on applicable FDIC and FICO charges, including surcharges, and the financial institution’s availability schedule. Also, present any float advantages we would benefit from by converting our relationship to your financial institution.
Tab VI -Account Reconcilement: Three printed pages maximum.
The financial institution must provide monthly account reconcilement reports, financial institution statements, account analysis statements, confirmations and other report related features. The financial institution must be able to provide various reports and statements in a computer media and also provide specialized reports when requested. The City requires sixty (60) days from the date of the receipt of the account reconcilement report or bank statement in order to resolve questions regarding the City’s account(s). Describe the account reconciliation services offered by the financial institution. Also describe when the above information would be available to the City online.
Tab VII - Electronic Money Transfers: Two printed pages maximum.
Describe the financial institution’s incoming and outgoing electronic money transfer services. Include safeguards and security measures offered.
Tab VIII - Change/Currency Order Services: One printed page maximum.
Describe the financial institution’s procedures for requesting change/currency orders.
Tab IX - Balance Reporting: Two printed pages maximum.
The financial institution must have secure online website to allow us access, no later than 8:00 a.m. Pacific Standard Time, to previous day balance and transaction
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information for each designated account. The system must also have wire transfer capability. Describe the balance reporting system offered by the financial institution and its features, including “user-friendliness”.
Tab X - Direct Deposit: Two pages maximum.
The financial institution must have the capability to accommodate a wide range of electronic payment and deposit services. The City utilizes direct deposit services for its monthly payroll. Approximately three-thousand six-hundred (3,600) employees are currently signed up for direct deposit, while approximately 200 employees use cashpay cards. Payroll also issues special checks as needed.
Tab XI – ACH Payments: One printed page maximum.
The City’s Accounts Payable section currently issues payments to vendors in the form of checks and ACH. Describe the services available from the financial institution to facilitate the City’s ACH issuances.
Tab XII – Check Truncation: One printed page maximum.
Describe the financial institutions’ truncation services. The City currently receives images of our paid checks on CDs sent to us monthly.
Tab XIII - Collected Balances and Earnings Allowance: Two printed pages maximum.
Describe the financial institution’s calculation formula for collected balances, as well as the calculation formula of charges for funds advanced. Also, describe the methodology that would be used to give an earnings allowance credit to the City for financial institution balances.
Tab XIV - Overdraft Protection: One printed page maximum.
Describe any issues, concerns and charges associated with the use of an overdraft policy.
Tab XV – Payee Positive Pay: One printed page maximum.
Describe the financial institution’s requirements for payee positive pay, including any charges associated with this service.
Tab XVI – Courier Service: One page maximum.
Describe your financial institution’s current agreements and status with courier services.
Tab XVII - Pricing Terms and Conditions: One printed page maximum.
Include in this section the financial institution’s proposed terms of contract and method in which pricing adjustments will be calculated.
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Tab XVIII - Pricing Schedule: Six printed pages maximum.
Provide in this section, using our pro-forma (Attachment A), the pricing for services proposed by the financial institution.
Tab XIX - Conversion Plan: Two printed pages maximum.
Describe the overall plan your financial institution would coordinate to ensure a smooth transition from the current provider. The financial institution must also provide on-site training to our personnel for the operation and use of the financial institution’s services and automated systems for all areas of service.
Tab XX - Service Enhancements: Three Printed pages maximum.
Based upon information presented in our RFP and your financial institution’s knowledge of the public sector, describe any enhancements, technological or otherwise, that we may consider to improve operational or cash management effectiveness.
Tab XXI - Benefits for City Employees: One printed page maximum.
Describe any discounts or benefits that would be provided to City employees.
Tab XXII – Remote Deposit Additional Information: Four printed pages maximum.
Describe your institution’s Remote Deposit process. The City is very interested in pricing for equipment, as well as the costs associated with this deposit process. The City is currently using this method of deposit in several locations, and is interested in cost savings and potential funds availability advantages.
Tab XXIII – Fresno Economic Development Efforts : The City is aware of privacy constraints regarding information that can be released. However, the more information that can be included in this tab, the better. Charts, graphs, tables, and narrative explanations of the bank’s economic efforts, strategy, and tactics are all welcome. Please explain in as great detail as possible, the bank’s efforts at economic development specifically in the City of Fresno. The Administration and the Council are particularly interested in the number of jobs that the financial institution’s efforts have created. In addition, the number of new businesses funded, as well as the number of businesses retained as a result of the financial institution’s activities are important considerations. Other considerations are the number of loans made, the number of projects funded, the number of new bank accounts opened, the number and amount of donations made to social service nonprofits, and the general extent to which the financial institution contributes to Fresno’s economic development.
Tab XXIV – Code of Ethics. Please provide the financial institution’s official adopted code of ethics.
Tab XXV – Controlled Disbursement. Two pages maximum. Describe the bank’s product.
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Tab XXVI —Business Continuation Plan. Two pages maximum. Describe the bank’s BCP.
Tab XXVII —Red Flag Requirements. Two pages maximum. Describe the bank’s efforts to comply with Federal Red Flag requirements.
Ex
hibits to be included in Proposal
Tab A: Contract Samples. Provide pages as necessary.
Include the Proposer’s standard Deposit Account Disclosure, Cash Management or Treasury Terms and Conditions , Contract For Deposit of Moneys, a sample Service Agreement, Signature Card, Schedule of Fees and Charges, and any other standard documents that the bank would normally require to open a n account and set up services for a public entity.
Tab B: Annual Report and Ratings. Provide pages as necessary.
Provide the most recently audited financial statements or annual repor t of the financial institution. Also include your most current Standard & Poors , Moody’s, and Bauer Financial ratings.
Tab C: Account Analysis. Provide pages as necessary.
Provide a sample of your financial institution’s account analysis and a use guide for the account analysis.
Tab D: Disclosures. Provide pages as necessary.
Provide a disclosure of any litigation or administrative proceedings that your financial institution is currently involved with, including any investigations being conducted by State or Federal bank regulators, the Attorney General’s Office, Fair Political Practices Commission, or Consumer Protection Offices.
Tab E: Pricing Schedule. Provide pages as necessary.
Provide a schedule of the bank’s standard pricing for all services offered by the bank.
CITY ACCOUNT STRUCTURE
The City of Fresno has one Master Account, seven checking accounts, three change order accounts, an ACH only depository account, and thirty one depository plus accounts, which all ZBA into, or out of the Master account on a daily basis.
EXHIBIT A
RFP 6-9-2017 PAGE 18
The City also keeps six separate accounts for their Convention Center’s third party management company. These accounts are managed by the third party, and do not ZBA.
//
//
//
EXHIBIT A
RFP 6-9-2017 PAGE 19
(See Sample Agreement. Photocopy this page and submit under Tab II)
Proposer's Name
STATEMENT OF ACCEPTANCE OF AGREEMENT REQUIREMENTS
REQUEST FOR PROPOSALS
FOR: BANKING SERVICES
The Proposer shall sign below that the Proposer accepts in whole the terms and conditions of the Sample Agreement set forth in this RFP. If the Proposer takes exception to some or all of the Sample Agreement, the Proposer shall sign that the Proposer does not accept all portions of the Sample Agreement, and will present in hard copy and on a CD, a redline revision of the Sample Agreement that incorporates the Proposer’s terms and conditions.
[ ] ACCEPT
[ ] DO NOT ACCEPT
Signature of Authorized Person
Type or Print Name of Authorized Person
EXHIBIT A
RFP 6-9-2017 PAGE 20
(Photocopy this page and submit under Tab II, if applicable)
Proposer’s Name
CERTIFICATION FOR LOCAL PREFERENCE
REQUEST FOR PROPOSALS
FOR: BANKING SERVICES
[ ] We certify that we qualify as a local firm pursuant to Fresno Municipal Code Section 4-109.
[ ] We certify that we qualify as a non- local firm which has formed an association for pecuniary profit with the local firm listed below for the project being proposed wherein the benefit to the local firm is an amount greater than 15% of the total contract price for the project (as provided in Fresno Municipal Code Section 4-109).
Location of Proposer’s Business: Primary Office [ ]
(Please provide street address, no PO Box) Branch Office [ ] (Please mark as applicable)
Address:
Phone:
Name and Location of Associated Local Firm’s Business: Primary Office [ ] Branch Office [ ]
Name:
(Please mark as applicable)
(Please provide street address, no PO Box)
Address:
Phone:
The undersigned Proposer hereby certifies under penalty of perjury under the laws of the State of California that the information contained on this CERTIFICATION FOR LOCAL PREFERENCE is correct and complete.
The above Statement is part of the proposal. Signing this proposal on the signature page thereof shall also constitute signature of this Certification. Proposers are cautioned that making a false certification may subject the certifier to criminal prosecution.
EXHIBIT A
RFP 6-9-2017 PAGE 21
(Photocopy this page, and submit under Tab II)
Proposer’s
Nam e
NON-COLLUSION AFFIDAVIT
REQUEST FOR PROPOSALS
FOR: BANKING SERVICES
Proposer declares under penalty of perjury under the laws of the State of California that this proposal is not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization or corporation; that such proposal is genuine and not collusive or sham; that said Proposer has not directly or indirectly induced or solicited any other Proposer to put in a false or sham proposal and has not directly or indirectly colluded, conspired, connived, or agreed with any Proposer or anyone else to put in a sham proposal, or that anyone shall refrain from submitting a proposal; that said Proposer has not in any manner directly or indirectly sought by agreement, communication, or conference with any one to fix the proposal price of said Proposer or of any other Proposer, or to fix any overhead, profit, or cost element of such proposal price, or of that of any other Proposer, or to secure any advantage against the public body awarding the Contract of anyone interested in the proposed Contract; that all statements contained in such proposal are true, and further, that said Proposer has not directly or indirectly submitted his proposal price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid and will n ot pay any fee in connection therewith, to any corporation, partnership, company, association, organization, proposal depository, or to any member or agent thereof, or to any other individual except to any person or persons as have a partnership or other f inancial interest with said Proposer in this general business.
The above Non-Collusion Affidavit is part of the proposal. Signing this proposal on the signature page thereof shall also constitute signature of this Non-Collusion Affidavit.
Proposers are cautioned that making a false certification may subject the certifier to criminal prosecution.
EXHIBIT A
RFP 6-9-2017 PAGE 22
(Photocopy this page, and submit under Tab II)
Addenda
The City makes a concentrated effort to ensure any addenda issued relating to these Specifications are distributed to all interested parties. It shall be the Proposer's responsibility to inquire as to whether any addenda to the Specifications have been issued. Upon issuance by the City, all addenda are part of the proposal. Signing the proposal on the signature page thereof shall also constitute signature on all addenda.
Time Period to Award/Reject
The undersigned Proposer agrees that the City may have 180 DAYS from the date proposals are opened to accept or reject proposals. It is further understood that, if the Proposer to whom any award is made fails to enter into a Contract as provided in the Specifications, award may be made to another Proposer, who shall be bound to perform as if she/he had received the award in the first instance.
EXHIBIT A
RFP 7 - 17 PAGE
23 (Photocopy this page, and submit under Tab II)
BUSINESS LICENSE
( ) The Proposer has a current City of Fresno Business License and the number is
.
EXHIBIT A
RFP 7 - 17 PAGE
24 (Photocopy this page and submit under Tab II)
SIGNATURE PAGE
By my signature on this proposal I certify, under penalty of perjury, that the statements contained in this proposal are true and correct.
PROPOSAL SUBMITTED BY:
(Please follow the instructions for each line, as explained below.)
(1)
( ) ( )
Firm Phone Fax
(2)
(Corp) (Individual) (Partner) (Other)
(3)
Business Address
City State Zip Code
(4) By:
Signature of Authorized Person
Type or Print Name of Authorized Person and Title
Federal Tax I.D. No.: Date:
_____
INSTRUCTIONS FOR SIGNATURE PAGE
CORPORATIONS: INCLUDE ACKNOWLEDGMENT OF SIGNATURE BY NOTARY IN CORPORATE FORM (See Line 4(a), of next page.)
INDIVIDUALS, PARTNERSHIPS OR JOINT VENTURES: INCLUDE ACKNOWLEDGMENT OF SIGNATURE BY NOTARY.
LINE 1: The name of the Proposer must be the same as that under which a license is issued, if a license is required. If the Proposer is a corporation, enter the exact name of the corporation under which it is incorporated; if Proposer is an individual, enter name; if Proposer is an individual operating under a trade name, enter name and dba (trade name in full); if a partnership, enter the correct trade style of the partnership; if a joint venture, enter exact names of entities joining in the venture.
LINE 2: Identify here the character of the name shown under (1), i.e., corporation (including state of incorporation), individual, partnership, or joint venture.
EXHIBIT A
RFP 7 - 17 PAGE
25 (Photocopy this page and submit under Tab II)
LINE 3: Enter the address to which all communications and notices regarding the proposal and any Contract awarded thereunder are to be addressed.
LINE 4: (a) I f the Proposer is a corporation, the proposal must be signed by an officer or employee authorized to sign Contracts on behalf of the corporation evidenced by inclusion of one of the following certified by the secretary of the corporation (sample certification attached): a copy of the Articles of Incorporation, a copy of the Bylaws, a copy of the Board Resolution or Minutes authorizing the officer or employee to sign proposals and contracts. The signature of the officer or employee who signs the proposal must be acknowledged by a notary in the corporate form.
(b) If Proposer is an individual, he/she must sign the proposal, or if the proposal is signed by an employee or agent on behalf of the Proposer, a copy of a power of attorney must be on file with the City of Fresno prior to the time set for the opening of the proposals or must be submitted with the proposal. Any signature must be acknowledged by a notary.
(c) If the Proposer is a partnership, the proposal must be signed by all general partners; or by a general partner(s) authorized to sign proposals and contracts on behalf of the partnership evidenced by inclusion of either a copy of the Partnership Agreement or a recorded Statement of Partnership. All signature(s) must be acknowledged by a notary.
(d) If the Proposer is a joint venture, the proposal must be signed by all joint venturers; or by a joint venturer(s) authorized to sign proposals and contracts on behalf of the joint venture evidenced by inclusion of either a copy of the Joint Venture Agreement or a recorded Statement of Joint Venture; and if the joint venturer(s) is a corporation or a partnership signing on behalf of the Joint Venture, then Paragraphs (a) and (c) above apply respectively. All signature(s) must be acknowledged by a notary.
Where Proposer is a partnership or a corporation, the names of all other general partners, or the names of the president and secretary of the corporation, and their business addresses must be entered below:
N
AME ADDRESS
NOTE: All addresses must be complete with street number, City, State and Zip Code.
EXHIBIT A
RFP 7 - 17 PAGE
26 (Photocopy this page and submit under Tab II)
SAMPLE CERTIFICATION
I, , c ertify that I am the secretary
Name
of the corporation named herein; that who Name
signed this B
id Proposal on behalf of the corporation, was then of Title
said corporation; that said Bid Proposal is within the scope of its corporate powers and
was duly signed for and on behalf of said corporation by authority of its governing body,
as evidenced by
the attached true and correct copy of the .
Name of Corporate Document
B
y:
Name:
Title: Secretary
Date:
SAMPLE
EXHIBIT A
RFP 7 - 17 PAGE
27 AGREEMENT
CITY OF FRESNO, CALIFORNIA
BANKING SERVICES
THIS AGREEMENT is made and entered into effective the 30th day of November, 2017 (“Effective Date”), by and between the CITY OF FRESNO, a California municipal corporation (hereinafter referred to as "CITY"), and [Bank’s Name], a [Legal Entity] (hereinafter referred to as "BANK").
RECITALS
WHEREAS, CITY desires to obtain professional banking services for CITY, and issued a Request for Proposal, dated August 7, 2017 [with addenda dated], ([collectively,] “the RFP”) attached hereto as Exhibit A and incorporated herein by reference; and
WHEREAS, BANK responded to the RFP, submitting a proposal, dated September 29, 2017 (“the Proposal”), attached hereto as Exhibit B and incorporated herein by reference; and
WHEREAS, BANK is engaged in the business of furnishing technical and expert services as bankers and hereby represents that it is professionally capable of performing the services called for by this Agreement; and
WHEREAS, BANK acknowledges that this Agreement is subject to the requirements of Fresno Municipal Code Section 4-107 and Administrative Order No. 6-19; and
WHEREAS, this Agreement will be administered for CITY by its City Controller (hereinafter referred to as "Administrator") or designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained, to be kept and performed by the respective parties, it is mutually agreed as follows:
1. S
cope of Services. BANK shall perform to the satisfaction of CITY, the services described in Exhibit A and Exhibit B.
(a
) C ITY shall have the right to have payment of its interest on any CD or time deposit credited to whatever account CITY may select.
(b) Bank may not convert City’s account to another type of account without a prior written amendment to this Agreement. Should bank fail to notify City of any change bank might make regarding any service used by CITY, continued usage by CITY shall not constitute an agreement to the change.
(c) C ITY may close an account at any time. B ANK may not close CITY’s account without express authorization in writing by CITY.
EXHIBIT A
RFP 7 - 17 PAGE
28 (d) BANK shall honor a CITY check presented for payment over the counter at BANK by a person who does not have an account with BANK without charging the person a fee.
(e) Prior to instituting any change to its collections schedule or funds availability policy, BANK shall notify CITY in writing.
(f) Prior to taking any action in regards to CITY accounts, Bank shall notify City Controller and City Attorney of any legal process BANK believes to be valid.
2. E
ffective Date, Time of Performance and Term of Agreement. It is the intent of the parties that this Agreement be effective upon the Effective Date set forth above. All implementation and training services described in Exhibits A and B as “Conversion Activities” shall begin no later than January 2, 2018 and be completed prior to April 1, 2018 (“Conversion Date”). All remaining services of BANK as described in Exhibits A and B are to commence on the Conversion Date and continue until expiration or termination of this Agreement. The initial term of this Agreement will be for 5 years beginning on the Conversion Date and ending March 31, 2023, unless terminated or extended as provided in this Agreement. CITY shall have the option to extend this Agreement on the same terms and conditions for two consecutive 1-year terms or one consecutive 2-year term by providing 60 days notice to BANK prior to the end of the respective initial term or term of extension.
3. C ompensation.
(a) B ANK’s sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall not exceed $[Amount] , paid in accordance with the Pricing Schedule set forth in Exhibit B. Such fees and charges include any expenses incurred by BANK in performance of the services.
(b) Detailed account analysis statements shall be rendered monthly, and invoices shall be rendered quarterly, for services performed in the preceding quarter, and will be due and payable within thirty (30) days of CITY’s receipt of BANK’s invoice. Invoices shall be submitted to:
ATTENTION: Corrina Barbarite
City of Fresno
Finance Department
2600 Fresno Street, Room 2156
Fresno, CA 93721
(c) B ANK may not add or delete a service, unless it obtains a prior written amendment to this Agreement by CITY. The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an agreed upon increase or decrease in BANK’s compensation. Any increase or change in the scope of servic es must be made by written amendment to the Agreement signed by an authorized representative for each party. BANK shall not be entitled to any additional compensation if work is performed prior to a signed written amendment.
EXHIBIT A
RFP 7 - 17 PAGE
29 4. Termination of Agreement.
(a) CITY may terminate this Agreement without cause or for any reason (including, without limitation, if CITY determines there is insufficient funding available for the services), and without any liability whatsoever of CITY to BANK for breach of contract, default, detrimental reliance or any other basis in law or equity; upon 7 calendar days prior written notice of termination to BANK in the manner provided herein.
(b) In addition to CITY’s right of termination pursuant to Subsection 4(a), this Agreement may be terminated immediately by CITY upon 7 calendar days prior written notice should BANK fail substantially to observe, fulfill or perform any obligation, covenant, term or condition in accordance with this Agreement. BANK will have failed substantially to observe, fulfill or perform any obligation, covenant, term or condition of this Agreement, if such failure is not cured within such 7 calendar days prior written notice and this shall constitute a material default and breach of this Agreement.
(c) In the event of termination pursuant to Section 4(a) or not due to the material default of BANK, BANK shall be paid compensation for services satisfactorily performed prior to the effective date of the notice of termination. In the event of terminat ion due to the material default of BANK, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY’s damages caused by such failure.
(d) Upon the breach of this Agreement by BANK, CITY may exercise any right, remedy (in law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law, or proceed by appropriate court action to enforce the terms of the Agreement, or to recover direct, indirect, consequential or incidental damages for the breach of the Agreement. If it is determined that CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience.
(e) In the event of termination by CITY, BANK shall process all CITY checks that have been issued by CITY prior to the effective date of termination. In this instance, CITY shall ensure there is on deposit with BANK an amount of funds sufficient to pay outstanding checks issued by CITY prior to termination of this Agreement.
(f) No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
5. C
onfidential Information. Any reports, information, or other data prepared or assembled by BANK pursuant to this Agreement shall not be made available to any individual or organization by BANK without the prior written approval of the Administrator . During the term of this Agreement, and thereafter, BANK shall not, without the prior written consent of CITY, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of CITY, including but not limited to business plans, marketing plans, financial information, compilations, documents, instruments, models, source or object codes and other information disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential Information shall be and remain confidential and proprietary in CITY.
BA NK shall notify CITY in advance of its intention to disclose information concerning CITY’s account and the reason(s), in the event that BANK concludes that such disclosure is
EXHIBIT A
RFP 7 - 17 PAGE
30 necessary to protect CITY, CITY’S account, or the interests of the BANK.
This section shall survive expiration or termination of this Agreement.
6. Professional Skill. It is further mutually understood and agreed by and between the parties hereto that inasmuch as BANK repres ents to CITY that BANK is skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, CITY relies upon the skill of BANK to do and perform its work in a skillful manner and BANK agrees to thus perform its services. Acceptance of its services by CITY shall not operate as a release of BANK from said standard of care and performance.
7. Indemnification. To the furthest extent allowed by law, BANK shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney’s fees and litigation expenses) that arise out of, pertain to, or relate to t he negligence, recklessness or willful misconduct of BANK, its principals, officers, employees, agents or volunteers in the performance of this Agreement.
If BANK should subcontract all or any port
ion of the services to be performed under this
Agreement, BANK shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
8. M
inimum Limits of Insurance. PROFESSIONAL SERVICES, or any party the PROFESSIONAL SERVICES subcontracts with, shall maintain limits of liability of not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:
(i) C
OMMERCIAL GENERAL LIABILIT Y:
$1,000,000 per occurrence for bodily injury and property damage; $1,000,000 per occurrence for personal and advertising injury; $2,000,000 aggregate for products and completed operations; and, $2,000,000 general aggregate applying separately to the work performed under the Agreement.
(
ii) COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
(
iii) WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits.
(i
v) EMPLOYERS’ LIABILITY:
$1,000,000 each accident for bodily injury;
EXHIBIT A
RFP 7 - 17 PAGE
31 $1,000,000 disease each employee; and,
$1,000,000 disease policy limit.
(v) PR OFESSIONAL LIABILITY (Errors and Omissions)
$2,000,000 per claim/occurrence; and,
$4,000,000 policy aggregate.
(vi ) CYBER LIABILITY insurance with limits not less than:
$2,000,000 per claim/occurrence; and,
$4,000,000 policy aggregate.
9. U
mbrella or Excess Insurance. In the event PROFESSIONAL SERVICES purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non- contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers.
10. D
eductibles and Self -Insured Retentions. PROFESSIONAL SERVICES shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and PROFESSIONAL SERVICES shall also be responsible for payment of any self- insured retentions. Any deductibles or self -insured retentions must be declared to on the Certificate of Insurance, and approved by, the CITY’S Risk Manager or his/her designee. At the option of the CITY’S Risk Manager or his/her designee, either:
(i
) The insurer shall reduce or eliminate such deductibles or self - insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or
(ii) PROFESSIONAL SERVICES shall provide a financial guarantee, satisfactory to CITY’S Risk Manager or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions.
11. O
ther Insurance Provisions/Endorsements :
a. The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions:
i. C ITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. PROFESSIONAL SERVICES shall establish additional insured status for the City and for all ongoing and completed operations by use of ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or by an executed manuscript insurance company endorsement providing additional insured status as broad as that contained in ISO Form CG 20 10 11 85. ii. The coverage shall contain no special limitations on the
EXHIBIT A
RFP 7 - 17 PAGE
32 scope of protection afforded to CITY, its officers, officials, employees, agents and volunteers. Any available insurance proceeds in excess of the specified minimum limits and coverage shall be available to the Additional Insured.
iii. For any claims relating to this Agreement,
PROFESSIONAL SERVICES’ insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the CITY, its officers, officials, employees, agents and volunteers shall be excess of PROFESSIONAL SERVICES’ insurance and shall not contribute with it. PROFESSIONAL SERVICES shall establish primary and non-contributory status by using ISO Form CG 20 01 04 13 or by an executed manuscript insurance company endorsement that provides primary and non-contributory status as broad as that contained in ISO Form CG 20 01 04 13.
b. T
he Workers’ Compensation insurance policy is to contain, or be endorsed to contain, the following provision: P ROFESSIONAL SERVICES and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers.
c. T
he Professional Liability (Errors and Omissions) insurance shall at all times during the term of this agreement the PROFESSIONAL SERVICES agrees to maintain Investment Bankers Error and Omissions Insurance coverage for the claims arising from the negligent acts, errors or omissions for services or operations performed by the PROFESSIONAL SERVICES under this Agreement. The PROFESSIONAL SERVICES shall ensure both that (1) any policy retroactive date is on or before the date of the commencement of this agreement; and (2) any policy has a reporting period of at least two years after the date of the completion or termination of this Agreement. The PROFESSIONAL SERVICES agrees that, for the time period defined above, any changes that reduce coverage will be presented to CITY for review.
d. T
he Cyber Liability insurance shall cover claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information (including credit monitoring costs), alteration of electronic information, extortion and network security.
Such coverage is required only if any products and/or services related to information technology (including hardware and/or software) are provided to Insured and for claims involving any professional services for which PROFESSIONAL SERVICES is engaged with the City for such length of time as necessary to cover any and all claims.
e. If t
he Professional Liability (Errors and Omissions) and/or Cyber Liability insurance policy is written on a claims-made form:
i. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by
EXHIBIT A
RFP 7 - 17 PAGE
33 PROFESSIONAL SERVICES.
ii. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, or, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period.
iii. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by PROFESSIONAL SERVICES, PROFESSIONAL SERVICES must
purchase “extended reporting” coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement , whichever occurs first.
iv. A copy of the claims reporting requirements must be submitted to CITY for review.
v. These requirements shall survive expiration or termination of the Agreement.
f.
All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice by certified mail, return receipt requested, has been given to CITY. PROFESSIONAL SERVICES is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, PROFESSIONAL SERVICES shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, PROFESSIONAL SERVICES shall provide a new certificate, and applicable end
orsements, evidencing renewal of such policy not less than fifteen (15) calendar days prior to the expiration date of the expiring policy.
Should any of the required policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by any defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
The fact that insurance is obtained by PROFESSIONAL SERVICES shall not be deemed to release or diminish the liability of PROFESSIONAL SERVICES, including, without limitation, liability under the indemnity provisions of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification to be provided by PROFESSIONAL SERVICES. Approval or purchase of any ins urance contracts or policies shall in no way relieve from liability nor limit the liability of PROFESSIONAL SERVICES, its principals, officers, agents, employees, persons under the supervision of PROFESSIONAL SERVICES, vendors, suppliers, invitees, consult ants, sub - consultants, subcontractors, or anyone employed directly or indirectly by any of them. g.
SUBCONTRACTORS - If PROFESSIONAL SERVICES subcontracts
EXHIBIT A
RFP 7 - 17 PAGE
34 any or all of the services to be performed under this Agreement, PROFESSIONAL SERVICES shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, PROFESSIONAL SERVICES will be solely responsible for ensuring that it’s subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry.
12. V erification of Coverage. PROFESSIONAL SERVICES shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, PROFESSIONAL SERVICES shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement.
13. Limitation of Liability . In no event will CITY be liable for any indirect, consequential or punitive loss, damage, cost or expense of any nature (even if advised of the possibility of such loss, damage, cost or expense) including, without limitation, any economic loss or damage, expense and loss of business, profits or revenue, goodwill and anticipated savings, loss of or corruption to BANK’s data, loss of operation time or loss of contracts, unless any of the aforementioned injuries occurs as the direct result of CITY’s intentional misconduct in performing its obligations under this Agreement.
14. G
eneral Terms.
(a) Except as otherwise provided by law, all notices expressly required of CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by Administrator.
(b) Records of BANK’s expenses pert aining to the services performed hereunder shall be kept on a generally recognized accounting basis and shall be available to CITY or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of BANK pertaining to this agreement and the services performed hereunder shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. This Section 10(b) shall survive expiration or termination of this Agreement.
15. R ecycling Program. In the event BANK maintains an office or operates a facility(ies), or is required herein to maintain or operate same, within the incorporated limits of the City of Fresno, BANK at its sole cost and expense shall:
(i
) Immediately establish and maintain a viable and ongoing recyc ling program, approved by CITY’s Solid Waste Management Division, for each office and facility. Literature describing CITY recycling programs is
EXHIBIT A
RFP 7 - 17 PAGE
35 available from CITY’s Solid Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-1111.
(ii) Immediately contact C ITY’s Solid Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the audit for each office and facility.
(iii) Cooperate with and demonstrate to the satisfaction of CITY’s Solid Waste Management Division the establishment of the recycling program in paragraph (i) above and the ongoing maintenance thereof.
16. C
onflict of Interest and Non- Solicitation.
(a) Prior to CITY’s execution of this Agreement, BANK shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the term of this Agreement, BANK shall have the obligation and duty to immediately notify CITY in writing of any change to the information provided by BANK in such statement.
(b) BANK shall comply, and require its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidance of impermissible client conflicts; and (ii) federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair Political Practices Commission con cerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.). BANK shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest.
Upon discovery of any facts giving rise to the appearance of a conflict of interest, BANK shall immediately notify CITY of these facts in writing.
(c) In performing the work or services to be provided hereunder, BANK shall not employ or retain the services of any person while such person either is employed by CITY or is a member of any CITY council, commission, board, committee, or similar CITY body.
This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved.
(d) BANK shall not employ an individual who, within 12 months immediately preceding such employment did, in the individual's capacity as a CITY official, officer or employee, participate in, negotiate with or otherwise have an influence on the recommendation made to the Administrator or City Council in connection with the selection of, or award of this Agreement to, BANK.
(e) BANK represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder.
(f) Neither BANK, nor any of BANK’s subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project unless fully disclosed to and approved by the City Manager, in advance and in writing. BANK and any of its
EXHIBIT A
RFP 7 - 17 PAGE
36 subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing.
Notwithstanding any approval given by the City Manager under this provision, BANK shall remain responsible for complying with Section 12(b), above.
(g) If BANK should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, BANK shall include the provisions of this Section 12 in each subcontract and require its subcontractors to comply therewith.
(h) This Section 12 shall survive expiration or termination of this Agreement.
17. No ndiscrimination. BANK shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. During the performance of this Agreement, BANK agrees as follows:
(a) BANK will comply with all laws and regulations, as applicable. No person in the United States shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement.
(b) BANK will not discriminate against any employee or applicant for employment because of race, religious creed, color, national origin, anc estry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. BANK shall take affirmative action to ensure that applicants are employed, and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. BANK agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause.
(c) BANK will, in all solicitations or advertisements for employees placed by or on behalf of BANK, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
(d) BANK will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of BANK’S commitment under this
EXHIBIT A
RFP 7 - 17 PAGE
37 section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
18. I ndependent Contractor .
(a) In the furnishing of the services provided for herein, BANK is acting solely as an independent contractor. Neither BANK, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which BANK shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that BANK is performing its obligations in accordance with the terms and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between BANK and CITY. BANK shall have no authority to bind CITY absent CITY’S express written consent. Except to the extent otherwise provided in this Agreement, BANK shall bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, BANK and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. BANK shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee b enefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, BANK shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of BANK's employees, including, without limitation, (i) compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in CITY employment benefits, entitlements, programs and/or funds offered employees of CITY whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, BANK may be providing services to others unrelated to CITY or to this Agreement.
19 . Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof.
20 . Binding. Subject to Section 1 7, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.
21. A
ssignment .
EXHIBIT A
RFP 7 - 17 PAGE
38 (a) This Agreement is personal to BANK and there shall be no assignment by BANK of its rights or obligations under this Agreement without the prior written approval of the City Manager or his/her designee. Any attempted assignment by BANK, its successors or assigns, shall be null and void unless approved in writing by the City Manager or designee.
(b) BANK hereby agrees not to assign the payment of any monies due BANK from CITY under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies due BANK directly to BANK.
22 . Compliance With Law . BANK shall post collateral in accordance with Sections 53649 through 53668 of the California Government Code, and shall further comply with all depository regulations and requirements as set forth in the City of Fresno Charter and Municipal Code, California Government Code, and other applicable state and federal laws. In providing the services required under this Agreement, BANK shall at all times comply with all applicable laws of the United States, the State of California and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
23 . Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
24 . Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California.
25 . Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.
26 . Severability. The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions.
27 . Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
28 . Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.
EXHIBIT A
RFP 7 - 17 PAGE
39 29 . Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.
30 . Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.
No C
ITY official by its signature on any BANK set- up form, service agreement, signature card, identification form, call-back form, wire authorization, ACH Form, or any other standard form, shall have the authority to cause any provision therein to supersede the terms and conditions of this Agreement. Any such reference on such forms purporting to do so is null and void. The terms and conditions of this Agreement shall take precedence over any such standard form of the BANK.
31. C umulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
32. N
o Third Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement . Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.
33. D
ispute Resolution and No Right to Setoff.
(a) The parties may agree in writing to mediation or arbitration (binding or non-binding), in the event of a dispute between the parties related to this Agreement. BANK acknowledges that CITY expressly does not agree to binding arbitration for the resolution of disputes between the parties related to this Agreement and BANK shall not require CITY’s signature on BANK’S set-up forms, user documentation or other documents required by BANK pursuant to this Agreement that may contain such a requirement. BANK agrees that any such provision will be deleted by BANK from such forms and documents prior to presentation to CITY. CITY expressly reserves its right to a trial by jury in any action or proceeding which may arise in connection with this Agreement.
(b) In no event shall BANK have the right to a setoff and BANK shall not debit CITY’s accounts for attorney’s fees with respect to collection of o verdrafts, adverse claims, legal process, freezing CITY’s account, fees for banking services, or any other fees or amounts owed to BANK.
34. E
xtent of Agreement . Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This
EXHIBIT A
RFP 7 - 17 PAGE
40 Agreement may be modified only by written instrument duly authorized and executed by both CITY and BANK.
IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written.
CITY OF FRESNO, [Bank’s N ame],
a California municipal corporation [nature of business]
By:_____________________ By:_____________________
[Name], [Title]
Name: __________________
ATTEST:
YVONNE SPENCE Title:___________________
City Clerk
By:______________________ By:____________________
Deputy
Name:__________________
Title:___________________
APPROVED AS TO FORM:
DOUGLAS SLOAN
City Attorney
By:______________________
[Name] Date
Senior Deputy
Addresses:
CITY: BANK:
City of Fresno [Bank’s N ame]
Attention: Corrina Barbarite, Treasury Officer Attention: [Bank Rep] 2600 Fresno Street, Room 2156 [Street Address]
Fresno, CA 93721-3622 [City, State, Zip]
Phone: (559) 621-7005 [Bank Phone Number]
FAX: (559) 457-1310 [Bank FAX Number]
[Bank e-mail address]
Attachments:
1. Exhibit A - Request for Proposal [and Addenda, if applicable]
2. Exhibit B - Proposal [and revisions, if applicable]
3. Exhibit C - Conflict of Interest Disclosure Form
EXHIBIT A
RFP 7 - 17 PAGE
41 EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
REQUEST FOR PROPOSALS
Banking Services
PROJECT TITLE
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents?
2 Do you represent any firm, organization or person who is in litigation with the City of Fresno?
3 Do you currently represent or perfor m work for any clients who do business with the City of Fresno?
4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno?
5 Are you or any of your principals, managers or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
(name)
(company)
(address)
Additional page(s) attached.
(city state zip)
EXHIBIT A
The Power of Connections
Delivering innovative and holistic treasury services to the City of Fresno Submitted by:
Patty Ramirez Jonathan Millard
Director; PSB Senior Client Manager Senior Vice President; Market Leader 714.577.1494 415.913.2834
[email protected] [email protected]
September 29, 2017
EXHIBIT B
Bank of America Merrill Lynch Table of Contents|i
Table of Contents
Tab II—Transmittal Letter ................................................................................................................ 1 Statement of Acceptance of Agreement Requirements ..................................................... 3 Certification for Local Preference ....................................................................................... 4 Non-Collusion Affidavit ....................................................................................................... 6 Business License .................................................................................................................. 8 Signature Page ..................................................................................................................... 9 Certification .......................................................................................................................12 Tab III - Bank and Staff Profile ........................................................................................................13 a. Overview ........................................................................................................................13 b. Experience .....................................................................................................................14 c. Relationship Management.............................................................................................15 d. Compliance and Exceptions...........................................................................................17 Tab IV - Deposit Processing ............................................................................................................18 Tab V - FDIC Charges and Float.......................................................................................................22 Tab VI -Account Reconcilement .....................................................................................................23 Tab VII - Electronic Money Transfers .............................................................................................26 Tab VIII - Change/Currency Order Services ....................................................................................28 Tab IX - Balance Reporting .............................................................................................................29 Tab X - Direct Deposit .....................................................................................................................31 Tab XI – ACH Payments ..................................................................................................................33 Tab XII – Check Truncation .............................................................................................................34 Tab XIII - Collected Balances and Earnings Allowance ...................................................................35 Tab XIV - Overdraft Protection .......................................................................................................36 Tab XV – Payee Positive Pay ...........................................................................................................37 Tab XVI – Courier Service ...............................................................................................................38 Tab XVII - Pricing Terms and Conditions .........................................................................................39 Tab XVIII - Pricing Schedule ............................................................................................................40 Attachment A – Pricing Proforma .....................................................................................41 Tab XIX - Conversion Plan ...............................................................................................................45 Tab XX - Service Enhancements .....................................................................................................47 Tab XXI - Benefits for City Employees.............................................................................................50 Tab XXII – Remote Deposit Additional Information .......................................................................51
EXHIBIT B
Bank of America Merrill Lynch Table of Contents|ii
Tab XXIII – Fresno Economic Development Efforts ........................................................................54 Tab XXIV – Code of Ethics ...............................................................................................................59 Tab XXV – Controlled Disbursement ..............................................................................................60 Tab XXVI —Business Continuation Plan .........................................................................................62 Tab XXVII —Red Flag Requirements ...............................................................................................64 Exhibits ...........................................................................................................................................66 Tab A: Contract Samples ...................................................................................................66 Tab B: Annual Report and Ratings .....................................................................................67 Tab C: Account Analysis .....................................................................................................69 Tab D: Disclosures .............................................................................................................70 Tab E: Pricing Schedule ......................................................................................................71 Clarifications ...................................................................................................................................72 Disclosures ......................................................................................................................................73 Appendix .........................................................................................................................................74
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|1 Benefits
for the
City
Service
excellence
Existing
close
relationship
No system
changes
No
transition
costs Proven
success with
public sector
clients
Competitive
pricing
Cutting-
edge
solutions
Tab II—Transmittal Letter
September 29, 2017
Laura Rapp, Senior Procurement Specialist
City of Fresno – Office of the Purchasing Manager
2600 Fresno Street, Room 2156
Fresno, CA 93721
Dear Ms. Rapp:
Thank you for the opportunity to demonstrate our desire to continue serving as the City’s financial services partner. Over the years, Bank of America has cultivated a strong and trusting relationship with the City. We recognize your unique banking needs, will continue to deliver our expertise as your primary banking services provider, and will work closely with you – as we did when Fresno was seriously impacted by recent drought – to help you improve your financial condition. Our goal is to serve as a valued team member to the City, enabling you to achieve your goals of improving processes and promoting efficiencies through technological advances and best practices.
We recognize the important role the City plays in the community and your desire to collaborate with a client- focused and highly qualified financial institution. Our goals align with the City’s goals, and we will continue to work in tandem with you to enhance your operational and service excellence. We will help the City achieve your objectives and will continue to be as responsive to the people of Fresno as you are.
Delivering on the City’s key evaluation criteria
We look forward to fully discussing with the City why and how Bank of America is best suited to continue serving as your trusted partner. Here is an overview of how your most critical evaluation criteria will be exceeded:
Comprehensiveness of services
The bank has the proven ability to meet the City’s
comprehensive financial needs. We demonstrate
throughout our proposal the bank’s ability to meet your specifications and service levels, while presenting new solutions to enhance efficiency for the City.
Public sector experience and resources
The bank understands your treasury services needs and
preferences like no other provider. The bank’s Public
Sector Banking group is dedicated solely to government
clients, such as the City. This is an important distinction between our competition and us.
Strength and stability of financial institution
Bank of America is one of the world's leading financial institutions, and a key priority for us has been to strengthen our balance sheet by selling non-core assets, generating capital and maintaining strong liquidity levels. Our strong balance sheets, liquidity, credit ratings and tier one capital ratio clearly evidence our strength and stability.
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|2 Assigned relationship manager and team
The City will continue to be served by a familiar client team that specializes in public sector clients, has a deep understanding of your financial needs and works with similar entities on a daily basis. Working together, this team delivers comprehensive relationship, service, technical, and day-to-day support to the City.
Service enhancements
Bank of America presents comprehensive electronic payments and receivables solutions in our proposal that will enable the City to increase efficiency, maximize cost reduction and mitigate risk. Cost for Services
Bank of America has provided competitive pricing and will continue to work with the City to introduce service enhancements and to automate processes aimed at cost reduction.
Driving innovation with the power of technology
When innovation and experience unite, new possibilities emerge. The bank fully embraces this idea, continually investing in state-of-the-art technology to help our clients work smarter and more effectively. In our effort to help the City achieve new efficiencies, we recommend that you consider the following enhancements:
Digital Disbursements service — An economical and convenient way for the City to distribute funds to your consumer customers using only a mobile number or email address. Paymode-X Connect – With this all digital, online payment system, you can send and receive electronic payments and detailed remittance data to and from your suppliers, customers and employees.
Bank of America will continue to deliver with integrity and professionalism to help the City in any way we can, to increase productivity and hold costs to a minimum, and to serve as your trusted advisor. We present a spectrum of innovations and look forward to continue delivering to the City the ingenuity Bank of America brings to the table. We look forward to the results of your evaluation.
Sincerely,
Patty Ramirez
Director; Senior Client Manager
Bank of America Merrill Lynch
714.577.1494
[email protected]
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|3 Statement of Acceptance of Agreement Requirements
Proposer’s Name Bank of America, N.A.
STATEMENT OF ACCEPTANCE OF AGREEMENT REQUIREMENTS
REQUEST FOR PROPOSALS
FOR: BANKING SERVICES
The Proposer shall sign below that the Proposer accepts in whole the terms and conditions of the Sample Agreement set forth in this RFP. If the Proposer takes exception to some or all of the Sample Agreement, the Proposer shall sign that the Proposer does not accept all portions of the Sample Agreement, and will present in hard copy and on a CD, a redline revision of the Sample Agreement that incorporates the Proposer’s terms and conditions.
ACCEPT
DO NOT ACCEPT
Please note: The bank cannot accept in whole the terms and conditions of the Sample Agreement. A redline revision of the Sample Agreement is in the Appendix (Appendix 01). Additional clarifications are provided in the Clarifications section of our response. The bank is confident that we can successfully negotiate a mutually agreeable contract with the City.
Signature of Authorized Person
Patty Ramirez, Director, Sr. Client Manager
Type or Print Name of Authorized Person
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|4 Certification for Local Preference
Proposer’s Name Bank of America, N.A.
CERTIFICATION FOR LOCAL PREFERENCE
REQUEST FOR PROPOSALS
FOR: BANKING SERVICES
We certify that we qualify as a local firm pursuant to Fresno Municipal Code Section 4 -109.
We certify that we qualify as a non-local firm which has formed an association for pecuniary profit with the local firm listed below for the project being proposed wherein the benefit to the local firm is an amount greater than 15% of the total contract price for the project (as provided in Fresno Municipal Code Section 4 -109).
Location of Proposer’s Business:
Primary Office
(Please provide street address, no PO Box) Branch Office Address: See following page for a listing of Bank of
America’s Fresno branch office locations
(Please mark as applicable)
Phone:
Name and Location of Associated Local Firm’s Business: Primary Office Name: Branch Office
(Please provide street address, no PO Box) (Please mark as applicable) Address:
Phone:
The undersigned Proposer hereby certifies under penalty of perjury under the laws of the State of California that the information contained on this CERTIFICATION FOR LOCAL PREFERENCE is correct and complete.
The above Statement is part of the proposal. Signing this proposal on the signature page thereof shall also constitute signature of this Certification. Proposers are cautioned that making a false certification may subject the certifier to criminal prosecution.
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|5 Bank of America Financial Centers in Fresno, CA
Financial Center Name Address City State Zip County Phone Category Calwa 2611 S Cedar Ave Fresno CA 93725-2082 Fresno 559.445.7321 Full Service Cedar-Shields 3435 N Cedar Ave Fresno CA 93726-6002 Fresno 559.445.7456 Full Service East Fresno 4445 E Tulare St Fresno CA 93702-3094 Fresno 559.445.7765 Full Service Manchester 3790 N Blackstone Ave Fresno CA 93726-5306 Fresno 559.445.7722 Full Service Fashion Fair 590 E Shaw Ave Fresno CA 93710-7774 Fresno 559.445.7341 Full Service Fig Garden Financial Ctr 5292 N Palm Ave Fresno CA 93704-2209 Fresno 559.445.7731 Full Service River Park 7837 N Blackstone Ave Fresno CA 93720-2992 Fresno 559.445.7318 Full Service Fresno City Center 2513 Fresno St Fresno CA 93721-1804 Fresno 559.445.7563 Full Service Shaw-Westgate 3411 W Shaw Ave Fresno CA 93711-3204 Fresno 559.445.7850 Full Service Shields-West 1111 W Shields Ave Fresno CA 93705-3936 Fresno 559.445.7222 Full Service Sunnyside 5708 E Kings Canyon Rd Fresno CA 93727-4795 Fresno 559.445.7785 Full Service West Fresno 1521 Fresno St Fresno CA 93706-1676 Fresno 559.445.7773 Full Service Woodward Plaza 8971 N Cedar Ave Fresno CA 93720-1890 Fresno 559.297.2040 Full Service
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|6 Non-Collusion Affidavit
Proposer’s Name Bank of America, N.A.
NON-COLLUSION AFFIDAVIT
REQUEST FOR PROPOSALS
FOR: BANKING SERVICES
Proposer declares under penalty of perjury under the laws of the State of California that this proposal is not made in the interest of or on behalf of any undisclosed person, partnership, company, association, organization or corporation; that such proposal is genuine and not collusive or sham; that said Proposer has not directly or indirectly induced or solicited any other Proposer to put in a false or sham proposal and has not directly or indirectly colluded, conspired, connived, or agreed with any Proposer or anyone else to put in a sham proposal, or that anyone shall refrain from submitting a proposal; that said Proposer has not in any manner directly or indirectly sought by agreement, communication, or conference with anyone to fix the proposal price of said Proposer or of any other Proposer, or to fix any overhead, profit, or cost element of such proposal price, or of that of any other Proposer, or to secure any advantage against the public body awarding the Contract of anyone interested in the proposed Contract; that all statements contained in such proposal are true, and further, that said Proposer has not directly or indirectly submitted his proposal price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid and will not pay any fee in connection therewith, to any corporation, partnership, company, association, organization, proposal depository, or to any member or agent thereof, or to any other individual except to any person or persons as have a partnership or other financial interest with said Proposer in this general business.
The above Non-Collusion Affidavit is part of the proposal. Signing this proposal on the signature page thereof shall also constitute signature of this Non-Collusion Affidavit.
Proposers are cautioned that making a false certification may subject the certifier to criminal prosecution.
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|7
Addenda
The City makes a concentrated effort to ensure any addenda issued relating to these Specifications are distributed to all interested parties. It shall be the Proposer's responsibility to inquire as to whether any addenda to the Specifications have been issued. Upon issuance by the City, all addenda are part of the proposal. Signing the proposal on the signature page thereof shall also constitute signature on all addenda.
Time Period to Award/Reject
The undersigned Proposer agrees that the City may have 180 DAYS from the date proposals are opened to accept or reject proposals. It is further understood that, if the Proposer to whom any award is made fails to enter into a Contract as provided in the Specifications, award may be made to another Proposer, who shall be bound to perform as if she/he had received the award in the first instance.
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|8
Business License
BUSINESS LICENSE
( ) The Proposer has a current City of Fresno Business License and the number is
Please note: Bank of America, N.A. is a federally chartered national banking association under the authority of The Office of the Comptroller of the Currency and authorized to do business in all states within the United States. As a national bank, Bank of America, N.A. is not subject to licensing and supervision by state regulators due to preemption under Federal law.
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|9
Signature Page
SIGNATURE PAGE
By my signature on this proposal I certify, under penalty of perjury, that the statements contained in this proposal are true and correct.
PROPOSAL SUBMITTED BY:
(Please follow the instructions for each line, as explained below.)
(1) Bank of America, N.A. (714) 577-1494 (904) 312-5923 Firm phone Fax
(2) National Association
(Corp) (Individual) (Partner) (Other)
(3) 275 Valencia Ave., 1st Floor
Mailcode: CA7-701-01-73
Business Address
Brea CA 92823
City State Zip Code
(4) By:
Signature of Authorized Person
Patty Ramirez, Director, Sr. Client Manager
Type or Print name of Authorized Person and Title
Federal tax I.D. No.: 94-1687665 Date: 9.29.2017
INSTRUCTIONS FOR SIGNATURE PAGE
CORPORATIONS: INCLUDE ACKNOWLEDGMENT OF SIGNATURE BY NOTARY IN CORPORATE FORM (See Line 4(a), of next page.)
INDIVIDUALS, PARTNERSHIPS OR JOINT VENTURES: INCLUDE ACKNOWLEDGMENT OF SIGNATURE BY NOTARY.
LINE 1: The name of the Proposer must be the same as that under which a license is issued, if a license is required. If the Proposer is a corporation, enter the exact name of the corporation under which it is incorporated; if Proposer is an individual, enter name; if Proposer is an individual operating under a trade name, enter name and dba (trade name in full); if a partnership, enter the correct trade style of the partnership; if a joint venture, enter exact names of entities joining in the venture.
LINE 2: Identify here the character of the name shown under (1), i.e., corporation (including state of incorporation), individual, partnership, or joint venture.
LINE 3: Enter the address to which all communications and notices regarding the proposal and any Contract awarded thereunder are to be addressed.
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|10 LINE 4: (a) If the Proposer is a corporation, the proposal must be signed by an officer or employee Authorized to sign Contracts on behalf of the corporation evidenced by inclusion of one of the following certified by the secretary of the corporation (sample certification attached): a copy of the Articles of Incorporation, a copy of the Bylaws, a copy of the Board Resolution or Minutes authorizing the officer or employee to sign proposals and contracts. The signa ture of the officer or employee who signs the proposal must be acknowledged by a notary in the corporate form. (b) If Proposer is an individual, he/she must sign the proposal, or if the proposal is signed by an employee or agent on behalf of the Proposer, a copy of a power of attorney must be on file with the City of Fresno prior to the time set for the opening of the proposals or must be submitted with the proposal. Any signature must be acknowledged by a notary. (c) If the Proposer is a partnership, the proposal must be signed by all general partners; or by a general partner(s) authorized to sign proposals and contracts on behalf of the partnership evidenced by inclusion of either a copy of the Partnership Agreement or a recorded Statement of Partnership. All signature(s) must be acknowledged by a notary. (d) If the Proposer is a joint venture, the proposal must be signed by all joint venturers; or by a joint venturer (s) authorized to sign proposals and contracts on behalf of the joint venture evidenced by inclusion of either a copy of the Joint Venture Agreement or a recorded Statement of Joint Venture; and if the joint venturer(s) is a corporation or a partnership si gning on behalf of the Joint Venture, then Paragraphs (a) and (c) above apply respectively. All signature(s) must be acknowledged by a notary.
Where Proposer is a partnership or a corporation, the names of all other general partners, or the names of the president and secretary of the corporation, and their business addresses must be entered below:
Please note: a listing of Bank of America’s executive management team is provided on the following page.
To protect the privacy of our executives, we do not share publicly their business addresses.
NAME ADDRESS
NOTE: All addresses must be complete with street number, City, State and Zip Code.
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|11
EXHIBIT B
Bank of America Merrill Lynch Tab II—Transmittal Letter|12 Certification
EXHIBIT B
Bank of America Merrill Lynch Tab III - Bank and Staff Profile|13 Tab III - Bank and Staff Profile
a. Overview
Provide a corporate overview of your financial institution and present the financial institution’s Community Reinvestment Act programs. Also identify the number of branches within the City limits and the nearest full- service branch that can assist us with our immediate banking needs. The financial institution must have a full- service branch in the City.
Corporate overview
Bank of America is one of the world's leading financial institutions, serving individual consumers, small and middle-market businesses and large corporations with a full range of banking, investing, asset management and other financial and risk management products and services. The company provides unmatched convenience in the United States, serving approximately 47 million consumer and small business relationships with approximately 4,500 retail financial centers, approximately 16,000 ATMs, and award-winning digital banking with approximately 34 million active users, including 23 million mobile users.
Bank of America is a global leader in wealth management, corporate and investment banking and trading across a broad range of asset classes, serving corporations, governments, institutions and individuals around the world.
Bank of America offers industry-leading support to approximately 3 million small business owners through a suite of innovative, easy-to-use online products and services. The company serves clients through operations in all 50 states, the District of Columbia, the U.S. Virgin Islands, Puerto Rico and more than 35 countries.
Bank of America, N.A. (BANA) is a wholly owned indirect subsidiary of Bank of America Corporation, a federally chartered national banking association under the authority of The Office of the Comptroller of the Currency and authorized to do business in all states within the United States.
Community Reinvestment Act
As a national leader in community development, Bank of America Merrill Lynch brings the power of our human and financial capital to transform communities into vibrant, desirable places for people to live, work and raise families. In 2009, we committed to a goal of $1.5 trillion over 10 years towards community investment initiatives across all 50 states. For year-end goal results and additional information about how Bank of America Merrill Lynch is working to strengthen the fabric of communities where we do business, please visit www.bankofamerica.com/community.
Bank of America, N.A. has an overall CRA performance rating of Satisfactory, having received a High Satisfactory rating in the Lending Test and an Outstanding rating in both the Investment and Service Tests. In California, the bank has an Outstanding rating.
Financial center locations in Fresno
Bank of America currently operates 13 financial centers in Fresno. The nearest full-service facility, just 0.2 miles from Fresno City Hall, is located at 2513 Fresno Street. Please refer to the Certification for Local Preference document for a full listing of Bank of America financial centers in Fresno.
EXHIBIT B
Bank of America Merrill Lynch Tab III - Bank and Staff Profile|14 b. Experience
Describe the financial institution’s experience in providing services to the public sector. Include exclusive resources dedicated for the public sector. (Provide three references that are comparable to our size and financial needs in order for us to verify quality of service). Include a brief description of the services provided, how long such services have been provided, and a contact person (telephone number included) for each client described.
Experience in providing services to the public sector
Bank of America has provided services to the public sector since 1910. In 1982, we formed our Public Sector Banking Group to address specific needs of federal, state and local public sector clients.
As a leading provider of banking services to the public sector, we have a unique depth of experience supporting organizations such as yours. Our innovative treasury management solutions help clients like the City improve visibility, optimize working capital and manage risk. We serve public sector clients throughout the United States and around the world.
We have relationships with the vast majority of state governments, as well as with the top 50 cities and counties by population. The bank provides banking services to municipalities throughout California, including tax collectors, clerks, county governments, cities, school boards, universities, community colleges, transportation authorities and the State itself.
Treasury services, specifically targeted to the public sector, include the following:
Disbursements and receipts – Collect and disburse funds with customized solutions designed to enable greater efficiency, flexibility, speed and control. As a leading cash management provider to the public sector, and one of the largest payments processors in the world, we provide guidance to help you automate and streamline a broad range of payments and receipts. Card solutions – Streamline your accounts payable processes, control costs and reduce the risk of unauthorized spending with one of our market-leading card programs. We provide public sector organizations tailored, card-based solutions — including prepaid, purchasing and travel cards —all designed to save you administrative time and expense.
Liquidity management – Minimize idle cash balances and effectively position your funds to address your organization’s current and future requirements. Options include depository and overnight investments, CDs, repurchase agreements, commercial paper, treasury and agency securities and money market mutual funds.
Cash Management leadership results from investment in our core business Bank of America is at the forefront of Cash Management Services because we actively invest in the people and products to better serve our clients. We lead from our market position and capabilities, and continue to invest in the platform with a $1 billion commitment over the last four years. The bank brings numerous competitive advantages to the table:
We are widely recognized across the industry for providing leading services to our clients. For the past six years, Global Finance named Bank of America the “Best Overall Bank for Cash Management.” In 2016, Euromoney recognized Bank of America as the “Best Bank in Transaction Services in North America.”
The bank’s call centers have been recognized for “An Outstanding Customer Service Experience” by J.D.
Power for seven consecutive years.
EXHIBIT B
Bank of America Merrill Lynch Tab III - Bank and Staff Profile|15 For 10 consecutive years, Bank of America was awarded “Best Fraud Prevention” by Javelin Strategy & Research, a leading provider of nationally representative, quantitative research for financial services. While we are proud of our global treasury awards and recognition, what is most important is our focus on our clients and their satisfaction in doing business with Bank of America.
References
We are pleased to provide the following references for clients similar in size and financial need to the City.
Client references
City and County of San Francisco
Contact name Evelyn Mora, Director of Treasury Services Telephone | Email 415.554.5263 | [email protected] Length of relationship Client for over 100 years
Services provided Lockbox, Merchant Services, ZBA accounts, Depository +, Vault Services, Escrow, Remote Deposit, Cash Vault, Account Reconcilement, Payee Positive Pay, ACH Servicers, Express Tax, Global Advice, CashPro Connect Receivables, Paymode-X Concentrator, Global Payments and CashPro Information Reporting.
City of Irvine
Contact name Cheryl Frey, Treasury Specialist
Telephone | Email 949.724.6033 | [email protected] Length of relationship Client since 1996
Services provided CashPay Cards (payroll), Purchasing Card, Remote Deposit, Cash Vault, ZBA accounts, Depository +, Vault Services, Payee Positive Pay, Account Reconcilement, ACH, Global Payments and CashPro Previous and Current Day Information Reporting.
City of San Diego
Contact name Kent Morris, MBA, CTP
Chief Investment Officer
Telephone | Email 619.533.6253 | [email protected]
Length of relationship Client since 1989
Services provided Remote Deposit, Depository +, Cash Vault, Electronic Returned Items, Vault Services, Merchant Services, Controlled Disbursement, Full Account Reconcilement, Positive Pay, ACH Services, Express Tax, Paymode-X Concentrator, CashPro Biller Gateway, CashPro Connect Receivables, Global Payments and CashPro Information Reporting. c. Relationship Management
Describe the relationship team that will be assigned to service our account. Describe individual roles and responsibilities, briefly detailing their credentials and related banking experience.
Bank of America’s mission is to provide our clients with exceptional services through a dedicated public sector client team. We pride ourselves on delivering the highest quality of service in the banking industry and have made it a national focus to serve our governmental and public-interest clients.
EXHIBIT B
Bank of America Merrill Lynch Tab III - Bank and Staff Profile|16 This concentrated approach allows the team to discern the particular needs and interests of your business segment. The team is committed to leveraging this knowledge to introduce innovative ideas with the goal of streamlining processes and delivering solutions to meet the City’s needs.
A client team that supports government entities
As a public sector banking client, the City’s relationship with Bank of America will continue to be managed by a familiar client team consisting of public sector banking professionals with decades of cumulative banking experience. You will be supported by our product management, implementation (as necessary) and service teams, who work together to help ensure the City’s goals are met.
Each member of the team has a specific focus on the public sector industry. This client-focused framework allows us to create value continuously by serving as consultants, sharing best practices of other governmental agencies and delivering fresh ideas.
Key Bank of America staff for the Tax Collector
Senior Client Manager Patty Ramirez is your main point of contact for strategic guidance and overall needs within the bank. She has full responsibility for all aspects of the relationship and will help identify objectives and offer financial and banking solutions that help you achieve your goals. Patty is supported by Senior Treasury Solutions Analyst William Shimada and Sales Support Associate Jeffrey Keyes. This team knows the City and your banking needs, and will continue to deliver the same level of service excellence you are accustomed to.
For all day-to-day servicing needs, the City will continue to work with Dedicated Service Director Abel Nava, who specializes in servicing public sector clients and provides swift issue resolution. It is important to note that most banks provide service for their public sector clients with general servicing personnel who are often not familiar with the unique needs of your sector. This is an important distinction between Bank of America and our competitors.
Brief resumes for each key staff member are below.
Patty Ramirez – Director; Senior Client Manager
Patty Ramirez is a Director; Senior Client Manger with 11 years in government banking, the last eight years specifically focused in treasury management. She manages 47 California municipal government clients.
Patty has over 31 years of commercial banking experience, which includes 12 years as a commercial and government banking sales support manager.
She is responsible for managing your overall relationship with the bank. She provides strategic treasury solutions and informs you of new products and services that are available.
Patty is a member of the California Municipal Treasurers Association as well as the California Association of County Treasurers and Tax Collectors. Her responsibilities include: delivering a positive and seamless client experience, leading and coordinating the delivery of the bank’s capabilities to meet the City’s strategic plans and treasury needs.
714.577.1494 | [email protected]
Will Shimada – Senior Treasury Solutions Analyst
Will has been with Bank of America for 25 years. He has extensive knowledge of treasury products and implementation procedures. Will’s time at the bank has been in Treasury Management, Global Customer Service, supporting Commercial, Business Capital, Real Estate, and Dealer Finance clients. Will has also worked in operations in the bank’s item processing unit, cash vault and financial centers.
EXHIBIT B
Bank of America Merrill Lynch Tab III - Bank and Staff Profile|17 He has been in Treasury Management the last four years as a Public Sector Treasury Solutions Analyst, supporting over 100 California municipalities.
Will is responsible for supporting all business development and retention efforts of the Client Manager and for identifying potential treasury solutions to customer cash management needs. He assists in relationship building through frequent client contact, service fulfillment and ensuring client satisfaction. 657.216.5322 | [email protected]
Sales Support Associate Jeffrey Keyes
Jeffrey Keys supports the City’s client manager, Patty Ramirez, with service and operational issues and partners with the Treasury and Service and Fulfillment teams to resolve client issues and develop client relationships.
Jeffrey has more than 19 years of experience in banking, financial services and customer service. He has worked in multiple lines of business, including consumer, small business and public sector banking.
During his 12 years at Bank of America, Jeffrey has held a variety of positions, including Small Business Specialist, Senior Banker, Personal Banker and Sales Support Associate. He has worked with government clients of all sizes.
His responsibilities have included transaction fulfillment, customer service, sales and product training, account research and problem resolution.
Jeffrey currently works with approximately 75 clients. These include most every type of public sector entity, including states, counties, municipalities, universities and colleges, school districts, public utility districts, municipal ports, housing authorities, transit authorities, water and sewer districts and courts.
Jeffrey holds an Associate of Arts Degree from Sacramento City College. 916.326.3112 | [email protected]
Dedicated Service Director Abel Nava
Abel Nava is a member of the Brea Government Banking group that manages more than 400 state and local public sector clients. He has been with Bank of America since 2008 and currently services complex public sector client relationships. His portfolio spans California, Oregon, Arizona and Texas.
He is experienced in resolving issues with a variety of treasury management products, including account reconcilement, lockbox, controlled disbursement and zero balance accounts. He is a seasoned associate who frequently provides advice and guidance to his teammates and assists in resolving issues that require escalation.
Abel’s key responsibilities include, managing accounts, servicing the various departments/agencies and coordinating implementations. He researches, analyzes and resolves issues related to a wide range of treasury and/or depository products and services of varying complexity, and proactively identifies root causes of recurring problems.
888.715.1000, Ext. # 61684 | [email protected]
d. Compliance and Exceptions
Include a statement to confirm your financial institution’s compliance with the City’s minimum qualifications.
Also, list any exceptions to required services.
Bank of America fully complies with all of the City’s minimum qualifications. We have no exceptions to your required services.
EXHIBIT B
Bank of America Merrill Lynch Tab IV - Deposit Processing|18 Tab IV - Deposit Processing
The City deposits are decentralized, and each department or location prepares a deposit into their depository plus account. These accounts ZBA to the general account daily. Most locations deposit both cash and checks.
However, some only deposit checks or rarely deposit cash. These locations currently use remote deposit for their checks. Utility Billings and Collections and Business License are currently using Image Cash Letter due to the volume of checks being processed. Utilities Billings and Collections also receive a payment concentrator file from our bank containing the online banking payments. Additionally, the City’s bus system and parking meters deposit coin only on a daily basis. Describe how the financial institution would handle the City deposits (i.e., retail branch, local cash vault, out of the area cash vault, as well as options to deposit electronically).
Bank of America has an extensive financial center and depository ATM network within Fresno. By using in-person delivery or night depositories at our local financial centers, we offer an easy way for the City to manage small dollar, low volume check deposits and change order needs.
Financial centers, ATMs and our conveniently located Fresno cash vault are available for check and currency deposits. Deposit tracking gives the City insight into the full lifecycle of a cash vault deposit — from preparation, through each change of custody, ending with posting and deposit verification.
Timely and accurate deposit processing
The City benefits from the strength of our franchise, accurate and timely deposit processing and innovative deposit reporting. Bank of America can continue to accommodate a wide range of deposit options. An overview of these options is below.
Cash Vault
Our Cash Vault Service offers you a convenient and efficient way to deposit your cash and checks. Sophisticated technology provides safety controls and faster deposit and change order processing. Our enhanced technology employs stringent controls, streamlines the handling of deposits and change orders and offers quick response to client inquiries. Cash Vault Services allow for:
An efficient process for handling deposits and change orders Reduced costs through the consolidation of deposit activity Accelerated cash availability by providing same-day credit for cash, split and mixed deposits Quick Business Deposit®
When making large deposits to a cash vault is not feasible, we offer our Quick Business Deposit service at our full-service financial center locations and image-enabled, depository ATMs. The Quick Business Deposit service:
Provides same-day provisional credit, allowing the City to deliver deposits to the financial centers. A two-pocket, tamper-evident, disposable deposit bag separates the cash from the deposit ticket and checks.
Enables a teller to verify the cash during off-peak hours and keeps you from waiting at the teller window while the cash is verified. The result is greater efficiency for you.
EXHIBIT B
Bank of America Merrill Lynch Tab IV - Deposit Processing|19 CashPro Remote Deposit
This efficient, easy-to-use, low-cost, web-based application allows the City to electronically deposit check receivables using no cost bank-provided scanners. With later deadlines and the elimination of trips to the bank, the City benefits from an increase in overall employee productivity and funds availability and a decrease in the fees associated with deposit corrections. Remote deposit leverages the Check 21 Act, which permits check truncation and eliminates the original check from the clearing process. It is the market-leading, road-tested capture product that places item truncation at the beginning of the payment stream.
With CashPro Remote Deposit, the City can continue to:
Take advantage of the latest deposit deadlines in the industry for same-day ledger credit. Make deposits after the close of business, on weekends or holidays and gain access to funds more quickly than if deposited at a banking center.
Take advantage of immediate availability of On Us items. Improve fraud control.
Benefit from multiple real-time reporting options can be customized to meet your needs.
Image Cash Letter
Designed to allow clients to truncate original checks for deposit and make deposits more efficiently, Bank of America’s Image Cash Letter Service provides a more streamlined way to electronically deposit U.S. denominated checks drawn on U.S. banks. The City can continue to use your remittance processing equipment to capture MICR line and front and back images of checks, then create and electronically send us an image cash letter file in lieu of delivering a traditional paper cash letter or deposit.
The benefits of using this service to the City include:
Reduced transportation costs associated with traditional paper cash letter deposits. Expedited check processing
Streamlined back-office procedures
Later processing deadlines
Faster access to funds and notification of returned checks Remote Cash Capture
Bank of America’s cash automation and optimization services, SafeConnect Plus® and CASH360™ Lite, can help the City simplify the processing of cash and move towards a holistic cash management solution. SafeConnect Plus offers an end-to-end remote cash deposit service providing accelerated provisional credit. The bank and G4S will provide your armored transportation service and smart safe needs. Cash360 Lite is perfect for entities that need all the functionality of a cash recycler, but don’t have enough cash or space for the larger recycler.
Cash360 Lite is available with a check imaging option. A brief overview of these services is below.
SafeConnect Plus
Bank of America Merrill Lynch’s SafeConnect Plus service enables our clients to receive accelerated credit for cash deposited into a bill-validating safe. Through a strategic relationship with G4S, our end-to-end remote cash processing solution includes a deposit-only electronic safe, hardware maintenance, cash pick up and deposit transmission and reporting. Deposits made by 8 p.m. will be posted with same day credit. SafeConnect Plus creates an end-to-end cash handling process with robust security features and better operational efficiencies, liquidity and visibility into your cash position.
EXHIBIT B
Bank of America Merrill Lynch Tab IV - Deposit Processing|20 SafeConnect Plus can enable you to:
Reduce cash-handling risk – Once the money is deposited in the on-site safe, it cannot be touched until picked up by the armored carrier.
Increase productivity – Deposit preparation, transport to the bank and consolidated reporting is handled for you.
Gain faster access to funds – Communication between the safe, G4S and Bank of America can mean cash receipts become usable funds faster.
CASH360 Lite
Bank of America’s CASH360 Lite service is an end-to-end cash handling solution that includes the hardware (a cash recycler device sized for your cash needs), software, service, maintenance and transportation. In addition, Bank of America provides bank-owned cash to stock the devices and provisional credit for daily deposits using the device. The CASH360 service allows you to deposit and withdraw cash from a recycler, as well as scan and deposit checks through an integrated process, helping you to reduce or eliminate labor-intensive cash and check processing tasks. The use of bank-owned cash, frees up “trapped” cash, helping you to enhance your working capital management. Additionally, the CASH360 service has robust security features and provides enhanced operational efficiencies, liquidity, and visibility into your cash position. You will generally receive accelerated, provisional credit for cash and check receipts on a same or next business day basis.
The CASH360 service can help you to:
Increase productivity – Because the recycler streamlines the labor-intensive in-store cash logistics process, your employees can focus on other important tasks that help contribute to your bottom line. Enhance working capital management – Bank of America supplies the cash in the recycler, freeing up trapped cash for other business purposes such as investment or debt repayment. Gain faster access to funds – Communication between the recycler and Bank of America can mean cash receipts become usable funds faster.
Reduce costs – The recycler can reduce levels of idle cash, sales floor and cash office labor and transportation costs.
Reduce losses and investigations – The recycler (provided by G4S) has robust security features in order to help deter unauthorized access. Bank adjustments are also potentially minimized, due to the typically increased accuracy of the deposits counted by the device. Reduce risk – The cash in the recycler is owned by Bank of America.
Coin processing
Bank of America accepts coin deposits prepared in the following manner, depending upon where the coin deposit is delivered.
Financial center
Coin deposits of less than $10 may be rolled or loose. Coin deposits in excess of $10 should be placed loose, sorted or unsorted, in a plastic coin bag with its own deposit ticket. Coin bags delivered to a financial center should not exceed more than 25 pounds. Quick Business Deposit deposits may not contain more than $10 in coin.
EXHIBIT B
Bank of America Merrill Lynch Tab IV - Deposit Processing|21 Cash vault
Coin deposits less than $25 can be included with currency deposits and should be placed loose in a coin envelope with the amount of coin written on the outside of the envelope. Coin deposits in excess of $25 should be placed loose, sorted or unsorted, in a plastic coin bag and listed on a separate deposit ticket. Coin bags should not exceed more than 50 pounds and should be packaged in special bulk coin plastic deposit bags.
Coin consisting of less than $25 that is included within a currency deposit bag incurs no additional fee other than the per $100 deposited fee that also applies to the currency. For separate bags of bulk coin, there is a per bag fee in addition to the per-$100 deposited fee.
EXHIBIT B
Bank of America Merrill Lynch Tab V - FDIC Charges and Float|22 Tab V - FDIC Charges and Float
Provide information on applicable FDIC and FICO charges, including surcharges, and the financial institution’s availability schedule. Also, present any float advantages we would benefit from by converting our relationship to your financial institution.
Bank of America may charge an assessment based in part on our deposit insurance costs. This assessment is variable, and we may change it at any time without notice. We display the amount of the assessment on your statement.
The Bank Deposit Assessment and Financing Corporation (FICO) assessment, when applicable, is based on an account’s average positive ledger balance for the month. The Bank Deposit Assessment may include deposit insurance, FICO assessment and other charges provided by law. This charge can be offset with earnings credit on eligible collected balances.
Availability Schedule
The bank offers multiple depository product options and availability schedules. Availability schedules are based on a variety of factors, including:
The time you can deposit
What type of channel was used to make the deposit (image vs. paper) What types of items are being deposited (what are the routing numbers of items deposited) Dollar value of the items deposited
Accelerated schedules are generally reserved for electronic deposit products such as CashPro Remote Deposit and Image Cash Letter. Standard schedules are typically used for paper deposits made at a financial center or an item processing site.
Copies of the following current City availability schedules are in the Appendix (Appendix 02a-02d):
Branch
Image Cash Letter
Remote Deposit
Vault
Our schedules are reviewed annually against Federal Reserve standards and updated as necessary.
EXHIBIT B
Bank of America Merrill Lynch Tab VI -Account Reconcilement|23 Tab VI -Account Reconcilement
The financial institution must provide monthly account reconcilement reports, financial institution statements, account analysis statements, confirmations and other report related features. The financial institution must be able to provide various reports and statements in a computer media and also provide specialized reports when requested. The City requires sixty (60) days from the date of the receipt of the account reconcilement report or bank statement in order to resolve questions regarding the City’s account(s).
Describe the account reconciliation services offered by the financial institution. Also describe when the above information would be available to the City online.
Online access to the bank’s reconciliation database helps improve control by integrating accounting and reconciliation functions into your daily workflow. This automated service expedites checking account reconcilement by balancing items posted to your account and delivering paid and outstanding check data in a timely manner. As we process checks, our reconcilement system automatically captures, audits and stores the serial number, date and amount of each transaction.
Full and partial reconciliation plans are available to support the City’s needs for reconciling and balancing disbursement accounts. Our recommendation is that the City continues benefiting from our full reconciliation service.
How Full Account Reconciliation works
The City electronically provides information to Bank of America on the individual checks being issued prior to issuance. This information includes serial number, date issued and dollar amount. You can also include additional data for payee name and/or other discretionary data on each issue record.
As checks are presented and posted to your Demand Deposit Account, we match the paid items to the issued items on file and produce reports at the end of your accounting cycle showing the results of the match. In addition to the standard reconciliation reports, a file can be transmitted that includes paid check and/or outstanding check information.
How Partial Account Reconciliation works
Bank of America balances the total checks appearing as “paid” on the reconciliation statement against the debit for checks paid on the demand deposit account statement. The City receives a report of all checks paid on your account for the reconciliation period. In addition to the standard reports, a paid check data file can be transmitted.
Account Reconciliation processing workflow
EXHIBIT B
Bank of America Merrill Lynch Tab VI -Account Reconcilement|24 Increased capabilities with online access
Online services allow the City to assign and maintain your list of users, as well as integrate accounting and reconciliation functions into your daily workflow. Security can be enhanced by segregating responsibilities between users. Efficiency is improved with the integration of exception processing and direct access to current bank information.
Reconciliation inquiry
The City may inquire on Reconciliation transactions, pending approval, pending confirmation or rejected issues.
Issues submitted show as outstanding until the item has paid or the issue is cancelled or removed. Inquiries can be made on outstanding issues and current cycle cancelled issues, issues with stop payments, items paid with no issue and paid and reconciled items. Reconciliation information is retained in the CashPro Check Management application for the current and prior statement cycle
Online account reconciliation reports
Information Reporting Statement through CashPro Online is a flexible tool for quickly and easily managing your account reconciliation reports. The City can view reports online for up to two years, export them in a variety of formats and do online searches for specific check information.
Available end of cycle full account reconciliation reports are listed below.
Report Name Description Standard/
Optional
Available
Formats
Comments
AR Audit List of Issues A list of all issue and cancel
transactions received from the
previous business day regardless of
input method.
Standard PDF
TXT
CSV
This report is available
for any service type
where the client is
submitting issue and
cancel transactions
(PPY Full, PPY Partial
and PPY No Recon)
AR Consolidated A combined list of all checks,
regardless of status (paid,
reconciled, stopped, cancelled and
outstanding)
Standard PDF
TXT
CSV
AR Diagnostic Summary Lists any item marked with an
exception code in check number
order.
Standard PDF
TXT
AR Misc Credit List any non-check credit
transaction occurring in the
reconcilement period
Standard PDF
TXT
CSV
AR Misc Debit List any non-check debit transaction
occurring in the reconcilement
period
Standard PDF
TXT
CSV
AR Outstanding Settlement A settlement report of outstanding issues
Standard PDF
TXT
This report is available
for accounts set up for
Positive Pay and a
partial reconciliation.
AR Recap of Posted Items Summarizes by day the total of paid checks, issues posted, stops placed,
stops removed and cancels for the
reconcilement period
Standard PDF
TXT
EXHIBIT B
Bank of America Merrill Lynch Tab VI -Account Reconcilement|25 Report Name Description Standard/
Optional
Available
Formats
Comments
AR Reconciliation
Statement
Summary DDA statement
settlement and debit reconciliation
settlement
Standard PDF
TXT
AR Paid Only List of paid items for the
reconcilement period
Optional PDF
TXT
CSV
AR Unpaid Only Lists unpaid outstanding issues,
cancels and stops
Optional PDF
TXT
CSV
AR Paid No Issue Lists items paid without an
offsetting issue on file
Optional PDF
TXT
CSV
AR Stop Payments List items for which stop payments
have been placed. Cumulative
report
Optional PDF
TXT
CSV
AR Float Report List the total count and amount of
all checks paid in a period, grouped
by the number of days elapsed
between the issuance and the
payment of the check
Optional PDF
TXT
AR Daily Paid List of checks paid for a given day. Optional PDF TXT
CSV
AR Stale Dated Cancellation A list of outstanding issues cancelled for reason of stale dated.
Optional PDF
TXT
CSV
End of cycle reports are generated on the first business day after the cycle end date, in order to correct items from the last business day of the reconciliation cycle. Reports are available online the second business day after the cycle-end date, unless the reconciliation does not balance to the ending demand deposit account balance.
The out of balance will be researched, corrected and available online by the fifth business day. When requested, hardcopy reports are mailed between the second and the fifth business day after the cycle end date.
EXHIBIT B
Bank of America Merrill Lynch Tab VII - Electronic Money Transfers|26 Tab VII - Electronic Money Transfers
Describe the financial institution’s incoming and outgoing electronic money transfer services. Include safeguards and security measures offered.
As an existing CashPro Online user, we recommend that the City continue to use this tool to initiate online outgoing electronic wire transfers and book transfers, as well as to access transaction activity, including incoming wire activity.
Bank of America’s Wire Transfer services enable the City to make global, high-value, time sensitive payments using a variety of input methods in an environment with robust security. This service offers same-day funds transfer capabilities with immediate payment finality and is considered one of the most reliable disbursement methods in banking. It is designed to let you easily transfer funds that are cleared through the Federal Reserve System (Fedwire) or the Clearing House Interbank Payment System (CHIPS). Additionally, cross border payments are advised via SWIFT.
Our wire transfer services allow you to transfer funds to or from virtually any place in the world — in most major currencies. With our global reach and expertise as one of the largest processors of wire transfers, we will help the City navigate your time-critical payments needs.
How Wire Transfer works
To begin, the City selects the wire transfer initiation method that best meets your needs. Payment instructions can be entered in a variety of ways, including:
Web-based (through CashPro Online)
Host-to-host (CashPro Connect)
Voice/Telephone
SWIFT
Wire payment types (domestic, international and foreign exchange) may include: repetitive and non-repetitive, drawdowns, standing order, book, multibank transfers and IRS tax payments.
Below is an overview of the wire transfer process flow.
Process flow
Payment initiation and
security validation
Wire transfer payment is initiated using your selected initiation method and security validation designed for that method. Payment options include domestic payments and receipts, cross- border payments and receipts, single and cross currency.
Wire system receives
and validates payment
instructions
Once the payment is released to the bank, our wire processing platform automatically repairs and releases many payments to the clearing system without manual intervention.
Wires that require manual repair are routed to queues in the wire transfer system. These queues are monitored on an ongoing basis to ensure that items requiring repair are processed quickly:
When the routing is incorrect, it is automatically repaired. When manual repair is required, it is performed by Wire Transfer operations.
As a result of this state-of-the-art processing, we currently maintain a 96% straight-through processing rate for wire transactions.
Anti-Money Laundering
(AML) and Economic
Sanctions validation
Once payment instructions are validated, the transaction is scanned for AML and Economic Sanctions compliance. Appropriate action is taken, as needed.
EXHIBIT B
Bank of America Merrill Lynch Tab VII - Electronic Money Transfers|27 Process flow
Payment settlement After AML/sanctions validation, the wire is released for final payment to the beneficiary through a book transfer, Fedwire, LVTS or CHIPS. Cross-border payments are advised via SWIFT.
Intraday notifications Notification is provided intraday using your chosen method, which includes CashPro Online current-day reporting, wireless text notifications via CashPro Notifications, host-to-host reporting, email, voice and SWIFT MT900s for debit confirmations, MT910s for wire receipts and MT942s for intraday statements.
End-of-day processing Debit and credit entries are passed for final accounting entries to your deposit account and reported on CashPro Online Previous Day reporting or using the method you select.
Security
The City specifies the level of security you require as options are flexible and can be established or adjusted to best meet your needs:
With CashPro Payments, your system administrator creates and maintains the user profiles for all wire transfer functionality. The system administrator assigns accounts, limits and functions for each authorized representative.
When CashPro Connect is used, the City selects from a variety of standard secure internet connectivity methods.
Voice/Telephone initiation requires completion of certain setup forms to establish authorized representatives and the appropriate security tools.
Targeted investments in the bank’s wire transfer product have propelled us to the next level of service and have resulted in a market leading solution. Additionally, our experienced and tenured wire transfer operations associates work diligently to ensure the highest levels of client satisfaction. Finally, geographically diverse operations sites and systems hardware provide superior contingency capabilities, ensuring that the City can continue operating in an emergency or disaster situation.
EXHIBIT B
Bank of America Merrill Lynch Tab VIII - Change/Currency Order Services|28 Tab VIII - Change/Currency Order Services
Describe the financial institution’s procedures for requesting change/currency orders.
The City can place orders for currency and coin from a cash vault 24 hours a day by using an automated telephone-entry system. Additionally, the bank offers the DTS Web Change Order Service through International Financial Services, Inc., which enables you to create a change order and track the receipt and verification of change orders online (see Appendix 03 for details).
Most requests placed by the designated change order deadline are available for armored carrier pickup on the same business day. Please note that designated change order deadlines and lead times may vary depending upon the cash vault site and are delivered according to your selected armored carrier arrangements.
Accommodating multiple locations in a single order
Alternatively, our Change Order Transmission service allows you to electronically submit change orders for multiple locations through a single file transmission, saving the City time.
The City accesses the bank’s secure website, or sends us a CSV file directly via FTP. Once the bank receives and accepts an order, our system automatically distributes it to the appropriate vaults for fulfillment.
The system then gathers records of those orders from the vaults and creates a consolidated confirmation file.
After a designated time, authorized users may reconnect to the bank’s website and download the files, or if you use an FTP transmission, we can push the confirmation files to your computer.
We accept requests for standard and non-standard quantity change orders. However, lower pricing is offered for currency ordered in full straps (100 notes) and coin ordered in standard full boxes (50 rolls/box).
Cash vault change orders are settled by a debit to your account; financial center change orders are settled by cash or a Bank of America check.
Additional change/currency order options
Change order requests may be called in directly to the financial center or requested in person by authorized personnel. Requests for less than $500 in coin and $10,000 in strapped currency can be filled by most financial centers on the same day. However, requests for more than those amounts or requests made to some of our smaller centers must be placed two days in advance of the required pickup time.
An advanced alternative: cash recycler
Should the City choose to adopt the use of CASH360 Lite, an end-to-end cash handling product that includes a cash recycler device sized for your cash needs, software, service, maintenance and transportation, you can reduce or eliminate the need for change/currency orders since the recycler software monitors cash levels, and automatically places change orders, freeing up your employees from that task.
The CASH360 service allows the City to deposit and withdraw cash from a recycler, as well as scan and deposit checks, helping you to reduce or eliminate labor-intensive cash and check processing tasks. The use of bank- owned cash frees up “trapped” cash, helping to enhance working capital management. Additionally, the CASH360 service has robust security features and provides enhanced operational efficiencies, liquidity and visibility into the City’s cash position. You will generally receive accelerated, provisional credit for cash and check receipts on a same or next business day basis.
EXHIBIT B
Bank of America Merrill Lynch Tab IX - Balance Reporting|29 Tab IX - Balance Reporting
The financial institution must have secure online website to allow us access, no later than 8:00 a.m. Pacific Standard Time, to previous day balance and transaction information for each designated account. The system must also have wire transfer capability. Describe the balance reporting system offered by the financial institution and its features, including “user-friendliness”.
The City can continue to simplify processes by using CashPro Online to connect to the treasury, liquidity, investment, debt, information reporting and other services you need.
With Bank of America’s comprehensive information reporting tool, the City can continue to reduce daily tactical work so there is more time for strategic tasks. CashPro Information Reporting is the ultimate tool for accessing virtually all your accounts worldwide, including those held with other banks, and for creating the reports you need, when you need them, to establish an accurate cash position.
This module provides each user with on-the-spot access to the tools they use the most: account balances, frequently used reports, advanced research tools and important system messages. This feature-rich tool enables you to:
Customize the information on the screen using drag-and-drop functionality. Define the content and layout you want to see on reports. Choose and deliver the file formats that your audience prefers to work with. Decide when you want reports generated and schedule electronic delivery when you need them. Enjoy intuitive functionality, with advanced search, sorting and expand/collapse capabilities. Access up to 24 months of account history and statements, including bank, sweep, account/interest, low-value (ACH) and interest optimization, without having to switch to a different application.
Timely information, the ultimate in flexibility
With access to previous- and current-day summary and detailed transaction data, it is easier than ever for the City to manage investment, cash concentration and disbursement activities:
Previous day – Two years of storage for virtually all your accounts, including those held at other banks. Current day – Ten calendar days of the most recent transaction history at your fingertips. Multiple standard reports – Easy to modify for custom use. Custom/ad-hoc reports – Customize current- and previous-day reports and generate them in PDF, HTML, Excel, CSV, BA12, MT940/MT942, ISO 20022 XML, Quicken or QuickBooks format.
Current-day domestic information is “near real time” and is updated continuously throughout the day as it is received from the bank’s various transaction processing systems and reported to CashPro Online every five minutes from about 4:30 a.m. Pacific until about 3:30 p.m. Pacific, Monday through Friday. After that, data is sent every 10 minutes until 6:45 p.m. Pacific.
We also support the delivery of information reporting via a host-to-host channel. Current-day reporting can be available at the City-specified intervals (15, 30, 60 minutes) or select times throughout the day, from 4:30 a.m. to 6:45 p.m. Pacific.
With CashPro Information Reporting, users can access account balances, transaction summaries and transaction detail information. Previous-day information is normally available by 4 a.m. Pacific, Monday through Friday.
EXHIBIT B
Bank of America Merrill Lynch Tab IX - Balance Reporting|30 Previous-day reports can be scheduled so they are automatically generated each day and made available within CashPro Information Reporting.
Reports can be scheduled to arrive in your inbox — or be delivered by email directly to anyone you want — in an easy-to-access, no-login-required format. The City can choose from a variety of predefined, standard report templates, or easily modify them for individual needs by specifying criteria based on accounts, dates, transaction types, BAI codes, columns to be displayed (and where they are positioned in the report), transaction amounts and specific text or reference information.
How CashPro Information Reporting works
You simply log in to CashPro Online, click on the Reporting menu, and access balance and transaction activity on a current- and previous-day basis for your accounts at Bank of America and other financial institutions. With a customizable user dashboard and menu tabs across the top (Dashboard, Report, Statements, Research), this service can enhance your ability to concentrate funds and make strategic decisions about investing cash.
The Research tab delivers an intuitive and streamlined approach for searching among all report data based on specific criteria. Just input an amount or amount range, check number, customer reference or any other criteria and results are populated on the screen. Results can be emailed, exported or printed.
The Dashboard serves as your personalized home page, with simple drop-down menus and click-to-select options for the features you use most. Through the options available in My Profile, users can choose from 11 languages to set as the preferred local language for screen and report viewing. Additionally, company administrators can designate a preferred time zone and date format.
Receive proactive messages
CashPro Notifications can proactively alert you of important information, such as outgoing and incoming wire transfers, opening balance, Positive Pay exception items or investments scheduled to mature.
The City can schedule online delivery of previous- or current-day reports through CashPro Information Reporting or by file transmission through CashPro Connect Reporting.
Gain confidence with our online security strategy
CashPro Online uses transport layer security encryption protocol, which continuously verifies each user’s identity during the session, encrypting messages to help ensure they remain private and unaltered.
Administration – A CashPro Online administrator sets up users, assigns privileges and sets the level of account access. To ensure the highest security standards, CashPro Online requires the use of dual approval to complete adding, modifying or deleting users.
Authentication – Two-factor authentication using security tokens is required for high-risk applications. Based on how the specific application is programmed, users are prompted to provide their token credentials either upon accessing the application or when releasing a high-risk transaction. If you prefer stronger access controls, you can have security tokens required at login, in addition to high-risk applications.
EXHIBIT B
Bank of America Merrill Lynch Tab X - Direct Deposit|31 Tab X - Direct Deposit
The financial institution must have the capability to accommodate a wide range of electronic payment and deposit services. The City utilizes direct deposit services for its monthly payroll. Approximately three- thousand six-hundred (3,600) employees are currently signed up for direct deposit, while approximately 200 employees use cashpay cards. Payroll also issues special checks as needed.
With the continued use of the Bank of America Direct Deposit service, the City uses the Automated Clearing House (ACH) to make payments directly to payees’ checking or savings account, improving efficiency and helping reduce your exposure to check fraud. This service can be used for direct disbursement of payroll into employee accounts and other consumer type payments such as expense reimbursements, pension payments and dividend payments. Direct Deposit offers benefits to both the City and your employees.
Direct Deposit enables the City to:
Decrease the cost of printing, distribution and storage associated with paper checks Eliminate lost checks
Reduce your exposure to check fraud
Improve forecasting with known settlement dates
Direct Deposit enables your employees to:
Eliminate check-cashing hassles and fees
Access to money the morning of payday
Eliminate the possibility of lost or stolen checks
Key features
As one of the top ACH originators, the unique features of Bank of America’s Direct Deposit service help make the City’s ACH initiation more efficient.
Settlement options to meet your needs – Bank of America can post by file, by batch or by collection application.
Multiple processing options – The City provides us with the file, batch or per item limits to monitor your ACH files. At your request, we can notify you if your limits are exceeded, before or after a file is processed.
How the service works
Each of your payees completes an authorization form that enables you to credit their account using ACH.
The City creates and sends us an ACH test file using your system, a payroll vendor or an ACH initiation service offered by us.
Once all agreements are signed, the City sends the bank your ACH file of direct deposit transactions. You may add or change employee account information as needed. Bank of America reports any returned deposits to you.
All deposits payable to accounts at financial institutions other than Bank of America are sent through the ACH network for posting to the payees’ accounts on the settlement date. The City provides your payees with deposit notification; their banks provide a bank statement showing the deposit.
EXHIBIT B
Bank of America Merrill Lynch Tab X - Direct Deposit|32 An alternative to Direct Deposit – CashPay® payroll card As a current user of CashPay, our card-based payroll solution for public institutions, the City can continue to offer direct deposit to employees who either do not qualify for, or choose not to have, traditional bank accounts. When used in conjunction with traditional direct deposit, you have the ideal electronic-based payroll solution to help you cut costs by diminishing dependence on paper-based systems and reduce your exposure to lost and stolen checks, as well as check fraud.
Benefits to the City
Savings – Eliminate the cost of paper, printing, distribution and storage associated with paper checks. Security – Limit your exposure to check fraud.
Convenience – Consolidate your payroll programs.
Efficiency – Reduce the time spent on payroll, and eliminate special handling for employees absent on payday.
Key features
FDIC-insured
Every CashPay account is individually FDIC-insured and meets all Regulation E requirements.
Worldwide acceptance
Cardholders can access their cash everywhere Visa debit cards are accepted, at point-of-sale (POS) terminals and at ATMs.
24/7 customer service
Using a toll-free phone number, your employees can receive automated account information or speak to a customer service representative. CashPay Visa-branded cardholders may also access account information online.
Benefits to your employees
City employees benefit from:
Savings – Eliminate check-cashing fees.
Convenience – Access money on the morning of payday without check-cashing hassles. Security – Eliminate the need to carry large amounts of cash, and reduce exposure to lost or stolen check.
How the service works
Each of your employees voluntarily enrolls for a CashPay account and receives a CashPay card. The City electronically deposits your employees’ wages and other compensation through the Automated Clearing House (ACH) into their individual CashPay accounts. These payments can be included with your ACH file for regular direct deposit transactions.
CashPay account owners may withdraw cash using their CashPay card at ATMs, or make purchases everywhere that Visa debit cards are accepted
EXHIBIT B
Bank of America Merrill Lynch Tab XI – ACH Payments|33
Tab XI – ACH Payments
The City’s Accounts Payable section currently issues payments to vendors in the form of checks and ACH.
Describe the services available from the financial institution to facilitate the City’s ACH issuances.
In addition to your current ACH process of transmitting a properly formatted NACHA file to Bank of America, we also offer our CashPro ACH service.
With Bank of America’s CashPro ACH service, the City can easily originate and search for Automated Clearing House (ACH) transactions when and where you want. This innovative service combines robust security features with the convenience of the internet. CashPro ACH enables you to:
Initiate ACH online, even when working at home or away from your desk Easily search for and sort your transactions to quickly access information Release multiple transaction batches at one time, helping you manage your payments more efficiently Key features
CashPro ACH allows authorized City employees to originate a variety of ACH transactions quickly and efficiently, including state and federal tax payments, cash concentration and disbursement, vendor payments, pre- authorized debits and credits, internal book transfers and direct deposit of payroll.
Simplified processing
Through CashPro ACH, the City can easily sort your transactions and gain quicker access to information. You can also identify transactions to either process or hold, while maintaining all entries for future use.
Approved users can establish future effective dates for ACH transactions to simplify account reconciliation.
Timely reporting on posted ACH transactions can be obtained by linking to various reporting modules of CashPro Online.
As an additional resource for eligible clients, ACH Inquiry provides enhanced research capability and extended retention to search among ACH items originated by Bank of America within the past 13 months.
How the service works
Everything the City needs to originate ACH transactions is stored on CashPro Online. Authorized individuals can conveniently initiate transactions from an internet connection.
In a single session, you can initiate as many ACH transactions as you’d like. Clear, easy-to-follow screens guide you through each step. User-friendly processes reduce or eliminate the cost of using outside vendors to perform your ACH transactions.
Simply key in transaction information such as dollar amount, account number and bank ID number or use the CashPro Online data import capability to upload information from your internal application systems to avoid rekeying.
Greater control and security
Two-factor authentication at batch release through the use of a token, as well as passwords, dollar limits and 128-bit transport layer security (TLS) encryption technology — help protect your transactions.
Security features add an extra layer of control; the system logs out users after 30 minutes of inactivity, expires passwords after 90 days, and a security operation center provides monitoring to help detect unauthorized activity.
EXHIBIT B
Bank of America Merrill Lynch Tab XII – Check Truncation|34 Tab XII – Check Truncation
Describe the financial institutions’ truncation services. The City currently receives images of our paid checks on CDs sent to us monthly.
To help the City operate in a paperless environment, our Image Access services allow you to view and archive account transactions, demand deposit account statements and account reconciliation reports through a variety of electronic options; delivery channels include CashPro Online, image transmission and CD-ROM/DVD.
Internet access via CashPro Online
Bank of America offers convenient online access to images through CashPro Online. The City retrieves images of paid items, deposited items, debits/credits and returned items as early as they are presented or captured by the bank.
Images of paid items and debits/credits are available for 90 calendar days, 180 calendar days, one, two, seven or 10 years, with online access. Returned items, deposited items for cash letter, image cash letter, over-the- counter, remote deposit, ATM and mailed-in deposits are available with the above options, up to seven years.
Subject to the archive options above, features include the following:
Front and back of imaged transactions are available
Imaged transactions can be viewed, printed or saved
Electronic Endorsement information is available, when provided by the presenting bank Multiple search and sort options
CD-ROM/DVD
CD-ROM/DVD offers an image inquiry option, as well as a long-term storage medium. The City can receive images of paid items, deposited items, debits/credits, demand deposit account statements and account reconciliation reports on CD-ROM/DVD. Features of the service include:
Flexible query, sort, print and export options enable you to print a single image or a range of images in a variety of sizes, from thumbnail view up to full size. Users may also export images and index records.
Exported index records saved as a text file or CSV file can then be imported into a spreadsheet, word- processing document or database.
A variety of cutoff schedules, including daily, weekly, biweekly, monthly, bimonthly, quarterly, statement cycle and fiscal calendar.
Viewer and index information included on each disk or on the last disk within a set of CD-ROMs/DVDs. Viewer upgrades automatically provided on production CD-ROMs/DVDs so you have the most up-to- date viewer software.
CD-ROMs/DVDs containing only check images are mailed within two business days following the posted date for daily or weekly cycles, and up to four days for all other frequencies.
On average, one CD-ROM holds up to 30,000 front and back images; one DVD holds up to 100,000 images.
Imaged items from multiple accounts can be combined on a single CD-ROM/DVD.
EXHIBIT B
Bank of America Merrill Lynch Tab XIII - Collected Balances and Earnings Allowance|35 Tab XIII - Collected Balances and Earnings Allowance
Describe the financial institution’s calculation formula for collected balances, as well as the calculation formula of charges for funds advanced. Also, describe the methodology that would be used to give an earnings allowance credit to the City for financial institution balances.
The Earnings Credit Rate (ECR) on your account is used to calculate your Earnings Allowance, which is based on your average investable balance. We are pleased to provide the City with an increased ECR of sixty five basis points (.65%). The ECR is applied to the monthly average positive collected balances net of reserve requirement (investable balance). As of March 1, 2009, the reserve requirement is 0%. This may be changed at any time.
Specifically, the formula for calculating earnings is:
Investable Balance x ECR x Days in Month
Number of Days in the Year
The reserve requirement is deducted from the average positive collected balance before the ECR is calculated.
As of March 1, 2009, the reserve requirement has been temporarily suspended. The reserve requirement is not currently deducted from average positive collected balances for ECR calculation but a reserve requirement may be reinstated at any time.
How ECR works (with hypothetical example)
EXHIBIT B
Bank of America Merrill Lynch Tab XIV - Overdraft Protection|36 Tab XIV - Overdraft Protection
Describe any issues, concerns and charges associated with the use of an overdraft policy.
The City currently has a Daylight Overdraft facility in place. We will continue to provide you with the necessary limits to avoid daylight overdrafts.
Bank of America’s Global Treasury Solutions Monitoring team tracks wire activity for accounts with book overdraft and daylight overdraft limits, as well as ACH activity for clients that have Treasury Management Client Limits. When a client’s exposure has exceeded their limit, the transaction goes into a queue for risk review. The transaction/file is then escalated to the appropriate Line of Business credit approver for review/approval to pay.
The Global Treasury Solutions Monitoring team also monitors and reports overdrafts within an account caused by wires, ACH or checks.
Our monitoring system receives updates from demand deposit account platforms on a near real-time basis allowing for continuous tracking of client accounts and exposures.
Daylight overdraft limits can be held at the top of the relationship or at an individual account level. We therefore know the exposure on an overall relationship, as well as individual accounts, and can respond quickly to those overdraft situations.
Limit utilization reports are available to the appropriate bank teams for tracking client limit usage.
The bank has the option to establish limits on an account or relationship basis. Once a limit is reached, straight- through processing is stopped and the client team or Risk Management is contacted to approve the release of the wire.
Bank of America does not charge for daylight overdrafts.
EXHIBIT B
Bank of America Merrill Lynch Tab XV – Payee Positive Pay|37 Tab XV – Payee Positive Pay
Describe the financial institution’s requirements for payee positive pay, including any charges associated with this service.
Bank of America’s Payee Positive Pay is an image-based fraud prevention tool that can help detect false or altered payee names on checks presented to the bank. Payee discrepancies will be reported to you for review and the decision whether to pay or return the item. This allows you to receive notification of suspicious payee names earlier in the process, providing an efficient and cost-effective defense system against check fraud. The City is currently in the process of implementing this service. Below is an overview of the benefits of Payee Positive Pay and how the service works.
Cost-effective enhanced security and efficiency
Increase fraud protection while identifying suspect items quickly Leverage comprehensive image archiving and digital interrogation technology to identify potentially fraudulent payee names on valid checks
Receive notification of suspicious payee names, including images, as early as possible in the process How Payee Positive Pay works
Send us check issue information by the applicable deadline prior to distribution of checks. Modify your current check issue file to include an added Payee Name field. Payee name submitted by issue file must match, and be in the same order as, the payee name as printed on the check.
Day 0
Checks are presented to Bank of America for payment.
Payee name is “read” from the image using digital technology and compared to the payee name within the issue file.
DDA posting occurs.
Day 1
Each day, payee name exception items are reviewed by Bank of America and are available to you on CashPro Online by your Positive Pay reporting timeframe for all of your Payee Positive Pay accounts.
Your entitled Positive Pay user(s) will be able to review the exceptions (and images) and submit a decision through CashPro Online Positive Pay by the existing Positive Pay decision deadline.
For check and other Payee Positive Pay requirements, please refer to the Payee Positive Pay Client Overview document in the Appendix (Appendix 04).
All costs are detailed in Tab XVII – Pricing Schedule.
EXHIBIT B
Bank of America Merrill Lynch Tab XVI – Courier Service|38 Tab XVI – Courier Service
Describe your financial institution’s current agreements and status with courier services.
Bank of America recommends that the City continues to contract directly with Loomis for your courier services.
Given the extensive number of financial centers and operating facilities the bank has, we maintain relationships with many courier vendors, and we would be happy to assist you with changing vendors should the need to do so ever arise.
EXHIBIT B
Bank of America Merrill Lynch Tab XVII - Pricing Terms and Conditions|39 Tab XVII - Pricing Terms and Conditions
Include in this section the financial institution’s proposed terms of contract and method in which pricing adjustments will be calculated.
The bank is agreeable to a term of five (5) years, but would like the two one (1) year extensions or one two (2) year extension to be by mutual written agreement.
Pricing adjustments are calculated based on our contracted pricing and the activity volume for the line item in quest. In the event the City identifies a pricing error during the review of their monthly analysis statement, they are to contact our client service center and request an adjustment. Adjustments will be applied directly to the City’s account analysis statement, unless otherwise agreed to by bank and City.
EXHIBIT B
Bank of America Merrill Lynch Tab XVIII - Pricing Schedule|40 Tab XVIII - Pricing Schedule
Provide in this section, using our pro-forma (Attachment A), the pricing for services proposed by the financial institution.
Attachment A – Pricing Proforma is provided on the following pages, as well as the Appendix (Appendix 05).
EXHIBIT B
Bank of America Merrill Lynch Tab XVIII - Pricing Schedule|41 Attachment A – Pricing Proforma
EXHIBIT B
Bank of America Merrill Lynch Tab XVIII - Pricing Schedule|42
EXHIBIT B
Bank of America Merrill Lynch Tab XVIII - Pricing Schedule|43
EXHIBIT B
Bank of America Merrill Lynch Tab XVIII - Pricing Schedule|44
EXHIBIT B
Bank of America Merrill Lynch Tab XIX - Conversion Plan|45 Tab XIX - Conversion Plan
Describe the overall plan your financial institution would coordinate to ensure a smooth transition from the current provider. The financial institution must also provide on-site training to our personnel for the operation and use of the financial institution’s services and automated systems for all areas of service.
As your current banking services provider, no transition or conversion plan is required to enter into a new contract with the bank. By renewing the contract with Bank of America, the City will continue benefiting from its current treasury management services without disruption and will avoid a time-consuming and costly conversion process. You can focus your efforts and energy on reviewing your current treasury operations, streamlining processes and implementing treasury enhancements that will deliver efficiencies and increased cash flow.
Your client team, led by Senior Client Manager Patty Ramirez, is familiar with your treasury management needs and will continue to oversee existing services and work with the City on new projects. Below is information on how we will approach the implementation of new services or enhancements to your current services.
Implementation of new services
To maintain the highest level of quality, we provide extensive assistance to clients during the implementation process. Specifically, an assigned implementation advisor acts as the primary point of contact, coordinating all project components including document completion. The implementation team will collaborate with you throughout the development and implementation process as we install and test your system setup, if necessary.
Using a structured approach, based on Project Management Institute principles (shown below), the team facilitates the necessary training to your users to make sure they are efficiently taking advantage of the product capabilities that are implemented.
Bank of America unites the collective talent of many dedicated people to deliver streamlined and simplified execution for each implementation and service request so you can spend less time on process and more time managing issues most important to you. We will help the City succeed with a world-class client-service experience that adheres to the industry’s most rigorous performance standards and rises above the competition.
An experienced implementation advisor has the overall responsibility for coordinating resources from the bank.
This individual guides you through the process and schedules regular updates with your internal implementation team to facilitate effective communication, address issues and respond to questions regarding the progress of the implementation.
EXHIBIT B
Bank of America Merrill Lynch Tab XIX - Conversion Plan|46 The assigned implementation advisor aims to facilitate a successful implementation and will:
Establish a working, consultative partnership with your representatives Assign a single point of coordination to channel services and address issues Define the scope of the project (products, account structure, timeframes, documentation, roles, system requirements, service agreements, testing and training) Track progress and continuous communication throughout the entire process Assume primary responsibility of coordinating internal resources to meet key milestones For complex projects, an implementation project consultant may be assigned to facilitate overall management and technical guidance.
Partnership is essential to a successful implementation Because a successful implementation is based on a partnership approach to the project, we recommend that you have a designated contact person who will be responsible for the internal management of the implementation of a new service. This individual’s responsibilities will mirror that of the bank’s implementation advisor, and will focus on managing the City’s internal resources in support of the project plan.
In addition to your internal project leader, we recommend that you designate a resource for any technical aspects of the solution - someone who understands your internal system requirements and has the ability to deliver information technology resources in support of the implementation.
The specific responsibilities of each of the members of your implementation team and the time required to complete their tasks will be detailed in the implementation project plan that will be provided to you as the first step of the process.
Throughout any implementation project, the City plays a major role in ensuring that the timelines are met and the process runs smoothly.
Training adapted to the City’s needs
Bank of America will deliver the necessary training for any newly implemented services to ensure that City employees are fully capable of managing these services, accessing required reporting, etc.
Our most popular method of training is the webinar. This online classroom combines instructor-led, interactive web-based learning with a teleconference. Depending on your specific needs, the implementation advisor may determine that traditional, on-site training will be more effective, in which case arrangements will be made to use City or bank facilities, as the situation allows.
The City will have access to user manuals and quick-start guides for any newly implemented services. In some cases, these documents are accessible online using bank-sponsored internet sites.
Additionally, after services are implemented, we will work with the City to address any further and ongoing training needs. City staff can always access CashPro University, our online treasury management resource center, for convenient, anytime answers to many of your procedural questions. This comprehensive learning tool includes a knowledge base, interactive training courses, sample reports and other reference tools.
EXHIBIT B
Bank of America Merrill Lynch Tab XX - Service Enhancements|47 Tab XX - Service Enhancements
Based upon information presented in our RFP and your financial institution’s knowledge of the public sector, describe any enhancements, technological or otherwise, that we may consider to improve operational or cash management effectiveness.
With ever-increasing budget and time constraints, government entities are gaining a competitive advantage by migrating from cumbersome paper processes to fast and easy electronic solutions. Two such solutions – Digital Disbursements and Paymode-X Connect – are outlined below. With Digital Disbursements, the City can easily send funds to your customers with only a phone number or email address; with Paymode-X Connect, you can efficiently send or receive electronic payments. Bank of America is happy to discuss these services with the City in more detail to explore how they might meet your current needs.
Digital Disbursements
Bank of America’s Digital Disbursements service provides an economical and convenient way to distribute funds to the City’s consumer customers using just their mobile number or email address — as long as they have an account at a U.S.-based financial institution. You’ll be able to send funds faster than by check and won’t need the recipient’s personal bank account information. With this business-to-consumer solution, we can help the City gain efficiencies and potentially reduce your disbursement costs for any type of consumer payment you need to make.
Digital Disbursements may help you to:
Delight your customers
Provide expedited payments – Quick, innovative and convenient payments (no need to make a deposit and no risk of a lost check)
No need for sensitive account information – All you need is an email or mobile phone number Reduce risk
Check fraud – By reducing the number of checks (both circulating and in storage), you reduce the opportunity for counterfeiters to obtain checks or your account information Data storage – Reduce the risk of storing sensitive customer financial account information Lower cost
Reduce expenses associated with the processing, printing and storage costs for paper-based payments Improve efficiency
Experience better reconciliation and disbursement tracking With CashPro Connect Payments, Digital Disbursements may be included as one of the payment types— transmit one file for all of your payments (ACH, Wire, Check, Card, etc.).
Key features
Digital Disbursements provides you with the ability to send money to any consumer with a U.S. bank account — without needing their personal financial information. Recipients can enroll/accept payments either online or via a mobile device and the money is directly deposited into their bank account the same or next day.
Settlement options
We can post debit settlements on a file-, batch- or transaction-level basis, and can post credit entries as one consolidated entry or individual entries.
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Bank of America Merrill Lynch Tab XX - Service Enhancements|48 Multiple processing options
Provide us with file, batch or per item dollar amount tolerance limits to monitor your Digital Disbursements transactions. We will then notify you by report if your limits are exceeded and suspend the batch/file until your confirmation to move forward is received. Based upon preference, approvals can also be required for all batches within files.
Reporting and output transmission options
We offer online reports, output transmissions and file acknowledgements that can streamline your reconciliation and may be used to electronically update your in-house systems with status of your Digital Disbursement transactions. You can also see settlement entries for these payments in your current- day/previous-day information reporting and notifications.
Security options
Many file and data transmission security options are available to you to help you meet your security requirements.
How it works
1 Zelle and Zelle related marks and logos are property of Early Warning Services, LLC 2 Refers to period of time during which payments are generally available. Depending on the receiving bank and time of day, payments could be received same day or next business day. Actual times may vary. Available to U.S. bank account holders only.
Paymode-X Connect
With an electronic payments system, you gain all of the efficiencies and time savings of an automated payments process, while saving your company money. With Paymode-X Connect, an all digital, online payment system, you can send and receive electronic payments and detailed remittance data to and from your suppliers, customers and employees. Paymode-X Connect can help lower administrative costs and manage your working capital more efficiently than ever before.
Improve control and predictability of cash flow
Help lower transaction costs
Reduce payment processing errors
Strengthen relationships with vendors, suppliers, customers and employees
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Bank of America Merrill Lynch Tab XX - Service Enhancements|49 Create a more efficient business process
Earn rebates through the Paymode-X Connect program
Extensive payer support services
The Intelligent Engagement Supplier Enrollment Campaign targets your strategic suppliers to provide highly effective, rapid supplier adoption with minimal effort on your part.
A supplier network of over 330,000 members eliminates the need for you to obtain or maintain supplier authorizations and bank account information.
Multiple levels of security
Paymode-X Connect deploys an out-of-band multi-factor authentication (MFA) on high-risk transactions to deliver strong authentication along with an excellent user experience. MFA requires the presentation of two or more of three authentication factors (a knowledge factor, a possession factor and an inherence factor) which are validated for authentication.
Easy to use Authorized users simply log on to initiate payments and access information, including the remittance, for received payments. You can also create and view reports, as well as update your membership and/or bank account information. These same features are available on-the-go with your mobile device.
Works with any U.S. bank
Paymode-X Connect works with any U.S. financial institution using existing interbank settlement networks to move funds between accounts at different banks.
Payments, remittance information together digitally
Send and receive electronic payments in your preferred digital format with detailed remittance capabilities for disbursement and collections. Also, for ease of use, a single payment file can contain both electronic and paper disbursement instructions.
Earn rebates through a unique dividends program
The Paymode-X Connect program offers compelling economics to payers. Paymode-X Connect is a supplier- funded model, where suppliers in the network pay a small fee to receive electronic payments and remittance faster and more efficiently. Payers earn quarterly dividends based on eligible supplier spend. Paymode-X Connect generates a new source of profit for a payer not realized today with traditional ACH payments.
Seamless integration
Integrate with your existing Accounts Payable (AP) and your supplier’s Accounts Receivable (AR) systems, accounting software and business processes and works with any bank. No additional software installation is required.
Real-time, customized reporting
Generate standard and customized collection, disbursement and exception reports, receive email notifications and view payment history online.
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Bank of America Merrill Lynch Tab XXI - Benefits for City Employees|50 Tab XXI - Benefits for City Employees
Describe any discounts or benefits that would be provided to City employees.
Bank of America at Work® is a comprehensive package of financial services available to employees of our banking clients. This program provides employees with checking, savings and borrowing solutions, in addition to online educational resources.
Our Workplace Financial Solutions team is available to deliver comprehensive financial wellness services for you and your employees. We can help the City streamline your benefits programs and save money with a custom- designed approach that includes a range of Retirement and Benefit Plan Services, Health Benefit Solutions and employee education programs.
Your employees can benefit from personalized insights and guidance, targeted education and easy-to-use planning tools — regardless of their age, income or financial acumen.
It all begins with a conversation; we will talk to you to understand the benefits you already offer and the needs of your diverse workforce. Once we identify potential gaps and opportunities, we can recommend and implement a comprehensive solution to help you and your employees achieve financial wellness.
For additional information, please see the Bank of America at Work Overview document in the Appendix (Appendix 06).
EXHIBIT B
Bank of America Merrill Lynch Tab XXII – Remote Deposit Additional Information|51 Tab XXII – Remote Deposit Additional Information
Describe your institution’s Remote Deposit process. The City is very interested in pricing for equipment, as well as the costs associated with this deposit process. The City is currently using this method of deposit in several locations, and is interested in cost savings and potential funds availability advantages.
The City can continue to benefit from streamlined deposit processing and procedures using Bank of America’s CashPro Remote Deposit service. As the City is aware, users can access funds and reconcile accounts faster by making electronic deposits from their desktops using our no cost bank-provided scanners. The service automatically populates remittance and check detail to save time and reduce keying errors. And, because it is accessed via CashPro Online, our web-based platform, the City can protect check information through robust security features and strict user authorizations.
Key features
Remote Deposit has unique features that can be tailored to help meet the specific needs of your business. Extended processing day allows you to:
– Take advantage of the latest deposit deadlines in the industry for same-day ledger credit – Meet your deposit deadlines by making deposits in your office or payment collection site – Make deposits after the close of business, on weekends or holidays and gain access to funds more quickly than if deposited at a banking center
– Eliminate employee trips to banking centers for manual deposits Reduce fees associated with courier and transportation expense for travel to the bank Centralize your reconciliation process by allowing users to access data captured at one site from an alternate location
Expedite availability of items processed through Remote Deposit Take advantage of immediate availability of On Us items Auto-populate repetitive information, into custom fields to reduce manual data entry functions and keying errors
Multiple reporting options at the user, account and location level Customization
Set additional custom fields to capture invoice number, discount amount or other customer information Scan standard check size remittance containing MICR/OCR/BARCODE in multiple fonts Increased check and customer fraud controls
Improve fraud control by using:
Automatic duplicate item detection
Expedited returns and adjustment processing through electronic channels Client-defined tables and rules identify items to be flagged for operator review User management
Control setup and maintenance with our convenient self-service feature to:
– Set item and deposit limits at the user level
– Users see only accounts they have been entitled to
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Bank of America Merrill Lynch Tab XXII – Remote Deposit Additional Information|52 – Dual control feature, where one user scans and the other reviews and releases, is available Web processing
Our web processing shortens the posting and reconciliation process — with no limit to the number of deposits that you can make per day.
How the service works
Below is a graphical overview of the CashPro Remote Deposit process, followed by a more detailed step-by-step description.
Steps for a check only deposit
Compile all items to be deposited and compute the expected total of the deposit.
Log into our global internet-based client access channel and select Remote Deposit.
Click Create New Deposit and select the account to which the deposit will be made.
Select an account group; this function replaces the need for paper deposit tickets that have been encoded with a static location number. Remote Deposit feeds the account group number to downstream applications.
Select the deposit type and enter the deposit total.
Align the items for deposit within the scanner tray, placing as many items as fit comfor tably in the tray. Up to 500 items may be deposited at one time with no limit to the number of deposits that can be made in a day.
Click Start Capture. As images are scanned, they populate on the screen.
Use custom fields to manually record information about the items or use associated rules to automatically populate static information, like unit, account or customer number.
Confirm the declared amount is in balance with the scanned items and transmit the deposit. As you transmit the images and data of each item, the status of each deposit is updated in real time.
Use the Reports tab to run a variety of reports, customize reports and export data to your account reconcilement platform.
Perform research on items that need additional reconcilement, search by multiple criteria including amount, date and custom field data.
Reporting
Reporting features include:
Forty-five calendar day deposit and image retrieval capabilities with 90 calendar days of data retention within the Remote Deposit application
Multiple report formats available including: CSV, PDF, RTF and XLS
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Bank of America Merrill Lynch Tab XXII – Remote Deposit Additional Information|53 Image and data transmission capabilities
Application reporting including:
– Deposit Detail by Account Report – Provides a detailed report in PDF/RTF for deposits made – Deposit Summary Report – Summary report in PDF/RTF for deposits made – Payment Detail Report – Detail report in PDF/RTF of remittance data – Payment Summary Report – Summary report in PDF/RTF for all remittance deposits – Standard Export File – Exportable report in XLS/CSV of deposits with transaction detail Research
The City may leverage the online image archive for quick resolution to customer inquiries. Research features include:
Ninety calendar day deposit detail and 45 calendar day image retrieval capabilities through the CashPro Remote Deposit application; seven year image retrieval through CashPro Online Multiple options for research including amount, date, account number and item type Ability to download or store query results
Item storage
As a best practice, the City should safeguard original items for 14 days using reasonable commercial standards for storage. Reasonable standards include, but are not limited to, storing the items in a secure location with limited access. Items should be destroyed using a cross cut shredder after 14 days or when all reasonable attempts to collect on the item have been made.
Key benefits of CashPro Remote Deposit
Availability is accelerated by one day
Quicker notification of returns and adjustments
Improved cash flow reporting/reconciliation
Enhanced fraud mitigation
Less handling needed to process same volume
No deposit supplies needed
Scanners are currently provided at no cost; however all other costs associated with this service are detailed in Tab XVIII – Pricing Schedule.
EXHIBIT B
Bank of America Merrill Lynch Tab XXIII – Fresno Economic Development Efforts|54 Bank of America began serving
the State of California
more than 110 years ago
Tab XXIII – Fresno Economic Development Efforts
The City is aware of privacy constraints regarding information that can be released. However, the more information that can be included in this tab, the better. Charts, graphs, tables, and narrative explanations of the bank’s economic efforts, strategy, and tactics are all welcome. Please explain in as great detail as possible, the bank’s efforts at economic development specifically in the City of Fresno. The Administration and the Council are particularly interested in the number of jobs that the financial institution’s efforts have created. In addition, the number of new businesses funded, as well as the number of businesses retained as a result of the financial institution’s activities are important considerations. Other considerations are the number of loans made, the number of projects funded, the number of new bank accounts opened, the number and amount of donations made to social service nonprofits, and the general extent to which the financial institution contributes to Fresno’s economic development.
Connecting to California communities through the power of our people As a proud member of the California community for more than a century, we take seriously our commitment to grow responsibly and sustainably — everything we do aligns to our purpose of helping people live better financial lives.
Combining the financial capital of one of the nation’s largest banks with the intellectual capital of more than 200,000 employees, we can help the communities we serve thrive.
In each market, we connect everything our company offers to our clients' financial goals. Investing in community through philanthropy and volunteerism is how we make this large company create a personal impact in the life of California citizens.
We know we can make a direct impact in our communities. That's why our employees partner with organizations striving to make a difference in areas like hunger relief, education, youth services and more. We're proud to contribute to the growth of our communities through grants, mentoring and our employees' commitment to volunteering for deserving causes.
Making a difference on a national and local scale
Partnerships – Our partners include (RED), Special Olympics, Wounded Warrior Project, Vital Voices and more than 4,700 other nonprofits and public sector organizations worldwide. Accelerating environmental sustainability – Our commitment to help accelerate the transition to a low- carbon economy is evidenced by our $125 billion environmental business initiative. Empowering entrepreneurs – Through our more than $1 billion investment in community development financial institutions (CDFIs) we have a significant impact on the stabilization of low- and moderate- income communities. Partnerships with the Tory Burch Foundation and Calvert Foundation help fund the ideas and innovations of women entrepreneurs across the country and around the world. Fostering leadership locally – As part of our effort to drive local and national impact, we help foster leadership in local communities through Neighborhood Builders® and Student Leaders®. Social impact investing – We’re enabling clients and customers to make investments that match their values and sense of social purpose through social impact investing.
EXHIBIT B
Bank of America Merrill Lynch Tab XXIII – Fresno Economic Development Efforts|55 Local commitment – Community involvement across California The City and the bank have been treasury partners for years — but our legacy of serving the people and communities in California runs even deeper. The banking, credit, lending and philanthropic commitments we provide throughout California are simply unparalleled.
Volunteerism and community support
Last year, Bank of America associates volunteered more than 245,000 hours in California and more than 2 million hours nation-wide. Here are just a few examples of our commitment to California communities and the people living in them:
Through Operation Homefront and other military organizations, Bank of America is assisting California military service members and veterans to ensure that they have the financial education they need to lead successful lives. Through BetterMoneyHabits.com —a financial education resource that Bank of America developed with education innovator Sal Khan and Khan Academy—we recently launched new content specifically geared toward veterans and military families.
Established out of a mutual recognition of the opportunity that exists to support women entrepreneurs and advance local economic growth, Bank of America and the Tory Burch Foundation launched the Tory Burch Foundation Capital Program, dedicated to help connect women business owners to affordable loans to help grow their businesses. The program has been launched in 17 states, including California. Building on more than 30 years of support, Bank of America has renewed its commitment to Special Olympics through 2018, working towards a joint mission to advance diverse and inclusive communities. Bank of America increased its second environmental business initiative from $50 billion to $125 billion in low-carbon business by 2025 through lending, investing, capital raising, advisory services and developing financing solutions for clients around the world. This 10-year environmental business goal speaks to the bank’s focus on and commitment to advancing energy efficiency, renewable energy and transportation, in addition to addressing other important areas like water conservation, land use and waste.
Our commitment to the Fresno market
In each market in which we do business, we strive to connect everything our company offers to our clients' personal and financial goals so we can provide tailored solutions to fit their needs. It's how we make this large company personal and how we help our customers, clients and communities thrive. In the Fresno market (which includes the counties of Fresno, Merced and Tulare), Bank of America has made significant contributions of human and monetary capital to help people live better financial lives. Below is a snapshot of year-to-date small business, commercial and home lending, as well as our deposit base, in the Fresno market:
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Bank of America Merrill Lynch Tab XXIII – Fresno Economic Development Efforts|56
Below is an overview of our philanthropic partnerships and employee giving in the Fresno market.
Community development banking
Our community development banking business uses innovative financial solutions to create sustainable ways to promote healthy and thriving communities. In 2016, we provided nearly $4 billion in loans, tax credit equity investments and other real estate development solutions to create housing for individuals, families, veterans, seniors and previously homeless individuals across the United States.
Community development financial institutions
We also work with CDFIs — also known as community lending partners — to extend banking services to businesses and others that may not be able to access capital through traditional channels. These small businesses, affordable housing partners and nonprofit organizations, some of which are among the most marginalized, need help accessing capital, mentoring and financial resources. That’s where our work with CDFIs comes in. We invest more than $1 billion in 250 CDFIs in all 50 states, Puerto Rico and the District of Columbia to connect lending solutions to people and communities.
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Bank of America Merrill Lynch Tab XXIII – Fresno Economic Development Efforts|57 Supplier diversity
We invest in diverse businesses to drive sustainable economic growth because when diverse suppliers succeed, the diverse communities that we serve, thrive. We support the growth of diverse businesses through our Supplier Diversity and Development Program, which develops relationships with third-party vendors owned by minorities, women, veterans, individuals with disabilities, and the lesbian, gay, bisexual, and transgender (LGBT) community. In 2016, we directed $2.3 billion in diverse procurement spending. Our commitment to spend procurement dollars with diverse businesses and simultaneously invest in their development gives rise to a meaningful, long-term impact.
Workforce development
We help drive economic and social progress through our philanthropic investments focused on advancing economic mobility for individuals and families and creating thriving communities.
One example is our commitment to youth employment with an emphasis on skills development and better money habits. Through national, regional and local partnerships focused on youth employment, we are helping individuals of all socio-economic backgrounds realize their potential, find meaningful employment and chart a more successful future, all of which strengthen local communities.
In 2016, we committed $40 million over three years to connect youth and young adults to skills, training and jobs. In addition to partnerships with organizations such as Year Up, Boys and Girls Clubs of America, Urban Alliance and Ada, The National College for Digital Skills, our Student Leaders® program helps high school students build work and leadership skills through paid summer internships at nonprofit organizations and participation in a leadership summit. Through summer youth employment programs in partnership with U.S. mayors, we help young people learn how to manage their first paycheck and learn more about future career opportunities.
Advancing women’s leadership and economic empowerment
Being a diverse and inclusive company is essential to our ability to meet the needs of our clients, communities and employees. We promote an inclusive environment where all employees have the opportunity to achieve personal success and contribute to our company. We are focused on attracting, retaining and developing diverse talent and have been recognized as the World’s Best Bank for Diversity by Euromoney and on the 2017 Bloomberg Financial Services Gender-Equality Index.
We invest in helping women make meaningful contributions within our company and in our communities. We have strong representation at all levels and exceed industry benchmarks in nearly every category. Among the programs to develop our female employees are our Investing in Women Leadership Council, Global Women’s Conference, Women’s Executive Development Program and Pathways to Progression.
We also recognize that women play a vital role in driving economic growth, and we have partnerships to connect women entrepreneurs to mentoring, capital and other tools that will advance their businesses and make significant contributions to our global economy. Through partnerships with the Tory Burch Foundation, Vital Voices and the Cherie Blair Foundation, we have helped nearly 4,000 women from 80 countries grow their businesses and foster economic prosperity.
Increasing support for small businesses
Small businesses play a vital role in the overall health of the U.S. economy. We recognize the importance of this sector and are committed to providing the financial solutions and supporting the financial infrastructure small businesses need to succeed.
According to the FDIC, Bank of America is one of the nation’s top small business lenders, with total outstanding small business loan balances of $34.6 billion at the end of June 2016.
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Bank of America Merrill Lynch Tab XXIII – Fresno Economic Development Efforts|58 Helping our nation’s veterans
Bank of America provides support to the men and women who have served our country through housing, wellness and education programs, as well as hiring opportunities.
Our company employs more than 10,000 veterans, reservists and Guard members. In 2014, we announced a goal to hire 10,000 more veterans, and we continue to hire more than 2,000 veterans a year; we are well on our way to reaching our overall goal.
To attract veterans, a dedicated military staffing team connects with external recruiting partners to identify roles for veterans. Partners include Soldier for Life, RecruitMilitary and the U.S. Chamber of Commerce Foundation’s Hiring Our Heroes.
Our commitment to environmental sustainability
At Bank of America, we are committed to improving the environment in how we approach our global business strategy, work with partners, support our employees, make our operations more sustainable, manage issues and govern our activities.
Since 2007, we have provided more than $70 billion in financing for low-carbon and sustainable business activities. As part of our second commitment established in 2012, and increased in 2015, we will provide $125 billion in capital, along with significant intellectual capital, to develop solutions to climate change and other environmental challenges. We provided $14.5 billion in financing for renewable energy, energy efficiency and other sustainable projects in 2015 alone.
Driving economic and social progress
Bank of America is helping to drive economic development and job creation through our business and our partnerships. We do this by responsibly extending capital to individuals and companies, which creates opportunities in the communities we serve, and by our philanthropic investments and the power of our employee volunteers. This support goes beyond the pure financial benefits — it helps build thriving communities by enabling nonprofits, arts and culture organizations, and others to advance economic mobility for individuals and families, addressing issues of social justice and connecting more deeply to people in their community.
To learn more, visit our website (about.bankofamerica.com) and follow us on Twitter (@BofA_News and @BankofAmerica).
EXHIBIT B
Bank of America Merrill Lynch Tab XXIV – Code of Ethics|59 Tab XXIV – Code of Ethics
Please provide the financial institution’s official adopted code of ethics.
Bank of America Merrill Lynch’s purpose is to make financial lives better, through the power of every connection. Our values guide and inspire how we work together to serve our customers and clients, our shareholders and each other, helping us realize our purpose. To do this, we must achieve the following each and every day.
Deliver together
We believe in:
The importance of treating each customer, client and teammate as an individual and treating every moment as one that matters.
Connecting with people person-to-person, with empathy and understanding.
Everything we do for customers, clients, teammates and our communities is built on a solid business foundation that delivers for shareholders — we strive to go the distance to deliver, with discipline and passion.
Act responsibly
We believe in making decisions that are clear, fair and grounded in the principles of shared success, responsible citizenship and community building. Aware that our decisions and actions affect people’s lives every day, integrity and the disciplined management of risk form the foundation of our business.
Realize the power of our people
At Bank of America we:
Strive to help our employees reach their full potential. Believe that diverse backgrounds and experiences make us stronger. Respect every individual and value our differences — in thought, style, culture, ethnicity and experience.
Trust the team
We believe:
That the best outcomes are achieved when people work together across the entire company. Great teams are built on mutual trust, shared ownership and accountability. That by working together and acting as one company, we best meet the full needs of our customers and clients.
Based on our company’s values, the Code of Conduct is our guide to putting those values into action. Every Bank of America employee is required to review, acknowledge and understand our Code of Conduct (see Appendix 07) annually.
EXHIBIT B
Bank of America Merrill Lynch Tab XXV – Controlled Disbursement|60 Tab XXV – Controlled Disbursement
Describe the bank’s product
To help manage cash assets, organizations need accurate and highly reliable disbursement information. Funding totals must be available early enough to meet either investment or borrowing deadlines. Additionally, as banks continue to present images of checks rather than the original documents, checks will post throughout the day on clients’ general disbursement accounts. This makes Controlled Disbursement an essential tool for insulating disbursement accounts from check postings after notification of presentment information.
The Bank of America Controlled Disbursement service helps manage cash flow by allowing the City to fund transactions daily after they are presented rather than maintain balances in their disbursement account for all checks issued. We provide early and accurate funding notification, eliminating the guess work in check clearing—allowing for timelier, precise decisions regarding funding, investing and borrowing.
Bank of America’s Controlled Disbursement service can continue to help the City to:
Improve disbursement control
Improve forecasting
Reduce borrowing costs
Improve the use of available funds for investments
Key features
Early notification
The City receives the dollar amount of transactions presented against your account each morning. With the implementation of image receive, whereby controlled disbursement checks are cleared via images instead of physical checks, the vast majority of presentment information is being reported earlier (now in first presentment versus second presentment).
Multiple disbursement sites
Multiple disbursement sites in Eastern, Central and Pacific Time zones provide competitive reporting times, some of which are among the earliest in the industry.
State of the art controlled disbursement system
Our controlled disbursement functionality includes the ability to report ACH totals and certain electronic adjustments along with check clearing totals.
Insulation from late presentments
Checks received by the bank after the last notification for the day are held over and will not post to the City’s account. We also hold over electronic adjustment transactions so they do not cause positive or negative balances in your account.
Flexible funding options
Multiple automated funding options are available, including transfer from a Master Funding Account through the controlled disbursement system or one in a Zero Balance Account (ZBA) relationship.
Additionally, multiple controlled disbursement accounts may be funded from a single master account. For maximum convenience, you only need to fund your master account once daily.
EXHIBIT B
Bank of America Merrill Lynch Tab XXV – Controlled Disbursement|61 How the service works
For a Controlled Disbursement account to work correctly, checks must include the designated account number prefix and routing transit number associated with the controlled disbursement site. The routing transit number and account number prefix are what allows Bank of America’s Items Processing team to identify and process checks as controlled disbursement items. The account number prefix is the main driver for being able to hold over electronic adjustments and including them in presentments the following day.
1. Early each morning, Bank of America obtains electronic notification of check presentments from various sources such as direct sends from other financial institutions and the Federal Reserve Banks.
2. Together with the check data, our controlled disbursement system receives ACH transactions along with adjustments that were processed electronically to generate the day’s presentment information and funding requirement. We provide two controlled disbursement notifications, referred to as presentments, daily.
3. Our information reporting system is updated with your critical presentment totals. The City has the flexibility to receive notification after each presentment or a single notification at final presentment.
Information is provided at the summary or detail level.
Automatic funding of your controlled disbursement account takes into account any positive or negative opening balances in your account from the previous day.
Reporting
Our internet-based client access solution, CashPro Online, provides current day reporting information on the City’s Controlled Disbursement account. This information can include presentment totals at the controlled disbursement account or master funding account level (or both), details of checks included in presentment totals as well as funding totals reported by serial number break.
Presentment summary reporting
Opening available balance
Controlled disbursement check presentments (first presentment and second presentment) ACH credit and debit totals
Electronic debit and credit adjustments
Disbursement funding requirement
Check detail and serial break reporting
Lists the checks included in the presentments
Funding totals sorted and reported by serial number prefix is available through CashPro Information Reporting Statements
EXHIBIT B
Bank of America Merrill Lynch Tab XXVI —Business Continuation Plan|62 Tab XXVI —Business Continuation Plan
Describe the bank’s BCP
Business continuity and disaster recovery planning is far-reaching at Bank of America and incorporated into virtually every aspect of the bank’s business processes. We have an extensive disaster recovery program and a designated disaster recovery team. It is a top priority at the bank and a major consideration in all system design and implementations.
Our company-wide Disaster Recovery Plan includes extensive plans for the services that the City requires. Procedures are in place for all aspects of disaster recovery, including immediate emergency response, failure assessment, backup activation, backup operations and primary site restoration.
Our primary processing site employs a redundant failover database environment, providing each database with the ability to shift to a backup server immediately upon a primary database server failure. In the event of a disaster at the primary processing site, we rely on a remote site that houses the disaster recovery servers, including web, application and database servers, and the network environment, including a replicated database that is updated based on primary database activities.
Our business continuity program continues to evolve to help the bank respond effectively to new risks.
Key disaster recovery solutions in place
The City can count on our industry-leading backup facilities and company-wide disaster recovery plans for all primary systems used to provide services outlined in this proposal. Back-up facilities are tested frequently and can be implemented swiftly in the event of an emergency. Back-up facility types, locations and implementation timeframes are provided below.
Hot sites and backup systems for the City’s primary services Platform Type of site and location(s), including alternatives Mainframes Located throughout the enterprise. Data centers in the Eastern U.S. are recovered at a vendor hot site.
Data centers in the West are recovered in an internal facility. Critical client data and application services are backed up electronically and intraday transactions are documented to allow recovery to the point of a disaster.
Our recovery sites can be operational in two to six hours, depending on the site and functions recovered at that location.
Midrange/ Client
Servers
Bank of America has a large number and variety of midrange/client server systems located throughout the enterprise. Recovery solutions are driven by the business functions supported by each system and vary widely. Recovery plans are scaled to the individual system and the entire data center in which the hardware resides. To reduce risk and shorten recovery times, the bank has moved to internal recovery of our midrange/client server systems where possible. Testing is conducted for most systems annually, although critical systems do more frequent testing.
Disaster Preparedness
Major Disaster Plan Highlights
Each critical bank application is
involved in at least two
contingency tests annually.
Minimally, one test is
unannounced.
The notification procedure is
tested periodically to ensure that
all necessary support can be
provided during a disaster.
Each application must
demonstrate its ability to
interact successfully with all
interfaces designated as “First
Day Critical Applications.”
EXHIBIT B
Bank of America Merrill Lynch Tab XXVI —Business Continuation Plan|63 Hot sites and backup systems for the City’s primary services Platform Type of site and location(s), including alternatives ACH The Richardson, Texas mainframe is backed up in Kansas City, Mo. In the case of an unexpected power, telephone system or network failure, or the failure of a crucial system impacting the primary production site, advanced recovery technologies are employed and the ACH file is rerouted to one of our contingency ACH sites. We run backups of production data throughout the processing day to deliver recovery to the point of failure and to shorten the recovery time. This procedure will be transparent to you and the file will be processed as expected.
Additionally, mobile teams are prepared to relocate to the contingency sites as required, equipped with complete job-run scripts and recovery procedures.
We consider this to be a warm backup site because production jobs are not running concurrently, but production data is being logged throughout the day to enable us to resume production at the point of failure.
CashPro Online The CashPro Online hardware and software environment is stationed behind numerous firewalls. Two data centers are located within the U.S. CashPro Online is configured to run with one data center servicing all production requests; the second data center is on “hot standby.” At present, CashPro Online uses 3DNS to route traffic to a single active data center that serves as the primary production site. Within the site, BigIP is used to spread the traffic among the web servers that make up CashPro Online.
CashPro Online is currently updating the failover capabilities for handling traffic that needs to be redirected to the hot standby data center, primarily through the use of two health-monitoring scripts that are triggered by BigIP.
In the event of a network failure, CashPro Online has 24/7 support and contingency plans in place to achieve continuity for receipt of critical data and maintenance of norma l business operations.
Wire Transfers Bank of America has three primary operating sites for our USD wire transfer processing. Our primary sites each have a business resumption site with access to independent power grids and labor resources.
In addition to the business resumption sites, we use our operations expertise globally to provide further strength to contingency planning. The Global Wire Operations teams located in countries around the world can also support the USD operational needs in contingency situations.
If a situation arises that requires Wire Transfer Services to use our business resumption sites, procedures are enacted to ensure the physical relocation of the wire operations processes into the contingency environment. This is expected to take from two to three hours, in most cases. During that timeframe, other production sites will assume processing until the resumption site is up and running.
Normally, backup plans are tested quarterly, with live processing once a year. During tests, Bank of America's ability to reconfigure computer hardware is exercised, along with the ability to test software and programs, switch networks and process critical applications.
Check Processing
Operations
We have an internal recovery strategy for check processing; one located in the eastern part of the U.S. and one in the western part. The facilities not only provide recovery for capture of the checks, but for all supporting bank functions.
A number of teams are in place to support the recovery effort, ensuring that the site is adequately staffed. Testing of all aspects of the process and of all processing sites is conducted regularly.
Real disaster recovery implementations
Bank of America has a history of responding quickly and effectively to natural and man-made disasters. From a global perspective, we have never lost our direct file delivery operations site or computer hardware. Business continuity will continue to evolve and grow in importance at all organizations and Bank of America is committed to remain an industry leader.
For additional details, please see the Business Continuity/Disaster Recovery Program Letter in the Appendix (Appendix 08).
EXHIBIT B
Bank of America Merrill Lynch Tab XXVII —Red Flag Requirements|64 “Best Overall
Identity Safety in
Banking”
Bank of America has been
awarded this recognition
by Javelin Strategy &
Research for ten
consecutive years.
Tab XXVII —Red Flag Requirements
Describe the bank’s efforts to comply with Federal Red Flag requirements Bank of America was named “Best Overall Identity Safety in Banking” for 10 consecutive years by Javelin Strategy & Research — a leading provider of independent industry specific quantitative research. We participate in a quarterly risk management program to monitor fraud-related activities and we are committed to working with and bringing to our clients our expertise on fraud-related areas of concern.
Protection of client data is top priority at the bank. We have extensive and vigorous processes and procedures for how customers’ confidential information is managed — processes and procedures which are designed to fully comply with, and in many respects to exceed, rigorous federal banking guidelines.
Policies and procedures around information security have been established and all privacy laws and rights are followed throughout all levels of the organization.
In addition, a specific Enterprise Information Management (EIM) InfoSafe unit has been established to quickly address any potential breach of information security and deliver appropriate client communications.
Every system housing client data has the highest level of security in order to protect client information. The transmission of any files via File Transmission Protocol (FTP) is secured by PGP encryption and each party must have an encryption key to unlock the transmitted files. All web-based applications use encryption and password protection to protect from unauthorized access. Bank of America audits and conducts independent reviews to test the various security provisions.
We are also required to allow annual compliance review by the Federal Examiners from the Office of the Comptroller of the Currency and the Federal Reserve Bank to validate compliance with Federal Financial Institutions Examination Councils regulations.
A primary function of Bank of America’s EIM InfoSafe team is to investigate and respond to incidents reported.
Any incidents that are reported to the InfoSafe team are thoroughly investigated and responded to according to the severity of the incident. The InfoSafe team will engage the Incident Response Team as the incident is being investigated.
Frontline protection
User identification and passwords are the first line of defense in securing data. All laptop computers are required to remain secured while unattended. All computer and system access is controlled and monitored by the bank, and audit logs are maintained to track access. Our policies strictly prohibit password sharing.
Inappropriate access to systems and data will result in disciplinary action, up to and including termination.
EXHIBIT B
Bank of America Merrill Lynch Tab XXVII —Red Flag Requirements|65 Layered security
Our award-winning treasury management channel, CashPro Online, offers a layered security model. This end-to- end security framework includes front end authentication, transaction processing tools and back end controls to help combat fraud. CashPro integrated solutions leverage numerous monitoring and security tools designed to work together to fortify your defense against fraud. To further strengthen the City’s defense, you can leverage user administration options.
Users access CashPro Online by means of unique
user credentials (Company ID/User ID) and
passwords, along with risk monitoring
authentication. In addition, transport layer protocol
continuously verifies the identity of each party
during transmissions, and encrypts messages to
retain privacy and unaltered content. Firewalls
protect data from unauthorized access, while data
encryption protects transaction information as it
travels over the internet.
Multiple levels of approval and security tokens
provide an additional safeguard and control for select higher risk transactions. Tokens for use in high risk applications are required, not optional. Depending upon the high risk application, the token may be used at entry to the application or when approving transactions. You have the option of requiring these additional levels of approval and security tokens at login, as well.
Physical security
We use buildings with robust security features to house client transaction information and program software.
Independent auditors and security specialists test the physical security of these buildings throughout the year.
Any vendors we contract with also are required to be independently audited on an annual basis. Details of the actual locations and/or security measures in place are confidential and cannot be disclosed.
Diligent risk monitoring
Risk monitoring authentication at login validates a user’s credentials using a number of factors, such as network information, user information, positive device identification and user profiling. All sessions use transport layer security encryption protocol that continuously verifies the identity of each party during the session, encrypting messages to help protect their privacy and prevent alteration.
The bank’s security operation center provides around-the-clock monitoring every day to help detect unauthorized network and application activity. Audit logs, customized authorization, entitlements and dual administration allow you to control system access and privileges.
EXHIBIT B
Bank of America Merrill Lynch Exhibits|66
Exhibits
Tab A: Contract Samples
Include the Proposer’s standard Deposit Account Disclosure, Cash Management or Treasury Terms and Conditions, Contract For Deposit of Moneys, a sample Service Agreement, Signature Card, Schedule of Fees and Charges, and any other standard documents that the bank would normally require to open an account and set up services for a public entity.
Please see the following documents in the Appendix (Appendix 9a-9g):
Contract for Deposit of Moneys
Schedule of Fees
Deposit Agreement and Disclosures
Sample Signature Card
Signature Card Instructions
Banking Resolution and Certificate of Incumbency
Banking Resolution and Certificate of Incumbency Instructions Additional documentation will vary based on the type of service requested by the City.
Also, please note that the City of Fresno currently has a signed Terms and Conditions document in place with Bank of America. If re-awarded the Banking Services contract, our desire is to negotiate a similar document with the City.
EXHIBIT B
Bank of America Merrill Lynch Exhibits|67
Tab B: Annual Report and Ratings
Provide the most recently audited financial statements or annual report of the financial institution. Also include your most current Standard & Poors, Moody’s, and Bauer Financial ratings.
A key priority for Bank of America Merrill Lynch has been to strengthen our balance sheet by selling non-core assets, generating capital and maintaining strong liquidity levels. Trends show sustained improvement in capital generation, which is a clear demonstration that our execution is in line with our priorities.
Financial highlights
Q2-17 net income of $5.3 billion1
Revenue, net of interest expense, increased 7% to $22.8 billion from $21.3 billion
Capital and liquidity remain strong1
More than $2.2 trillion in total assets, more than $1.2 trillion in deposits and $916 billion in loans/leases The Basel 3 Advanced approaches common equity tier 1 (transition) was 11% and the Basel 3 Advanced approaches common equity tier 1 (fully phased-in) was 11% at June 30, 2017 2 Global Liquidity Sources was $514B; time to required funding at 49 months
Strong credit/loan activity1
Provision for credit losses declined 26% to $726 million from $976 million; net charge-offs declined 8% to $908 million from $985 billion3
Global Banking loan balances increased $10.7 billion
The Bank of America Merrill Lynch web address is www.bankofamerica.com. For the latest financials and annual report, visit www.bankofamerica.com/investor.
Credit Ratings as of July 17, 2017
The most recent credit ratings for Bank of America Corporation and Bank of America, N.A. are below.
Moody’s Standard & Poor’s Fitch
Bank of America Corporation
Outlook Positive Stable Stable
Long-term senior Baa1 BBB+ A
Short-term P-2 A-2 F1
Subordinated Baa3 BBB A-
Trust Preferred Ba1 BB+ BBB-
Preferred Stock Ba2 BB+ BB+
Bank of America, N.A.
1 All statements speak as of, and only at, June 30, 2017, unless otherwise noted. 2 Basel 3 fully phased-in Advanced approaches estimates assume approval by U.S. banking regulators of our internal models methodology (IMM) for calculating counterparty credit risk regulatory capital for derivatives. As of June 30, 2017, we did not have regulatory approval of the IMM model.
3 Q2-2017 Bank of America Corporation Earnings Report
EXHIBIT B
Bank of America Merrill Lynch Exhibits|68
Moody’s Standard & Poor’s Fitch
Outlook Positive Stable Stable
Long-term senior A1 A+ A+
Long-term deposit A1 A+ AA-
Subordinated A2 BBB+ A-
Short-term P-1 A-1 F1
Additional credit ratings information is available using this Investor Relations link.
EXHIBIT B
Bank of America Merrill Lynch Exhibits|69
Tab C: Account Analysis
Provide a sample of your financial institution’s account analysis and a use guide for the account analysis.
A Guide to Reading Your Analysis Statement, which includes a sample statement along with definitions and calculations, is in the Appendix (Appendix 10). A sample account analysis statement is below.
EXHIBIT B
Bank of America Merrill Lynch Exhibits|70
Tab D: Disclosures
Provide a disclosure of any litigation or administrative proceedings that your financial institution is currently involved with, including any investigations being conducted by State or Federal bank regulators, the Attorney General’s Office, Fair Political Practices Commission, or Consumer Protection Offices.
The bank is a large and diversified institution and is routinely involved in litigation in various state and federal courts. The bank makes all disclosures required by its regulators, including all required disclosures in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, which are updated in Reports on Form 8-K, all of which are filed with the Securities and Exchange Commission. Those reports include disclosures of investigations and other matters as required by federal law and are publicly available. The bank cannot confirm or deny the existence of any other, non-public investigation conducted by any government investigator unless required to do so by law.
EXHIBIT B
Bank of America Merrill Lynch Exhibits|71
Tab E: Pricing Schedule
Provide a schedule of the bank’s standard pricing for all services offered by the bank.
All pricing for this contract is detailed in Tab XVII – Pricing Schedule.
Pricing is unique to each client, developed based on services required, volumes, etc. Therefore, there is no schedule of the bank’s “standard” pricing for all Treasury services offered.
EXHIBIT B
Bank of America Merrill Lynch Clarifications|72
Clarifications
Pages 9 &13 (Required Services & Format of Proposal)
We respectfully request that the attached Treasury Terms and Conditions be incorporated in the RFP response and into the final contract. The bank is confident that we can successfully negotiate a mutually agreeable contract with the City.
The bank respectfully requests that the City pay us for each service you use in accordance with the schedule of charges we prepare for you. In accordance with the Terms and Conditions, we will, on a quarterly basis, debt your account for payment of charges due, unless you arrange another payment procedure acceptable to us.
The bank is agreeable to a term of five (5) years, but would like the two one (1) year extensions or one two (2) year extension to be by mutual written agreement.
The bank endeavors to comply with all federal and state laws pertaining to financial institutions.
EXHIBIT B
Bank of America Merrill Lynch Disclosures|73
Disclosures
Please note that the quoted terms, conditions, and pricing are valid for 180 days from the proposal due date, unless expressly reaffirmed in writing.
Some services offered to the City within this proposal response are subject to the initial and subsequent satisfactory review of the financial statements of the City, approval by Bank of America, N.A. and satisfactory completion of any necessary bank documentation.
Bank of America continually evaluates, adapts and modifies our financial center retail network, operations centers and platforms to fit the evolving needs of our customers and our business. Therefore, the financial center, vault and/or processing center hours of operation, locations and platforms, while current as of this proposal, are subject to change in the future. Any changes will be communicated in a timely and comprehensive manner.
Bank of America, N.A. offers a wide array of services to its clients. Each service has many features and options. In the course of providing these services we may employ agents, employees or subcontractors (vendors) to service all of our clients utilizing a service in general rather than to service a particular client. In general, we will disclose in a proposal response any agents, employees or subcontractors (vendors) retained by us exclusively for, and which are dedicated solely to, the provision of services to a specific client and/or contract.
© 2016 Bank of America Corporation.
“Bank of America Merrill Lynch” is the marketing name for the global banking and global markets businesses of Bank of America Corporation. Lending, derivatives, and other commercial banking activities are performed globally by banking affiliates of Bank of America Corporation, including Bank of America, N.A., member FDIC. Securities, strategic advisory, and other investment banking activities are performed globally by investment banking affiliates of Bank of America Corporation (“Investment Banking Affiliates”), including, in the United States, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Merrill Lynch Professional Clearing Corp., both of which are registered broker-dealers and members of SIPC, and, in other jurisdictions, by locally registered entities. Merrill Lynch, Pierce, Fenner & Smith Incorporated and Merrill Lynch Professional Clearing Corp. are registered as futures commission merchants with the CFTC and are members of the NFA. Investment products offered by Investment Banking Affiliates: Are Not FDIC Insured * May Lose Value * Are Not Bank Guaranteed
EXHIBIT B
Bank of America Merrill Lynch Appendix|74
Appendix
01-Redline Revision of the Sample Agreement
Availability Schedules
— 02a-Branch
— 02b-Image Cash Letter
— 02c-Remote Deposit
— 02d-Vault
03-DTS Web Change Order Service
04-Payee Positive Pay Client Overview
05-Attachment A – Pricing Proforma
06-Bank of America at Work Overview
07-Bank of America Merrill Lynch Code of Conduct
08-Business Continuity/Disaster Recovery Program Letter 09a-Contract for Deposit of Moneys
09b-Schedule of Fees
09c-Deposit Agreement and Disclosures
09d-Sample Signature Card
09e-Signature Card Instructions
09f-Banking Resolution and Certificate of Incumbency
09g-Banking Resolution and Certificate of Incumbency Instructions 10-A Guide to Reading Your Account Analysis Statement 11a-Addendum No. 1
11b-Addendum No. 2
11c-Addendum No. 3
11d-Addendum No. 4
11e-Addendum No. 5
EXHIBIT B
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
REQUEST FOR PROPOSALS
Banking Services
RFP No. 9412
YES* NO
1 Are you currently in litigation with the City of Fresno or any of its agents?
2 Do you represent any firm, organization or person who is in litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients who do business with the City of Fresno?
4 Are you or any of your principals, managers or professionals, owners or investors in a business which does business with the City of Fresno, or in a business which is in litigation with the City of Fresno? 5 Are you or any of your principals, managers or professionals, related by blood or marriage to any City of Fresno employee who has any significant role in the subject matter of this service? 6 Do you or any of your subcontractors have, or expect to have, any interest, direct or indirect, in any other contract in connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature
Patty Ramirez
(name)
Bank of America Merrill Lynch
(company)
275 Valencia Ave.
(address)
Brea, CA 92823
(city state zip)
Additional page(s) attached (see following page):
Bank of America Merrill Lynch is a large and diversified institution and is routinely involved in litigation in various state and federal courts. The bank makes all disclosures required by its regulators, including all required disclosures in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, which are updated in Reports on Form 8-K, all of which are filed with the Securities and Exchange Commission. Those reports include disclosures of investigations and other matters as required by federal law and are publicly available. The bank cannot confirm or deny the existence of any other, non-public investigation conducted by any government investigator unless required to do so by law.
AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) CONFIDENTIAL ©Bank Of America Corporation
TREASURY SERVICES TERMS AND CONDITIONS BOOKLET
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 Negotiated Treasury Services Terms And Conditions Booklet on February 13, 2018 (the “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 c onditions. Please read this Booklet carefully and keep it for your records.
By signing and returning the Authorization and Agreement for Treasury Services form, 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. To assist in our establishment and maintenanc e of overdraft limits, any payment instructions and any electronic access to the Services and to assist in our compliance with any applicable laws, rules and regulations, you shall provide us with any information we request, including but not limited to, financial information about you and identification information and documentation about you and your employees and any representatives authorized by you to conduct transactions on your behalf.
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.
THE ENTIRETY OF THE GENERAL PROVISIONS SECTION OF THIS BOOKLET TOGETHER WITH THE
APPLICABLE SERVICE SECTIONS HEREIN FORMS THE AGREEMENT BETWEEN YOU AND US WITH RESPECT TO THE SERVICES DEFINED THROUGHOUT THIS BOOKLET.
AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) CONFIDENTIAL ©Bank Of America Corporation
TABLE OF CONTENTS
TREASURY SERVICES ................................................................................................................................................................. 1 ACCOUNT RECONCILEMENT .................................................................................................................................................... 1 AUTOMATED CLEARING HOUSE (ACH) ................................................................................................................................... 1 AUTOMATED CLEARING HOUSE (ACH) AUTHORIZATION TO RECEIVE ............................................................................... 3 ACH POSITIVE PAY ..................................................................................................................................................................... 4 BANK-PRINTED DRAFTS ............................................................................................................................................................ 5 BILLPAY AND INVOICE MANAGEMENT ................................................................................................................................... 5 CASHPAY® .................................................................................................................................................................................. 8 CHECK ISSUANCE AND DOCUMENT PRINTING ...................................................................................................................... 9 COIN AND CURRENCY ORDERS .............................................................................................................................................. 10 COLLECTION LETTERS ............................................................................................................................................................ 10 COMMERCIAL DEPOSITS ......................................................................................................................................................... 11 COMMERCIAL PREPAID CARD ................................................................................................................................................ 16 CONTROLLED BALANCE ACCOUNTS ..................................................................................................................................... 17 CONTROLLED DISBURSEMENT .............................................................................................................................................. 18 DATA AGGREGATION AND USAGE SERVICE ......................................................................................................................... 19 DIGITAL DISBURSEMENT SERVICE ......................................................................................................................................... 21 ELECTRONIC BILL PAYMENT CONSOLIDATION ................................................................................................................... 23 ELECTRONIC DATA INTERCHANGE (EDI) ............................................................................................................................... 23 ELECTRONIC FOREIGN EXCHANGE ........................................................................................................................................ 24 ELECTRONIC STOP PAYMENT ................................................................................................................................................ 25 IMAGE SERVICES ...................................................................................................................................................................... 26 INFORMATION REPORTING .................................................................................................................................................... 26 LOCKBOX .................................................................................................................................................................................. 27 NOTIFICATION SERVICE .......................................................................................................................................................... 28 PAYMENT PROCESSING SERVICE ........................................................................................................................................... 28 POSITIVE PAY ........................................................................................................................................................................... 29 RECEIVABLES MATCHING ....................................................................................................................................................... 31 RE-PRESENTMENT CHECK (RCK) ............................................................................................................................................ 33 TAX PAYMENTS ........................................................................................................................................................................ 33 TAXPAY AND BILLPAY ............................................................................................................................................................. 35 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) CONFIDENTIAL ©Bank Of America Corporation WIRE TRANSFERS AND INTERNATIONAL ELECTRONIC FUNDS TRANSFERS .................................................................... 37 ELECTRONIC TRADE SERVICES ............................................................................................................................................... 40 COLLECTIONS .......................................................................................................................................................................... 40 STANDBY AND COMMERCIAL LETTERS OF CREDIT AND GUARANTEES ISSUED .............................................................. 41 BANK PAYMENT OBLIGATION - BUYER ................................................................................................................................. 43 OPEN ACCOUNT ....................................................................................................................................................................... 43 STANDBY LETTERS OF CREDIT-ADVISED (CONFIRMED/UNCONFIRMED) ......................................................................... 44 COMMERCIAL LETTERS OF CREDIT–ADVISED (CONFIRMED/UNCONFIRMED) .................................................................. 45 INFORMATION REPORTING AND IMAGE ACCESS ................................................................................................................ 46 SUPPLEMENTAL CD-ROM/ DVDS SOFTWARE LICENSE PROVISIONS ................................................................................ 46 SUPPLY CHAIN ......................................................................................................................................................................... 47 SUPPLEMENTAL LIMITATION OF LIABILITIES AND INDEMNIFICATION FOR ALL ELECTRONIC TRADE .......................... 47 GENERAL PROVISIONS ............................................................................................................................................................ 49 ACCESSING SERVICES VIA THE INTERNET ............................................................................................................................ 49 CHANGES TO A SERVICE ......................................................................................................................................................... 49 COMMUNICATIONS ................................................................................................................................................................. 50 CONFIDENTIALITY ................................................................................................................................................................... 50 CURRENCY EXCHANGE RATES ............................................................................................................................................... 51 NOTICE OF ACCOUNT STATEMENT DISCREPENCIES ........................................................................................................... 52 E-STATEMENTS ........................................................................................................................................................................ 52 FACSIMILE SIGNATURES ......................................................................................................................................................... 52 THIRD PARTY VENDORS .......................................................................................................................................................... 52 GENERAL MATTERS ................................................................................................................................................................. 53 GOVERNING LAW ..................................................................................................................................................................... 54 SECURITY PROCEDURE ........................................................................................................................................................... 54 LIMITATION OF LIABILITIES .................................................................................................................................................... 54 OVERDRAFTS ........................................................................................................................................................................... 55 PAYMENT FOR SERVICES ........................................................................................................................................................ 55 PROTECTION FROM THIRD PARTIES ...................................................................................................................................... 56 REPRESENTATIONS AND WARRANTIES ................................................................................................................................ 56 RESOLUTION OF DISPUTES .................................................................................................................................................... 56 SOFTWARE LICENSE ................................................................................................................................................................ 56 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) CONFIDENTIAL ©Bank Of America Corporation SUSPENSION AND TERMINATION ......................................................................................................................................... 59 GLOSSARY OF TERMS ............................................................................................................................................................. 61 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 1
CONFIDENTIAL ©Bank Of America Corporation
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 c urrently 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 activit y in your accounts .
Detailed information regarding the features offered for 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 ap plicable 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 processed within the United S tates of America and its territories. This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services defined herein.
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 or processor. Each ACH Service is described in the applicable User Documentation. You authorize us to issue paper instruments or items, such as drafts, or remotely created checks, (collectively, “RCCs”) , 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; LAWS; AND ADDITIONAL REQUIREMENTS You agree to comply with the NACHA Rules for all Entries, whether or not an Entry is sent t hrough a processor or the ACH network. You act as Originator and we act as Originating Depository Financial Institution (ODFI) with respect to Entries.
You will utilize the ACH service to us as provided in the User Documentation and the NACHA Rules , including, but not limited to, the delivery of 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 . For Entries that may be processed directly to accounts with us or other processor , debits and returns may be reported on next day information reporting. The User Documentation will govern if such timing conflicts with the NACHA Rules.
You agree to comply with applicable laws and re gulations. You may not use this Service for any illegal transaction or activity, including under the regulations and laws of the receiver of your transaction. Your compliance includes adherence to applicable laws and regulations, including United States ec onomic sanctions laws and regulations, regulations issued by the Office of Foreign Assets Control of the U.S. Depart ment of the Treasury and Executive Orders issued by the President of the United States.
You agree to cooperate with us fully to facilitate our adherence to guidance provided by any regulatory body, including, but not limited to, the Office of the Comptroller of the Currency (“OCC”), including guidance concerning risk management of ACH or any other Service. For this purpose, you agree that we may mandate specific internal controls at your locations, audit your operations and/or request additional information. We may restrict either your initiation or re -initiation, or apply certain risk management rules at our discretion. We may mo nitor, assess and enforce limitations on initiation and return activity.
If you originate on behalf of any other party, you also represent and warrant that you will monitor, assess and enforce limitations in accordance with the NACHA Rules.
If you originate on behalf of any other entity, we may require information regarding such entity to verify your customer and the nature of their business. If you are acting as a third party payment processor or a third party sender as defined by NACHA Rules, we may request that you furnish us with additional information . Such information may include, without limitation, AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 2
CONFIDENTIAL ©Bank Of America Corporation
data: (i) regarding your financial condition; (ii) verifying your customers and the nature of their businesses; and (iii) sufficient for us to determine whether you are working with additional ODFIs . You agree to comply with all audit requirements under the NACHA rules, and agree to provide proof of compliance upon our request.
Where a preauthorized debit Entry from a consumer’s account varie s 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.
If you make Int ernational ACH Transactions (“IAT”) using the Service such transactions are subject to the terms of this section for the portions of the transaction that occur and are processed within the United States of America and its territories.
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.
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 the applicable section(s) 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, using a S tandalone Account. If your account is not a S tandalone Account, we may at any time convert it to a Standalone Account for prefunding. 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.
We generally credit your account on the settlement date for debit Entries (including credit Reversals), unless such Entries are subject to ACH Managed Processin g which will delay settlement for the Entries as further described in the User Documentation for the ACH Service being used.
You will pay us for the amount of any returned debit Entries (including rejected debit Entries), any adjustment Entries or an y returned RCCs, 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 RCCs which have been returned unpaid. You may request reports containing information regarding returned debit Entries and RCCs.
ACTING ON ENTRIES
We send Entries to the ACH processor or other bank or processor for settlement on the Effective Entry Date shown on the Entries or a delayed settlement date if such Entries are subject to ACH Managed Processing , 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 t he 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 the Booklet or the applicable User Documentation, including any ACH processing and/or exposure 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 or may require your Entries to be subject to ACH Managed Processing. we will give notices of rejection and/or Entries becoming subject to ACH Managed Processing. We may also, without prior notice to you, no longer accept or process your debit Entries or may require your Entries to be subject to ACH Managed Processing.
Notice of rejection and/or Entries becoming subject to ACH Managed Processing 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 or ACH Managed Processing requirement of any Entry and are not obligated AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 3
CONFIDENTIAL ©Bank Of America Corporation
to pay you interest for the period before you receive the notice of rejection or ACH Managed Processing requirement . 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 ma ke 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 (for example, but not limited to, if it is returned for non- sufficient funds). 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 and UPIC 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 t he 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 (i) for a debit Entry subject to ACH Managed Processing, or (ii) for a debit Entry or cr edit 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. Our rights under this subsection shall survive termination of the Service and/or the Booklet.
INCONSISTENCY OF NAME AND NUMBER
An RDFI 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 RDFI based solely on the bank identifying number you provide, even if you provide us with a different RDFI name.
SUPPLEMENTAL TERMINATION
This subsection supplements the Suspension and Termination section. If you originate on behalf of any other entity, and we determine, in our sole discretion, that we no longer wish to process transactions for such entity, Services may be suspended, modified or amended.
AUTOMATED CLEARING HOUSE (ACH) AUTHORIZATION TO RECEIVE This section applies only to ACH Authorization to Receive Services for Entries received in the United States of America.
With the ACH Authorization to Receive 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 return an Entry that would be returned for any reason under the NACHA Rules. The ACH Authorization to Receive Services do not apply to transactions between you and us, and we may pay Entries which you have authorized us to originate agai nst 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 EPN Rules, operating circulars or any other applicable rule, guideline or regulation.
You are responsible for providing authorization criteria in a manner and form acceptable to us. In your authorization criteri a 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 fina l settlement and final settlement is not received, we may charge your account for any amount previously credited to your account. In this instance, the person who originated the credit Entry is considered not to have paid you and we do not send a separate notice regarding such failed payment.
If an ACH Authorization to Receive 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.
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If you also subscribe to our ACH Positive Pay Service s as described in this Booklet , you will still need to make your pay or return decisions under your ACH Positive Pay Service s. Such decisions will supersede the terms contained in your ACH Authorization to Receive Services.
SUPPLEMENTAL TERMINATION
This subsection supplements the Suspension and Termination section, if we have assisted you in obtaining a UPIC. We may terminate this Service immediately and send you notice of the termination if we, in our sole discretion, no longer wish to provide this Service.
ACH POSITIVE PAY
Our ACH Positive Pay Services allow you to i dentify exception items, and to instruct us whether to pay or return those items .
An exception item is an ACH Entry not previously authorized by you.
On each Business Day, we notify you of ACH debit and credit Entries presented to us for settlement on that Business Day and which we have identified as exceptions based on authorization information you have provided to us (as more fully described in the applicable User Documentation). Exceptions are determined by comparing ACH Entries presented to us (including by other depository institutions, ACH operators or by us) with the authorization instructions you have provided.
Alternatively, you may choose not to authorize any ACH Entries, in which case we will treat all such ACH Entries 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 ACH Entries you want us to pay/accept or which to return. If you fail to notify us by the deadline, we will handle the exce ption items in accordance with the prescribed default procedure as outlined in the User Documentation.
Where required, you will indicate which ACH Entries you want us to return, having been deemed by you to be unauthorized.
Our deadlines , return procedures and procedures for authorizing ACH Entries 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 wish to contact your trading partner or ACH customer support for further information . This will not however extend your deadlines to pay or return.
Before using the ACH Positive Pay Services, you must entitle, in a form or manner acceptable to us, the persons authorized by you to perform certain duties in connection with such ACH Positive Pay Services.
You must access the daily reports of exception items via one of our Website s. Using such Website, you must then notify us which exception items to pay/accept or which to return. If you fail to notify us by the dea dline, we will handle the exception items in accordance with the prescribed default procedure as outlined in the User Documentation.
Where available, we provide you a report of exception items . You must then notify us which items to pay/accept or which to return. If you fail to notify us by the deadline, we will handle the exception items in accordance with the prescribed default procedure as outlined in the User Documentation.
Where available you may request to receive certain types of notifications of your exception items . These notifications are further described in the applicable User Documentation.
By using the ACH Positive Pay Services, you authorize us to return ACH Entries or to pay/accept ACH Entries in accordance with your authorization instructions and the return procedure in the applicable User Documentation. We will have no liability for payment of an ACH Entry which is unauthorized if (i) the ACH Entry is included in a report of exception items; and (ii) you do not give us timely instructions to return the ACH Entry.
You acknowledge that our ACH Positive Pay Services do not preclude our standard ACH processing procedures, which may cause an ACH Entry to be dishonored even if your instructions do not otherwise require us to return such ACH Entry.
You acknowledge that if we receive an ACH Entry after the deadline, which is identified as an exception item, the exception item will be handled as more fully described in the applicable User Documentation.
You acknowledge that our ACH Positive Pay Services are intended to be used to identify and return ACH Entries which you suspect in good faith are unauthorized. They are not intended to be used as a substitute for authorization instructions or to delay your pay/accept return decisions on exception items, including and not limited to stop payment orders on ACH Entries which are not suspected in good faith to be unauthorized. If we suspect or deem, in our sole discretion, that you are using the ACH Positive Pay Services contrary t o those intentions, we may require you to provide evidence that ACH Entries we return pursuant to your instructions were in fact unauthorized . In addition, we may hold you liable for losses we sustain on ACH AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 5
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Entries which we are requested to return under such ACH Positive Pay Services and which you do not reasonably establish as unauthorized ACH Entries.
ACH Positive Pay Services do not apply to transactions between you and us . 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.
If you also subscribe to our ACH Block and Authorization Services , you will still need to make your pay or return decisions under your ACH Positive Pay Services . Such decisions will supersede the terms containe d in your ACH Block and Authorization Services.
BANK-PRINTED DRAFTS
Using the Bank-Printed Drafts Service you may request us to issue a bank draft by submitting a Payment Advice using your computer (using Software we provide or by accessing a Website) or send ing us a data file transmission, to print drafts (which may include drafts denominated in a currency other than the currency in which the relevant account is denominated) drawn on accounts designated and owned by us . In processing your Payment Advice we will apply the exchange rate that you obtained from one of our trading centers, online or assigned by us , as more fully described in the User Documentation. W e will print the draft and mail it to the address that you provide with your Payment Advice . We will debit your account for the amount of any Payment Advice that you send to us.
For drafts issued by us on your behalf, we reserve the right to place a stop payment on drafts that remain uncleared beyond timelines as defined by us in the User Documentati on. If we place a stop payment on a draft for this reason then we will return funds to you according to our returns process, as defined in the User Documentation.
AUTHORIZED PERSONS
Before using a Bank -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.
STOP PAYMENT REQUESTS
Generally, you may send us a request to stop payment 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 first complete and provide us with a declaration of loss and indemnity agreement reasonably acceptable to us. A stop payment will not be effective until we first receive your completed declaration of loss and indemnity agreement; ha ve had a reasonable amount of time to review and approve it; and then have reviewed our records to determine that the draft has not already been paid.
YOUR RESPONSIBILITIES
You must create and transmit to us a Payment Advice for each draft you issue using the 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 the Service if you have not received an acknowl edgment 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 print drafts as requested by you in your Payment Advice.
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 at the time stated in the applicable User Documentation.
BILLPAY AND INVOICE MANAGEMENT
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You may use the Bill Payment Feature, the Invoice Management Feature and other related services, provided through our designated Website, and explained in the applica ble User Documentation. This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services de fined herein. You may only access the Service through the Bank’s designated Website and use the Service to request us to make bill payments on your behalf to Vendors in payment of invoices and bills that you received from such Vendors. We will process your bill payment request by means of an ACH credit entry to the bank account of the Vendor, by mailing a check on your behalf to the Vendor, or by other electronic payment means. You may use the Service to receive invoices sent to you from Vendors that choose to deliver invoices to you via the Service. You also may upload through the Service images of invoices that you receive directly from Vendors. You may view and manage these invoices through the Service.
INVOICE MANAGEMENT FEATURE
The Service includes an o nline Inbox where you can upload, store, index and manage your Bills and Documents. You may upload Bills and Documents to your Service Inbox directly through the Service Website or by email using the email address assigned to your Service Inbox. You also m ay authorize Vendors to send Bills and Documents to the Service Inbox using the email assigned to it. We are not responsible for Bills that are misdirected or not received in your Inbox. You should regular ly review your Inbox to confirm that expected Bills from Vendors are received there. You will resolve disputes regarding invoices from Vendors directly with such Vendors and we have no responsibility with respect to such disputes.
You also may submit and store other remittance information to the Service, including address and bank account and routing information for a Vendor. You are responsible for verifying the accuracy of the Vendor information prior to scheduling a Payment Transaction, and we will have no liability for losses or damages due to you or your Vendor’s actions or inactions. If you input a Vendor’s bank routing number and bank account number, you represent and warrant that (i) this information is accurate and correct, and (ii) you have obtained from the Vendor any required authorizat ions, including the authorization to disclose the Vendor’s account information and to request us to initiate ACH debit or credit entries, as applicable, to the Vendor’s bank account in accordance with your Payment Transaction Request and, if necessary, the initiation of adjustments for any transactions debited or credited in error.
By providing us with the name and bank account information of a Vendor to whom you wish to direct bill payments, you authorize us to use and follow this information when processi ng your Payment Transaction Requests to that Vendor. In order to process Payment Transactions more efficiently and effectively, we may submit payments to the best known Vendor address based on information in the Vendor Database. When necessary, we may alter payment data or data formats or change or reformat your Vendor’s bank account number and routing information to match the account number or format and/or routing information required by your Vendor for electronic payment processing or as set forth in the Vendor Database.
BILL PAYMENT FEATURE
Scheduling Bill Payment. To make a payment to a Vendor for a Bill, you may use the Service to schedule a Payment Transaction and select the Process Date on which we will debit the Payment Account to originate the Paym ent Transaction.
The Service will indicate the earliest possible Process Date for each Payment Transaction Request and will calculate an estimated Arrives By Date. We will use commercially reasonable efforts to issue the Payment Transaction within two business days following the Process Date, depending on the size of the payment and subject to our own review of the Payment Transaction Request. We will determine the payment method for each scheduled Payment Transaction Request.
You are solely responsible for scheduling Payment Transactions and selecting a Process Date for each payment that allows sufficient time for the payment to be delivered on or prior to the due date on the Bill. We make no representation or warrant y to you that a Payment Transaction will be received by the Vendor or credited to the Vendor’s bank account on or before the Arrives By Date. Regardless of the Process Date selected by you, we shall have no liability to you or your Vendor in the event that you incur a late fee or other financial liability to a Vendor arising from a delayed, undelivered, or late payment.
Payment Method and Transaction Limits. You may, through the Service, request that we process a Payment Transaction Request as a check payment or as an ACH credit entry payment or other electronic payment; provided, however, that we reserve the right to select the method by which to process a Payment Transaction Request. ACH credit entry payments and other electronic payments may only be made to U.S. domestic bank accounts. All othe r payments made through the Service must be made by issuance and mailing of a check to a U.S. address. We may, in our sole discretion, impose limits on the amount of money sent through the Service, on a per -transaction or a cumulative basis, and change those limits at any time AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 7
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without prior notice to you. You may not submit a Payment Transaction Request that would require the processing of an international ACH transaction (IAT).
Processing Bill Payments. You hereby authorize us to debit your Payment Account for the amount of each Payment Transaction Request and remit funds in accordance with your Payment Transaction Request through the ACH network or other electronic funds network or by paper check, as determined by us in our sole discretion. We may debit your Payment Account by means of an ACH debit or direct posting/book transfer. You are responsible for maintaining collected and available funds in the Payment Account in an amount sufficient to pay for all debits to fund the Payment Transaction Requests on or before the Process Date. We are not obligated to process any Payment Transaction Requests, 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. We may post these debits to your Payment Account even if the debits cause your Account to have a negative intraday balance or to be in an overdraft position. After the Process Date and prior to origination of the ACH credi t entry or payment of the issued chec k, funds deducted from your Payment Account will be held in a master bank account or general liability account at the Bank. You acknowledge and agree that you have no ownership interest or right to the funds in this bank account. This bank account arrangem ent does not create a trust or other fiduciary obligations on the part of us to you.
Issuance of Check Payments. You hereby authorize us to print and issue a paper check drawn by you, and to indicate on such check that you are the drawer and/or that you have authorized the drawing of the check. We may be identified on the check as the drawee bank. You agree that we shall not have any liability to you or any other person on the check as an endorser, a drawer or a co-signer or in any other capacity. You ac knowledge and agree that in the event of a returned check or other non- payment of an issued check, you may be subject to claims from third parties under law in your capacity as drawer of the check. In addition to any other indemnification provided herein , you further agree to indemnify us for any loss, damage or claim arising from our issuance of a check in accordance with your Payment Transaction Request.
Returned Transactions. A Vendor, a Vendor’s bank or the United States Postal Service may return a Pa yment Transaction for various reasons such as, but not limited to, Vendor’s forwarding address expired, invalid bank routing number, invalid bank account number, Vendor remittance address is not correct, Vendor is unable to identify an account, or a Vendor account is paid in full. In addition, a Vendor may refuse to accept a Payment Transaction. We will use commercially reasonable efforts to provide you with notice of a returned Payment Transaction. You agree that we shall not have any liability for any re turned Payment Transaction or any resulting loss or damage that you may incur. Unless otherwise directed, we will void such returned Payment Transaction and credit the returned Payment Transaction to your Payment Account.
Payment Cancellation Requests. You may cancel, reschedule or modify a Scheduled Payment Transaction prior to the time that we begin processing it, subject to any restrictions set forth in the User Documentation. You may only cancel, reschedul e or modify a Scheduled Payment Transaction through the Service Website. Once we have begun processing a Payment Transaction, it cannot be cancelled, rescheduled or modified by you. In addition, we reserve the right in our sole discretion to suspend or cancel any Scheduled Payment Transaction if your Payment Account or your use of the Service is not in good standing, as determined by us in our sole discretion. We will credit back to the Payment Account any debits previously made to fund a cancelled Scheduled Payment Transaction.
Stop Payment Requests. You may use the Service to place a stop payment on a Payment Transaction that is processed by means of a check payment. There is no stop payment option for a Payment Transaction that is processed by ACH credit or other electronic payment. Our ability to pr ocess a stop payment request on a check payment depends on whether or not a check has cleared. We must have a reasonable opportunity to act on any stop payment request after we receive the request from you. 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. Although we will use commercially reasonable efforts to accommodate stop payment requests, we will not have any liability to you for failing to do so. If we do honor a stop payment request, you agree to indemnify us (and our service provider) for any liability or claim that we incur arising from a person that seeks payment from us on the check based on such person’s status as a holder of the check and/or otherwise based on our role in the issuance of the check on your behalf. You further authorize us to settle and pay any such claim from a holder or a payee of the check without prior notice to you and you further authorize us to debit your Payment Account for the amount of such paid claim.
Prohibited Payments. You are prohibited from using the Service to make the following types of payments: (i) tax payments, (ii) payments to settle securities transactions, and (iii) court ordered payments. In no event shall we be liable for any cla ims AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 8
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for damages resulting from your scheduling of these types of payments. You shall comply with all applicable state and federal laws in initiating any Payment Transaction.
Payment Review. In our discretion, we may place a hold on a Payment Transaction Request for as long as reasonably required to conduct an appropriate inquiry regarding you, the Vendor, a Bill, payment history, and other relevant circumstances and factors. Depending on the results of this review, we may process the Payment Transaction Request, reverse or cancel the Payment Transaction Request, or hold the Payment Transaction Request and related funds pending instructions from a government agency. At any time, a Payment Transaction Request or a Payment Transaction may be reversed or canceled by us in our sole discretion and without prior notice to you.
Compliance with Service Documentation. You are responsible for ens uring that each Payment Transaction Request conforms in form and substance to the requirements, including cutoff times on a Business Day, described in the applicable User Documentation for the Service.
REGISTERED VENDOR DATABASE
We use a third party compan y that operates an online database containing payment routing and other information regarding Registered Vendors. We do not operate or control the Vendor Database and we are not responsible for the accuracy of information that is stored in the Vendor Database. The Vendor Database is not part of the Service. When making a Payment Request, you may look- up your Vendors in the Vendor Database to see if they are Registered Vendors. You also may ask your Vendor to register with the Vendor Database and provide inf ormation regarding its preferred bank account number and routing information for bill payments processed through the Service to the Vendor. If your Vendor registers with the Vendor Database, your Vendor will be required to agree to the terms and conditions provided by the third party company that govern the use and operation of the Vendor Database.
The Service may obtain payment routing information and mailing address information for your Registered Vendors from the Vendor Database. We may at our option process a Payment Transaction to the Registered Vendor based upon the account and routing number information and/or mailing address information provided by the Registered Vendor without further investigation or confirmation by us. You are responsible for any Payment Transaction that is processed by the Service using the Registered Vendor data contained in the Vendor Database.
PROVISIONAL PAYMENTS
For Payment Transactions processed through the ACH credit entry, you agree to be bound by the provision of the NACH A Rules providing that payment of a credit Entry by the Receiving Depository Financial Institution (RDFI) to the Receiver (the Vendor) 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 Vendor of the amount credited. This means that the Vendor will not have been paid.
SUPPLEMENTAL LIMITED WARRANTY/DISCLAIMER
You acknowledge and agree that (i) we are making no representations or warranties of any kind regarding the content of Bills, Documents or the Vendor Database, and (ii) you and your Vendors are transmitting and receiving Bills through the Service at your own risk. We disclaim any and all warranties of any kind (whether express or implied) including but not limited to any warranties of merchantability or fitness for a particular purpose with respect the Service, the Vendor Databas e, and the content and timely delivery of the Bills and any related information. We will have no liability or responsibility for any losses, costs, expenses or damages incurred by you or your Vendors with respect to the use of the Vendor Database or any Bills transmitted or received through the Service.
CASHPAY®
Our CashPay® 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, point -of-sale (POS) terminals and over -the- counter cash access transactions at offices of financial institutions that accept Visa cards.
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 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 9
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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, in cluding 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 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 name, date of birth, physical address, social security number or other identifying information contained in another form of identification issued by a governmental entity, employment/occupation, method of verification, country of cit izenship, country of residence and source of income.
• 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, including the USA PATRIOT Act disclosure, 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 information you have provided to us for this Service or if any employee who has a CashPay Account is no longer employed by you. Upon our request, you will promptly provide us any additional information for each payee to allow us, among other things, to verify enrollment information.
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 explanatory documentation for you to give your payees . We will provide to each payee the CashPay agreement, which discloses the terms and conditions of each payee’s CashPay account. Such payees are not entitled to any rights or benefits we give to our other deposit account holders or debit card holders unless such rights or benefits are contained in the CashPay agreement.
You must obtain our prior written consent if you elect to promote the CashPay Service using materi als (in any format) other than the documentation we provide to you for that purpose.
CHECK ISSUANCE AND DOCUMENT PRINTING
With our Check Issuance and Document Printing S ervices, you may request us to (1) create checks on your behalf that are drawn on either (i) accounts owned and maintained by you with us or another bank or (ii) accounts designated and owned by us, and/or (2) print and mail on your behalf statements, invoices and other documents. This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services defined herein.
AUTHORIZED PERSONS
Before using a Check Issuance and Document Printing 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 . If you use a third party to perform certain duties, you will provide such authorization in a form acceptable to us.
STOP PAYMENT REQUESTS
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You must submit Stop Payment Requests in accordance with the applicable User Documentation or Account Agreement, as appropriate. Generally, you may send us or our third party processor 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 agre ement reasonably acceptable to us . 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 or our third party processor a Check Issuance Request for each check you want us to issue on your behalf and a Document Printing Request for each document you want us to print and mail on your behalf . You must make certain that each Check Issuance Request and Do cument Printing Request conforms in form and substance to the requirements, including cutoff times on a Business Day, described in the applicable User Documentation.
If you have not received an acknowledgment message from us or our third party processor wi thin the time period specified in the applicable User Documentation, then you must contact customer support for instructions before resubmitting any Check Issuance Request, Document Printing Request or other message initially transmitted to us or our third party processor through a Service.
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 y our 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 . In the case of checks drawn on accounts designated and owned by you and maintained at another financial institution, the processing of those checks may be governed by additional terms between you and that financial institution.
COIN AND CURRENCY ORDERS
Our Coin and Currency Order Service s allow you to place orders for coin and currency ( as used in this section, “change orders”) with our cash vaults or the vaults of various armored carriers at which we maintain a cash inventory. Some of these armored carrier vaults have been designated by us as our extended vaults.
Before using a Coin and Currency Order Service, you will provide us with the names and locations of the person(s) authorized by you to receive the access IDs and PINs required to use the Service. We will provide such persons with access IDs and PIN s so that change orders can be placed via a voice response system or electronically via a transmission, in accordance with the applicable User Documentation.
In order to use the Coin and Currency Order Service, you must contract separatel y with an armored carrier service that is acceptable to us to provide for the transportation of the coin and currency, which you have ordered, from one of our cash vaults, one of our armored carrier vaults and/or another location designated by us . Such armored carriers are your agents.
Your armored carriers must continue to meet our requirements. In the event that they do not, we may not allow them to pick up your orders until they meet our requirements.
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 or our armored carrier vaults, you authorize us to debit your account ( i) on the day that such coin and currency are available for release from such vault to your armored carrier, or (ii) on the day that we deliver such coin and currency to another location for pickup by your armored carrier, as applicable. Each time you use a Coin and Currency Order Service, you represent and warrant that you have sufficient Collected and Available Funds in your account for each change order requested by you. We have no obligation to release any coin and currency ordered by you unless there a re sufficient Collected and Available Funds in the designated account or sufficient funds under a line of credit to pay for such order at the time scheduled for release of the coin and currency to the armored carrier.
COLLECTION LETTERS
Our Collection Letter Services allow you to forward us drafts, checks and travelers checks (as used in this section, “items”) drawn on banks outside of the United States and (i) denominated in U.S. dollars or (ii) drawn in specified foreign currencies (as described in the applicable fee schedules or User Documentation) for collection.
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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 banks outside of the United States (i) in U.S. dollars or (ii) in specified foreign currencies (as described in the applicable fee schedules or User Documentation) for collection.
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 generally credit your account for each item on the first Business Day following the 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. Special handling or services other than collection of the items will be charged in accordance with our special handling fees (as described in the applicable fee schedules or User Documentation).
We will send you a written advice showing the applic able buying rate and fees and charges for each item we process as a collection item through use of a Collection Letter Service.
Any credit given for the items received for collection is provisional only, and is subject to our actual receipt of cash proceeds .
We may charge back any items at any time, whether the item is returned or not . You bear all risk of return, including without limitation the risk of late returns and fraudulent items . If we take an item payable in foreign currency for collection, you will bear all exchange rate risk.
Clearance of foreign items is subject to the regulations of the foreign country, and such regulations are different from U.S.
Federal Reserve regulations . We will contact you when information is received. If you reque st and we agree, we will determine the status of any collection item and you agree to pay phone or wire charges incurred for such a request.
We will use our discretion regarding the method of transmitting items for collection. Notwithstanding the Limitatio n of Liabilities section in this Booklet, the measure of damages for such failure shall be limited to the reasonable expenses of obtaining duplicate items should the originals be misdirected, lost or destroyed, or such other damages as are expressly provided for under applicable law.
COMMERCIAL DEPOSITS
With our Commercial Deposit Services, (i) you may make deposits of coin and currency, checks and other payment instruments at one of our designated banking centers with pre -approval, depository facilities (which may include a night depository facility), processing centers, ATMs or cash vaults; (ii) you or, if applicable, a third party acting as your agent, may make deposits of checks using our Image Cash Letter Service or our Remote Deposit Service; and/or (iii) you may obtain credit for Safe Deposits through the Safe Connect Service further described herein. If these deposits are delivered by you or your agent before the cutoff time specified at the deposit location or 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.
The Image Cash Letter Service allows you, or a third party acting as your agent, to transmit an image cash letter (ICL) to us.
We may create, on your behalf , a paper substitute check or image replacement document (IRD) from such electronic image transmission, as described in the applicable User Documentation.
The Remote Deposit Service allows you to create or have created on your behalf a paper substitute check or IRD from an electronic image or an original paper check, as described in the applicable User Documentation.
YOUR RESPONSIBILITIES
You agree to follow all requirements set out in the User Documentation, and to meet all specifications for returns contained in the User Documentation; provided, however, in the event that a relevant provision of the U ser Documentation conflicts with applicable regulatory requirements, you agree to follow such applicable regulatory requirements.
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. In order to receive a receipt of deposit at banking centers, depository facilities (which may include a night depository facility), or processing centers, and except as otherwis e set forth with respect to the Safe Deposit service further described below, we may require you to provide a duplicate deposit slip. This is in addition to the number of original deposit slips required by us to process the deposit or to use other procedures as set forth in the User Documentation. If we require you to provide a duplicate deposit slip, we will stamp this duplicate deposit slip and return it to you. In all cases, deposits are subject to later verification by us.
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For deposits made to one of our cash vaults, you must contract separately with an armored carrier service that is acceptable to us to transport your deposits. Armored carriers are your agents unless otherwise agreed in writing between us.
If you use our Image Cash Letter Service or our Remote Deposit Service, then prior to sending us an electronic image transmission, you and we must agree on image and transmission standards as more fully described in the applicable User Documentation.
You warrant that all ICL file transmissions you send us compl y with the specifications outlined in the User Documentation, and you agree to indemnify us for any loss or expense incurred by us (including attorneys’ fees and expenses of litigation) a s a result of your breach of this warranty. You must provide us with the reason for return of a check by such means as we may specify from time to time in our User Documentation . For example, we may require you to provide us with the reason for return of a check in the unqualified returns ICL cash letter file transmission or through stamping the front of the check with the reason for return. We will use our best efforts to notify you promptly when we cannot determine the bank of first deposit on a check in the amount of $2,500 or greater, or such other amount as may be set f orth in the User Documentation from time to time. You will respond to our notice by secure email promptly upon receipt.
If you use our Image Cash Letter Service or our Remote Deposit Service, then except as provided herein, for any IRD or Image created under this Service, you are deemed to be the warrantor of certain warranties under Check 21, and for each and every day an IRD is created, you accept all responsibilities as warrantor for those warranties under Check 21 regarding creation of the IRDs . You understand that you are responsible for capturing and sending fully legible copies of the original paper check or Electronic Image which will be cleared as a Paper Image or IRD.
If you use our Image Cash Letter Service or our Remote Deposit Service, then you give the same warranties and indemnities to us that we, as reconverting bank, give under 12 CFR Parts 229.52 and 229.53 of Check 21 regulations or any successor legislation. With respect to any Image forward presented by us after your deposit, in paper che ck or Image form, in your account, you give the same representations, warranties and indemnities to us that we, as sending bank, give pursuant to the image exchange rules, including any applicable clearing house rules and/or regulations, that govern us . With respect to Images sent by you to us under this Service, your warranties include warranties that the Image accurately represents all the information on the front and back of the original check as of the time the original check was truncated, the MICR -line information contains all information needed for a substitute check or draft, and any transmission to us from you complies with the specifications described in the applicable User Documentation . You agree to indemnify us and any receiving parties that suffer losses as a result of receiving the substitute check instead of the original, or receiving duplicate items, whether in paper or Image form . You are responsible for capturing and sending fully legible copies of the item which may be created as an IRD. Notwithstanding the foregoing, provided you comply with the agreed upon image and transmission standards and we accept your transmission, and as more fully described in the applicable User Documentation, we will not hold you responsible for any breach of w arranty or indemnity either under Check 21 based on image quality for IRDs, or under applicable image exchange rules, including any applicable clearing house rules and/or regulations, based on image quality for any Images, that we produce from your image t ransmission. If, in connection with your use of our Remote Deposit Service, we provide you with Software and such Software provided by us operates in a manner which causes you to breach any warranties under Check 21, in spite of your exercise of reasonable care, you shall report such Software issues to us as soon as reasonably practicable, and as more fully described in the applicable User Documentation, and we will not hold you responsible for such breach of warranty.
If you use our Image Cash Letter Serv ice or our Remote Deposit Service, then you shall pay us for the amount of any returned Images or IRDs (including rejected images or rejected IRDs) or any claims for adjustments accepted by us, for any IRD or Image which we have previously credited to your account. Such amounts shall be charged as returns or adjustments to your account and are immediately due and payable by you. Such amounts appear on your reports to the extent agreed between us . Certain returned IRDs and/or returned Images may be redeposited, if you have a separate reclear service agreement or arrangement with us. Any IRD created and deposited to your account must comply with all requirements mandated by Check 21. If you intend to include reclears along with other items in a forwar d ICL file sent to us for processing, you must identify the reclear items on the ICL file in accordance with our instructions set forth in our User Documentation.
If you use our Image Cash Letter Service or our Remote Deposit Service, you agree that you pr ovide the same warranties and indemnities that we are required to provide under applicable statutes, rules, clearinghouse arrangements, operating circulars and other applicable laws, rules or regulations . Without limiting the foregoing, you warrant and gua rantee that, if you deposit AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 13
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a demand draft or remotely created check (an unsigned draft or a preauthorized draft) using the Image Cash Letter Service or Remote Deposit Service, the draft or remotely created check was created from paper (or from a paper item) and is authorized according to the terms on its face by the person identified as drawer . You agree to indemnify us from all loss, expense and liability related to a claim that such draft or check was not created from a paper item and/or was not authoriz ed by the person on whose account it was drawn.
If, upon our review of your deposit account activity, we determine that abuse or unauthorized activity is or may be occurring with respect to deposited demand drafts, we may require you to provide collateral to cover the return of and/or claims against deposited demand drafts. In addition, we may require you to maintain such collateral coverage with us beyond termination your use of any deposit service, such as our Image Cash Letter Service and/or of your rel ationship with us as a bank customer.
In the event you use our Image Cash Letter Service or our Remote Deposit Service to redeposit any returned item as an IRD or Image, you agree to follow our procedures, set forth in the User Documentation, concerning your provision of the reason for return.
If you use our Remote Deposit Service, then it is your responsibility to use check imaging equipment acceptable to us as specified from time to time (as used in this section, “hardware”) to be installed at your site in order to use any such Remote Deposit Service. The terms and conditions pursuant to which the hardware is obtained, installed and maintained shall be as agreed between you and the vendor and/or lessor of such hardware and we assume no responsibility there fore.
If you will be utilizing ACH components of our Remote Deposit Service, you must execute an agreement concerning such usage, as we may specify.
If you have captured Images from checks, you agree that you will securely store, safeguard and securely destroy the items as set forth in the User Documentation. Imaged documents (or original documents, if available) must be provided to us promptly, at our request, to facilitate investigations related to unusual transactions or poor quality transmissions, or to resolve disputes.
You agree to cooperate with us fully to facilitate our adherence to guidance provided by the Federal Financial Institutions Examination Council, including guidance concerning risk management of remote deposit capture . For this purpose, you agree that we may mandate specific internal controls at your locations, audit your operations and/or request additional information.
ADDITIONAL RESPONSIBLITIES UNDER ECCHO
In the event you are a financial institution and thereby eligible for ECCHO membership, you may use our Image Cash Letter Service or our Remote Deposit Service only if you are a member of ECCHO.
RETURN OF ON-YOU ITEMS BY ICL
In the event you are a financial institution to whom we may send, via ICL, On- You items pursuant to E CCHO rules, you agree that such ICL transmissions by us to you shall be governed by, and be in accordance with, the applicable provisions hereof and of ECCHO rules.
UNQUALIFIED RETURNS ICLs
In the event that you use the Image Cash Letter Service to send us unqualified returns ICLs, you additionally agree as follows:
You agree to send us return items only if you return the items within the requirements of the UCC and Regulation CC . You warrant that all returned checks sent to us comply with the deadlines of Regulation CC and the UCC and you agree to indemnify us for any loss or expense incurred by us (including attorneys’ fees and expenses of litigation) as a result of your breach of this warranty.
You agree to provide to us the same warranties t hat we provide to any receiver of a returned item that you send us using this Service, whether such warranty is made under Regulation J, Federal Reserve Operating Circular 3, clearinghouse rules, including ECCHO rules, or other applicable regulations or rules . These warranties include, but are not limited to, a warranty that the image of the return item is an accurate representation of the front and the back of the r elated check; the electronic image return accurately corresponds to the electronically retu rned item being returned; and the electronic image return is not a duplicate of another electronic image return.
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When you return an item using the Image Cash Letter Service, you agree that you provide the same warranties and indemnities that we are required to provide under applicable statutes, rules, clearinghouse arrangements, operating circulars and other applicable laws, rules or regulations.
REDEPOSITING RETURNED ITEMS
When you redeposit a returned item using the Image Cash Letter S ervice, you agr ee to redeposit the image of the returned check or IRD, which was physically returned to you, which shall include all endorsements and return item stamps . You agree that you provide the same warranties and indemnities that we are required to provide under applicable statutes, rules, clearinghouse arrangements, operating circulars and other applicable laws, rules or regulations and you agree to indemnify us for any loss or expense incurred by us (including attorneys’ fees and expenses of litigation) as a res ult of your breach of these warranties.
USE OF IMAGE CASH LETTER SERVICE WITH RESPECT TO SAVINGS BONDS If you are a financial institution, you may use this Image Cash Letter Service to accept, transmit, deposit, exchange and/or otherwise process Savings Bo nds only in accordance with those Savings Bonds Provisions applicable to you, which include the regulations and operating guidelines of the U.S. Treasury Department.
Under all circumstances, each and every time you use this Image Cash Letter Service to accept, transmit, deposit, exchange and/or otherwise process Savings Bonds, in addition to the representations, warranties and undertakings otherwise provided in the Booklet, as amended hereby, you represent and warrant that you are an authorized Paying Age nt, and that the Savings Bonds which you accept, transmit, deposit, exchange and/or otherwise process will be eligible for transmission by transmission of images thereof in accordance with the Savings Bonds Provisions as applicable. You further agree tha t, by your usage of this Image Cash Letter Service, you are deemed to provide such other representations, warranties, undertakings and indemnities as are applicable to you as a Paying Agent or otherwise under the Savings Bonds Provisions. In addition, you agree that we shall have no liability with respect to any Savings Bonds accepted, transmitted, deposited, exchanged and/or otherwise processed by you, except such liabilities as may be imposed by operation of law or except where the relevant loss is caused solely by our gross negligence or willful misconduct.
You agree thatin the event of a conflict between the provisions of this section and any other provisions in this Booklet , the provisions of this section shall govern insofar as the same concern Savings bonds.
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 tim e 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.
We will apply and be responsible for (i) the appropriate endorsement of the bank of first deposit, if applicable, as more ful ly described in the appli cable User Documentation on the back of each printed IRD; (ii) the appropriate legend of legal equivalency on the front of the printed IRD; and (iii) appropriate language identifying the reconverting bank if we do not clear your electronic image transmission through image exchange.
SAFE CONNECT SERVICE
You may use the Safe Connect Service for the purpose of obtaining credit, which credit may be provisional, for Safe Deposits as described herein and in Bank’s User Documentation. You agree that the Safe to be utilized in connection with the Safe Connect Service must be installed at a Safe Location . Subject to cutoff times and other provisions contained in the User Documentation, we shall provide you with credit for Safe Deposits; depending upon the applicable procedures used by you, such credit may be subject to later verification and/or adjustment by us and/or the Transportation Provider designated to transport Safe Deposits from the Safe to the Vault Location. Your Safe Deposits shall be governed by the terms of this Booklet, except as otherwise provided herein.
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Your Responsibilities Concerning Safe and Transportation Provider . Your responsibilities with regard to the Safe Connect Service include the following. You shall be solely responsible for the procureme nt of the Safe, whether by lease, sale or otherwise, and for the installation and removal of the Safe in accordance with any agreements that you may have with any third party providing the Safe. You shall not be required to prepare deposit and/or duplicate deposit slips with respect to Safe Deposits, as deposit information regarding such Deposits will be set forth in the Safe Feed. You shall be responsible for engaging a Transportation Provider to remove Safe Deposits from the Safe and to transport the Safe Deposits to Vault Locations. You agree to select the Transportation Provider you engage from a list of approved armored carriers provided by us from time to time. Such Transportation Provider shall be your agent, not ours, except as otherwise provided herein.
Settlement. Settlement terms may vary depending upon applicable procedures used by you; such procedures may be dependent, in part, upon the terms set forth in the applicable agreement between you and the Transportation Provider . Upon receipt of the Safe Deposits at the Vault Location, we or the Transportation Provider shall verify such Deposits, for which credit, which may have been provisional, has been given by us . In such instance, solely when conducting verification, the Transportation Provider shall be acting as our agent, not yours . In the event of a discrepancy between deposit amounts set forth in a Safe Feed, addressing a Safe Deposit, and deposit amount s verified at the Vault Location with respect to such Safe Deposit, any adjustments made shall be in accordance with our User Documentation. Information concerning such adjustments 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.
No Warranties; Limitation of Liability . The following is in addition to the Limitation of Liabilities section under this Booklet.
YOU ACKNOWLEDGE THAT WE DO NOT PROVIDE, NOR DO WE MAKE, ANY RECOMMENDATIONS REGARDING THE SAFE. WE HAVE NOT MADE AND DO NOT MAKE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO ANY
MATTER WHATSOEVER, INCLUDING THE SUITABILITY OF THE SAFE, ITS DURABILITY, ITS CONDITION, ITS QUALITY AND/OR ITS RELIABILITY. ACCORDINGLY, WE ALSO DISCLAIM ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR USE OR PARTICULAR PURPOSE WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE. WE SHALL NOT BE LIABLE TO YOU OR OTHERS FOR ANY LOSS, DAMAGE OR
EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY THE SAFE OR ANY SAFE FEED, HOWEVER ARISING, OR THE USES THEREOF OR THE FAILURE OF ANY OPERATION THEREOF. NO
REPRESENTATION OR WARRANTY AS TO THE SAFE OR ANY OTHER MATTERS BY OTHERS SHALL BE
BINDING UPON US OR IMPOSE ANY LIABILITY UPON US NOR SHALL THE BREACH OF SUCH RELIEVE YOU OR IN ANY WAY AFFECT ANY OF YOUR OBLIGATIONS TO US HEREIN.
IF THE SAFE IS NOT SATISFACTORY FOR ANY REASON, YOU SHALL NOT MAKE ANY CLAIM ON ACCOUNT THEREOF AGAINST US. REGARDLESS OF CAUSE, YOU WILL NOT ASSERT ANY CLAIM WHATSOEVER
AGAINST US FOR LOSS OF ANTICIPATORY PROFITS OR ANY OTHER INDIRECT SPECIAL OR CONSEQUENTIAL DAMAGES.
Supplemental Representations and Warranties . In addition to the representations and warranties set forth in this Booklet, you represent and warrant to us that (a) you have given or procured, a s the case may be, all necessary consents and approvals for our accessing of your information and/or information of the Transportation Provider, as we deem appropriate, for purposes of this Agreement; and (b) you and/or the Transportation Provider as your agent shall safeguard all Safe Deposits until delivery of such Deposits at the Vault Location and commencement of verification. In the event that the security of Safe Deposits is breached prior to such delivery and commencement of verification, and/or if the delivery of the Safe Deposits to the Vault Location is delayed, we may reverse any credit, provisional or otherwise, provided with respect to such Safe Deposits as set forth in the User Documentation . You agree to notify us promptly in the event of any such security breach or delay.
You agree that you shall be deemed to make and renew each representation and warranty set forth in this Booklet on and as of each day on which the Safe Connect Service is provided.
Supplemental Termination Provisions . Notwithstanding anything to the contrary in this Booklet, the Safe Connect Service may be terminated at any time as set forth below.
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In addition to the events listed in the Termination section of the Booklet which allow us to terminate any Service immediately, each of the following events will also give us the right to immediately terminate the Safe Connect Service at any time:
a) You breach, or permit the breach of, the security of the Safe. b) We determine that you have failed to maintain a financial condition that we deem to be reasonably satisfactory to minimize any credit or other risks to us in providing the Safe Connect Service or we deem immediate termination to be necessary or appropriate to prevent a financial loss to us. c) We, in our sole discretion, determine that the Safe Connect Service is no longer feasible or desirous for us to pursue.
ADDITIONAL PROVISIONS FOR YOUR ARMORED CARRIER
In order to make commercial deposits to or pick up coin and currency orders from one of our cash vaults, one of our armored carrier vaults and/or other locations designated by us, you must contract separately with an armored carrier service that is acceptable to us. Any subcontractors of your armored carriers who enter such cash vaults must also be acceptable to us. Your armored carriers and their subcontractors must meet and continue to meet our requirements as they may be in effect from time to time. Such armored carriers and their subcontractors are your agents and you are liable to us for their failure to comply with our requi rements. In addition, if they do not meet our requirements, they may be refused entry to our cash vaults, our armored carrier vaults, and/or other locations, as applicable.
Our requirements include representations and warranties, minimum insurance coverage s and other obligations applicable to your armored carriers and their subcontractors, as set forth in our Armored Carrier Requirements document, as in effect from time to time. You will instruct your armored carriers to comply with such requirements, inclu ding, without limitation, providing us with such information as we may request from them or their subcontractors in support of these requirements.
Changes In Delivery Locations . If at any time you would like to add or delete those locations of yours that w ill deliver commercial deposits to us or order coin and currency from us, you must notify us of such change in advance, by the deadline specified in the applicable User Documentation, or we may decline to accept such deposits and/or process such additional orders. With respect to commercial deposits, in the event we take receipt and open bag(s) of, or otherwise access, coin and currency delivered to our cash vault(s) from an added or deleted location, regarding which you have failed to provide the requisite advance notice as set forth herein, we shall not by such actions be deemed to have accepted such coin and currency for deposit, and we shall use commercially reasonable efforts to facilitate the return to you of such coin and currency, with such facilitation to be initiated within a reasonable period of time from the date the coin and currency was delivered to our cash vault(s) without the appropriate advance notice.
Supplemental Suspension And Termination Provisions . If at any time we believe (i) that our provision of the Service to you may create a risk of financial loss for us or result in an unacceptable credit exposure to us, (ii) that an account associated with the Service may be subject to irregular, unauthorized, fraudulent or illegal activity, or (iii) that your armored carrier and/or their subcontractors create an unacceptable risk exposure to us, we may, in our sole discretion, immediately, without prior notice to you, suspend or modify our provision of the Service, or deny your armored carr ier and/or their subcontractors access to our cash vaults, armored carrier vaults and/or other locations until such time that such risk, expos ure, or activity is eliminated or otherwise resolved to our satisfaction. Additionally, we may suspend our provis ion of the Service if you do not use it for such period of time as we may establish from time to time. We may terminate any the Service effective immediately, without prior notice to you, if the account necessary to provide the Service is closed. These sus pension and termination rights are in addition to any such rights that we may otherwise have under our agreements with you.
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 at ATMs , point-of-sale (POS) terminals, and for over -the-counter cash access Transactions at offices of financial institutions that accept Visa® cards. Detailed information regarding such services is available in the applicable User Documentation.
OUR OBLIGATIONS
We will issue Commercial Prepaid Ca rds 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.
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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 applicabl e) 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.
You acknowledge and agree that the Commercial Prepaid Card is for use only for business purposes and is not for use for personal family or household purposes. Cardholders will not pay any money or anything of value to receive the Commercial Prepaid Cards. Commercial Prepaid Cards will not be re-sold or distributed by you.
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 a nd we may suspend or reverse any completed value load.
Upon your request, and with our approval, we may provide a Commercial Prepaid Card that is not reloadable.
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 u sing 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 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 regula tion, 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.
CONTROLLED BALANCE ACCOUNTS
Our Controlled Balance Account 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 y ou meet the requirements for AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 18
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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.
Unless you and we have otherwise agreed in wri ting, you may elect to have funds transferred to or from accounts of a U.S.
Subsidiary; provided that (i) the U.S. Subsidiary’s accounts are domiciled in the United States of America, (ii) you represent and warrant that such U.S. Subsidiary has authorized us to transfer funds between its accounts and your accounts and between its accounts and other accounts in the Service relationship via transfers thr ough your account , and (iii) you provide us with such documentation as we may request in connection with such transfers .
CONTROLLED DISBURSEMENT
Our Controlled Disbursement Services provide information to you each Business Day so that you can fund the net total amount of (i) controlled disbursement checks presented that Business Day, (ii) certain controlled disbursement ACH transactions received prior to the time stated in the applicable User Documentation and (iii) any other check-related electronic adjustments 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 shall maintain one or more Controlled Disbursement Accounts with us.
For each Controlled Disbursement Point, as more fully described in the applicable User Documentation, you may (i) draw checks bearing the respective point’s routing numbers directly on your Controlled Disbursement Accounts, (ii) initiate or authorize third parties to initiate ACH debits pursuant to the section of this Booklet regarding ACH Services and (iii) subject to the applicable funds transfer Service agreement, initiate other electronic debits to your Controlled Disbursement Accounts . (For electronic debits to your Controlled Disbursement Accounts, you must use the appropriate funds transf er Service approved by us.)
CHECKS
You shall only use checks which conform to the form and specifications described in the applicable User Documentation, and which have been satisfactorily tested by us . If we determine that checks used by you do not comply with such requirements, we may take the actions described in the applicable User Documentation .
NOTIFICATION AND FUNDING
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 your corresponding Controlled Disbursement Accounts 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 your Controlled Disbursement Account(s) to cover such amounts. If we attempt to post a debit to a Controlled Disbursement Account for the amount due and determine there are insufficient funds in the Controlled Disbursement Account, we may 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 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 we allow an overdraft to occur in your Controlled Disburs ement Account, repayment is immediately due and payable, and you will repay us , on or before the next Business Day, the amount of such overdraft along with interest on such amount as specified in our schedule of charges for business account services or as otherwise agreed. Additional terms and conditions contained in your Account Agreement may also apply . If you do not repay us as specified herein, we may 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 Controlled Disbursement Account has sufficient Collected and Available Funds to cover such debits.
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You will select the funding methods for your Controlled Disbursement Accounts from the options described in the applicable User Documentation . However, in certain circumstances, we may require a change in the funding met hods used for your Controlled Disbursement Accounts, and may require such accounts to be funded via wire transfer or account transfer .
DATA AGGREGATION AND USAGE SERVICE
Our Data Aggregation and Usage Service is a data aggregation, information reporting and data manipulation service which provides you with on- line access to information reporting services. These services include not only data collection and manipulation but also information reporting, cash forecasting, and automated general ledger downloading, as applicable. The availability of one or more of the foregoing services may be dependent upon various factors, including the on- line channel(s) pursuant to which the Service may be accessed, and not all functionalities of the Service may be availabl e for your use. Subject to the foregoing limitations concerning availability, upon your registration for the Service and completion of any other requirements, including identification of those accounts which you wish to be included for use with the Servic e, you may use your on- line access to retrieve, analyze, manipulate data from your accounts with us and with third parties.
Detailed information regarding our Service, including information concerning the availability of the various functionalities, is set forth in the User Documentation.
You agree to use the security procedures we may designate from time to time with regard to access to the Service, verification of the authenticity of actions taken in connection with the Service, and safeguarding of corr ect user identification codes and passwords, as set forth in our User Documentation.
DATA AGGREGATION
You must identify for us those accounts which you wish to be included for use with the Service. You must be the legal owner of, or have the legal right to access, such accounts. With regard to the accounts you identify, you must obtain and provide to us any applicable third party consents and comply with all other requirements, including data feed requirements, that we may specify from time to time as necessary or appropriate for our receipt or retrieval of this account information. With regard to the foregoing, you agree to the following:
• You represent that you are a legal owner of, or have the legal right to access, the accounts at third party web sites which you designate to us for information aggregation, information reporting or other purposes in connection with our provision of the Service. You further represent that you have the authority to designate us and our service provider(s), if applicable, as your agent and attorney-in-fact as set forth below. • You authorize us, as your agent and attorney- in-fact, to access third party web sites, retrieve or receive account information, and use your account information for the purposes of providing the Servi ce, and you further authorize us to take any action we deem necessary and appropriate to facilitate the foregoing with respect to your accounts at third parties.
• Third party account providers shall be entitled to rely upon the above authorization and power of attorney granted by you.
• You agree and acknowledge that, when we access and retrieve or receive information from third party web sites, we act as your agents, and not the agents of the third party.
• We do not have any responsibility or liability for tra nsactions and/or inquiries you make with respect to any accounts you have, or may legally access, with third parties, and all fees charged by any third parties with regard to actions involving your accounts with such parties are your sole responsibility. You agree to abide by the terms and conditions governing your accounts with third parties, and to resolve any dispute you may have regarding such accounts with the relevant third party according to the relevant terms and conditions binding upon you and the third party, without any involvement or liability on our part.
• Subject to any constraints of third parties with whom you have accounts, in providing our services we will make reasonable efforts to comply with your instructions, given in accordance with ou r designated procedures, regarding the timing and frequency of account data pulling activities. However, account information reflected via your use of the Service will constitute the most recent refresh successfully completed, but may not be accurate or current. We are not liable for any errors or delays in the content of such account information or for any action, and/or its consequences, which you may take in reliance upon such information. We do not endorse or recommend the services of any AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 20
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unaffiliated third party whom you select for purposes of using the Service’s capabilities, including information aggregation capabilities, and from whom we collect your account information pursuant to your authorization.
DATA MANIPULATION
Using the Service’s data man ipulation capabilities, you may use various tools to populate and make other use of spreadsheet(s) as set forth in the User Documentation. With regard to the foregoing, you agree as follows:
• You agree and acknowledge that we are not responsible for any results associated with your use of any spreadsheet and/or similar representation, and/or your reliance thereupon; the appropriateness of the calculations performed in connection with your use of any spreadsheet or similar representation; the timeliness o f any data populated the any spreadsheet or similar representation, as such data may not reflect true “real time” figures; the accuracy of any data provided by third parties, regardless of whether such data is populated by us or otherwise; and any data in put by you.
CASH FORECASTING
Using the Service’s cash forecasting capabilities, you may obtain estimates, analyses and other information based upon automated cash flow calculations. For these cash flow calculations, you may select relevant factors, such as actual account and user history, historical patterns of check clearing times and seasonality trends. You may use data from cash forecasting to take such steps (e.g. funds transfer) as you designate via certain other services for cash management purposes. You may also use the Service to obtain and implement recommended actions for managing liquidity. With regard to the foregoing, you agree as follows:
• You agree and acknowledge that, in connection with the Service’s cash forecasting, we do not provide you with any guaranty or warranty regarding future payments, collections, cash requirements, funds availability or other circumstance, and you agree that you will take such steps as you deem reasonable to assess, verify, test and otherwise evaluate any forecasts or recommended actions provided pursuant to the Service. • In providing you with various options, calculations and recommended actions to assist you with cash forecasting, we do not represent that any such options, calculations and/or recommended actions are advisable, suitable or reliable for your use. You expressly agree and acknowledge that there are inherent risks in utilizing cash forecasting tools and you assume all liability in connection with such utilization.
AUTOMATED GENERAL LEDGER INTERFACE
You may use the Service to access a capability which allows you to automatically download file(s) from your general ledger. In the event you elect to download general ledger information, you are solely responsible for verifying the accuracy, scope, completeness and timeliness of this information. You agree and acknowledge that neither we nor our service provider(s) undertake to reconcile such general l edger information in any manner or for any purpose, prior to, during or after downloading of this information to the Service. You also agree and acknowledge that our provision of this capability does not create any duty of ours either with regard to discr epancies or unauthorized actions or events or with regard to your responsibilities regarding accurate record keeping.
DISCLAIMER
We are not responsible for the accuracy, timeliness, scope, reconciliation and/or use of account and other information accessed or utilized in connection with the Service. You agree and acknowledge that all services and features utilized, and all actions taken, by you in connection with the Service are taken in your sole discretion and under your sole responsibility.
Without limiting the foregoing, you agree that the foreign exchange rates provided in connection with the Service are indicative only and are not live dealing rates. These indicative rates are provided by us solely as a courtesy. We do not accept any responsibility or liability for the accuracy or completeness of any indicative rates or for any reliance by or any other person on such rates. The indicative rates are derived from sources and models that we believe provide a reasonable approximation of market rates at t he time of calculation. Rates based on other models or differing assumptions or for different purposes may be materially different. With respect to your receipt of indicative rates in connection with the Service, you have full responsibility for all valuations of transactions for your own financial and regulatory reporting. Prices or valuations derived from use of indicative rates provided in connection with the Service do not necessarily represent or refle ct prices or amounts at which any transaction co uld or would be entered into at this time or any other time, with us or with any other party.
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In addition, we are not responsible for any data that is lost or destroyed in connection with your use of the Service. Without limiting the foregoing, we will n ot be responsible for any mechanical hard drive failure or other system failure, or if the Software is disabled (or “locked- up”) as a result of your installation of other computer software on the personal computer, workstation or network on which Software is installed. We strongly recommend that you take the necessary measures to ensure that you perform daily back- ups of your data and the hard drives of the personal computers and/or services used in connection with the Software.
DIGITAL DISBURSEMENT SERVICE
Through the Digital Disbursement Service , you may request us to initiate disbursement payments to individual recipients using the bank account and bank routing information associated with the mobile telephone number or email address of the recipients, as registered with clearXchange or banks that participate in clearXchange. This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, for ms the agreement between you and us with respect to the Services defined herein. We will process the disbursement payment directly if the recipient’s registered account is held by Bank of America or through one or more electronic payment networks if the recipient’s account is held at a different US-based bank or credit union. If the recipient is not a registered recipient with clearXchange or a bank that participates in clearXchange, we will notify the recipient on your behalf and request that the recipient register with clearXchange or with a bank that participates in clearXchange to receive disbursement payments. You may only access the Digital Disbursement Service through a Bank Approved Channel, and may rely on the applicable User Documentation for further detail..
Before using the Digital Disbursement Service , you will provide us with a written list, in a form acceptable to us, of persons authorized by you to verify the authenticity of Digital Disbursement transactions and Approval/Deletion requests in accordance with the Security Procedure and to perform certain other duties in connection with a Digital Disbursement Service . You shall update such list from time to time as necessary to reflect any changes in authorized persons.
Registration of Recipients. The Digital Disbursement Service can only complete a payment to a Recipient if the Recipient registers with clearXchange or a bank that participates in clearXchange and provides the bank deposit account and routing information to be associated with his/her Alias Based Identifier. If you send us a Payment Transaction Request for a Recipient that is not a Registered Recipient, we, acting on your behalf, will send the Recipient a message to the Recipient’s Alias Based Identifier requesting that the Recipient reg ister his/her payment credentials for receipt of payments sent through the Digital Disbursement Service . We will not be able to complete processing of a Payment Transaction until the Recipient completes registration and qualifies as a Registered Recipien t. You authorize us to send one or more messages to a Recipient’s email address and/or mobile phone number informing the Recipient that a payment transaction is pending and that the Recipient needs to register in order to receive the payment. If the Reci pient fails to register within fourteen (14) calendar days, or such other time frame that we may establish in our sole discretion from time to time, the Payment Transaction Request will be cancelled. You represent that you have all requisite authority unde r applicable law to authorize us to contact the Recipient in this manner and for this purpose.
Initiating a Digital Disbursement Payment . To initiate a Digital Disbursement payment through the Digital Disbursement Service , you shall provide a Payment Tr ansaction Request to us through a Bank Approved Channel in the required format and containing the required data elements as established under the User Documentation and the Materials. For each Payment Transaction Request, you shall include, without limita tion: (i) the dollar amount of the disbursement payment, (ii) the Alias Based Identifier for the Recipient, (iii) the Process Date, and other required fields as established in the User Documentatio n and the materials. You represent and warrant that all in formation in a Payment Transaction Request, including the Alias Based Identifier of the Recipient, is accurate, correct and complete. We will use commercially reasonable efforts to initiate the Payment Transaction on the Process Date. We make no represent ation or warranty to you that a Payment Transaction will be received by the Recipient or credited to the Recipient’s bank account on the Process Date or any other date. Payment s may be delayed if the Recipient has not registered as a Registered Recipient. We shall have no liability to you in the event that you incur financial liability to a Recipient or other person arising from a delayed, undelivered, or late payment.
Processing and Payment of Digital Disbursements . You hereby authorize us to debit your designated Settlement Account for the amount of each Payment Transaction Request and remit funds in accordance with your Payment Transaction Request through the ACH network, book transfer, or other electronic funds network, as determined by us or clearXchange. We may debit your Settlement Account by direct posting/book transfer for payment for your Payment Transaction Requests. You are responsible for maintaining collected and available funds in the Settlement Account in an amount sufficient to pay for all AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 22
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debits to fund the Payment Transaction Requests. Debits to the Settlement Account can occur on or after the Process Date that you submit to the Bank. We are not obligated to process any Payment Transaction Requests, 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. We may post these debits to your Settlement Account even if the debits cause your Account to have a negative intraday balance or to b e in an overdraft position. After the Process Date and prior to settlement of the funds to the Recipient, funds deducted from your Settlement Account may be held in an omnibus account or general liability account at the Bank. You acknowledge and agree tha t you have no ownership interest or right to the funds in this bank account, or to any compensation (including but not limited to interest or earnings credit) for funds held in such account. This bank accoun t arrangement does not create a trust or other fiduciary obligations on the part of us to you.
Our Reliance on Alias Based Identifiers and Related Bank Account Information. You acknowledge that we, clearXchange and other processing banks will process the Payment Transaction to the Recipient based on the bank deposit account and routing information that is associated with the Alias Based Identifier that you include in the Payment Transaction Request. We shall have no responsibility to you or any other person, and we make no warranty or representation to you, that the bank deposit account associated with the Alias Based Identifier of the Recipient is in fact a bank account owned by or controlled by the Recipient. We have no responsibility for the accuracy of the bank account information associated with a Recipient’s Alias Based Identifier. If you sent us an erroneous transaction and complete an unintended payment, you may submit a claim request and we will make a reasonable effort to act on your request. We will not be liable to you if such cla im request is not effected. You agree to indemnify us in connection with any such claim request and/or reversal.
Returned Transactions. A Payment Transaction may be returned or rejected for various reasons such as, but not limited to, (i) the Recipient’s bank a ccount information associated with the Alias Based Identifier is expired or invalid, (ii) the Payment Transaction is rejected or returned by the Recipient, his/her financial institution or a payment network, or (iii) the Recipi ent has failed to register as a Registered Recipient. We will use commercially reasonable efforts to provide you with notice of a returned/rejected Payment Transaction. You agree that we shall not have any liability for any returned/rejected Payment Transaction or any resulting loss or damage that you may incur. Returned/rejected Payment Transactions will be credited to your Settlement Account.
Payment Cancellation Requests . You may request that we attempt to cancel a Payment Transaction that is pending (unknown Recipient), pending acceptance by the Recipient, or future dated for which we have not yet begun processing. We are not obligated to act on such a cancellation request. You may only request the cancellation of a Payment Transaction through a Bank Approved Channel. We will credit back to the Settlement Account any debits previously made to fund a successfully cancelled Payment Transaction.
Transaction Limits. We may, in our sole discretion, impose limits on the amount of funds sent through the Digital Disbursement Service , on a per-transaction or a cumulative basis, and change those limits at any time without prior notice to you. We may also, in our sole discretion, impose frequency limits on the number of transactions to an individual Recipient o r to all Recipients in the aggregate, as well as daily or monthly limits as we deem appropriate.
Permissible Customers and Payments . You represent and warrant to us that all Recipient bank accounts are domiciled in the United States. You may not submit a Payment Transaction Request that would require the processing of an international ACH transaction (IAT) or any other type of cross border payment. You shall comply with all applicable state and federal laws when making a Payment Transaction Request and using the Digital Disbursement Service . The Digital Disbursement Service is designed for your own proprietary payments only. You are prohibited from using the Digital Disbursement Service to make payments on behalf of a customer or other third party or any other unlawful payment. In no event shall we be liable for any claims for damages resulting from your requesting, or our proce ssing, of these types of impermissible disbursement payments.
Payment Review . In our discretion, we may place a hold on a Payment Transaction Request for as long as reasonably required to conduct an appropriate inquiry regarding you, the Recipient, the r equested disbursement payment and other relevant circumstances and factors. In addition, we reserve the right in our sole discretion to suspend or cancel any Payment Transaction if your Settlement Account or your use of the Digital Disbursement Service is not in good standing, as determined by us in our sole discretion.
Compliance with Service Documentation . You are responsible for ensuring that your use of the Digital Disbursement Service and each Payment Transaction Request conforms in form and subs tance to the requirements, including cutoff times on a Business Day, described in the applicable User Documentation and the Materials for the Digital Disbursement Service .
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RECIPIENT AUTHORIZATION FOR PAYMENT
You shall only initiate a Payment Transaction Request to a Recipient using a mobile phone number if that recipient has expressly consented to you to receive text messages from you and us relating to the disbursement payment. You may document these consents in writing or by a recorded oral conversation. You also are responsible for obtaining any other consent from your customers, as required by your privacy policy or applicable law, for the sharing of customer information with us as necessary to make the disbursement payment to the Recipient. Upon our request, you will share documentation evidencing these consents with us.
CONFIDENTIALITY AND SECURITY OF DATA IN PAYMENT TRANSACTION MEMO FIELD You shall not enter any confidential or proprietary information into the payment transaction memo f ield of your Payment Transaction Request (including full bank account numbers or social security number) as information from this field will be displayed in the Digital Disbursement Service email/text message communications to recipients and other persons. This payment transaction memo field information will not be encrypted within the Digital Disbursement Service or in various communications sent to recipient and other persons in connection with the Digital Disbursement Service , and this information may be subject to inadvertent disclosure. You bear sole responsibility for compliance with any federal or state laws relating to information security or privacy with respect to information you place in the memo field.
ELECTRONIC BILL PAYMENT CONSOLIDATION
Our Electronic Bill Payment Consolidation Service s consolidate, reformat and deliver remittance information and other data related to payments received from Bill Payment Service Providers for credit to your account . Detailed information regarding the Services 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 these Services to you. We will credit payments received from Bill Payment Service Providers to your account . If you elect to receive Reversals, we will debit your account for the amount of the Reversal and send such funds to the Bill Payment Service Provider.
You may also elect to have information of another company/organization reported through these Services. 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 these Services to you.
Remittance information and other data related to payments will be delivered to you in a mutually acceptable form and manner.
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 inf ormation in mutually acceptable formats received from your receivers and, where available, to match specified receivables and payables against payments. This section together with the entirety of the General Provisions section of this Booklet, including wi thout limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services defined herein.
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 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 24
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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 secure storage of all data relating to such information so that it can be made available to individual receivers upon request . You should reference the User Documentation for the applicable payment service to determine specific requirements for the duration of time required for data storage.
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 receivers 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 receivers . 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 and Document Printing, ACH and/or Wire Transfer and International Electronic Funds Transfer) as described in their respective sections of this Booklet.
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 s allow you to initiate FX Requests over the internet 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. This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services defined herein.
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.
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 T ransaction 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 absenc e of such specification within a reasonable 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 ti me 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 th e 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 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 25
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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 telephon e, 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 co nfirmation 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.
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.
ELECTRONIC STOP PAYMENT
Our Electronic 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 nu mber 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 Reque st. You will not transmit any Stop Payment Request relating to a check that has been shown to be paid on such statements. If a check does not appear as paid on a statement with the correct check serial number due to defective or damaged MICR information on the check, we are not liable for processing the check.
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.
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IMAGE SERVICES
Our Image Services will make available to you digital images of checks, drafts, deposited items, returned items, notices of debit adjustments (with respect to this section, “debits”) and/or notices of credit adjustments and deposit slips ( with respect to this section “credits”) with respect to specified accounts establ ished with us . (Such Services do not include Image Lockbox Services, which are provided in connection with our Lockbox Services.) Digital images will be made available to you at such times as may be set forth in the applicable User Documentation or as oth erwise established by us.
Images may be made available to you by Website , file tra nsmission or by CD -ROM/DVDs. Images available via Website include checks, drafts, deposited items, returned items, debits and credits . Images available via file transmission include checks, drafts, deposited items, returned items, debits and credits. Digital images made available via CD -ROM/DVDs, which may be accessed through the use of CD -ROM/DVD software that we provide to you, include checks, drafts, deposited items, debits and, credits. If you elect to receive Account Reconcilement reports and/or Demand Deposit Account (DDA) statements on a CD -ROM/DVD, images of such reports and/or statements will also be made available to you by CD -ROM/DVD or image transmission.
If an image of a check or draft is missing or is illegible, we will provide you with a 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 Image Service in excess of the amount of the check, draft or miscellaneous debit giving rise to your 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.
Notwithstanding the Suspension and Termination section of this Booklet, in the case of an Image Service using CD - ROM/DVDs, 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.
INFORMATION REPORTING
Our Information Reporting Services make certai n account, transaction and related information available to help you control and manage your accounts. 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 . Information reported on a current day basis is subject to updating and, therefore, at any point in time may not reflect the information on our records at such time. In addition, such information may be subject to adjustment upon final posting. 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, fo r us to make its account information available to you . However, you do not need to provide us such written authorization if the other company/organization 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/organization 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 compa ny/organization, that are 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 such 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. We shall not be responsible for the accuracy or timeliness of any information provided to us by any such financial institution .
THIRD-PARTY INFORMATION
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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.
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 (which may be accessed in image form) 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 and reserve the right to deposit the items as if they 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.
For image lockbox, all envelopes will be opened and scanned once received at our lockbox processing site. Images will then be used to identify your lockbox address and to process each transaction for deposit using your predetermined lockbox processing instructions. For paper lockbox, 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 inte rvening 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 bearin g 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 Addr ess. For the wholesale Lockbox Service, the return of paper documents may include, but is not limited to, any checks (which checks may be in the form of Image Replacement Documents) not processed in accordance with the set -up documents along with requested remittance materials in the form of copies, versus the originals.
If you subscribe to the Image Lockbox Service , unless we agree otherwise, we will retain images of processed lockbox checks, remittance documents and correspondence as well as original remittance documents for a n archive period as we communicate to you from time to time . The images will be sent to you via an encrypted CD -ROM or other encrypted medium as specified in the User Documentation . Upon receipt, you must promptly notify us if such CD -ROM contains a media defect or is unreadable in its entirety . Subject to the terms herein regarding the retention of lockbox images, we will use reasonable efforts to replace the CD -ROM, which shall be our sole obligation and your sole remedy with respect to defects in the CD-ROM. If you elect to not receive an encrypted CD -ROM of the lockbox images, we will have no obligation to provide copies of such items, other than a copy of the check image.
ACCEPTABLE PAYEES
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For the Lockbox Address, you will provide to us the names of Acceptable Payees in writing. 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 P ayee 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 tha t 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.
NOTIFICATION SERVICE
Our Notification Services, where available, allow you to receive certain types of Notices. The types of Notices relating to a particular Service are further described in the User Documentation.
You agree Notices are in addition to and not a replacement of or substitution for the Services received by you under this Booklet or any other agreement between you and us. As set forth in the User Documentation, your system administrator(s) shall instruct us with respect to your use of the Notification Services.
You acknowledge and agree that Notices are provided as a convenience and as such you (a) acknowledge and agree that you may not rely on the receipt or expected receipt of a Notice, o r the contents (or lack thereof) of any Notice, to relieve you of any of your obligations or duties under the terms of this Booklet or otherwise, and (b) must continue to use the Services in compliance with the applicable terms of this Booklet or such othe r agreement between you and us. Notwithstanding any terms to the contrary, you agree that we shall not be liable in any case: (i) for any failure to provide, or any delay in providing, any Notice, (ii) if any Notice is intercepted or received by an unauthorized person or entity, and (iii) if any Notice is inaccurate or incorrect in any way.
PAYMENT PROCESSING SERVICE
When you enroll to use the Payment Processing Service s, you will choose to enroll as a Disburser . With our Payment Service, if you are a Disburser you may request us to originate on your behalf payments to Collectors . The capitalized ACH terms appearing in italics below are defined in the NACHA Rules. This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services defined herein.
YOUR RESPONSIBILITIES
If you are a Disburser:
• You must create and transmit to us or our third party processor a Transaction Request for each Entry you want us to originate on your behalf . You must make certain that each Transaction Request conforms in form and substance to the requirements, including cutoff times on a Business Day, described in the appli cable User Documentation. • You must retransmit any Transaction Request or other message initially transmitted to us or our third party processor through the Payment Service if you have not received an acknowledgment message from us or our third party proces sor within the time period specified in the applicable User Documentation. • You authorize us or our third party processor to originate credits and debits to your Transaction Account through the ACH network in accordance with this Booklet and the NACHA Rules. • You must comply with the NACHA Rules for all Transaction Requests and Entries, whether or not a Transaction Request or Entry is sent through the ACH network. We act as the Originator , on your behalf, and Originating Depository Financial Institution (ODFI) with respect to Entries. You will deliver Transaction Requests to us as provided in the User Documentation and the NACHA Rules . The NACHA Rules govern if they conflict with this Booklet or User Documentation, except that the file specification requiremen ts in the User Documentation govern if they conflict with the NACHA Rules.
• Before using the Payment Service, you must give us a written list, in a form acceptable to us, of the persons authorized by you to verify the authenticity of Transaction Requests, E ntries and Reversal/Deletion Requests in accordance with the Security Procedure and to perform certain other duties in connection with such Service. • You must pay us with Collected and Available Funds for all Transaction Requests and credit Entries before t he settlement date. If you pay us using one of our Wire Transfer Services , the terms and conditions of the Wire Transfer s AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 29
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and International Electronic Funds Transfers section of this Booklet will apply . If you pay us using one of our Automated Clearing House (ACH) Services, the terms and conditions of the Automated Clearing House (ACH) section of this Booklet will apply.
When you enroll to use the Payment Processing Services , you will become a member of t he Network. If you are a Disburser you must co mply with the Network operating rules. The operating rules are available for your review at https://secure.paymode.com/policies/operatingrules.htm.
OUR RESPONSIBILITIES
If you are a Disburser:
• We will send Entr ies on your behalf and in accordance with your Transaction Request through the ACH system or processed directly to Transaction Accounts with us, all in accordance with the User Documentation . We may send Entries to any ACH processor selected by us or directly to another bank. • We will send an Entry to the ACH processor for settlement on the date you select in the applicable set -up documentation, if we receive the Transaction Request by the applicable processing deadlines specified in the User Documentation for the Payment Service and, unless we agree in writing otherwise, we have received Collected and Available Funds from you for the Entry . We may treat Transaction Requests we receive from you for processing after a deadline as if received on the next Business Day . Transaction Requests will be deemed received by us when we receive the complete file at the location specified in the User Documentation.
• We will debit your Transaction Account for the amount of the Transaction Request. • We will make available to your Collectors any remittance information received from you, as set forth below. • We will give you secure access to the status and history of payments made by you through use of the Payment Service. • At your request, we will contact those entities you identify to discuss with them enrolling as Collectors, as described in the User Documentation.
PROVISIONAL PAYMENTS
You agree to comply with the NACHA Rules for all Transaction Requests and Entries . 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 Transaction 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 Transaction Account to cover any chargeback or return of the Entry or Reversal.
POSITIVE PAY
Our Positive Pay Services allow you to identify exception items, to request photocopies and/or electronic ima ges of exception items and to instruct us whether to pay or return those items . The options and features available for our Positive Pay Services are described in the applicable User Documentation . In many locations, if you send us an issue file, your infor mation may be made available at the teller line. This is called “Teller Positive Pay,” which helps identify fraudulent checks that are pres ented for payment or deposit at many of our banking centers . Where available, you also have the option to include payee names with the information available at the teller line . This service is called “Payee Positive Pay.” With Teller Positive Pay, or Payee Positive Pay, where available, the decision whether to pay such an item may be made by us at the teller line . Where available, you can also identify ACH Entries as exception items . Please refer to the terms and conditions specified in the ACH Positive Pay section of this Booklet.
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 dep ository institutions or, where applicable, for cashing at one of our banking centers) with lists of checks issued or canceled by you which you AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 30
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transmit electronically to us each Business Day by the time specified in the applicable User Documentation. Alter natively, 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 m ay 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 descr ibed 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 w ritten 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 Website s. Using that system, you must then notify us by the appropriate deadlines which exception items to pay or which to return. Notwithstanding any courtesy alerts we may provide to you regarding reports of exception items, you are responsible for checking the applicable Website for daily reports of exception items and notifying us by the appropriate deadlines which exception items to pay or which to return.
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
Where available, we will provide you a report of exception items. You must then notify us by the appropriate deadlines 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 fraudul ent if (i) the check is included in a report of exception items, (ii) you have not selected a return default for exception items and (ii i) you do not give us timely instructions to return the check.
You acknowledge that our Positive Pay Services do not pre clude 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 the Teller Positive Pay Service offered by us, or fail to meet the 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 or deposited 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 substi tute 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.
You acknowledge that you must fulfill your responsibilities in connection with a Positive Pay Service on each Business Day.
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In the event we are required to utilize our business continuity procedures, we will, if feasible, apply the default procedure in the applicable User Documentation. In some cases, we may attempt to contact you.
RECEIVABLES MATCHING
The Receivables Matching Service (the “Service”) consolidates and fo rmats receivables information, facilitates your reconcilement of this receivables information with payments received from your payers for credit to your deposit account with us, and provides outputs of electronic data reports regarding your receivables and related payments. The term “receivables information ” shall refer to information regarding your outstanding or paid receivables, invoices, remittance data, payment advices or other related data for which you are to receive payment.
Receivables information can be delivered to us by you and your payers through a number of channels, including our Website, by email to a designated email address for the Service, by lockbox, and by other channels described in the User Documentation. The Service will provide you with receivables and payment data in the formats and manner described in the User Documentation, including identification of each incoming payment that matches or relates to previously submitted receivable.
The Service also permits you to access through t he Website or other mutually agreed online access channels in order to view information concerning receipt matching which may include payment -related, receivables -related and/or open receivables information delivered to us.
Detailed information regarding the Service is available in the applicable User Documentation.
YOUR RESPONSIBILITIES
Before you submit to us your first request to use the Service, you are required to designate one or more accounts with us as the collection account(s) under the Service (each an “Account”).
You agree and acknowledge that you will authorize and instruct your payers to deliver receivables information to us in the formats and manner established by us in the User Documentation or otherwise. It is your sole responsibility to re quest each of your relevant payers to provide the receivables information that you may require and/or that is necessary for the functioning of the Service. We have no knowledge or control over the process of the delivery of such receivables information. W e have no obligation (i) to confirm or verify the accuracy, completeness, authenticity or validity of the receivables information received from you or your payers, and (ii) we have no obligation to confirm or to verify the identity of the sender of receivables information or a related payment.
You also may submit to the Service monthly account statements and other data regarding your accounts that are maintained at another financial institution. If you do so, you are responsible for providing such informa tion or for authorizing such financial institution to submit information to us and to take all other actions necessary for us to provide these Services to you.
We shall not be responsible for the accuracy or timeliness of any information provided to us by any such financial institution.
You hereby authorize us to extract data in various formats from the receivables information received from you or the payers, and to translate the data into the appropriate formats for use within the Service. The Service wil l seek to use the extracted data to match receivables information against the payments credited to your Account. This matching will be done according to the rules and standards as set forth in the applicable User Documentation, rules or standards requeste d by you within the Service and approved us, or as otherwise established by us for the Service from time to time.
We may establish requirements regarding the channel and format for the sending of receivables information to us, including permissible email channels. We reserve the right to reject and/or not process any receivables information that is sent to us that is not compliant with the formats, standards or other requirements set forth in the User Documentation.
You agree and acknowledge that the receivables information and payment information to be available for matching on a current business day is subject to certain cut -off times and delays in updating and, therefore, at any point in time the information reported in the Service may not reflect all information within our systems, operations, or records at such time.
You may access the extracted data from the receivables information and the matched payments using one of our Websites.
You are responsible for taking actions to manage and review the payments and receivables information matching. We are not responsible for any damages as a result of any error made due to the actions taken by you through the use of Service or the Website.
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information. You acknowledge that such reporting is not intended to be used as substitut e for your review of your bank statement of your Accounts and your obligations herein and/or deposit account agreement to alert us of any errors or discrepancies on your Accounts.
SERVICE INSTRUCTIONS; SINGLE ADMINISTRATOR INDEMNIFICATION You authorize us to act on any instruction regarding the Service that is provided to us by one of your Users or that is provided by any other person where the instruction is communicated in a session verified with a user name and password issued to one of your User(s). Yo u acknowledge and agree that by using the Service one of your Users may submit an instruction for the Service, and we will act on such instruction, without a review, confirmation or approval by a second (different) User.
You acknowledge that the Service does not offer you an option of dual administration or dual user authorization with respect to all Service related instructions sent to us. You are requesting access to and use of the Service notwithstanding the lack of dual administration and dual user requirements, and we agree to permit such access and use of the Service in this manner in consideration of the following agreements:
a) You agree that we shall have no responsibility or liability for any use or misuse of the Service, or of services, accounts, or information accessed via the Service, directly or indirectly, that would not have occurred had the Service offered dual administration and dual user requirements. For the avoidance of doubt, you hereby waive any and all claims you may have against us in connection with any loss, theft, misappropriation, cost, expense, damage or liability you may suffer or incur as a result, directly or indirectly, of the lack of dual administration and dual user authorization for your access to the Service.
b) You agree to i ndemnify us against and hold us harmless from and defend us against any and all liabilities, claims, costs, expenses and damages of any nature (including legal expenses) arising out of or relating to disputes or legal actions by parties other than you and us, in connection with any use or misuse of the Service, or of services, accounts, or information accessed via the Service, directly or indirectly, in the absence of dual administration and dual user authorization for your access to the Service. This indemnity shall survive any termination of the Service.
RECEIVABLES AND PAYMENT INFORMATION DOWNLOADED BY YOU
You may use the Service to download electronic data file(s) of receivables and payments information. In the event you elect to download receivables a nd payments information, you are responsible for your use of the data in your accounts receivable, accounting or other internal system. You agree and acknowledge that our provision of this download capability does not create any additional duty of ours ei ther with regard to identifying discrepancies or errors in the downloaded information or with regard to your responsibilities regarding accurate record keeping.
OUR RESPONSIBILITIES
The receipt of payments from your payers and the crediting of funds to the Account are subject to terms and conditions set forth in herein and in the applicable Account Agreement.
We will use reasonable efforts to accept and process the receivable information received from you or your payers, to extract data from the submitted receivables information, match the receivables information against the payments credited to the Account, and provide the receivables information and payment reporti ng to you. We also will use reasonable efforts to identify exception items within the Service and report those to you. We shall not be responsible for the completeness, accuracy or timeliness of any receivables information provided to us or extracted by us from the submitted receivables. In the event that such receivables information is incomplete, incorrect, vague or ambiguous or provided in a form that is unacceptable to us, we are entitled to reject such information and/or not process it further withi n the Service.
We will provide you with a Website through which you can (i) view the payments and the receivables information sent to us by you and your payers and (ii) manage certain receivables information and reports. We will use reasonable effort to m ake data and information available to you as soon as reasonably practicable through the Website.
We shall not be liable for any Damages (as defined below) arising from, or as a result of, any delay or failure on our part t o provide the Service or any err or, action, or omission on the part of you in using the Service or your payers in providing the receivables information.
We are not responsible for the accuracy, timeliness and reconciliation of the receivables information accessed in connection with the Service. You expressly agree and acknowledge that all features utilized, and all actions taken, by you in connection with the Service are taken in your sole discretion and under your sole responsibility.
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SUPPLEMENTAL LIMITATION OF LIABILITIES; INDEMNITIES
Our duty and obligations under these Services will be fully discharged following the reporting of the receivables information to you.
In relation to any receivables information to be sent to us via e -mail by you or one of your payers, you fully agree that w e are authorized, but not obliged, to rely upon and act in accordance with any e -mail communication received by us purporting to be a copy of a transmission or communication given or purporting to be given on your behalf or your payers behalf without inquiring on our part as to the source of the transmission or communication or the identity of the person making or purporting to make such transmission or communication and regardless of the circumstances prevailing at the time of such transmission or communication. We shall be entitled to treat each such transmission or communication as fully authorized by and binding upon your sending the transmissions or communications and we shall be entitled (but not bound) to take such steps in connection with or in relia nce upon such transmissions or communications as we may reasonably consider appropriate. In consideration for our acting in accordance with this provision, you agree and undertake to indemnify us and to keep us indemnified against all losses, claims, actions, proceeding, demands, damages, costs and expenses incurred or sustained by us of whatever nature and arising from our reliance on any such e -mail communication, excluding cost or damage attributable to our gross negligence or intentional misconduct.
You acknowledge and agree that (i) we are making no representations or warranties of any kind regarding the content of any reports of receivables information provided through the Service, and (ii) you and your payers are transmitting receivables information through the Service at your own risk. We disclaim any and all warranties of any kind (whether express or implied) including but not limited to any warranties of merchantability or fitness for a particular purpose with respect the Service and the receivables information provided to you through the Service.
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 section of this Booklet, including but not limited to the Security Pro cedures 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 N ACHA 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 E ntry for a RCK and (ii) you accept as Originator all liability corresponding to the representations and warranties we as ODFI 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 ODFI 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 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, our Software on your computer, our Website, and any such method as may be described in the applicable User Documentation, to pay any of your taxes which are reported or filed u sing the tax forms as more fully described and specified in such applicable User Documentation. Based on AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 34
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your Tax Payment Instructions, we prepare and remit your tax deposits. Each of these Services is described in the applicable User Documentation. This s ection together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services defined herein.
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.
If permitted by the input method, you may specify a settlement date in a ccordance 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. Prefunding 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 Pa yment 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 Instruc tion 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 t he Collected and Available Fund s 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 intere st 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.
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CANCELLATION
Subject to the provisions in the User Documenta tion, 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 or our Website.
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 • The request is receiv ed 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 t o arrange for payment of such refund to us. In any event, you agree to repay us for any overpayment upon the earlier of (i) you r 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.
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 b e 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 suc h interruption.
Notwithstanding anything to the contrary, if you initiate a Tax Payment Instruction using an “ expedited payment request”, as specified in the applicable User Documentation, such “expedited payment request” is subject to our prior approval, at our sole discretion . If we d o approve your use of such an “ expedited payment request ”, and you comply with the specific instructions and procedures set forth in the applicable User Documentation, we will make a reasonable effort to act on the Tax Payment Instruction initiated using such “expedited payment request,” but we will have no liability if it is not effected.
TAXPAY AND BILLPAY
With this Service, you mayinitiate payments of certain bills and taxes provided through our designated Website, as described herein or in t he applicable User Documentation. This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services def ined herein. You may only access the Service through the our designated Website and use the Service to request us to make bill payments and tax payments on your behalf to Registered Payees that are eligible to receive such payments as determined by their i nclusion in the Payee Database. Bill and tax payments will be processed by electronic payment means only.
TAX AND BILL PAYMENTS
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Scheduling Payment Request . To make a payment to a Registered Payee, you may use the Service to schedule a Payment Request and select the Settlement Date. We begin processing your Payment Request on the business day before the Settlement Date, but we debit your Payment Account on the Settlement Date.. You must enter the Payment Request on or before the Business Day bef ore the Settlement Date . You are solely responsible for scheduling Payment Requests and selecting a Settlement Date for each payment that allows sufficient time for the payment to be delivered on or prior to the date on which the payment is due to the Registered Payee. We make no representation or warranty to you that a Payment Request will be received by the Registered Payee or credited to the Registered Payee’s bank account on any specific date or within any specific delivery time. Regardless of the Settlement Date selected by you, we shall have no liability to you or your Registered Payee in the event that you incur a late fee or other financial liability to a Registered Payee arising from a del ayed, undelivered, or late payment.
Payment Method and Trans action Limits. You may, through the Service, request that we process a Payment Request as electronic funds transfer payment.We may, in our sole discretion, impose limits on the amount of money sent through the Service, on a per-transaction and/or a cumulative basis, and change those limits at any time without prior notice to you.
Processing Payment Requests . You hereby authorize us to debit your Payment Account for the amount of each Payment Request and remit funds in accordance with your Payment Request t hrough electronic funds transfer . You are responsible for maintaining collected and available funds in the Payment Account in an amount sufficient to pay for all debits to fund the Payment Requests on or before the Settlement Date. We are not obligated t o process any Payment Request, 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. We may post these debits to your Payment Account even if the debit s cause your Payment Account to have a negative intraday balance or to be in an overdraft position. On or before the Settlement Date funds deducted from your Payment Account will be held in a master bank account or general liability account belonging to us . You acknowledge and agree that you have no ownership interest or right to the funds in this bank account. This bank account arrangement does not create a trust or other fiduciary obligations on the part of us to you.
Returned Transactions. If a Register ed Payee or the Registered Payee’s bank returns a Payment Request for any reason then we will credit the returned Payment Request to your Payment Account. You agree that we shall not have any liability for any returned Payment Request or any resulting loss or damage that you may incur.
Payment Cancellation Requests. You may cancel, reschedule or modify a Scheduled Payment Request prior to the time that we begin processing it as described in the User Documentation. You may only cancel, reschedule or modif y a Scheduled Payment Request through the Service Website. Once we have begun processing a Payment Request, it cannot be cancelled, rescheduled or modified by you. In addition, we reserve the right in our sole discretion to suspend or cancel any Scheduled Payment Request including if your Payment Account or your use of the Service is not in good standing, as determined by us in our sole discretion. We will credit back to the Payment Account any debits previously made to fund a cancelled Scheduled Payment Request.
Payment Review. In our discretion, we may place a hold on a Payment Request for as long as reasonably required to conduct an appropriate inquiry regarding you, the Registered Payee, payment history, and other relevant circumstances and factors.
Depending on the results of this review, we may process the Payment Request, reverse or cancel the Payment Request, or hold the Payment Request and related funds pending instructions from a government agency. At any time, a Payment Request may be reversed or canceled by us in our sole discretion and without prior notice to you.
Compliance with Laws, Rules and Regulations : You shall comply with all applicable laws, payment system rules and other regulations with respect to your use of the Service.
Compliance with Service Documentation . You are responsible for ensuring that each Payment Request conforms in form and substance to the requirements, including cutoff times on a Business Day, described in the applicable User Documentation for the Service. If the 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
REGISTERED PAYEE DATABASE
A third party company operates an online database containing payment routing and other information regarding Registered Payees. We do not operate, monitor, audit, or control the Payee Database and we are not responsible for the accuracy of information that is stored in the Payee Database. The Payee Database is not part of the Service. When making a Payment AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 37
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Transaction, you may look -up your payees for bill payments and tax payments in the Payee Database to see if they are Registered Payee.
The Service may obtain payment routing information for your Registered Payees from the Payee Database. We may at our option process a Payment Request to the Registered Payee based upon the account and routing number information provided by the Registered Payee without further investigation or confirmation by us. You are solely respo nsible for any Payment Request that is processed by the Service using the Registered Payee data contained in the Payee Database.
SINGLE USER INDEMNIFICATION
We very strongly recommend that you implement and use a segregation- of-duties model, implementing dual controls, (“Dual Payment Controls”) in connection with all authorizations to initiate and approve / release Payment Requests via the Service.
This recommendation serves to help protect you from loss, theft, misappropriation or other una uthorized use of the Service and/or information or funds accessed via the Service, directly or indirectly. This recommendation also reflects industry bes t practices. When you setup the Service, your authorized administrators on the Service have authority, acting together, to setup or modify users on the Service. Duirng the user setup process, your administrators have the option to allow a single user, acting alone, to enter, approve and release Payment Requests or your administrators may require two user s, acting together, to enter, approve and release Payment Requests. You are in sole control of the setup of your users and you bear all responsibilities and risk if you elect to set up a single user with permissions to act alone when entering, approving a nd releasing a Payment Request.
You agree to indemnify us against and hold us harmless from and defend us against any and all liabilities, claims, costs, expenses and damages of any nature (including legal expenses) arising out of or relating to or in connection with any use or misuse of the Service or of information or funds accessed via the Service, directly or indirectly, in the absence of your ful l implementation and use at all times of Dual Payment Controls.
SUPPLEMENTAL LIMITED WARRANTY/DISCLAIMER
YOU ACKNOWLEDGE AND AGREE THAT WE ARE MAKING NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE COMPLETENESS OR ACCURACY OF THE CONTENT OF THE PAYEE DATABASE.
WE DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED) INCLUDING
BUT N OT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT THE SERVICE AND THE PAYEE DATABASE. WE WILL HAVE NO LIABILITY OR
RESPONSIBILITY FOR ANY LOSSES, COSTS, EXPENSES OR DAMAGES INCURRED BY YOU OR YOUR
REGISTERED P AYEES WITH RESPECT TO THE USE OF THE PAYEE DATABASE AS MADE AVAILABLE THROUGH THE SERVICE.
WIRE TRANSFERS 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 transacted within the United States of America, which are covered in the Automated Clearing House (ACH) section of this Booklet.
This section together with the entirety of the General Provisions section of this Booklet, including without limitation the terms related to Security Procedures, forms the agreement between you and us with respect to the Services defined herein.
Wire Tran sfer 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 ac counts 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 made according to a specific req uest 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 single payments as well as 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 (as used in this section, “multibank instructions”) . 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 w ith express, written authorization (with a copy to us where requested) to AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 38
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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.
If we receive any multibank instruction via SWIFT, we will relay your instructi ons to the receiving bank, subject to business day schedules for us, SWIFT, and the receiving bank. We will have no liability arising out of or relating to our forwarding, or any rejection by the other bank of, any such instruction which is not in the SWIF T format required by the other bank for such instruction. Your multibank instructions to us via SWIFT must be sent to the SWIFT address specified by us to you from time to time.
If we receive any multibank instructions other than via SWIFT, we will either, (i) where feasible, create a SWIFT formatted message from your instruction and relay it by SWIFT to the other bank, or (ii) use whatever means or medium we deem appropriate, including use of third- party facilities, to reformat and transmit your pay ment 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 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 a ny 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 may be included in an Information Reporting Service if you have arranged such reports from the bank that is subject to such instructions.
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, including but not li mited to NACHA rules for low-value payments processed within the United States . 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 Tran sfer Service or an 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.
ACCOUNT DEBITS
You must have Collected a nd 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 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 wit hout 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 Service 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
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We will use any means of transmission, funds transfer system, clear ing 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 a lso 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 Transfer Services Requests 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 no t 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 may be given to you by telephone, by electronic means, by facsimile or by mail, depending upon the method of origination. Notices of rejection will be effective when given.
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, however, 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 cancel or amend. 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 t he 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 inconsiste nt 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.
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Electronic Trade Services
Our Electronic Trade Services includes, but is not limited to, allowing you to:
• Initiate collections
• Instruct us to issue standby and commercial letters of credit and guarantees • Instruct us to issue bank payment obligations
• Initiate open account transactions
• Receive advice of our receipt of purchase orders naming you as the supplier • Receive advice of our receipt, confirmation, or payment, of commercial letters of credit advised and standby letters of credit advised naming you as beneficiary
• Request full or partial transfers of your commercial letters of credit or full transfers of your standby letters of credit • Prepare documents in connection with your commercial letters of credit • Access reports on letter of credit transactions, open account transactions, collections and bankers’ acceptances • Access images of your relevant documents as they relate to your letter of credit transactions, collections and open account transactions
• Request supply chain financing transactions in the roles of either a buyer or a seller Detailed information regarding each Service is found in the applicable User Documentation.
COLLECTIONS
OUTGOING COLLECTIONS
Over the Counter Collections . Reports concerning your over the counter collections are made available under the Information Reporting section of Electronic Trade Services in this Booklet.
Direct Collections. Our Electronic Trade Services Direct Collections Service includes, but is not limited to, allowing 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 direct collection will be governed by the Uniform Rules for Collections. You will promptly transmit to us a copy of the completed direct collection form and, upon our request, will provide to us copies of the underlying documentation or other information.
You represent and warrant to us as of the date you transmit the instruction form to us that the direct collection is not prohibited under the foreign asset control or other regulations of the United States of America or t he applicable laws of any other jurisdictions.
Upon our receipt of any payment of a direct 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 to 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 a ccompanied this Booklet or such other address as may be notified by you in writing.
INCOMING COLLECTIONS
Our Electronic Trade Services Incoming Collections Service includes, but is not limited to, allowing you to (i) request us to receive documentary time drafts, sight drafts or bills of exchange drawn on your appropriate account as part of your trade transactions and (ii) authorize us to make such payments . Such drafts are payable at sight or at a future date. All such drafts received by us shall either be in the customary form of such drafts, or contain on the face of the instrument the words “draft” or “bill of exchange.” Each draft must designate us as collecting and/ or presenting bank to make presentation to you for acceptance.
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You appoint us as your true and lawful attorney- in fact to act in your name, place and stead, solely for the purpose of signing your acceptance on drafts in accordance with the procedures outlined below . You hereby grant to us all powers necessary for us to sig n your acceptance and thereby bind you to such acceptance . We will date your acceptance, specifying your name, and will sign as your agent and attorney- in-fact. We are also authorized to sign your name on your behalf without stating your name or our capaci ty hereunder. This appointment and grant is deemed coupled with an interest and may be revoked only by written notice of termination.
You will indemnify us against and hold us harmless from and defend us against any and all liabilities, claims, costs, expe nses and damages of any nature (including Legal Expenses) that may directly or indirectly result or arise from or be incurred in connection with:
• Any acceptance or other actions performed by us as attorney- in-fact, except to the extent directly caused by o ur gross negligence or willful misconduct
• Any dishonor of a draft by you; and/or
• Any breach of or default under this Incoming Collections Service by you We shall, within a reasonable time after receipt of your authorization to accept the draft, accept such draft on your behalf by signing your acceptance on such draft . Within a reasonable time thereafter, we will send an electronic notification to you .
Such notification will include your name, address and reference number, the amount of the draft, its payment tenor, the maturity date, the drawer’s name and the presenter’s name. You authorize us to accept, pay or reject incoming collections on your behalf.
All drafts which we accept on your behalf, in the capacity as your attorney- in-fact, shall conclusively be deemed to have been accepted in fact by you fully and for all purposes, as if your had signed or executed the acceptance and such draft.
You authorize us to debit your appropriate account for authorized payments.
STANDBY AND COMMERCIAL LETTERS OF CREDIT AND GUARANTEES ISSUED Our Electronic Trade Services Standby,Commercial Letters of Credit and Guarantees Issued Service includes, but is not limited to, allowing you to request us, by electronic transmission, to issue a commercial or standby letter o f credit or a guarantee. If electronic transmission is unavailable, you may request us to issue such letters of credit or guarantees by fax transmission. 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, each standby letter of credit we issue will be subject to the ISP98 and each guarantee will be subject to URDG758 and/or such governing law as may be approved from time to time. A letter of credit may be issued by any of our authorized offices or affiliates within or outside the United States of America. A guarantee may be issued by any of our authorized offices or affiliates outside the United States of America.
More detailed terms and conditions concerning the Electronic Trade Services Standby,Commercial Letters of Credit and Guarantees Issued Service can be found in the Master Standby Letter of Credit Agreement and/or the Mas ter Commercial Letter of Credit Agreement and/or the Master Guarantee Issuance Agreement (collectively, the Master Agreements ). Prior to using the Electronic Trade Services Standby, Commercial Letters of Credit and Guarantees Issued Service you will have to execute the applicable Master Agreement. To the extent a discrepancy occurs between this Booklet and your executed Master Agreement(s) , such discrepancy will be resolved by giving precedence to the respective Master Agreement.
YOUR RESPONSIBILITIES
You represent and warrant to us as of the date of your issuance request of each commercial letter of credit and each drawing that you or the importer has obtained all applicable and/or required licenses and other governmental approvals required for the import, export, shipping, storage of, financing of or payment for the goods and documents described in the letter of credit.
You further represent and warrant to us, for each commercial and standby letter of credit issued, that you have the authority to enter in to such letter of credit and that the letter of credit will not violate or conflict with any of the provisions of the applicable constituent documents or any other agreement or undertaking to which you are a party. The transactions underlying the letter of credit are not prohibited under the foreign asset control or other regulations or laws of the United States of America or the applicable regulations or 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 commercial letter of credit issued by us.
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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, o rder, 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 nominated bank 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 l etter 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.
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 e arnings 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.
You will pay us Legal Expenses incurred by us in con nection 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 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 let ter of credit or guarantee will not be released or discharged if:
• We fail 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 commercial or standby letter of credit or guarantee as described in your electronic or fax (if electronic is unavailable) transmission and pursuant to this Booklet and the UCP (with regard to commercial letters of credit), ISP98 (with regard to standby letters of credit) and URDG758 and/ or such governing law as may be approved from time to time (with regard to guarantees). 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 Book let and the ISP98. We will pay each guarantee pursuant to its terms and this Booklet and URDG758 and/or such governing law as may be approved from time to time.
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 wil l increase our costs relative to our providing the Electronic Trade Services Standby ,Commercial Letters of Credit and Guarantees Issued 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 incl ude: (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 Suspension and Termination section of this Booklet, to term inate 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 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 43
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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 or guarantee is in a currency different than the currency in which such 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 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.
BANK PAYMENT OBLIGATION - BUYER
Our Bank Payment Obligation (“BPO”) Service provides you with the processing, handling, submission, receiving, reporting and comparison of data in connection with BPOs and related underlying trade transactions. The BPO is communicated in an ISO20022 certified BPO XML message exchanged between banks via SWIFTNet. In addition to delivering process efficiencies, the Service offers you and your seller opportunities for payment assurance, financing, sovereign, economic, and obligor bank risk mitigation, as the situation warrants. The BPO may be on immediate or deferred payment terms.
All BPOs (and all transactions thereunder) must be subject to the URBPO. Capitalized terms used in this BPO Service description but not otherwise defined have the meanings ascribed t o them in the URPBPO. While not all -inclusive, the following summarizes our BPO Services:
Establishing a Baseline . You will electronically transmit to us, in accordance with applicable User Documentation, purchase order data and data for the BPO conditions, either concurrently, or first purchase order data and then data for the BPO conditions. When we receive the r equired data, at our discretion, we will submit them to a Transaction Matching Application (“TMA”). The seller will also be confirming the purchase order data and the data for the BPO conditions to the Recipient Bank for submission to the TMA. If the sub mitted data matches on the TMA, the Baseline is an Established Baseline. At this point in time the BPO is effective and irrevocable but conditional and Client will receive from us, via electronic transmission, a notification of BPO issuance and a Baseline Match Report establishing a Baseline.
Matching. After seller arranges for the relevant Data Set to be submitted to Recipient Bank, and in turn Recipient Bank submits them to TMA for matching, you may receive from us at our option, via electronic transmi ssion, a BPO Data Set Match Notification attaching a Data Set Match Report. The Notification, among other things, will ask for your instructions on accepting any Data Mismatches and commensurate deductions or increases in submission value or alternatively , whether you wish to reject the submission. We will then submit your instructions to the TMA. Notwithstanding the foregoing, we reserve all rights to review Data Mismatches and reject or accept them in our sole discretion. Upon a successful TMA Data Set match or upon our acceptance of Data Mismatches, the BPO will become a direct payment obligation which is due and payable, and we will honor according to the agreed payment terms.
Settlement. If the terms of the BPO call for immediate, at sight payment, we will debit your account or settle with you as per your instructions for the BPO amount and remit the funds to Recipient Bank. In the case of a deferred payment BPO, we will notify you via electronic transmission that the BPO has been honored, the BPO amount, and the date upon which the BPO will mature. We will then settle with you at maturity by debiting your account with us or per your instructions.
With regard to the Bank Payment Obligation Service, more detailed terms and conditions can be found in the applicable Bank Payment Obligation documentation to be entered into by you and us. To the extent a conflict exists between this Amendment and the applicable Bank Payment Obligation documentation the terms and conditions in the Bank Payment Obligati on documentation will govern.
OPEN ACCOUNT
Our Electronic Trade Services Open Account Service permits you electronically to (i) inform us of your purchase order details, instruct us on examining required documents for compliance with your purchase orders a nd instruct us to pay the presenting party and (ii) provide notification to your vendors of open account transactions initiated through electronic means.
Purchase Orders . You will electronically transmit to us, in accordance with applicable User Documentat ion, 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 a commercial letter of credit, each transaction will be flagged as an “open account” payment type.
When we receive required documents, we will review them according to your purchase order terms . If and as provided by the open account paym ent type selected by you, we will match the documents against the pertinent purchase orders housed on AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 44
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our electronic database in accordance with the parameters established by you and accepted by us . If you have sufficient Collected and Available Funds in t he account you have designated, 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 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 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.
• Auto-pay – we match the documents as described above, and, if we determine they are compliant, make payment to the presenter; 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, by Electronic Trade Services, fax, courier or mail as instructed by you, your vendors of (i) our receipt of such notices naming them as vendor and (ii) any payments made pursuant to drawings under such open account transactions.
STANDBY LETTERS OF CREDIT-ADVISED (CONFIRMED/UNCONFIRMED) Our Electronic Trade Services Standby Letter of Credi t-Advised Service includes, but is not limited to, allowing you to receive advice, by electronic transmission, of (i) our receipt of any standby letter of credit naming you as beneficiary; (ii ) our confirmation of any such letter of credit; (iii) the statu s of any documents or payments with regard to any St andby Letter of Credit-Advised; and (iv) any payment made pursuant to a drawing under any such letter of credit.
You may elect to have Standby Letters of Credit -Advised of a Subsidiary or other entity reported to you with our Electronic Trade Services Standby Letter of Credit -Advised 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 ot her entity’s information available to you.
General. The Standby Letter of Credit-Advised and the Full Transfer (as described below) must be subject to UCP or ISP98, and our rights hereunder are in addition to rights we have under UCP or ISP98, as applicabl e.
Full Transfer. You may request the transfer of all of your rights as beneficiary of a Standby Letter of Credit -Advised 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 Standby Letter of Credit -Advised 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 t o any amendments, including increases or extensions or other changes. You must provide us the original Standby Letter of Credit - Advised and any existing amendments . You understand that we may, at our sole discretion, refuse to approve any Full Transfer to a second beneficiary . You acknowledge that due to conditions of the original Standby Letter of Credit -Advised, certain proprietary information may be disclosed to the second beneficiary and/or to the applicant under the original Standby Letter of Credit -Advised. 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 Standby Letter of Credit- Advised 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 you r 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.
Partial Transfers. We do not permit partial transfers of Standby Letters of Credit-Advised.
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COMMERCIAL LETTERS OF CREDIT–ADVISED (CONFIRMED/UNCONFIRMED) Our Electronic Trade Services Commercial Letter of Credit -Advised Service includes, but is not limited to, allowing you to receive advice, by electronic transmission, of (i) our receipt of any commercial letters of credit naming you as beneficiary; (ii) our confirmation of any such letter of credit; (iii) the status of any presentations or payments with regard to any Commercial Letter of Credit-Advised; and (iv) notification of any payment pursuant to a presentation under any such letter of credit. The Commercial Letter of Credit –Advised Service also facilitates electronic preparation of required documents under such advised letters of credit using electronic data captured through our electronic advising process.
You may elect to have Commercial Letters of Credit -Advised of a Subsidiary or other entity reported to you with our Commercial Letter of Credit -Advised 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 required documents based on your Commercial Letter of Credit -Advised details. You may then edit and locally print those documents and courier them to us for presentation.
General. All Commercial Letters of Credit- Advised (and any transactions thereunder, including transfers) must be subject to the UCP and our rights herein are in addition to rights we have under the UCP.
REQUESTS FOR TRANSFERS
Partial Transfers. You may request the partial transfer of your rights as beneficiary, with or without substitution of invoices, of Commercial Letters of Credit -Advised by submitting to us, for each transfer, a request providing the following information:
• Date of application
• Whether the transfer is with or without substitution of invoices and/or drafts • Whether you refuse to allow amendments to be passed automatically to the second beneficiary without your consent • Our Commercial Letter of Credit-Advised reference number • Name of issuing bank
• Name and address of second beneficiary
• Name and address of second beneficiary’s advising bank • Amount to be transferred
• Description of merchandise subject to the transfer
• Unit price (if any)
• Expiration date for the transferred Commercial Letter of Credit-Advised • Latest shipment date for the transferred Commercial Letter of Credit-Advised • Number of days after shipment within which documents must be presented for the transferred Commercia l Letter of Credit-Advised
• Insurance percentage (if applicable) for the transferred Commercial Letter of Credit-Advised 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 Commercial Letter of Credit -Advised.
If you elect transfer with substitution of invoices, then, on our first demand, you will deliver to us within one (1) Busines s Day your draft, commercial invoice and any other required documents in compliance with the terms of the original Commercial L etter of Credit -Advised. 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 Commercial Letter of Credit -Advised 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 dr aft and the draft of the second beneficiary, less any fees due and payable to us in connection therewith. If you fail, at our first demand, to deliver to us your drafts, invoices and other required documents as AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 46
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stated above, you acknowledge our right to pr esent invoices and other documents received from the second beneficiary in accordance with the instructions of the original Commercial Letter of Credit -Advised. 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 Commercial Letter of Credit-Advised.
Full Transfers . You may request the transfer of all of your rights as beneficiary, without substitution of invoices, of Commercial Letters of Credit-Advised by submitting to us, for each transfer, a request providing the following information:
• Date of application
• Our Commercial Letter of Credit-Advised reference number • Commercial Letter of Credit-Advised number (issuing bank’s number) • Name of issuing bank
• Name and address of second beneficiary
• Name and address of second beneficiary’s advising bank • Amount to be transferred
If we approve the transfer, we will place the appropriate endorsement on the Commercial Letter of Credit -Advised 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.
For any transfer, you must provide us the original Commercial Letter of Credit -Advised 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 Commercial Letter of Credit -Advised, certain proprietary information may be disclosed to the second beneficiary and/or to the buyer under the origi nal Commercial Letter of Credit -Advised. 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 Commercial Letter of Credit- Advised (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 AND IMAGE ACCESS
We will make available to you, subject to the terms of the Information Reporting sect ion of this Booklet, reports including, but not necessarily limited to, standby letter of credit transactions issued and/or advised, commercial letter of credit transactions issued and/or advised, bankers’ acceptances, collections and open account transact ions, as more fully described in the applicable User Documentation.
We will also make available to you images including, but not necessarily limited to, your relevant documents as they relate t o your letter of credit transactions, collections and open acco unt transactions, as more fully described in the applicable User Documentation.
SUPPLEMENTAL CD-ROM/ DVDs SOFTWARE LICENSE PROVISIONS
This section supplements the Software License Agreement, entered into between you and us as a supplement to the Software License section of the Booklet, with respect to Software we provide for the Image Services, under which we provide you with CD-ROM/DVDs, and shall control in the event of conflict between it and the balance of the Software License Agreement.
This section does not apply to the Image Lockbox Service. If we provide you a CD -ROM/DVD which contains a media defect or is unreadable in its entirety, you must notify us in writing of such defect within 30 days after the CD -ROM/DVD creation date appearing o n the CD -ROM/DVD. If you provide us with such notice within such time period, we will use reasonable efforts to replace the CD -ROM/DVD. You acknowledge and agree that this shall be our sole obligation and your sole remedy with respect to any such defects in the CD-ROM/DVD.
Notwithstanding anything to the contrary in the Suspension and Termination section of the Booklet, if an Image Service under which we provide you with CD -ROM/DVDs is terminated for a reason other than your breach of any terms and AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 47
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conditions in this Amendment, you may continue to use the Software and Materials for such Service after termination of such Service for six months, or for such longer period as Bank approves, subject to the terms of this section or such other softwa re license agreement as we, at ou r election, require you to sign for this purpose. At the end of such six- month or longer period, the license for your use of such Software and Materials will then terminate automatically
SUPPLY CHAIN
SUPPLY CHAIN BUYER
Our Electronic Trade Services Supply Chain Service permits you electronically to (1) upload invoices that you have approved for payment, (2) make these uploaded invoices available to your vendor for early financing, (3) make payments on these uploaded invoices and (4) inquire and report on the status of these uploaded invoices.
Invoice Upload. You will electronically transmit to us, in accordance with applicable User Documentation, files of invoices that you have approved for payment on a future date and which you wish us to make available to your vendors for early financing. The electronic files will be in such format(s) and transmitted through such channel(s) as you have selected and we have approved.
Approval of Uploaded Invoices and Payment . Once invoices have been made available to the vendor, we will, at our discretion, respond to their request for early financing and will pay the vendors accordingly. On the maturity date of the invoice, we will collect funds from the account you have designated. If your vendor decides not to discount an invoice, you will, at maturity date, make payment to them through us.
Reporting. Information reporting is available to you on the status of each invoice and payment related to each such invoice as further described in the applicable User Documentation.
SUPPLY CHAIN SELLER
Our Electronic Trade Services Supply Chain Service permits you electronically to (1) select invoices that you wish to be considered for early financing and (2) inquire and report on the status of these selected invoices.
Invoice Selection . You will have visibility into approved invoices that are available for discounting which you can group together and electronically request us to finance. On receipt of a request from you, we will discount these invoices at an agreed upon rate from the dat e of discount until maturity. We are not obligated to discount each invoice, and will treat them on a case by case basis. If you decide not to discount an invoice, you will, at maturity date, receive payment from your buye r through us.
Reporting. Information reporting is available to you on the status of each invoice and payment related to each such invoice as further described in the applicable User Documentation.
With regards to all Services covered by our Electronic Trade Services Supply Chain Service, m ore detailed terms and conditions can be found in the applicable Supply Chain Service Documentation to be entered into by you, us and your vendor or buyer, as applicable . To the extent a conflict exists between this Booklet and the applicable Supply Chain Service Documentation, the terms and conditions in the Supply Chain Service Documentation will govern.
SUPPLEMENTAL LIMITATION OF LIABILITIES AND INDEMNIFICATION FOR ALL ELECTRONIC TRADE
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, e ven 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.
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• 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 a Website) received by us purporting to be a communi cation 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.
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General Provisions
THE ENTIRETY OF THIS GENERAL PROVISIONS SECTION OF THIS BOOKLET TOGETHER WITH THE
APPLICABLE SERVICE SECTIONS HEREIN FORMS THE AGREEMENT BETWEEN YOU AND US WITH RESPECT TO THE SERVICES DEFINED THROUGHOUT THIS BOOKLET.
ACCESSING SERVICES VIA THE INTERNET
We may make certain Services available via one or more Website s. In addition to any other terms and conditions applicable to your use of such Websites, you agree as follows:
We reserve the right to suspend your access to, and use of, a Website upon notice of a violation of any of the terms and conditions applicable to such access and use . In addition, we may suspend your access to, and/or use of, a Website immediately, or revoke the access of any authorized user or administrator, without notice where such action may be required to prevent interference with or disruption to services to other customers, to protect the integrity of our systems, as a result of a failure to comply with any requests for information or documentation, or as may be required by law or regulation.
Websites shall be used only for lawful purposes . Without limiting the foregoing, you agree not to use a Website in any way that would:
• infringe any third party copyright, patent, trademark, service mark, trade secret or other pr oprietary rights or rights of publicity or privacy
• be fraudulent or involve the use of counterfeit or stolen items • violate any law, statute, ordinance or regulation (including, without limitation, those governing export control, unfair competition, anti-discrimination, defamation or false advertising) • violate any contractual provision by which you are bound • be false, misleading or inaccurate
• create liability for us or any service provider(s) or cause us to lose (in whole or in part) the se rvices of any ser vice provider
• be defamatory, trade libelous, unlawfully threatening or unlawfully harassing • interfere with or disrupt computer networks connected to the network(s) used by you • interfere with or disrupt the use by any other customer of the Website and/or of any services accessed via the Website Violations of system and network security are prohibited, including but not limited to unauthorized access to, or use of, systems or data . You agree not to attempt to probe, scan or test the vulnerability of a system or to breach security or authentication measures or to seek to interfere with any system or network security. We will investigate violations of system and/or network security and may involve law enforcement if criminal conduct is suspected. Indirect or attempted violations of these terms and conditions by you, and any actual or attempted violations by a third party on your behalf, shall be considered violations by you.
You agree to follow all our procedures and requirements with respect to sec urity in accessing and using a Website and not to misrepresent your identity. Where passwords or other access information may be required, you are solely responsible for the security of such access information and will hold us harmless from any unauthorized acc ess to or use of systems that may result from your failure to properly maintain the security of such access information.
You agree to cooperate with us and any service provider(s) with regard to your access to, and use of, a Website , including providing such technical assistance and information as we may reasonably request.
You agree to access and use Websites only for the purpose intended and not for any purpose of commercial exploitation.
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 AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 50
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requests purporting to be from you. For c ertain 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 an y 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 tel ephone 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 ot her 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. You further 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 . In addition, you agree that we may rely on the integrity of facsimile transmissions that you send us and you agree to bear the risk that t he information we receive differs from that sent to us, and that such reliance will result in a loss.
CONFIDENTIALITY
OUR OBLIGATION
We will maintain the confidentiality of information obtained from you in connection with Services we provide under this Booklet in accordance with our normal procedures for safeguarding customer information and the policy reflected in the Bank of America Corporation Code of Ethics, except as otherwise provided herein.
YOUR OBLIGATION
You acknowledge our claim to proprietary rights in the Materials and that the Materials constitute our “trade secre ts” 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
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This section does not limit either party’s ability to disclose information (i) that the other party has approved by prior wri ting for disclosure; (ii) that is disclosed to its professional advisors or auditors; (iii) that is or 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 i ts receipt of it in connection with any Ser vice, (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 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, or the partial or complete delivery of certain Services, may take place in countries other than those where you and your account s with us are located . You further understand that information concerning your relationshi p 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 offices, affiliates, officers, employees and agents outside the country or countries where you and your accounts are located. You authorize us to transmit your banking relationship information across national borders, notwit hstanding 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 instru ctions. 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 mat erial, 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. In addition, the Bank may develop and use case studies related to and describing completed transactions between Bank and Client (the “Case Study”) and use the Case Study in Bank’s service proposals, marketing materials and Website . Prior to publishing or distributing the Case Study, Bank will provide a copy of the Case Study to Client for review and consent.
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 transaction does not contain currency exchange rates obtained from our daily r ate sheet or from one of our FX Advisors, then your funds will be exchanged for such other currency at a current rate of exchange on or before the transfer or debit da te, as the case may be, in accordance with our normal procedures (including applicable Us er Documentation). If we assign an exchange rate to your transaction, such exchange rate will be determined by us in our sole discretion based upon such factors as we determine relevant, including but not limited to, market conditions, exchange rates char ged by other parties, desired rates of return, market risk, credit risk, and other market and economic factors. 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 sour ces) may be different from our exchange rates. You acknowledge that assigned exchange rates may include fees, costs, charges or other mark ups as determined by us in our sole discretion. We do not accept any liability for our exchange rates, Any and all liability for our exchange rates is disclaimed, including without limitation, direct, indirect or consequential loss, and any liability if our exchange rates are different from rates offered or reported by third parties, and/or offered by us at a diff erent time, at a different location, for a different transaction amount, or involving a different payment media (including but not limited to bank-notes, checks, wire transfers, etc.).You should assume we have an economic incentive to be a counterparty to AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 52
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any transaction with you. 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 comple ted 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.
PRE-HEDGING DISCLOSURE:
From time to time in connection with our market making and other activities, we may engage in pre -hedging activities to facilitate customer transactions and hedge the associated market risk. Such trading may include pre- execution hedging transactions. These tr ansactions will be designed to be reasonable in relation to the risks associated with the potential transaction with you. However, no assurance can be given that these transactions will not affect the price of the underlying currency. In each of these inst ances, our trading activity could affect the market for the relevant currencies and consequently, your cost or proceeds, When our hedging and risk liquidation activity is completed at prices that are superior (or inferior) to the agreed upon execution pric e or benchmark, we will keep the positive (negative) difference as a profit (loss) in connection with the transactions. You will have no interest in any profits.
NOTICE OF ACCOUNT STATEMENT DISCREPENCIES
Information concerning payments and other transactions on your accounts 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 the Service and/or through the use of other Services provided by us to you. 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 accounts or any other discrepancy reflected in the notice or account statement. You must notify us promptly by telephone or other electronic m eans approved by us for such purpose, and promptly confirm such notice in writing, of information concerning an unauthorized or erroneous debit to your accounts if you learn about or discover it from any source other than a statement, advice or report from us.
E-STATEMENTS
If you use a Website , you will receive e- Statements electronically, unless you opt out. If you are not currently receiving e - Statements, we reserve the right to switch you to receipt of e -Statements unless you notify us that you wish to opt out. You may opt out by contacting your treasury services representative. You agree that this Booklet constitutes an agreement under the Uniform Electronic Transactions Act pursuant to applicable state law.
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, and we may pay a withdrawal and debit your account for any such withdrawal, even if (i) you have not presented us with a specimen facsimile signature; (ii)the size, color or style of the check is different from that of the check you use; or (iii) the size, color or style of the facsimile signature is different from that of the facsimile signature you use.
You are responsible for taking security measures and implementing procedures to prevent the forgery, theft or fraudulent or unauthorized use of your facsimile signature.
THIRD PARTY VENDORS
This section describes the terms and conditions under which you are permitted to utilize any Subsidiary or other person, including a Third Party Vendor, to access any of the Services provided to you by us (which may include the Third Party Vendor’s receipt, access to, and/or handling of any related sensitive information) through the use of a remote access software package, a Website, data file transmission, mail delivery service, mobile access or telephone, as applicable.
SUPPLEMENTAL LIMITATION OF LIABILITIES
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We will not be res ponsible for the acts or omissions of you or your officers, employees or agents, including any Third Party Vendors retained by you (including but not limited to the amount, accuracy, timeliness or authorization of any instructions or information) 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, including a Third Party Vendor, to access any of the Services provided to you (which may include the Third Party Vendor’s receipt, access to, and/or handling of any relate d sensitive information or PHI) through the use of a remote access software package, a Website, data file transmission, mail delivery service, mobile access or telephone, we will not be responsible or liable for such Subsidiary’s, person’s or Third Party Vendor’s use or misuse of the Services or related accounts or any such party’s access to, use, misuse or loss of any PHI or other sensitive information; provided we have complied with any applicable Security Procedure.. We may and will treat all instructi ons 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.
THIRD PARTY VENDOR USAGE OF TREASURY SERVICES
YOUR REPRESENTATIONS, WARRANTIES, AND AGREEMENT SURROUNDING THIRD PARTY VENDORS.
You represent and warrant to us that you obtain a business benefit by allowing a Third Party Vendor to use, on your behalf, one or more of the Services provided to you by us (which may include the Vendor’s receipt, access to, and / or handling of any related sensitive information or PHI), and that you have made available to each Third Party Vendor the Booklet and all applicable User Documentation.
You will provide and maintai n a list of all such Third Party Vendors in a form and in a manner acceptable to us. We may act under the Booklet as a Third Party Vendor instructs us and you agree that such Third Party Vendor will be acting as your agent with respect to the Services. Yo u further agree that you will cause a Third Party Vendor to use the Services on your behalf in accordance with the terms and conditions of the Booklet and all applicable User Documentation and that such Third Party Vendor shall have no other right to use a Service or to derive any benefit under the Booklet. You agree that you are fully responsible for ensuring that all appropriate information protection, privacy, and cross border data movement and similar policies and procedures are implemented and followe d by all such Third Party Vendors used by you, and that they comply at all times with applicable law. You shall provide us with information about any such Third Party Vendor as we reasonably request.
You will indemnify us and hold us harmless from and agai nst any and all liabilities, losses, claims, costs, expenses and damages of any nature (including but not limited to the allocated cost of staff counsel, reasonable attorneys’ fees and any f ees and expenses incurred in enforcing the Booklet) (cumulatively, a “Loss”) in any way relating to any action or inaction of a Third Party Vendor, unless such Loss is attributable to our gross negligence or intentional misconduct.
We may, at our sole discretion, either decline to act upon any instruction or communication received from any Third Party Vendor or terminate or suspend your use of the underlying Service, if, in our sole discretion, we determine that a Third Part y Vendor may pose a risk to our operations or a Third Party Vendor or you breach any term herein or the applicable User Documentation. In the event you terminate your relationship with a Third Party Vendor it is your sole responsibility to terminate such Third Party Vendor’s access to the Services (including access to any related PHI or other sensitive information).
In the event of a conflict between like terms in another agreement between you and us, then the terms of this section shall prevail, but only to the extent necessary to resolve such conflict.
GENERAL MATTERS
AGREEMENT
This Bookelt is attached to the City of Fresno’s Banking Services Agreement and is made a part therein as Exhibit C.
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.
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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 a nd 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 a ny 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 permitte d by law.
No delay or failure to exercise any right or remedy under this Booklet is deemed to be a wa iver 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.
GOVERNING LAW
With respect to each Service, this Booklet is governed by and interpreted according to the law s of the State of Caiifornia.
SECURITY PROCEDURE
You agree to use the applicable Security Procedure as described in the Materials in connection with your use of a Service for your data delivery type or Service for the purpose of verifying the authenticity of any (i) electronic funds transfers or payments instructions, including, without limitation, cancellations, amendments or reversals thereto; and (ii) any instructions, data, transactions or other information sent between you and us (collectively “transactions”). The purpose of the Security Procedure is to verify the authenticity of any such transactions between you and us or our third party processor and not to detect any errors in the transmission or content of any such transactions. 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 any such transactions . You agree that we or our third party processor may act on any transactions , the authenticity of which we or our third party processor, as applicable, have verified through use of the Security Procedure.
You agree that we may act on transactions, including, without limitation, electr onic funds transfers and payments 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 such transactions . In such cases, we may enfor ce or retain your payment to us for such transactions ; provided, however, we may not enforce or retain payment if you prove that the unauthorized transactions were not caused by a person (i) entrusted at any time to act for you with respect to any such tra nsactions 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 brea ch of the applicable Security Procedure.
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 provid ing 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 Regulations, as applicable, except as otherwise agreed in this Booklet.
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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 o f the payment plus compensation equivalent to interest; (iii) in case of any delay in crediting a debit Entry or RCC to your account, the amount of compensation equivalent to interest for the period of delay; or (iv) in 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.
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, timeliness or authorization of any instructions or information from you) or the acts or omiss ions 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 w ill 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 m isuse 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 (including Internet failure), 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 a ny law, rule, regulation or court order or decree.
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, withou t 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.
SERVICE CHARGES
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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.
PROTECTION FROM THIRD PARTIES
Intentionally Deleted.
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 restric tion 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. • Neither your performance of your obligations nor your use of any Service will facilitate illegal transactions, for example those prohibited by the Unlawful Internet Gambling Enforcement Act, 31 U.S.C. Se ction 5361 et seq., or otherwise violate any law, rule, regulation, judgment, decree or order applicable to you. • The Services you receive pursuant to this Booklet are for business use only and are not primarily for per sonal, family or household use.
• 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.
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 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
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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).
LICENSE
For each Software application we provide to you for one or more Services, we grant you a non- exclusive, revocable, non - transferable license for the use of that Software and any Materials related to the Software that we pr ovide to you. 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 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 and Materials (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 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 Materials (or copies) . You will also take appropriate action to instruct and obligate your representatives who are permitted access to the Software and/or Materials (including copies) to comply with your obligations to protect the Software and Materials.
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 suppor t 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.
At our option, we may assist you with the installation of Software on your computer and/or with the training of persons who will use the Software, but we will not bear any responsibility for (i) such training or (ii) the proper installation or use of the Software. Except as you and we may agree otherwise, you will be deemed to have accepted the Software upon its installation.
If we have provided you with Software to be installed on your c omputer, you may not install the Software on more than one computer or electronically distribute it to any other computer, without our prior written approval and the payment of any fee s that we may assess. You may move the Software to another computer repl acing 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 . If we have provided you with Softwa re to be installed on your network server, you may not electronically distribute, or allow anyone else to electronically distribute, the Software except from th e 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 install the Software on more than one computer (subject to our prior written approval) or electronically distribute the Software to a workstation on that network, as applicable, in each case indicating the location and the date of such installation or distribution.
You may not (i) sell, assign, transfer, license, sublicense or publish the Software or Materials (including any permitted copies), (ii) disclose, display or otherwise make available the Software or Materials (including any permitted copies) to third parties, or (iii) copy, or allow anyone else to copy, the Software or Materials, without our prior written approval, except t hat you may make two copies of the Sof tware for backup and/or archival purposes . In the event that we provide you with our prior written approval to make an additional copy of the Software, you will (i) pay us any fees assessed by us and (ii) provi de us notice, in writing or by electronic means approved by us for such purpose, of the location and the date of such copy.
You will provide us with reasonable access to the Software and Materials at your site to provide assistance or to verify the status or location of the Software and Materials . In addition, we may audit your site and have access to the Software and Materials provided to you to confirm compliance with this Software License section. Furthermore, we may audit your site and have access to such Software and Materials if you fail to pro vide us with any notices or reports, or if we reasonably believe you are using unauthorized copies of the Software and/or Materials, using the Software and/or Materials in an unauthorized manner, and/or otherwise failing to comply with any of the terms and conditions of this Booklet.
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You may not alter, repair, modify or adapt any Software or Materials, including, but not limited to, translating, reverse engineering, decompiling, disassembling or creating derivative works from it .
You will inform our client support unit of all errors, difficulties or other problems with the Software of which you become aware. We may make reasonable efforts to fix or provide workarounds for any material errors reported to us and to provide you with support and consultation concerning the Software . Any such efforts, support and consultation will be determined by us, in our sole discretion. You will cooperate with us in the expeditious resolution of such errors, difficulties or other problems by providing us, on request, a listi ng 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.
Your license to the Software and Materials will te rminate automatically if you breach a material term of this Software License section or 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 and Materials have not been produced to meet your specific requirements and have not been tested in every possible combination and operating environment . You are responsible for satisfying yourself that the Software and Materials are satisfactory for your purposes.
You further understand and agree that we make no representation concerning the completeness, accuracy, timeline ss, operation or performance of the Software and/or Materials or their compatibility with any hardware . You acknowledge and agree that the operation of the Software may not be uninterrupted or error -free and that the Software and Materials are provided on an “AS IS” basis.
We warrant that the Software will substantially conform to the documentation provided with the Software for a period of 30 days after delivery to you, provided that (i) the Software has been used by you in strict compliance with the terms and conditions of this Booklet and the Materials, (ii) the Software has not been modified in any way by you, and (iii) you promptly notify us and reproduce for us any defects, errors or bugs in the Software which result in the Software not substantially conforming to such documentation. In the event that such warranty is breached, we shall, at our option, (i) use reasonable efforts to correct or work around any such defects, errors or bugs or (ii) accept return of the Software and refund any license fees paid by you for the Software.
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 Materials.
Except as specifically stated above an d 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 t he 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 Materials, any CD -ROM/DVDs provided to you, 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 damage s of any kind arising out of the provision of, use of, or inability to use, the Software and/or Materials.
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 and/or Materials.
INFRINGEMENT INDEMNITY
Notwithstanding your indemnity of us in the Protection From Third Partie s section of this Booklet and except as otherwise provided in this Booklet, we will defend at our own expense or settle any action brought against you to the extent it is base d on a third party claim that your use of the Software and/or Materials provided by us to you pursuant to this Booklet infringe 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 obligations under this indemnity are subject to (i) reasonably 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 reasonably prompt and timely manner, the documents, information and assistance we reasonably request, (iv) our having sole AD-AG-0455B (Booklet 2014) (Negotiated 2.13.18) 59
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control of defending such claim or action You acknowledge and agree that our obligations under this indemnity are our only obligations to you with respect to any infringement claim in connection with your use of the Software and/or Materials.
EXPORT CONTROLS
You understand and acknowledge that any obligations that we may have to provide Software, any Materials, data, technical assistance, training and related technical data, and any media in which any of the foregoing is contained (all of which shall be collectively referred to as “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 and/or provided to you and that you will comply with all applicable laws and regulations governing the export and diversion of the Data.
IMAGE SERVICES - SUPPLEMENTAL CD-ROM/DVDs SOFTWARE LICENSE PROVISIONS This subsection supplements this Software License section with respec t to Software we provide for the Image Service s, under which we provide you with CD -ROM/DVDs, and shall control in the event of conflict between it and the balance of the Software License section. This subsection does not apply to the Image Lockbox Service . If we provide you a CD-ROM/DVD which contains a media defect or is unreadable in its entirety, you must notify us in writing of such defect within 30 days after the CD-ROM/DVD creation date appearing on the CD ROM/DVD . If you provide us with such notice within such time period, we will use reasonable efforts to replace the CD -ROM/DVD. You acknowledge and agree that this shall be our sole obligation and your sole remedy with respect to any such defects in the CD-ROM/DVD.
Notwithstanding anything to the contrary in the Suspension and Termination section of this Booklet, if an Image Service under which we provide you with CD -ROM/DVDs is terminated for a reason other than your breach of any terms and conditions in this Booklet, you may continue to use the Software and Materials for such Service aft er 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 suc h 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 such Software and Materials will then terminate automatically.
SUSPENSION AND TERMINATION
If at any time we believe (i) that our provision of any Service to you may create a risk of financia l loss for us or result in an unacceptable credit exposure to us, or (ii) that an account associated with any Service may be subject to irregular, unauthorized, fraudulent or illegal activity, we may, in our sole discretion, immediately, without prior notice to you, suspend or modify our provision of any such Service until such time that such risk, exposure, or activity is eliminated or otherwise resolved, notwithstanding anything to the contrary in this Booklet. Either you or we may terminate any or all Se rvices upon 30 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, volunt arily or involuntarily, become the subject of any bankruptcy, insolvency, reorganizat ion 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.
• 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 . • The account necessary to provide any Service is closed. • 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.
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• Erase or delete any Software we have provided relating to the terminated Service to the extent it is stored in your computers.
• 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.
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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 Services.
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.
ACH Managed Processing means that all credit Entries
are required to be prefunded and settlement of debit
Entries will receive delayed availability as further
described in the applicable User Documentation
ACH Services mean those Services, includi ng ACH
Managed Processing, that 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.
Alias Based Identifier . Email address or mobile phone
number, or other Bank approved identifier, which we may establish in our sole discretion from time to time, and used to identify a recipient and the associated bank
deposit account and routing information for processing
Digital Disbursement Payment Transactions to Re gistered Recipients.
Arrives By Date. An estimated date by which a payment
will arrive at the Vendor, as generated by the Service
based on information you provide and the Process Date
you establish for the Payment Transaction within the
Service.
ATM. Automated teller machine.
Bank Approved Channel – Any electronic or other
channel approved for use in accessing the Service as
described in User Documentation.
Bills. Invoices, bills and other statements of account that you receive from Vendors which you seek t o pay using
the Service.
Bill Payment Feature . The feature of the Service
whereby you request us to make a payment to a
designated Vendor. We may make such payment by
originating an ACH credit entry to the account of the
Vendor, issuing a check drawn by you and payable to the Vendor, or by other electronic method. When we make a
bill payment we will send with the payment any
remittance information you provide.
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 Services.
Business Day. Each day on which the bank or bank office providing or facilitating a Service is open for business related to that Service.
Cardholder. Your employee or any other person who
you designate in writing and who we approve to receive a a Commercially Prepaid Card . If you or a Cardholder
makes a Commercial Prepaid Card available to another
party, that person will also be considered a Cardholder.
Check 21. The Check Clearing Act for the 21st Century
Act, 12 CFR 229 or any successor legislation. Any IRD
created and deposited to your account must comply with
all the requirements mandated by Check 21.
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.
clearXchange™. A payment company that facilitates
electronic payments by maintaining a record of the Alias Based Identifier of a Recipient and the bank name and
routing number associated with such Alias Based
Identifier. The term clearXchange™ as used in this
Amendment includes any other payment company that
provides similar services and is designated by us in the future as a service provider or payment network for use in connection with the Service.
Collected and Available Funds . Funds in an account
equal to the ledger balance minus floa t which, in our
reasonable determination, are not subject to a hold,
dispute or legal process preventing their withdrawal.
Collector. A non- consumer that is a member of the
Network and receives payments and remittance
information from Disbursers.
Commercial Prepaid Card . A pre -paid magnetic strip -
based plastic card issued by us for a Cardholder’s
purchase of goods or services or for cash withdrawals.
Controlled Disbursement Account. One or more
demand deposit accounts maintained by you with us and
used in c onnection with our Controlled Disbursement
Services.
Controlled Disbursement Point . Each bank office
designated by us through which checks issued under the
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Controlled Disbursement Service will be cleared or
routed.
Currency. When used in connection with the Safe
Connect Service, U.S. denominated cash and any such
other currency as is set forth in the User Documentation.
Disburser. A non- consumer that uses the Payment
Service to send Transaction Requests to us and on whose behalf we originate an Entry to a Collector.
Document Printing Request . Using the Document
Printing Service, a message transmitted electronically
from you to us or our third party processor requesting us to print and mail on your behalf statements, invoices and other documents.
Documents. Documents that are not Bills that you wish to store and manage electronically through the Service.
ECCHO. The Electronic Check Clearing House
Organization.
Effective Entry Date . The date specified, in accordance with the NACHA Rules, on the Entr y 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.
Electronic Image . An image conforming to the
applicable industry standards for Images.
Entries. Entries has the meaning provided in the NACHA
Rules and also includes any data for Entries and any
prenotification.
EPN Rules means the Electronic Payments Network
Rules of Membership and the Operating rules, or such
later revisions as may be adopted, and includes, but is not limited to, the Rules pertaining to UPICs (EPN UPIC
Rules), all collectively referred to as the EPN Rules.
e-Statements. Statements with respect to which you opt for electronic delivery and which are selected by you as outlined in the applicable User Documentation.
eUCP. The rules for electronic presentation of documents under the UCP.
Federal Reserve Operating Circular 3 . The Federal
Reserve Board’s Operating Circular 3, Collection of Cash Items and Returned Checks.
Fedwire Regulations . Subpart B of Regulation J of the
Board of Governors of the Federal Reserve System of the United States of America, as amended from time to time.
FX Request . A request by means permitted under the
Electronic Foreign Exchange Service s to enter into an FX Transaction.
FX Transaction . A transaction between you and us,
permitted under the Electronic Foreign Exchange
Services, 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.
ICL. An image cash letter.
Image. An Electronic Image or a Paper Image. With
regard to an Image of an original paper check, the check Image that is deposited with us pursuant to the
Commercial Deposit s section of this Booklet shall be a “check” and/or an “item” (as applicable) for all purposes under such Booklet section, any Account Agreement
between you and us relating to the collection of checks generally, the Uniform Commercial Code, the Expedited
Funds Availability Act, Re gulation CC, any other federal or state check law, and federal and clearinghouse rules, to the same extent as that original is a “check” or an “item ,” as applicable.
International Account Agreement . A form of Account
Agreement used in some countries.
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 single payments as well as batch
payments made according to multiple requests within a
single electronic data file.
Invoice Management Feature . The feature of the
Service whereby you receive Bills from Vendors via the
Service or whereby you upload invoices from Vendors
into the Service. You may use the Service to upload and manage these Bills.
IRD. When used in connection with the Commercial
Deposits section of this Booklet, an “ Image Replacement Document” or substitute check, as set forth in Check 21, which provides that a properly prepared substitute check that meets the requirements for legal equivalence is the legal equivalent of the original for all purposes.
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 Exp enses. Reasonable lawyer's fees, allocated
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CONFIDENTIAL ©Bank Of America Corporation
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 a ddress we assign to you or we accept from you for the Lockbox Services.
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.
Network. The third -party owned PayMode ® network
made up of Disbursers and Payers, using the Payment and Invoice Processing Services, as well as Collectors and
Billers.
Notice(s). In connection with the Notification Servic es, notices provided by us to you that are associated with and related to the Services provided by us to you under the terms of this Bookletor other agreement between you and us.
Paper Image . An Image that is a paper reproduction of
the related physical ch eck (the original paper item or substitute check created from an image of the original
paper item) created with image technology.
Payee Database . A database of contact information and
payment routing information for Registered Payees that is operated by a third party provider (other than the Bank).
Paying Agent. An entity as defined in 31 C.F.R. Section 321(i) of the U.S. Treasury Department’s regulations.
Payment Account . One or more demand deposit
accounts maintained by you with us and used in
connection with the Service.
Payment Advice . Using the Bank -Printed Drafts
Services, an electronic message transmitted by you to us advising us to create a draft on your behalf.
Payment Request. A request by you to us to initiate a bill payment or tax paym ent on your behalf to a Registered
Payee by means of an electronic funds transfer payment.
Payment Transaction. A request by you to us to initiate a payment on your behalf to a Recipient using a Service and/or a request by you to us to initiate a bill payment on your behalf to a Vendor by means of an ACH credit entry, other electronic funds transfer, or a check payment.
Payment Transaction Request . A message transmitted
electronically from you to us through the Service
requesting us to initiate a Payment Transaction.
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.
Process Date. The date that you designate in the Payment Transaction Request for the processing of a Payment
Transaction. Funds will be deducted from your
Settlement Account on or after this date.
RCK. A “Re-Presented Check Entry” as defined in the
NACHA Rules.
Recipient. A customer of a U.S. based bank or credit
union to whom you seek to make a disbursement payment
using the Service.
Regulation CC . The Federal Reserve Board’s
Regulation CC, Availability of Funds and Collection of
Checks.
Regulation J. The Federal Reserve Board’s Regulation J, Collection of Checks and Other Items by Federal Reserve Banks and Funds Transfers through Fedwire.
Registered Payee. Any biller or taxing authority tha t
registers its payment information with the Payee
Database, for the purpose of receiving payments,that can be processed through the Service.
Registered Recipient . A Recipient that registers with clearXchange or a bank that participates in clearXchange and provides his/her bank deposit account and routing
information to be associated with his/her Alias Based
Identifier.
Registered Vendor. A Vendor that registers its payment
information with the Vendor Database that can be
accessed through the Service.
Request. A request by means permitted under the
relevant Wire Transfer Service or International Electronic Funds Transfer Service to transfer funds to or from a
specified account or beneficiary (including standing
instructions) or to amend or canc el 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 . For the Electronic Bill Payment Consolidation Service s, it includes data
from a Bill Payment Service Provider for reversing a
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payment from one of its customers that was delivered to us by the Bill Payment Service Provider.
Safe. When used in connection with the Safe Connect
Service, the equipment (and related software and
accessories) installed at the Safe Location and used by you for depositing Currency. The Safe counts, records and reports the Currency deposited into and accepted by it.
Safe Connect Service. The service described in the
Commercial Deposits section of this Booklet , whereby
through your use of a Safe installed at a Safe Location, we receive Safe Feeds concerning your deposits into such
Safe, and afford such deposits credit, which may be
provisional, as described in this Booklet and in the User Documentation.
Safe Deposits . When used in connection with the Safe
Connect Service, deposits of Currency made by you and
accepted into the Safe, with respect to which we have
received a Safe Feed.
Safe Fe ed. When used in connection with the Safe
Connect Service, an electronic file transmission received by us from the Transportation Provider, which Feed (i)
originated from a Safe, (ii) was sent from the Safe to the Transportation Provider, (iii) was then forwarded intact to us and received intact by us, and (iv) reports the purported value of all Currency accepted into the Currency
validating portion of such Safe since the transmission of the last Safe Feed, or the first such Feed, as applicable.
Safe Locati on. When used in connection with the Safe
Connect Service, the location(s), to be mutually agreed by you and us, at which the Safe may be located.
SAOTC. Each form of Standard Account Opening Terms
and Conditions used in certain countries as an Account
Agreement.
Savings Bonds. U.S. savings bonds that each meet the
definitional requirements set forth in the Savings Bonds Provisions.
Savings Bonds Provisions . Relevant regulations and
guidelines of the Bureau of Public Debt of the U.S.
Department of the Tr easury, the Federal Reserve
Operating Circular 3, the ECCHO Operating Rules, and
such other statutory, regulatory, clearinghouse,
association and other requirements and terms (including image exchange rules), as applicable, regarding the
acceptance, transm ission, deposit, exchange and/or
processing of Savings Bonds by way of the transmission
of the images of such Savings Bonds.
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 any (i) electronic funds
transfers or payments instructions, including, without
limitation, cancellations, amendments or reversals thereto; and (ii) any instructions, data, transactions or other
information sent between you and us.
Scheduled Payment Request . A Payment Request that
you have scheduled using the Service prior to the
Settlement Date.
Scheduled Payment Transaction. A Payment
Transaction that you have scheduled through the Bill
Payment Feature prior to the Process Date.
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.
Service Inbox. An electronic mail inbox that is accessi ble by you only through the Service and which you may use
to receive Bills and Documents from Vendors.
Settlement Account . One or more demand deposit
accounts maintained by you with us and used in
connection with the Service.
Settlement Date . The date that you request that we send payments of bills and taxes initiated by you as Payment Requests. This is the date on which we will debit your
Payment Account and initiate the outgoing payment. This is not the date that the payment will be received by the Registered Payee.
Payee Database . A database of contact information and
payment routing information for Registered Payees that is operated by a third party provider (other than the Bank).
PHI: Shall have the same meaning as the term “protected health inform ation” under the Administrative
Simplification provisions of the Health Insurance
Portability and Accountability Act of 1996, Public Law
104-191, as amended, and its implementing regulations.
Software. Web-based applications accessed via a Website and/or the programs and data files provided by us for use on a computer in connection with one or more particular Services.
Standalone Account . One or more demand deposit
accounts maintained by you with us that is not linked to another account as part of a treasur y service relationship or that is not linked as a sub-account to another account in a treasury service relationship.
Statements. Account statements, account analysis,
pricing information and other information relating to
account activity or services, trans actional activity and/or cash management services with us and/or our affiliates.
Stop Payment Request. A message you send us using the
Electronic Stop Payment Services, the Check Issuance
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and Document Printing Services or the Client -Printed
Drafts Services to request that payment be stopped on a check or draft which, in the case of the Electronic 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, dir ectly 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 forms specified in the
applicable User Documentation.
Third Party Vendor : Any third party vendor (including
but not limited to, such third party vendor’s agent,
subcontractor, affiliate, representative and/or assignee) used by you to perform certain actions with respect to the Services.
Transaction. The purchase or reservation of goods or
services or a cash advance made or facilitated by use of a Commercial Prepaid Card.
Transaction Account . One or more demand deposit
accounts maintained by you with us or another financial institution and used in connection with the Payment and Invoice Processing Services.
Transaction Request . Using the Payment Service, a
message transmitted electronically from you as a
Disburser to us or our third party processor requesting us to originate an Entry to a Collector on your behalf.
Transportation Provider. When used in connection with
Safe Connect Service, the armored carrier which y ou
engage to transport Safe Currency from the Safe to the
Vault Location.
UCC. The Uniform Commercial Code.
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, 2007 Revision, ICC Publication
No. 600 or such later revision as may be adopted by the International Chamber of Commerce and be in effect on
the date th e subject letter of credit is issued; eUCP. The Supplement to the Uniform Customs and Practice for
Documentary Credits for Electronic Presentation
published by the International Chamber of Commerce that is in effect on the date the Letter of Credit is issued.
Unauthorized Use . Use of a Card Account, Card or
Convenience Check 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 benefi t 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.
Unqualified Return. An Unqualified Return Item
Deposit as defined by the Federal Reserve Board.
UPIC means the Universal Payment Identification Code,
which is a unique number that identifies both an eligible account at a UPIC Participant, and the UPIC Participant that holds the eligible account. Capitalized terms in this Booklet, not otherwise defined, are defined in the EPN
Rules.
URDG758. The Uniform Rules for Demand Guarantees
International Chamber of Commerce (ICC) Publication
No. 758, or such later revision as may be adopted by the International Chamber of Commerce and be applicable to
any guarantee.
URBPO. The Uniform Rules for Bank Payment
Obligations promulgated by the International Chamber of Commerce.
URC. The Uniform Rules for Collections, ICC
Publication No. 522, or such later revision as may be
adopted by the International Chamber of Commer ce and
be applicable to a collection.
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.
Vault Location . When used in connection with the Safe
Connect Service, the vault facility where the vaulting and related cash processing services are performed with
respect to Safe Deposits.
Vendor. A non- consumer business that sent you a Bill
requesting payment for goods or services provided by the Vendor to you.
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Vendor Database. A database of contact information and
payment routing information for Registered Vendors that is operated by a third party provider (other than the
Bank).
Website. Any internet w ebsite and/or online access
channel for use in accessing one or more Services .
© 2014 Bank of America Corporation
All rights reserved. None of the enclosed material may be reproduced or published without permission.